State Consumer Disputes Redressal Commission
Sudesh Gupta vs Shushma Buildtech on 18 October, 2024
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 88 of 2023 Date of Institution : 21.08.2023 Date of Decision : 18.10.2024 Sudesh Gupta wife of Sh.Gora Lal Gupta, R/o House No.235/8, 3-State Bank Colony, Thanesar, Kurukshetra .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 89 of 2023 Date of Institution : 21.08.2023 Date of Decision : 18.10.2024 Sudesh Gupta wife of Sh.Gora Lal Gupta, R/o House No.235/8, 3-State Bank Colony, Thanesar, Kurukshetra .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 90 of 2023 Date of Institution : 21.08.2023 Date of Decision : 18.10.2024 Gora Lal Gupta son of Sh.Ugger Sain Gupta, R/o House No.235/8, 3-State Bank Colony, Thanesar, Kurukshetra .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 91 of 2023 Date of Institution : 21.08.2023 Date of Decision : 18.10.2024 Gora Lal Gupta son of Sh.Ugger Sain Gupta, R/o House No.235/8, 3-State Bank Colony, Thanesar, Kurukshetra .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 103 of 2023 Date of Institution : 18.09.2023 Date of Decision : 18.10.2024 Ranjana Koshal wife of Sh.Rakesh Koshal R/o House no.F-502, Rishi Apartment, Sector 70, SAS Nagar, Mohali, Punjab-160017 .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 104 of 2023 Date of Institution : 18.09.2023 Date of Decision : 18.10.2024 Ranjana Koshal wife of Sh.Rakesh Koshal R/o House no.F-502, Rishi Apartment, Sector 70, SAS Nagar, Mohali, Punjab-160017 .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 105 of 2023 Date of Institution : 18.09.2023 Date of Decision : 18.10.2024 Rakesh Koshal son of Sh.Vivekanand Koshal R/o House no.F-502, Rishi Apartment, Sector 70, SAS Nagar, Mohali, Punjab-160017 .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ Complaint case No. : 106 of 2023 Date of Institution : 18.09.2023 Date of Decision : 18.10.2024 Rakesh Koshal son of Sh.Vivekanand Koshal R/o House no.F-502, Rishi Apartment, Sector 70, SAS Nagar, Mohali, Punjab-160017 .....Complainant Versus M/s Sushma Buildtech Limited, S.C.O. No. 172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh through its Authorized Signatory Sh. Binderpal Mittal S/o Sh. Jagan Nath. Sh. Binderpal Mittal S/o Sh. Jagan Nath, Authorized Signatory & Managing Director of M/s Sushma Buildtech Limited, S.C.O. No.172-173, First Floor, Sector-9-C, Madhya Marg, Chandigarh Sh. Bharat Mittal, Wholetime Director of M/s Sushma Buildtech Limited R/o H.No.233, Sector-7, Panchkula - 134109. Sh. Pardeep Kumar, Director of M/s. Sushma Buildtech Limited R/o H.No.840/1, Ram Darbar Colony, Phase-2, Chandigarh 160028. .....Opposite parties ================================================================ BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.RAJESH K. ARYA, MEMBER.
Present in all eight cases:-:
Sh.Satyaveer Singh, Advocate for the complainant(s)-on VC.
Sh.Vishal Singal, Advocate for Sh.Sanjeev Sharma, Advocate for the opposite parties.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT By this order, we propose to dispose of the aforesaid eight consumer complaints. Since, the issues involved in these complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that the same can be disposed of, by passing a consolidated order.
These consumer complaints have been filed by the respective complainants on the ground that despite the fact that they have paid entire sale consideration to the opposite parties, towards purchase of respective units in their project, details of which have been given below, possession thereof has not been delivered by the promised dates or even thereafter, for want of construction work and development activities at the project site. It has been averred that number of requests made by the complainants to complete the project in question and deliver possession of their respective units have been ignored by the opposite parties. Details with regard to the project in question; units booked by the complainants; payments made by them etc. of these complaints are given below:-
CC No. Project Unit No. and area Total cost Amount paid Agreement to sell Due date of possession Allottee 88 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali G-903, Tower No.G, 9th Floor, 1690 square feet 5577000.00 5577000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 89 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali G-902, Tower No.G, 9th Floor, 1690 square feet 5577000.00 5577000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 90 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali D-401, 4th Floor, 1860 square feet 6231000.00 6231000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 91 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali G-904, Tower No.G, 9th Floor, 1690 square feet 5577000.00 5577000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 103 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali D-102, Tower No.D, 1st Floor, 1860 square feet 6231000.00 6231000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 104 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali D-103, Tower No.D, 1st Floor, 1860 square feet 6231000.00 6231000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 105 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali D-301, Tower No.D, 3rd Floor, 1860 square feet 6231000.00 6231000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original 106 of 2023 Sushma Crescent, Gazipur, Zirakpur, SAS Nagar Mohali G-104, Tower No.G, 1st Floor, 1690 square feet 5577000.00 5577000.00 As per receipt (Ann. P-2) 07.03.2015 (Ann. P-1) 06.09.2018 (36 months plus 6 months grace period as per Clause 12 (d) of the agreement Original It has been stated by the complainants that in case the opposite parties are not in a position to deliver possession of their respective units, they be ordered to refund the entire amount paid alongwith interest compensation and litigation expenses.
These complaints have been contested by the opposite parties. Separate written replies have been filed by them, in all these eight complaints, wherein, numerous similar objections/grounds, inter alia, were taken as under:-
that the complainants have concealed material facts from this Commission;
that all the complainants are family members, who have booked the respective units in the project of the opposite parties, yet, have failed to pay even a single penny towards the same and on the other hand, the respective agreements and payment receipts have been issued to them in good faith, as they were known to the opposite parties;
that the complainants have failed to place on record any evidence qua payments made to the opposite parties against their respective units;
that the complainants are not consumers but are investors and their intention was only to make commercial gains;
that this Commission is not vested with pecuniary and territorial jurisdiction to entertain and decide these complaints;
that because the project in question is registered under RERA therefore jurisdiction of this Commission is barred;
that in case the complainants prove that they have paid the sale consideration against their respective units, the opposite parties are ready to refund the amount paid, after forfeiting the earnest money, as per clause 5.4 of the agreement;
that because of nonpayment by the complainants, their respective units have been cancelled and the same have been reallotted to other buyers, yet, the said cancellation letters are missed somewhere, inadvertently;
that there has been an inordinate delay in filing these complaints i.e. the complaints are barred by limitation;
On merits, booking of the respective units by the complainants; execution of the buyer agreements; issuance of respective payment receipts placed on record by the complainants have not been disputed by the opposite parties. However, Prayer has been made to dismiss these complaints.
In the rejoinders filed, the complainants reiterated all the averments contained in their respective complaints and have controverted those contained in written replies filed by the opposite parties.
The parties led evidence in support of their cases.
We have heard the contesting parties and have gone through the record of these cases, including the rejoinders and written arguments filed by the complainants, very carefully.
First coming to the objection taken by the opposite parties to the effect that because the complainants were having intention to purchase multiple units in the project in question, therefore they are not consumers but are investors, it may be stated here that the complainants in their respective complaints have clearly stated that they have purchased the said units for their residential purposes and also for their children and grandchildren. Thus, under these circumstances, the mere fact that the complainants have purchased the respective units for their use and also for the use of their children and grandchildren, did not mean that it was a commercial transaction, unless until it is shown that they have purchased the same for commercial purpose and especially that they are in a habit of buying and selling properties, on regular basis. If one of the family members has resources to buy houses for the other members of the family and utilizes those resources with a view to enable the family members to live together in the same project, it would be difficult to say that such a purchase would be for a commercial purpose. It was also so said by the Hon'ble National Commission, in the case titled as Kavita Ahuja Vs. Shipra Estate Ltd. And Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31. In this case also, three residential units were purchased by a consumer, one for his residential purpose and remaining two for his relatives, who suffered same objection by the builder. The Hon'ble National Commission, while negating the objection taken by the builder, held as under:-
".The first question, which arises for consideration in this case is as to whether the complainant can be said to be a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant, provides that the 'consumer' means any person, who hires or avails any services for a consideration but does not include a person, who avails of such services for any commercial purpose. The term 'service' has been defined in Section 2(1) (o) of the Act to mean service of any description which is made available to potential users and includes 'housing construction'. Since the complainant had booked three residential flats which were to be constructed by the developer, she would be a 'consumer' unless it is shown that she had booked the said residential flats for a commercial purpose. The plea taken by the opposite parties in this regard is that booking of as many as three residential flats in the same project clearly shows that the said flats were purchased by the complainant for the purpose of making investments, meaning thereby that she did not intend to live in those flats but intended to sell them later at a higher price. Vide letter dated 29.10.2012, the complainant was directed to file an affidavit, disclosing therein that for what purpose the three flats were booked by her. In compliance of the aforesaid direction, the complainant filed an affidavit stating therein that she had booked three residential flat for use and occupation for herself and her family members. She wanted to retain one flat for use as her own residence and the other two were for the use and occupation of her in-laws and younger sister Ms. Priya Chopra. She also stated that she does not have any flat or residential house in her name and is staying in a rented accommodation provided by the company; whereas her in-laws are staying in a house constructed in pre-independence period, which is more than thirty years old. She also stated that her younger sister Priya is staying with her parent and does not own a residential flat in her name. According to the complainant she wanted all the family members to stay together and at the same time also have their respective independence and that is why three flats in the same project were booked by her. No evidence has been led by the opposite parties to rebut the aforesaid averments made by the complainant. If the complainant wanted her younger sister as well as her in-laws to stay in her vicinity so that the family can be together while simultaneously maintaining their individual privacy, it cannot be said that the flats were purchased by her for a speculative purpose or for making profit by selling them at a later date. If one of the family members has resources to buy houses for the other members of the family and utilises those resources with a view to enable the family members to live together in the same complex, it would be difficult to say that such a purchase would be for a commercial purpose. "
In Sai Everest Developers & Anr. V. Harbans Singh Kohli & Ors., First Appeals No. 530 of 2015, 531 of 2015, 532 of 2015 and 533 of 2015 also, four flats were purchased by a consumer with a view to gift the same, to her four daughters. As such, a similar question, as to whether, purchase of four flats by the consumer for his/her daughters amounts to commercial transaction or not. The Hon'ble National Commission in the said appeals opined that unless it is shown by bringing on record some cogent material that a purchaser is engaged in the purchase and sale of flats/houses on regular basis with a view to make profit by sale of flats/houses, a mere purchase of a more than one flat would not per se be sufficient to hold that the purchase was for "commercial purposes". Similar view was taken by the Hon'ble National Commission in Aashish Oberai Vs. Emaar Mgf Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016 wherein also, the consumer has purchased residential unit for his and also for residential purpose of his daughter. In Akshay Sood Vs. M/S. Pal Infrastructure & Developers Pvt Ltd. & Anr., First Appeal No. 237 of 2015, decided on 02 Jan 2017, the consumer had initially booked three flats, later on changed to two flats, all in his name. The State Commission concerned came to the conclusion that if a 'consumer' purchases more than one residential unit, he knocks himself out of the ambit of the term 'consumer'. However, the said plea was rejected by the Hon'ble National Commission, by holding that unless it is shown by brining on record some cogent material that the purchaser is engaged in the purchase and sale of flats/houses on regular basis, with a view to make profit by sale of flats/houses, mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purposes. In DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316, wherein while relying upon the principle of law laid down by the Hon'ble Supreme Court of India, it was held that the mere fact that other family members of the complainant had made applications for allotment of plots in the same project, would not amount to commercial transaction. The principle of law laid down in the judgments referred to above is fully applicable to the present case. As such, objection taken by the opposite parties in this regard stands rejected.
Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that since it is clearly coming out from the respective agreements qua the units in question that the same have been executed between the parties at Registered office of the company at SCO No.172-173, 1st Floor, Sector 9-C, Chandigarh and also the respective payment receipts placed on record by the complainants have also been issued by the opposite parties from the said registered office of the company at Chandigarh, therefore all these complaints are maintainable before this Commission, at Chandigarh, in view of the provisions of Section 47 (4) (a) (b) and (c) of Consumer Protection Act, 2019 (in short the Act, 2019) which says that a complaint is maintainable before the State Commission, within the limits of whose jurisdiction, the opposite party(s) resides or personally works for gain. In this view of the matter, objection taken by the opposite parties stands rejected.
The next question that falls for consideration is, as to whether the complainants have been able to prove that they have paid the sale consideration against their respective units to the opposite parties or not. It may be stated here that though the opposite parties have taken a definite stand that the complainants have failed to pay even a single penny to them against their respective units, yet, this stand does not merit acceptance because of the following reasons:-
Firstly, in each case, the complainants have placed on record the payment receipts issued by the opposite parties themselves, showing that the entire sale consideration stood received by the company against their respective units;
Secondly, the opposite parties have neither disputed the issuance of the said payments receipts nor have disputed the execution of the respective buyers' agreement and have rather admitted issuance of the said payment receipts.
Thirdly, the opposite parties in their written version have themselves admitted that they are ready to refund the amount paid by the respective complainants, after forfeiting the earnest money, on providing proof of payment.
Though, in order to wriggle out of the situation, counsel for the opposite parties have contended that the complainants have failed to place on record any evidence qua payment of the said amount, against their respective units, yet, in our considered view, once the execution of the agreements and also issuance of the payments receipts, admitting the receipt of entire sale consideration of therespective units in question, are on record, thereafter, it requires no more evidence and/proof by the complainants.Our above view is fully supported by the ratio of law laid down by the Hon'ble Supreme Court of India in P.Ramasubbamma Versus V. Vijayalakshmi, in Civil Appeal No.2095 of 2022 decided on 11.04.2022 (2022 LiveLaw (SC) 375), wherein also it was held that once thevendor/opposite party has admitted receipt ofsubstantial advance of sale consideration in the documents issued by them, no further evidence and/proof is required. In this case also, the defendant took a plea that agreement to sell is a bogus document and no sale consideration is paid by the plaintiff. However, the Hon'ble Supreme Court while brushing aside this plea held as under:-
"....It was also contended by defendant Nos. 2 to 4 that agreement to sell dated 12.04.2005 is a bogus document and no sale consideration is paid by the plaintiff.....
xxxxxxxxxxx .......Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff - vendee. Therefore, as such the learned Trial Court rightly decreed the suit for specific performance of agreement to sell. The High Court, was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required......"
Under above circumstances, it is held that the complainants have made respective payments i.e. entire sale consideration, as reflected in the respective payment receipts issued by the opposite parties, against their respective units, to the opposite parties.
As far as objection taken by the opposite parties that the jurisdiction of this Commission is barred to entertain these complaints, in the face of registration of project in question under the RERA, it may be stated here that this objection does not merit acceptance in view of the observations made by the Hon'ble National Commission in Mohit Sharma & Anr. Vs. M/S. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon'ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016, decided on 30 Jul 2019. This objection also does not merit acceptance, in view of the ratio of law laid down by the Hon'ble Supreme Court of India in M/s Imperia Structures Ltd. v. Anil Patni & Another, (2020) 10 SCC 783, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-
".......24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.
25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.
26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called "consumers" within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.
27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- "The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint..."
This view has been reiterated by the Hon'ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021. As such, objection taken by the opposite parties in this regard stands rejected.
Now the question arises, as to what relief, the complainants are entitled to. In the written reply filed by the opposite parties, they are silent on completion of development activities at the project site. There is not even a single evidence placed on record by the opposite parties to prove that the units were ready to be delivered by the committed dates or even thereafter. Even occupation and completion certificates have also not been placed on record to prove that the project is complete in all respects.
Be that as it may, it is significant to mention here that the complainants in their respective complaints have prayed that directions be given to the opposite parties to deliver possession of their respective units, or in the alternative to refund the amount paid, in case they are unable to deliver possession, alongwith interest, compensation and litigation expenses. The opposite parties in their written statement have clearly stated that the allotment of respective units of the complainants have been cancelled and the same have been reallotted to other buyers. Under these circumstances, we are of the considered view that if we order refund of the respective amounts paid alongwith interest etc. i.e. the alternative prayer made by the complainants, that will meet the ends of justice.
Now, we will deal with the question, as to what rate of interest should be awarded to the respective complainants, while ordering refund of amounts paid, against the units in question. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he/she had deposited the money in the hope of getting a flat/plot but he/she is deprived of same; he is deprived of the benefit of escalation of the price of that flat/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new flat/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher.
Furthermore, a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession of residential units/plots, by the stipulated date or within reasonable period, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The Hon'ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23rd Dec 2019; and in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. Not only as above, even the Hon'ble Supreme Court in Vidya and Ors. Vs. M/s. Parsvnath Developers Ltd.[Civil Appeal No. 8985 of 2022] decided on July 29, 2024 under similar circumstances has awarded interest @12% p.a. on the amount to be refunded to the complainant. Relevant part of the said order is reproduced hereunder:-
"........10. In the result, the appeal is partly allowed. The direction made by the learned Commission for refund of the entire amount deposited by the complainants-appellants is upheld.
However, the direction with regard to interest is modified to the extent that it shall be paid at the rate of 12% per annum from the date of respective deposit till the date of refund. The unpaid amount in terms of the aforesaid shall be paid within a period of three months from the date of this judgment.
11. Pending application(s), if any, shall stand disposed of...."
It is therefore held that if interest @12% p.a. is awarded on the amounts to be refunded to the complainants, that will meet the ends of justice.
As far as contention raised by counsel for the opposite parties that a similar matter already decided earlier by this Commission is under stay by the Hon'ble National Commission is concerned, it may be stated here that with due respect to the said stay order, the mere fact that if some judgment passed by this Commission against the opposite parties/builder, is under stay, does not mean that this Commission cannot decide any other matter of the same builder. In Shree Chamundi Mopeds Ltd vs Church Or South India Trust Assn. 1992 AIR 1439, the Hon'ble Supreme Court has held that the stay of operation of an order only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. In this view of the matter, contention raised by counsel for the opposite parties being devoid of merits, stand rejected.
Since, it is an admitted fact that neither physical possession of units in question, has been delivered either by the promised dates or by the date when these complaints have been filed or even thereafter, as explained above, nor the amount paid by the respective complainants have been refunded by the opposite parties, as such, there is a continuing cause of action in favour of the complainants to file these complaints, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised by the opposite parties in this regard also stands rejected.
For the reasons recorded above, all these eight complaints are partly accepted with costs as under:-
In CC No.88 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.55,77,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.89 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.55,77,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.90 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.62,31,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.91 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.55,77,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.103 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.62,31,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.104 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.62,31,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.105 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.62,31,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In CC No.106 of 2023, the opposite parties, jointly and severally are directed as under:-
To refund the entire amount of Rs.55,77,000/- paid by the complainant alongwith interest @12% p.a. from the respective dates of deposits onwards within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
To pay Rs.75,000/- as compensation to the complainant for the mental harassment, agony and pain suffered on account of unfair trade practices and deficiency in rendering service and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
However, it is made clear that in case the complainant(s) have availed loan from any bank/financial institution for making payment towards their respective units, the said bank/financial institution shall have the first charge of the amount due to be paid by the complainants, out of the awarded amount.
Certified copy of this order be sent to the parties, free of cost, forthwith and one copy thereof be placed on the connected case files.
The concerned files be consigned to Record Room, after completion.
Pronounced 18.10.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.