State Consumer Disputes Redressal Commission
Harmit Singh Arora vs M/S Country Colonisers on 2 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 164 of 2016
Date of institution: 26.05.2016
Date of order reserved: 20.01.2017
Date of Decision: 02.02.2017
Harmit Singh Arora S/o Sh. Puran Singh, R/o House No. 1617, Phase IX,
Mohali, Punjab.
Complainant
Versus
1. M/s Country Colonisers Private Limited, Registered Office P.O.
Rayon and Silk Mills, Adjoining Coca Cola Depot, GT Road, Chheharta,
Amritsar, Punjab - 143 105 through its Managing Director or Authorised
Signatory Harmandeep Singh Kandhari
Corporate Office : A-25, Mohan Co-operative Industrial Estate, Main
Mathura Road, New Delhi 110 044.
CIN No. U70100PB2005PTC08663
2. Harmandeep Singh Kandhari, Authorized Signatory of M/s Country
Colonisers Private Limited, A-25, Mohan Co-operative Industrial Estate,
Main Mathura Road, New Delhi 110 044. DIN : 01028271
OR Wave Estate, Sector 85, Sahibzada Ajit Singh Nagar, Punjab - 140308
(estate.thewavegroup.com)
3. Wave Estate, Sector 85, Sahibzada Ajit Singh Nagar, Punjab - 140
308 through its Manager.
Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Consumer Complaint No. 164 of 2016 2
Present:-
For the complainant : Sh. Ajay Singla, Advocate
For the opposite parties : Sh. Bikramjit Arora, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint against Opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short 'the Act') on the averments that Ops have launched their project Wave Gardens, Sector 85, SAS Nagar (Mohali) and complainant agreed to purchase an apartment in the said project, which was to be completed within a period of 30 months with an extended period of 6 months. Apartment allottee agreement was executed between the parties on 26.12.2012 and Apartment No. 401, Tower ERICA, Floor 4th, Type 3 BHK was allotted. According to the agreement, the total price of the apartment was fixed as Rs. 70,68,750/- and for 3 BHK, booking amount was Rs. 5 lacs, 15% was to be paid within 45 days, next 10% within 90 days. On commencement of construction 10% was to be paid and the remaining amount was to be paid in instalments @ 7.5% of the basic price as per the stage of the construction and 5% was to be paid at the time of possession. The complainant paid a sum of Rs. 55,35,497/-, the detail of which is as under:-
Payment Plan Payment Made Annexure
(including Service
Tax)
On booking 300000.00 C-2
Within 45 days of 1065,00.00 C-4
booking 15% of sale 346500.00 C-5
price less booking 140077.00 C-6
Amt.
Consumer Complaint No. 164 of 2016 3
Within 90 days of 363367.00 C-7
booking 365350.00 C-8
On commencement 364367.00 C-9
of construction 364350.00 C-10
On completion of 273269.00 C-11
ground floor roof slab 273269.00 C-12
of the tower
On completion of 4th 273269.00 C-13
floor roof slab of the 273269.00 C-14
tower 273269.00 C-15
On completion of 8th 450000.00 C-16
floor roof slab of the
tower
On completion of 12th 700000.00 C-17 (for 8th and 12th
floor roof slab of the floor roof slab of the
tower tower)
On completion of final 118641.00 C-18
roof slab of the tower 350000.00 C-19
Other stages of the construction are pending and the complainant has not received any letter from the side of Ops to pay the balance amount as per the stage of the construction. The Ops did not complete the apartment within the stipulated time. When he approached Ops, they put lame excuses. Then he issued a notice dated 11.4.2016 detailing the facts therein but no reply was given by Ops. Not to deliver the possession within the stipulated time after receiving the major amount, is deficiency in service on the part of Ops. Accordingly, this complaint has been filed by the complainant against Ops with directions as under:-
"a) direct the Opposite Parties to refund the paid amount i.e. Rs. 55,35,497/- for the apartment in question along with interest @ 24% per annum, in the interest of justice.
b) direct to Opposite Parties to pay compensation to the tune of Rs. 8,00,000.00 for the harassment, mental agony, expenses and loss caused to the complainant; Consumer Complaint No. 164 of 2016 4
c) direct Opposite Parties to pay Rs. 1,50,000.00 towards the cost and the present legal proceedings;
d) direct Opposite Parties to pay charges for delay in possession as mentioning in the arrangement be directed to be paid to the complainant till the actual repayment of the apartment in question along with interest:
e) direct the Opposite Parties to return the amount charged from the complainant other than the basic sale price of the flat as till today the complainant has not used the apartment;
f) Any other relief which this Hon'ble Commission deems fit.
2. Complaint was contested by Ops, who filed their written reply taking preliminary objections that the complainant does not come within the definition of the consumer as defined under Section 2(1)(d)(i) of the Act as the apartment was booked for investment purposes; intricate questions of law and facts are involved, which cannot be adjudicated in the summary procedure, therefore, the matter be relegated to the Civil Court; the complainant has not approached the Commission with clean hands; the complainant committed default in the performance of the terms of the apartment agreement and failed to pay the full price as per the agreed terms and also delayed the instalments paid by him. His Cheque No. 387720 drawn of Punjab National Bank dated 25.5.2012 of Rs. 2 lacs was bounced, another cheque No. 610351 drawn on Oriental Bank of Commerce dated 5.6.2012 also bounced and then the complainant paid this amount by way of demand draft No. 0381146 dated 19.6.2012; the complainant want to pull out of the agreement without Consumer Complaint No. 164 of 2016 5 any reason on the plea that the construction was not completed within the agreed time, however, there is no agreed time of mandatory completion of the construction as provided in Clause 5.1 and 5.2 of the agreement, the complaint for refund of the amount is not maintainable; the present complaint is barred being not maintainable in view of the Arbitration Clause in the apartment agreement. On merits, it was again reiterated that the complainant is not a consumer. The booking of the apartment is admitted. The payments made by the complainant have also been admitted but there was delay in making the payment. As per the agreement, the time was not essence to complete the apartment within the agreed time, it was directory in nature. Moreover, in case the complainant himself was in default for not making timely payment then he cannot raise defaulting finger on the part of Ops. The complaint for refund of the amount is not maintainable. It has been stated that the complaint is without merit, it be dismissed.
3. The parties were allowed to tender their respective evidence.
4. The complainant had tendered into evidence affidavit of Sh. Harmit Singh Arora S/o Sh. Puran Singh R/o House No.1617, Phase IX, Mohali Punjab as Ex. CW1/A alongwith documents i.e. copy of apartment allottee(s) arrangement dated 26.12.2012 as Ex.C-1, copy of receipt-basic price dated 25.05.2012 as Ex.C-2, copy of receipt basic booking amount dated 20.06.2012 as Ex.C-3, copy of receipt dated 16.07.2012 as Ex.C-4, copy of receipt dated 16.07.2015 as Ex.C-5, copy of receipt dated 16.07.2015 as Ex.C-6, copy of Consumer Complaint No. 164 of 2016 6 receipt dated 28.09.2012 as Ex.C-7, copy of receipt dated 18.10.2012 as Ex.C-8, copy of receipt dated 29.03.2013 as Ex.C-9, copy of receipt dated 30.04.2013 as Ex.C-10, copy of receipt dated 25.02.2014 as Ex.C-11, copy of receipt dated 27.08.2014 as Ex.C-12, copy of receipt dated 11.09.2014 as Ex.C-13, copy of receipt dated 06.01.2015 as Ex.C-14, copy of receipt dated 07.01.2015 as Ex.C-15, copy of receipt dated 20.03.2015 as Ex.C-16, copy of receipt dated 20.03.2015 as Ex.C-17, copy of receipt dated 27.07.2015 as Ex.C-18, copy of receipt dated 11.07.2015 as Ex.C-19, copy of legal notice dated 11.04.2016 and receipts dated 12.04.2016 as Ex.C-20. On the other hand, Ops had tendered into evidence affidavit of Mr. Raghav Sharma S/o Sh. B.K. Sharma, Manager Legal authorized Signatory of M/s Country Colonisers Pvt. Ltd. Wave Garden at Wave Estate, Sector 85 & 99, S.A.S. Nagar Mohali as Ex.OPs/A alongwith documents i.e. copy of application for provisional allotment dated 25.05.2012 as Ex.OPs/1, copy of payment demand notice dated 30.06.2012 as Ex.OPs/2, copy of payment demand notice dated 06.08.2012 as Ex.OPs/3, copy of payment demand notice dated 30.01.2014 as Ex.OPs/4, copy of payment demand notice dated 25.05.2014 as Ex.OPs/5, copy of payment demand notice dated 02.12.2014 as Ex.OPs/6, copy of payment demand notice dated 03.02.2015 as Ex.OPs/7, copy of payment demand notice dated 23.05.2015 as Ex.OPs/8, copy of statement of account dated 12.10.2015 as Ex.OPs/9, copy of details of chart showing the payment demanded and receipts as Ex.OPs/10, copy of reminder-1 drafted on dated 20.06.2014 as Ex.OPs/11, copy of postal receipts Consumer Complaint No. 164 of 2016 7 dated 23.06.2014 as Ex.OPs/12, copy of reminder-II drafted on dated 05.07.2014 as Ex.OPs/13, copy of postal receipts dated 08.07.2014 as Ex.OPs/14, copy of reminder-1 drafted on dated 30.11.2015 as Ex.OPs/15, copy of postal receipts dated 02.12.2015 as Ex.OPs/16, copy of reminder-II drafted on 15.01.2016 as Ex.OPs/17, copy of postal receipts dated 20.01.2016 as Ex.OPs/18, copy of outstanding letter dated 10.07.2015 as Ex.OPs/19, copy of receipt of courier dated 11.07.2015 as Ex.OPs/20, copy of outstanding letter dated 24.10.2015 as Ex.OPs/21, copy of receipt of courier dated 27.10.2015 as Ex.OPs/22, photographs of site as Ex.OPs/23 and copy of letter dated 19.01.2012 as Ex.OPs/24.
5. We have heard the learned counsel for the complainant Sh. Ajay Singla, Advocate and counsel for the Op Mr. Bikramjit Arora, Advocate and have carefully gone through the averments made in the complaint, written reply filed by Ops, evidence and documents on the record and the written submissions made by the counsel for the complainant.
6. Before taking the complaint on merits, some preliminary objections have been raised by the counsel for the Ops, therefore, those are required to be decided before taking the complaint on merits. It has been contended by the counsel for the Ops that the complainant is not a consumer as defined under Section 2(1)(d) of the Act as the apartment was booked for investment purposes as he is owing a residential house in Phase IX, Mohali. In the application, he has given his permanent address of Mohali, however, to support this contention, the counsel for the Ops has not placed on the record Consumer Complaint No. 164 of 2016 8 any document showing that the address mentioned in the application of apartment agreement i.e. House No. 1617, Phase IX, Mohali is the ownership of the complainant. It is not always necessary that in case any permanent address has been given by the complainant, the same is owned by him. Therefore, in the absence of any specific evidence on the record, we do not agree with the plea raised by counsel for the Ops that complainant is not a consumer as defined under Section 2(1)(d) of the Act or that the apartment was booked by the complainant for investment purposes.
7. The next point taken by the counsel for the Op is that intricate questions of law and facts are involved, which are not possible to be dealt with in the summary procedure, therefore, the matter be relegated to the Civil Court. It has not been denied by the counsel for the Op that the construction services are covered under the definition of "service" as defined under the Act. Both the parties have led their respective evidence. Counsel for the Ops was not able to tell before us what type of other evidence was to be led by him before the Civil Court, which has not been allowed to him to put here. It is a special enactment for expeditious disposal of to the Consumer Cases, otherwise, the matter in the Civil Court will prolong for years together. Then under Section 3 of the Act, additional remedy has also been provided to deal with these type of services by the Consumer Fora. A reference can be made to the judgment of 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, Consumer Complaint No. 164 of 2016 9 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. A reference can also be made to the judgment of the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 that wherein it was observed 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'. We are of the opinion that this Commission is fully competent to deal with these type of complaints and the objection taken by the Ops that the matter be relegated to the Civil Court cannot be accepted.
8. It has been stated that the complainant is not approached the Commission with clean hands as he has failed to pay the full price as per the agreement. As per the averments in the complaint, the complainant has already paid a sum of Rs. 55,35,497/- and further there is statement of account given by Ops in which they have admitted the payment from the side of the complainant as Rs. 55,51,879/-. It is construction link plan and the payment is to be made Consumer Complaint No. 164 of 2016 10 according to the stage of the construction. Still the project is not complete, the counsel for the Ops has not referred any letter, which was issued by Ops regarding stage of the construction for which payment has not been made. Therefore, payment is to be made according to the stage of the construction, therefore, it cannot be said that there is a default on the part of the complainant to make the payment. In case any payment has been delayed, the payment was lateron received by him and regularized by him. Even according to their account statement Ex. Ops-9, no interest for delayed payment has been charged, which seems to have been waived by the Ops, otherwise it would have been reflected in the statement of account. Therefore, we cannot say that the complainant has not approached this Commission with clean hands.
9. It has also been argued by the counsel for the Ops that present complaint is not maintainable in view of Arbitration Clause in the agreement. Clause 13 of the apartment allottees agreement has been referred but alongwith written reply no application under Section 8 of the Arbitration and Conciliation Act, 1996 was filed by the counsel for the Ops, which was mandatory in case Ops required to refer the matter for arbitration. Even if there is Arbitration Clause in the agreement, Section 3 of the CP Act gives the jurisdiction to this Commission as an additional remedy. Therefore, the objection raised by the counsel for the Ops is not maintainable that the complaint is not maintainable as there is Arbitration Clause in the agreement.
10. As per the case of the complainant, the complainant had applied for one apartment with Ops. Apart from evidence of the Consumer Complaint No. 164 of 2016 11 complainant in the form of affidavit Ex. CW1-A, he has placed on the record apartment allottees agreement Ex. C-1 according to which the total price of the apartment has been mentioned as Rs. 70,68,750/-, preferential location charges Rs. 3,53,438/-, car parking charges Rs. 1,50,000/-, club membership charges Rs. 75,000/-, maintenance Rs. 94,250/- and total Rs. 77,41,438/-. The complainant had chosen for payment plan, which was construction linked plan as referred above. According to the complainant, he has paid a sum of Rs. 55,35,497/-, which have not been denied by the Ops. The case of the complainant is that as per agreement Clause No. 5.1 (Ex. C-1), the Ops were to complete the apartment as far as possible within 30 months alongwith an extended period of six months from the execution of the apartment allottee agreement and/or from the date of start of the construction. In case we take the date of agreement then the construction should be complete by 25.12.2015. The counsel for the complainant has referred to the receipt Ex. C-9 vide which a sum of Rs. 3,53,445/- was paid on commencement of construction, which is 29.3.2013 and in case 36 months are taken from that date then the flat should be complete by end of March, 2016. Admittedly, the same is not complete. Ops have taken the plea that it was not completed as the timely payments were not made by Ops and that one cheque of Rs. 2 lacs had bounced for two times but lateron draft was given and payment was regularized. There can be delay of some days in making any particular payment. The statement of account submitted by Ops is Ex. Ops-9, according to that in this statement of account, they have not calculated any penal interest. During the course of Consumer Complaint No. 164 of 2016 12 arguments, it was stated by counsel for the Ops that keeping in view the wider scenario of real property in these days that the customer should not abandon the project, they did not charge the penal interest.
11. He has further referred to Clause 5.2 of the agreement, which reads as under:-
5.2 For the purposes of this Apartment Allottee(s) Arrangement "Force Majeure" shall mean any event or circumstance or a combination of events and circumstances, whether occurred or likely to occur, which satisfies all or any of the following conditions:
Materially and adversely affecting the "Said Project"/Group Housing development named as "Wave Gardens" and/or the performance of an obligation of the Developer; And are beyond the control of the Developer:
And includes (without limitation), subject to satisfaction of the above conditions, the following events and/or circumstances:
a) War (whether declared or undeclared), invasion, armed conflict or act of foreign enemy;
b) Revolution, riot, insurrection or other civil commotion, act of terrorism or sabotage;
c) Strikes, industrial disputes and/or lockouts and/or interrupting supplies and services to the "Said Project";
d) Non-payment of sums due from the Allottee(s) including payment of instalment/applicable interest and levies as Consumer Complaint No. 164 of 2016 13 mentioned herein above on time by any of the Allottee(s) of the said "Apartment".
e) Change in governmental policy, laws (including, any statute, ordinance, rule, regulation, judgment, notification, order, decree, permission, license or approval), including but not limited to, expropriation or compulsory acquisition by any Government of any part of the Housing Project or rights therein;
f) Acts of God or events beyond the reasonable control of the affected party which could not reasonably have been expected, including any effect of the natural elements, including lightning, fire, earthquake, unprecedented rains, landslide, subsidence, flood, storm, cyclone, epidemics or plagues or any other similar effect;
g) Any dispute between the Developer and the Allottee(s) and/or between the Developer and the person, persons, association of persons obstructing and creating hurdle in the progress of the development work of the "Said Project"
and/or Group Housing development named as "Wave Gardens" and/or any proceeding initiated in this regard:
h) Any judgment or order of any court of competent jurisdiction or Government in India or the State Government or any Local Body or Statutory Authority, made against the Developer in any proceedings;
i) Any other reason which can be construed to be beyond the control of the normal human being;"Consumer Complaint No. 164 of 2016 14
According to this clause, in case there are force majeure circumstances then there can be delay in the project but as per the written statement no such force majeure circumstances have been pleaded by the Ops in its written statement. During the course of arguments, it has been stated that due to non-payment of due instalment, it was not completed. As stated above, a sum of Rs. 55,35,497/- has already been paid and the remaining amount was to be paid according to the stage of the construction. The Ops have not written any letter after receiving payment on 11.7.2005 i.e. next stage has come and that the complainant should pay the next instalment. Therefore, this plea taken by the Ops is not substantiated on the basis of evidence on the record. It was further stated that no specific date was mentioned in the agreement, therefore, time was not essence of the agreement. Since the time period has been given as maximum 36 months from the date of agreement, the date of agreement is there and from the date of start of the construction and date of start of the construction has already been given 29.3.2013, therefore, 36 months can be counted from that date, therefore, we do not agree with the plea raised by the counsel for the Ops that specific date for completion of the construction has not been given in the agreement.
12. It has been further stated that the agreement between the parties is not cancelled, therefore, refund cannot be allowed to the complainant as per the terms and conditions of the agreement as there is no refund clause. No doubt that there is no refund clause as per the terms and conditions of the agreement but in case time Consumer Complaint No. 164 of 2016 15 schedule has been given by Ops then they must adhere to the time schedule. Some reasonable explanation can be given but in case even after the extension, the Ops do not complete the project then they are entitled to the refund. A reference can be made to the judgment of the Hon'ble National Commission reported in II (2014) CPJ 131 (NC) "Punjab Urban Planning and Development Authority (PUDA) versus Kanwal Preet Singh". In that case, there was delay in handing over the possession. It was observed that there is deficiency in service, refund can be given.
13. Alongwith the refund clause, counsel for the complainant in the complaint has pleaded that in case any other relief is available to the complainant that be granted to the complainant. Therefore, in case agreement has not been cancelled and Ops are ready to complete the project then they can be asked to hand over the possession after receiving the balance payment.
14. No other point was raised.
15. In view of the above, we accept the complaint and direct the Ops as under:-
(i) Ops to complete the project within a period of four months from the date of order as per the specifications given in the apartment allottees agreement including occupation certificate from the competent authority and hand over the possession of the apartment, complete in all respects to the complainant;
(ii) pay interest on the deposited amount @ 12% p.a. from 1.4.2016 till the date of delivery of the possession of the apartment;Consumer Complaint No. 164 of 2016 16
(iii) pay compensation of Rs. 2 lacs for mental tension, agony and harassment; and
(iv) pay litigation expenses of Rs. 21,000/-.
OR
(a) In case the possession of the apartment is not delivered to the complainant as specified above, then Ops will refund the amount so deposited by the complainant i.e. Rs. 55,35,497/- alongwith interest @ 12% p.a. from the date of deposit till the date of payment.
(b) Pay Rs. 2 lacs on account of compensation for mental tension, agony and harassment; and
(c) Rs. 21,000/- as litigation expenses.
16. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
17. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 02, 2017. (Surinder Pal Kaur)
as Member