State Consumer Disputes Redressal Commission
Simmi Batra vs Country Colonisers Pvt. Ltd. on 18 May, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 81 of 2016
Date of institution : 16.03.2016
Date of decision : 18.05.2017
1. Simmi Batra wife of Sh. Jatinder Batra, resident of 3054,
Blood Donors Society, Sector 50-D, Chandigarh.
2. Sh. Jatinder Batra son of Sh. Gobind Batra, resident of 3054,
Blood Donors Society, Sector 50-D, Chandigarh.
....Complainants
Versus
1. Country Colonisers Private Limited, (Wave Group Company)
Through its Chairman Sh. Rajinder Singh Chadha, having their
registered Office C-1, Sector-3, Noida - 201301, Uttar Pradesh.
2. Country Colonisers Private Limited, (Wave Group Company)
Through its Vice Chairman Sh. Manpreet Singh Chadha, having
their registered Office C-1, Sector-3, Noida - 201301, Uttar
Pradesh.
3. Country Colonisers Private Limited, (Wave Group Company)
Through its Managing Director Sh. R.K. Panpalia, having its Office
at C-1, Sector-3, Noida - 201301, Uttar Pradesh.
4. M/s Country Colonisers Pvt. Ltd., An Wave Infratech Venture
Through its Branch Head having its Office at Site Office at Sector
85, Mohali, Punjab.
....Opposite parties
Consumer Complaint No. 81 of 2016 2
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the complainants : Sh. Sanjeev Sharma, Advocate
For the opposite parties: Sh. Bikramjit Aroura, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
Complainants have filed this complaint under Section 17 of the Consumer Protection Act, 1986 (for short the Act) against the opposite parties (hereinafter referred as Ops) on the averments that the complainants were looking for a decent residential accommodation at Mohali and were got allured by the advertisement and promotions made by Ops. They approached Ops in May, 2012. Ops assured that it is the luxury project. They assured that possession will be handed over to the complainants within a short period in the year 2015 itself i.e. within 36 months from the date of execution of buyer's agreement. Impressed with the project of Ops, they booked one 2 BHK apartment at 1st Floor and made a payment of Rs. 3,00,000/-. Ops allotted apartment No. 102, 2 BHK, Wave Garden, Tower B, Bougainvillea, Sector 85, Mohali having super area approx. 1380 sq. ft. and built up area 1178.8 sq. ft. @ Rs. 3750/- per sq. ft. with basic sale price of Rs. 51,75,000/- alongwith PLC charges of Rs. 2,58,750/- and Rs. 1,50,000/- towards Car parking charges and Club Membership Consumer Complaint No. 81 of 2016 3 charges of Rs. 75,000/- with total price of Rs. 57,27,750/-. The buyer's agreement was executed between the parties on 24.8.2012. After that the complainants approached HDFC Bank and availed a home loan of Rs. 38,81,728/-. The complainants kept on paying the installments to the Ops and the bank also kept on disbursing the loan to the Ops. There was tripartite agreement under which Ops had agreed to bear Pre-EMI interest to the HDFC Bank on behalf of the complainants upto August, 2014. However, this period was lateron extended upto 31.12.2015. According to Clause 5.1 of the agreement, possession of the apartment was to be given within a period of 30 months with the grace period of 6 months from the date of execution of the agreement i.e. latest by 23.8.2015. According to Clause 5.5 of buyer's agreement, if the Ops failed to offer the possession then they were liable to compensate the allottee @ Rs. 5/- per sq. ft. per month of the super area. However, Ops failed to offer the possession of the apartment as agreed. The complainant visited the project site in February, 2016 and found that there was no development at the site. They have not got any completion certificate of the project from GMADA, which is necessary before handing over the possession of the apartment to the complainants. The complainants have paid a sum of Rs. 52,52,890/- as demanded by Ops from time to time. Alleging deficiency in service on the part of the Ops, the complainant has filed this complaint against Ops seeking directions:-
Consumer Complaint No. 81 of 2016 4
"A) to refund the whole amount of Rs. 52,52,890/- paid by the complainants to Op along with interest @ 18% p.a., as charged by the opposite parties for delay in payment of installments from the complainant, till the date of actual realization.
B) To pay compensation in terms of Clause No. 5.5 of the plot buyer agreement i.e. Rs. 5/- per sq. ft. w.e.f. 23.8.2015 i.e. (the date of expiry of grace period of offering the possession) i.e. till the actual date of realization of amount. C) To pay compensation to the tune of Rs. 5,00,000/-
(Rupees Five Lakh) to the complainant for highly negligent, deficient service, illegal and unlawful acts and for the mental agony, harassment, stress, strain caused to the complainant because of the act and conduct of the Ops.
D) to pay a sum of Rs. 55,000/- towards Litigation expenses/Charges."
2. Upon notice, Ops appeared and filed their joint written reply taking preliminary objections that the complainants are not a consumer as defined under Section 2(1)(d) of the Act as complainant No. 2 is a broker-cum-investor and running his business of real estate under the name and style "Landbase Infratech Pvt. Ltd." SCF 67, Ist Floor, Phase 3B2, Mohali, therefore, he had got the apartment for commercial purposes jointly in his name and the name of his wife and they had also invested in other apartment No. B-702 in the name of Mr. Ramesh Gupta; the complaint is not maintainable for want of territorial jurisdiction; that Consumer Complaint No. 81 of 2016 5 intricate questions of law and facts are involved, which cannot be tried in summary, therefore, the matter be referred to the Civil Court; the complainants have not come to the Commission with clean hands and suppressed the material facts; under the tripartite agreement for subvention scheme, the bank was to pay the amount according to the stage of the construction and EMI commences from the month, following the month in which the loan disbursement is complete till such time, Ops were liable to pay pre-EMI interest. Ops were liable to bear the pre-EMI interest upto 8.2.2015 but lateron it was extended upto December, 2015; the complaint is liable to be dismissed as Housing Development Finance Corporation Ltd. (in short HDFC) has not been impleaded as a party; under Clause 5.1, the time given to complete the construction was not mandatory, it was mentioned only that 'endeavour' will be made to hand over the possession of the apartment within a period of 36 months from the date of execution of the agreement; the prayer for refund of the paid amount is not maintainable in the light of the terms and conditions of the tripartite agreement as the maximum amount was disbursed by the Bank; the complainant cannot take the advantage of their own wrong for causing delay in making payment and that there is arbitration clause and in case there is any dispute between the parties, the matter was required to be referred to the Arbitrator under Arbitration and Conciliation Act, 1996. On merits, moving the application and allotment of Apartment No. 102, 2 BHK, Wave Garden, Tower B, Bougainvillea, Sector 85, Mohali in favour of the Consumer Complaint No. 81 of 2016 6 complainants is admitted. Earlier they had opted for construction linked plan and lateron they opted for subvention plan and tripartite agreement was executed between the complainant, Ops and HDFC bank under which after disbursement of loan, the Ops had agreed for pre-EMI interest for a period of 24 months till February, 2015, which was extended upto 31.12.2015. According to Clause 5.1 of the agreement, it was not mandatory to deliver the possession within a period of 36 months but it was agreed that every endeavour will be made to handover the possession of the apartment within 36 months. Further a sum of Rs. 4,74,840/- is still outstanding against the complainants. There was no deficiency in services on the part of the Ops. Complaint is without merit, it be dismissed.
3. To support his contentions, the parties led their respective evidence. Complainant in his evidence has tendered affidavit of Jatinder Batra as Ex. CW-1 and documents Ex. C-1 to C-13. On the other hand, Op Nos. 1 & 2 had tendered documents affidavit of Harmandeep Singh Kandhari Ex. Op-1-4/A and documents Ex. Op-1-4/1 to Ex. Op-1/4-9.
4. We have heard the counsel for the complainant as well as learned counsel for the Ops and have carefully gone through the averments made in the complaint, written reply filed by the Ops, evidence and documents on the record.
5. Firstly, a plea has been taken by the counsel for the Ops that the complainants are not a consumer as defined under Section 2(1)(d)(ii) of the Act as he is a broker-cum-investor and Consumer Complaint No. 81 of 2016 7 running his business of Real Estate under the name and style of "Landbase Infratech Pvt. Ltd." SCF 67, Ist Floor, Phase 3B2, Mohali. To prove this fact, the Ops have filed affidavit of Harmandeep Singh Kandhari, Authorised Signatory of Ops, who reiterated this fact in his affidavit but to support this plea, they have not place on the record any document. In case, complainant No. 2 is running the business under the name and style of "Landbase Infratech Pvt. Ltd.", its documentary evidence should have been brought on the record. Whereas in the oral arguments submitted by counsel for the complainants, he has stated that he is just an employee in this firm. So far as House No. 3054, Sector 50-D is concerned, it is also not in their name, it is in the name of the father of complainant No. 2. To support this plea, no document has been placed on the record that the House of Sector 50-D is in the name of complainant No. 2. It has been further stated that Apartment No. B-702 in the name of Mr. Ramesh Gupta was also booked by the complainant but no document has been placed on the record, no affidavit of Ramesh Gupta has been placed on the record that the flat booked in his name is actually belong to complainant No. 2. There is no previous record that the complainants deal in Real Estate and had been selling and purchasing the properties. To support this plea, there is judgment of the Hon'ble National Commission reported in II (2017) CPJ 25 (NC) "Dr. Poonam Aggarwal versus Gujral Associates & Anr." wherein it was observed that unless there is evidence on record that complainant was engaged in business of selling and purchasing of properties on Consumer Complaint No. 81 of 2016 8 regular basis, it would not be proper to classify such acquisition as commercial activity merely on the basis of number of units booked by such person.
6. It has been alleged by Ops that the State Commission did not have the territorial jurisdiction to entertain the complaint. As is clear from the facts of the case, the project is located at Mohali and they have one of their office at Sector 85, Mohali and according to Section 11 of the Act, in case Ops have one of their office at Mohali and the property is located at Mohali in the State of Punjab, therefore, we are of the opinion that the Punjab State Consumer Disputes Redressal Commission has a territorial jurisdiction to entertain this complaint. Counsel for the Ops has taken this objection just for the sake of objection but failed to justify how the State Commission did not have the territorial jurisdiction to entertain this complaint.
7. With regard to the capability of the State Commission on account of intricate questions of law and facts are concerned, it is an admitted fact that service of construction is 'service' as defined under Section 2(1)(d)(ii) of the Act and documents are on the record, the possession as agreed has not been given in time, therefore, the complainants have sought the refund of the amount. We do not see any complicated question of law and fact, which cannot be adjudicated by the State Commission, which is headed by the retired High Court Judge. To support this, a reference can be made to the judgment of the Hon'ble Supreme Court in the case Consumer Complaint No. 81 of 2016 9 of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 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'. It was held by the Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. Therefore, we do not agree with the plea of the Ops that the matter in dispute cannot be decided before the Consumer Fora or that it should be relegated to the Civil Court. Therefore, we do not agree with the plea raised by the counsel for the Ops that the matter be referred to the Civil Court.
8. It is next argued that HDFC has not been made a party to the complaint. No doubt that under the tripartite agreement, loan was raised from HDFC and a part of the loan was disbursed to the Ops as per the stage of the construction. It is a different agreement under which the complainants owe the liability to clear the loan Consumer Complaint No. 81 of 2016 10 taken by them from the HDFC, otherwise, there is no deficiency in services on the part of HDFC, therefore, it was required to be made a party. In case the complainants have sought a refund as admitted by counsel for the complainants his loan account with HDFC will be cleared first before taking any amount by the complainants. Therefore, HDFC is not necessary party to adjudicate the complaint between the complainants and Ops.
9. Ops raised the objection that there is arbitration clause No. 13 exist in the agreement and in case of any dispute arose between the parties, the matter is to be referred to the Arbitrator. In case the Ops were really interested that the matter should be referred to the Arbitrator then they should have moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 alongwith the written reply but no such application was filed. Otherwise under Section 3 of the CP Act, additional remedy has been provided under the Act, therefore, we are of the opinion that the Consumer Fora are duly competent to deal with the complaint despite having the arbitration clause in the agreement.
10. Coming to the facts of the case, the complainant had booked 2 BHK apartment with Ops. Ex. C-1 is the brochure given the detail of the project. Ex. C-2 is the application form dated 14.5.2012 vide which a sum of Rs. 3,00,000/- was paid to the Ops and as per the registration particulars the basic sales price is Rs. 51,75,000/-, PLC price Rs. 2,58,750/-, car parking charges Rs. 1,50,000/- for one car park and club membership charges Rs. 75,000/-. Buyer's agreement is Ex. C-3. Ex. C-4 is the letter from Consumer Complaint No. 81 of 2016 11 HDFC in which pre-EMI interest has been referred as Rs. 19,127/- as on 10.4.2015. Ex. C-5 is the receipt of Rs. 3,00,000/- deposited by the complainants. Alongwith that there are other receipts dated 27.9.2012, 16.2.2013, 14.2.2013, 22.3.2014, 22.3.2014, 1.12.2014, 15.6.2015, 29.7.2015 and 9.2.2016. Under the Tripartite agreement, pre-EMI interest was to be paid by the Ops upto February, 2015 but it was extended upto 25.12.2015 vide letter Ex. C-7. As per the statement of account Ex. C-9, a sum of Rs. 50,98,499/- has been stated to be paid and balance has been shown as Rs. 1,54,391.39p. Ex. C-10 is the letter showing the balance amount of Rs. 1,54,391.39p. Ex. C-13 is the email from the Ops in which they have stated that they will make every endeavour to provide the possession by April, 2017. In the documents produced on the record by Ops, they have tendered agreement between the parties and extension of pre-EMI interest upto 31.12.2015. In the complaint, it has been stated by the complainants that a sum of Rs. 52,52,890/- has been paid and in reply to that they have stated that the complainants out of the total amount of Rs. 57,27,750/-, a sum of Rs. 4,74,840/- is still outstanding and the amount paid comes to Rs. 52,52,910/-, in this way, the figure given by the complainants in the complaint with regard to payment of Rs. 52,52,890/- seems to be correct.
11. Whether there is deficiency in service on the part of Ops? According to Clause 5.1 of the agreement, it was provided as under:-
Consumer Complaint No. 81 of 2016 12
"5.1 Subject to Clause 5.2 and further subject to all the Allottee(s) of the said "Apartment" in the "Said Project"
making timely payment, the Developer shall endeavor to complete the development of "Said Project" in general and the said "Apartment" in particular as far as possible within 30 (thirty) months along with an extended period of (6) six months from the date of execution of this Apartment Allottee(s) Arrangement and/or from the date of start of construction of Group Housing named as "Wave Gardens"
which is later."
According to this Clause, the maximum period for which the possession of the apartment was to be given is 36 months, otherwise, in case it would have been only the endeavour then there was no requirement to refer the period. In case the Ops were getting the money from the complainants or his banker or does not give the possession then certainly, it is a deficiency in services on the part of Ops. Although in the email Ex. C-13 dated 5.3.2016, it has been stated that every endeavour shall be made to deliver the possession by April, 2017. Now we are in May, 2017 and counsel for the Ops was unable to tell within how much period, they will be able to deliver the possession after getting the completion certificate, therefore, in case despite agreement the Ops are not come forth with any definite plea as to when they will give the possession then the complainants have every right to seek for the refund as the Ops had not sticked to the schedule given by them. Counsel for the complainants have made a reference to the Consumer Complaint No. 81 of 2016 13 judgment of the Hon'ble National Commission II (2014) CPJ 131 "PUDA versus Kanwalpreet Singh" that in case there is delay in handing over the possession, it amounts to deficiency in service and refund order can be passed. A reference has also been made to I (2017) CPJ 513 (NC) "Neha Suri versus Unitech Reliable Project Pvt. Ltd." In that case, the possession of the flat was not given as agreed. It amounts to deficiency in service. Amount deposited alongwith interest was ordered to be refunded. Similar order was passed in I (2017) CPJ 113 "Vishal Issar v. Park Wood Developers Pvt. Ltd.". This Commission has already held in Consumer Complaint No. 164 of 2016 "Harmit Singh Arora versus M/s Country Colonisers Private Limited", decided on 2.2.2017 against the same opposite party that in case possession of the apartment has not been given as agreed then it amounts to deficiency in service and that the complainants are not bound to pay further payments when the project is not coming in site and refund alongwith interest was ordered. The present complaint is also on the similar facts.
12. No other point was argued.
13. In view of the above, we accept the complaint and direct the Ops as under:-
(i) to refund the amount of Rs. 52,52,890/- deposited by the complainants with Ops alongwith interest @ 12% minus pre-EMI interest already paid by Ops to financial institution. Consumer Complaint No. 81 of 2016 14
(ii) the amount paid by the financial institution i.e. HDFC Bank will be paid first and then the remaining amount will be paid to the complainants.
(iii) pay Rs. 2,00,000/- on account of compensation and mental tension; and
(iv) Rs. 21,000/- as litigation expenses.
The above directions be complied within 45 days from the receipt of certified copy of the order.
14. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
15. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER May 18, 2017.
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