National Consumer Disputes Redressal
Splendor Landbase Ltd. & Anr. vs Satbir Singh on 2 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 834 OF 2018 (Against the Order dated 18/01/2018 in Appeal No. 1504/2017 of the State Commission Haryana) 1. SPLENDOR LANDBASE LTD. & ANR. 501-511, SPLENDOR FORUM, 5TH FLOOR, PLOT NO. 03, DISTRICT CENTRE JASOLA 2. SPLENDOR LANDBASE LTD. ADJOINING ANSAL API SUSHANT CITY, SECTOR 19, PANIPAT HARYANA. ...........Petitioner(s) Versus 1. MAMTA ARORA W/O. SHRI SHYAM ARORA, R/O. NO. 14, BATO WALA, PANIPAT HARYANA ...........Respondent(s) REVISION PETITION NO. 835 OF 2018 (Against the Order dated 18/01/2018 in Appeal No. 1506/2017 of the State Commission Haryana) WITH
IA/5213/2018(Stay) 1. SPLENDOR LANDBASE LTD. & ANR. 501-511, SPLENDOR FORUM, 5TH FLOOR, PLOT NO. 03, DISTRICT CENTRE JASOLA 2. SPLENDOR LANDBASE LTD. ADJOINING ANSAL API SUSHANT CITY, SECTOR 19, PANIPAT HARYANA. ...........Petitioner(s) Versus 1. SATBIR SINGH S/O. SH. CHATAR SINGH, R/O. VILLAGE CHIRSAMI, TEHSIL GANAUR, DISTRICT-SONEPAT HARYANA ...........Respondent(s) REVISION PETITION NO. 836 OF 2018 (Against the Order dated 18/01/2018 in Appeal No. 1505/2017 of the State Commission Haryana) WITH IA/5214/2018(Stay) 1. SPLENDOR LANDBASE LTD. & ANR. 501-511, SPLENDOR FORUM, 5TH FLOOR, PLOT NO. 03, DISTRICT CENTRE JASOLA 2. SPLENDOR LANDBASE LTD. ADJOINING ANSAL API SUSHANT CITY, SECTOR 19, PANIPAT HARYANA. 3. SPLENDOR LANDBASE LTD. ADJOINING ANSAL API SUSHANT CITY, SECTOR 19, PANIPAT HARYANA. ...........Petitioner(s) Versus 1. BIMLA RANI W/O. SHRI DEV DUTT ARORA, R/O. HOSUE NO. 245/3, INSAR BAZAR, PANIPAT HARYANA ...........Respondent(s) BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER For the Petitioner : Ms. Kanika Agnihotri, Ms. Namitha Mathews, Mr. Preet Oberoi, Mr. Rudresh J., Ms. Poorva Pant & Mr. Pulkit Malhotra, Advocates with Mr. Manish Prakash, A/R For the Respondent :
Dated : 02 May 2018 ORDER MRS. M. SHREESHA, MEMBER
Challenge in these Revision Petitions under Section 21 (b) of the Consumer Protection Act (in short "the Act"), is to the orders dated 18.01.2018 in Appeal Nos. 1504, 1505 and 1506 of 2017, passed by the Haryana State Consumer Disputes Redressal Commission (in short "the State Commission"). By the impugned order, the State Commission has concurred with the findings of the District Consumer Disputes Redressal Forum, Panipat (in short "the District Forum") to the effect that the Petitioners were deficient in not refunding the deposited amounts to the Complainants when they could not show any justifiable reason in not completing the construction of Tower No. A-4 admeasuring 650 sq. ft. in the 5th floor, Splendor Grande, Sector 19, Panipat.
2. For the sake of convenience Revision Petition No. 834 of 2018 is taken as the lead case. The Petitioners hereinafter are referred to as "the Opposite Parties" and the Respondent as "the Complainant".
3. The facts material to the case are: that the Complainant paid an amount of ₹10,00,000/- to the Opposite Parties along with Application dated 27.01.2013, for which the Opposite Parties issued a letter of Allotment dated 28.10.2013 for Apartment No. 504 in the aforenoted tower. It was averred that as per the terms of the Agreement the possession of the Apartment was to be delivered to the Complainant within three years from the date of the Allotment letter. Though the construction work of Tower A-4 was never commenced, yet, the Opposite Parties demanded instalments vide letters dated 24.12.2013, 16.01.2014, 13.03.2014 and 05.05.2014. The Complainant approached the Opposite Parties several times, seeking refund of her money but there was no response. Hence, the Complainant filed Complaint before the District Forum, seeking refund of the deposited amount of ₹10,00,000/- with interest @ 18% p.a. from the date of deposit till the date of realization, together with compensation of ₹2,00,000/- and costs of ₹11,000/-.
4. The Opposite Parties filed their Written Statement stating that as per Clause 13 of the letter of Allotment dated 28.10.2013, in case of any dispute between the parties, the case was to be referred to arbitration; that as per Clause 14 of the letter only the courts and tribunals at New Delhi had the jurisdiction to adjudicate upon all matters; the District Forum did not have pecuniary jurisdiction to entertain and decide the Complaint; in the provisional allotment letter issued on 28.10.2013, it was clearly agreed that the construction of the Apartment was yet to commence and the Company was to make the allotment in due course of time, subject to availability; construction of Tower A-3 was in full swing and the Complainant was offered another Apartment of the same size in tower A-3 which was constructed up to the 8th floor and therefore, there was no deficiency of service on their part.
5. The District Forum, based on the evidence adduced, allowed the Complaint in part directing the Opposite Parties to refund the amount of ₹10,00,000/- to the Complainant with interest @ 10% p.a. from the date of each payment together with costs of ₹7,700/-. Observing that as simple interest @ 10% p.a. was being awarded, the District Forum did not grant further compensation.
6. Aggrieved by the said order the Opposite Parties preferred First Appeal No. 1404 of 2017 before the State Commission, which dismissed the Appeal observing as follows:
"4. It is not in dispute that the apartment was booked in the year 2013. The builder failed to start the construction of Tower A-4, in which the complainant booked the apartment. As per Clause 06 of the Application Form (Annexure A-1), in case the builder fails to commence the construction of the project, the builder has to refund the deposited amount with interest at the rate of 9% per annum calculated for the period of which such monies have been lying with the developer. This being so, the builder cannot deny to refund the deposited amount to the complainant. The builder has not been able to show any justifiable reason not to start the construction. The builder is trying to feather its own nest, that is, to make profit, for itself, at the cost of others. It will be travesty if the complainant is made to suffer for the deliberate, inaction and negligence of the builder. Thus the District Forum was justified in directing the builder to refund the amount to the complainant alongwith interest and litigation expenses. No case for interference is made out. The appeal is dismissed".
7. Dissatisfied by the order of the State Commission, the Opposite Parties have preferred these Revision Petitions.
8. Learned Counsel representing the Opposite Parties vehemently argued that: the District Forum did not have territorial jurisdiction to entertain the Complaint as the Agreement stipulates that only the Courts and Tribunals at New Delhi will have jurisdiction; the District Forum did not have pecuniary jurisdiction as the total sale consideration of the Apartment was ₹35,06,250/- and as per the ratio laid down by a Three-Member Bench of this Commission in order dated 7.10.2016 in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd., the Complaint ought to have been filed before the State Commission; the Complainant had read and agreed to all the terms and conditions contained in the Application Form dated 21.01.2013, which stipulates that the construction of the said unit would be completed within 42 months from the date of execution of the Buyer's Agreement; that the Complainants were defaulters as they did not make the payments due, forcing the Opposite Parties to send letters dated 24.12.2013, 16.01.2014 and 05.05.2014 calling upon them to clear the dues; that the State Commission has misinterpreted Clause 6 of the Application Form and wrongly directed them to refund the amount with interest.
9. Learned Counsel drew our attention to Clause 6 of the Application Form dated 21.01.2013, which reads as follows:
"I/we are making this application with the full knowledge that the construction of the Project is yet to commence and the Company shall make the allotment of the Apartment in due course of time, subject to availability. I/We have instructed the Company that if for any reason(s) including but not limited to abandoning of the construction of the Project due to any regularity/legal reasons or any reason beyond the control of the Company, as he case may be, the Company is not in a position to finally allot an Apartment applied for within a period of one year from the date of this Application or any further time extended at the sole discretion of the Company, I/We would like to have refund of the amount paid to the Company with simple interest at the rate of 9% per annum calculated for the period of which such monies have been lying with the Company. In that event my/our application shall stand cancelled and no right, title, interest, claim or concern of any nature whatsoever shall accrue to me/us under this Application and/or the Apartment."
She contended that the Complainants were offered an alternative Apartment in Tower A-3 which was refused by them.
10. At the outset, I address myself to the first contention of the Counsel that the District Forum had no pecuniary jurisdiction to entertain the Complaint as the value of goods and services and the compensation prayed for exceeded ₹20,00,000/- which is beyond the pecuniary jurisdiction of the District forum. It is pertinent to note that Complaint Nos. 167 and 166 of 2016 were filed on 14.06.2016 and Complaint No. 90 of 2016 was filed on 28.03.2016 respectively. It is significant to mention that the judgement of Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. is dated 07.10.2016, which is subsequent to the filing of the Complaint before the District Forum. Learned Counsel relied on the judgement of the coordinate Bench in First Appeal No. 48 of 2016, by which order, this Commission has set aside the order of the State Commission, which had dismissed the Complaint on the ground of pecuniary jurisdiction. This Commission held that as the basic sale consideration of the flat in question was ₹33,73,500/-, the State Commission had taken an erroneous view that it did not have the pecuniary jurisdiction which is contrary to the order passed in the aforenoted judgment. She also relied on another judgment of this Commission in Revision Petition No. 482 of 2018 in the case of M/S. TDI Infrastructure Pvt. Ltd. Vs. Anita Jain, by which order this Commission held that as the Complainant paid an amount of ₹21,00,000/- and if the compensation prayed for is added to it, the aggregate is much more than ₹22,00,000/- and therefore, the District Forum did not have the pecuniary jurisdiction to entertain the Complaint and the Revision Petition was disposed of with the direction to the Complainant to file a fresh Complaint before the concerned State Commission.
11. In the aforenoted Revision Petition No. 482 of 2018, as the Complainant paid an amount of ₹21,00,000/-, this itself takes the case out of the pecuniary jurisdiction of the District Forum. However, in the instant case, only ₹10,00,000/- was paid towards initial deposit. It is significant to note that the Complaints were instituted much prior to the passing of the order in Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. (supra). It is apparent from the said decision that in so far the question of its applicability on the pending Complaints is concerned, no view has been expressed. Therefore, the question of the said decision being prospective or retrospective does not arise. Therefore, in the absence of any firm decision on the point, the decision in Ambrish Kumar Shukla (Supra) cannot be understood to cause prejudice to the Complainants at this late stage, in as much as, the Complaints were filed as far back as in the year 2016. It is not in dispute that when the Complaints were filed, the question of pecuniary jurisdiction was being decided consistently on the basis of the amount claimed. Applying the aforenoted decision, retrospectively would not only be repugnant but also retrograde interpretation of the objects and principles underlying the Act. If the plea now raised on behalf of the Revision Petitioners, is accepted, it would put the clock back, resulting in unwarranted delay, and in the process defeating the very purpose of the Act. It bears repetition that in both the cited orders, the aforenoted aspect whether Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd.(supra) should be applied retrospectively or prospectively was never raised and decided. Therefore, the contention of the learned Counsel that these Revision Petitions should be allowed on the ground of pecuniary jurisdiction, is unsustainable, specially keeping in view the fact that all these three Complaints were instituted much prior to the aforenoted judgment and sending them back now would defeat the very purpose of the Act.
12. The next contention of learned Counsel was that the District Forum does not have Territorial Jurisdiction to entertain the Complaint as clause 14 of the Application Form stipulates that subject to the Arbitration clause, the Courts Forums, Quashi Judicial Bodies, Tribunals etc. at New Delhi only have the jurisdiction in all matters arising out of or concerning this Application. She argued that it is settled law that once parties have mutually decided that only the Courts in New Delhi have the jurisdiction to entertain any dispute, the learned District Forum, Panipat ought not to have entertained the Complaint.
13. Section 11 of the Act which deals with Territorial Jurisdiction of the District Forum reads as under:-
11. Jurisdiction of the District Forum.--
(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 1[does not exceed rupees twenty lakhs].
(2) A complaint shall be instituted in a District Forum within the local 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, actually and voluntarily resides or 2[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 3[carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or 4[carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
14. The question of territorial jurisdiction is settled by the Hon'ble Apex Court in the case of "M/s Sonic Surgical Vs. National Insurance Company Ltd." 4(2009)CPJ 40. In the said judgement, it was held that the amended Section 17(2)(b) of the Act has to be interpreted in such a way that the expression 'Branch Office' in the amended Section 17(2) would mean the 'Branch Office' where the cause of action arises. In the Instant case, it is significant to note that not only does the second Opposite Party have an office at Panipat but also the Application Form dated 21.01.2013 for Provisional Allotment was signed at Panipat. It is also seen from the record that the amounts were paid at Panipat and therefore, viewed from any angle, it can be seen that a part of cause of action has arisen in Panipat and therefore, Section 11 of the Act squarely applies and the District Forum has inherent Jurisdiction and has rightly entertained the Complaint.
15. Another objection raised by the learned Counsel is with respect to Clauses 13 and 14 of the Application Form, which stipulate that any dispute between the parties shall be referred to a sole Arbitrator. The question of the jurisdiction of Consumer Fora in the light of the provisions of an arbitration clause, is squarely covered by a larger Bench's decision of this Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAAR MGF Land Limited & Anr. recently affirmed by the Hon'ble Apex Court.
16. In addition to all the aforenoted objections, learned Counsel submitted that the Complainants were well aware that the Opposite Parties had the right to change the location of the provisionally allotted unit and that the construction of the said project began in the year 2013 itself. On a pointed query as to whether tower A-4 in which tower the subject Apartment No. 504 was complete, learned Counsel admitted that the construction of Tower A-4 was abandoned and that the Complainants can take an alternate accommodation in Tower A-3, which offer was refused by the Complainants. It is interesting to note that the time period specified by the learned Counsel to complete the construction of the said unit was 42 months from the date of execution of the Buyer's Agreement, which was never executed. Only a provisional letter of Allotment dated 21.10.2013 was issued to the Complainants and demand letters were raised for payment of installments when the construction of the Tower A-4 had not even commenced. The Revision Petitioner's stand that the purchaser is bound by the clause which mandates that the developer has the sole right and discretion to decide on the location of the building on the project land, the dimensions, size and the location of allotment which may change in any manner and the Complainant should not raise any objection to the same, amounts to unfair trade practice.
17. The principle laid down by this Commission in Emaar MGF Land Limited & Anr. vs Amit Puri dated 30 March, 2015, which has attained finality, is that in the event of a developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the developer against allotment. It was also held that non delivery of an allotted plot, after receipt of full consideration thereof, tantamounts to deficiency in rendering service as also unfair trade practice on the part of the Appellants and that the Complainant was entirely justified in praying for the refund of the price deposited with interest for withholding the money for over seven years. In the instant case there is no illegality or infirmity in the order of the State Commission which has rightly awarded a reasonable interest @ 10% p.a. on the amount to be refunded as the Opposite Party had failed to deliver possession or refund the money received for almost 8 long years causing tremendous mental agony and physical harassment to the Complainant.
18. For the sake of argument, even if the submission of the learned Counsel that 42 months plus 6 months has to be calculated from the date of provisional allotments dated 28.10.2013, is taken into consideration, the time period has lapsed on 28.10.2017 and as per the principle laid down in the aforenoted judgment Emaar MGF Land Limited & Anr. vs Amit Puri(Supra) the Petitioners herein are bound to refund the amounts deposited by the Complainants. The conduct of the Petitioners in not refunding the amounts when the construction of the subject tower has not even commenced, leaves much to be desired. It is significant to note that the fora below have not awarded any additional compensation for mental agony and delay and in fact have awarded only a reasonable simple interest @ 10% p.a. by way of damages together with negligible costs of ₹7,700/-. I do not find any illegality or infirmity in the concurrent finding of both the fora below and these Revision Petitions are dismissed specially keeping in view our limited revisional jurisdiction as enunciated by the Hon'ble Apex court in Rubi (Chandra) Dutta Vs. M/s. United India Insurance Co. Ltd. (2011) 11 SCC 269.
19. For all the aforenoted reasons, these Revision Petitions are dismissed. No order as to costs.
...................... M. SHREESHA PRESIDING MEMBER