State Consumer Disputes Redressal Commission
Ms. Manisha Mittal vs Emaar Mgf Land Private Limited on 1 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.299 of 2017
Date of institution : 02.05.2017
Date of decision : 01.09.2017
1. Ms. Manisha Mittal w/o Dr. Bhagwant Rai Mittal, R/o House
No.96, Sector 24-A, Chandigarh.
2. Dr. Bhagwant Rai Mittal S/o Sh. Charan Dass Mittal, R/o House
No.96, Sector 24-A, Chandigarh.
....Complainants
Versus
1. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi
Marg, New Delhi-110001, through its Managing
Director/Authorized Signatory.
2. Sanjay Malhotra, CEO-cum-Director, Emaar MGF Land Limited,
ECE House, 28, Kasturba Gandhi Marg, New Delhi.
3. Shravan Gupta, Director, Emaar MGF Land Limited, ECE House,
28, Kasturba Gandhi Marg, New Delhi.
4. Shilpa Gupta, Director, Emaar MGF Land Limited, ECE House,
28, Kasturba Gandhi Marg, New Delhi.
5. Anil Bhalla, Director, Emaar MGF Land Limited, ECE House, 28,
Kasturba Gandhi Marg, New Delhi.
6. Abhiram Seth, Director, Emaar MGF Land Limited, ECE House,
28, Kasturba Gandhi Marg, New Delhi.
7. Bharat Bhushan Garg, Director, Emaar MGF Land Limited, ECE
House, 28, Kasturba Gandhi Marg, New Delhi.
8. Mohamed Ali Rashed Alabbar, Director, Emaar MGF Land
Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.
9. Rahul Bindle, Director, Emaar MGF Land Limited, ECE House,
28, Kasturba Gandhi Marg, New Delhi.
10. Amit Jain, Director, Emaar MGF Land Limited, ECE House, 28,
Kasturba Gandhi Marg, New Delhi.
Consumer Complaint No.299 of 2017 2
11. Haroon Saeed Siddiqui, Director, Emaar MGF Land Limited,
ECE House, 28, Kasturba Gandhi Marg, New Delhi.
12. Ashish Narayan Prasad Kabra, Director, Emaar MGF Land
Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.
13. Ahmed Jamal Jawa, Director, Emaar MGF Land Limited, ECE
House, 28, Kasturba Gandhi Marg, New Delhi.
14. Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-
C, Chandigarh, through its Regional Manager/Branch
Manager/Authorized Signatory.
15. Emaar MGF Land Limited, Banur Landran Road, opposite
Reliance Petrol Pump, Sector 105, Mohali Hills, Mohali, Punjab,
through its Manager/Authorized Signatory.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainants : Ms. Ruchi Sekhri, Advocate For OPs No.1,14 & 15 : Sh. Ashim Aggarwal, Advocate For OPs No.2 to 13 : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), seeking issuance of following directions to the opposite parties:
i) to refund ₹54,43,192/-, along with interest at the rate of 18% per annum from various dates of deposit till realization;
ii) to pay ₹50/- per sq.yds. per month, as per Clause 8 of the Buyer's Agreement dated 04.07.2007 from the date of execution Consumer Complaint No.299 of 2017 3 of the Buyer's Agreement till deliver of physical possession of fully developed plot;
iii) to pay ₹5,00,000/-, as compensation on account of the mental tension and harassment caused to the complainants; and
iv) to pay ₹33,000/-, as litigation expenses.
Brief facts, as set out in the complaint, are that opposite party No.1 is a registered Company, who is running real estate business in India, through its Directors, opposite parties No.2 to 13. The complainants are husband and wife and complainant No.2 is a Doctor by profession, who is posted at PGI, Chandigarh. The opposite parties advertised for sale of plots at their project, "Mohali Hills", in Sectors 105, 108 and 109, Mohali. In April, 2009, the complainants contacted the opposite parties for purchasing a plot, who informed that plots in Sector 105, Mohali had already been booked. However, they introduced the complainants with Sh. Sandeep Goyal and Mrs. Surbhi Goyal, who got themselves registered with the opposite parties, vide their Application Form No.1433 and were allotted plot No.139, measuring 400 sq.yds. (approximately), situated in "Central Greens", Sector 105, Mohali, at the rate of ₹11,500/- per sq.yd. The total consideration, including the sale price plus preferential location charges (PLC) of ₹5,75,000/- on account of plot facing the park, was ₹54,43,192/-. On 04.07.2007, the opposite parties entered into Plot Buyer's Agreement with said Sandeep Goyal and Surbhi Goyal. The complainants paid ₹50,83,192/- on 18.04.2009 to the said Sh. Sandeep Goyal and Mrs. Consumer Complaint No.299 of 2017 4 Surbhi Goyal, who further paid the same to the opposite parties. The complainants also paid the remaining instalment of ₹2,30,000/- to the opposite parties, vide cheque No.337435 dated 13.06.2009. Thus, the complainants jointly purchased the rights in said plot, situated in the project of the opposite parties, from the said Sandeep Goyal and Surbhi Goyal. The opposite parties, vide their letter dated 15.05.2009, duly acknowledged the transfer of the said plot in the names of the complainants. The last instalment of ₹2,30,000/- was waived by the opposite parties, being eligible for 'Pay on time" reward, as was duly informed by them to the original buyers, vide letter dated 30.03.2009. As per Clause-8 of the agreement dated 04.07.2007, the opposite parties were to deliver the possession of the plot, in question, within a period of 2 years from the execution of the agreement, but not later than 3 years i.e. by 04.07.2010. However, the opposite parties did not offer the possession even after the expiry the said period. Clause 8 of the agreement further laid down that the opposite parties would be liable to pay a penalty of ₹50/- per sq.yd. per month for the period of delay beyond the said three years. The complainants visited the opposite parties many times and also wrote letter dated 17.05.2013 to them, with a request to deliver the possession of the plot, in question, but to no effect. In fact, the opposite parties have not fully developed the plot, as agreed. In fact, the said plot falls in the public passage, which is not the ownership of the opposite parties. The complainants brought this fact to their notice. The opposite parties, vide their reply dated 25.06.2013, stated that they had accomplished considerable Consumer Complaint No.299 of 2017 5 infrastructure work in all the sectors at Mohali Hills and also offered an option to relocate an alternative unit, in case the complainants wanted early possession. The opposite parties, vide their letter dated 21.05.2014, also asked the complainants for settlement of final dues. The complainants, vide reply dated 26.05.2014, stated that no dues were pending against them, as all the instalments had already been cleared by them, fully and finally. Ultimately, the opposite parties offered alternative unit No.105-CP-47B-438 in Sector 105 to the complainants, vide e-mail dated 11.08.2014, which was acceptable to them. The complainants visited the site, but found that there were no roads constructed, no provision of sewerage, water and electricity. They also came to know that some dispute was going on at the site between the management and contractor. It further transpired that the plot, in question, falls in the revenue passage and the opposite parties sold the same, without any jurisdiction and, thus, illegally merged the public passage in their own project. The act and conduct of the opposite parties amounted to deficiency in service, which caused great mental tension and harassment to them.
Defence of the Opposite Parties
2. Upon notice, opposite parties No.1, 14 and 15 appeared and filed their joint written reply, whereas opposite parties No.2 to 13 did not appear before this Commission despite their service and were proceeded against ex parte.
3. Opposite parties No.1, 14 and 15, in their written reply, raised certain preliminary objections that this Commission has no Consumer Complaint No.299 of 2017 6 pecuniary jurisdiction to entertain this complaint, as the value of claim + compensation, including interest claimed, exceeds Rs.1.00 Crore. The complainants do not fall under the definition of 'consumers', as defined in Section 2 (1) (d) of the Act, as they purchased the plot, in question, for commercial purpose. As per Clause-39 of the agreement, the present dispute is liable to be referred to the arbitrator. The complaint is time barred, being filed beyond 2 years of the alleged cause of action. The time was never the essence of the contract and there was no definitive agreement stating that the possession would definitely be delivered within 3 years. Opposite parties No.2, 7 and 9 are not the Directors of Emaar MGF Land Limited and they have been unnecessarily impleaded. Opposite parties No.3 to 6, 8 and 10 to 13 are also not necessary parties, as no relief has been claimed from them. On merits, it was admitted that the complainants are re-allottees and purchased the plot, in question, in resale on 15.05.2009. It was further admitted that the complainants paid a sum of ₹52,13,192/- against the plot, in question. It was pleaded that the Company had executed Buyer's Agreement with the original allottees, Sh. Sandeep Goyal and Ms. Surbhi Goyal, on 04.07.2007. It was also admitted that as per Clause-8 of the agreement, the possession was endeavoured to be delivered within 3 years from the date of execution of the agreement, failing which the stipulated penalty was to be paid to the allottee. Hence, there was no assurance to deliver possession within 3 years. As per settled principle of law, in cases of immovable property and construction, time is never regarded as the essence of the Consumer Complaint No.299 of 2017 7 contract, more so, when the penalty clause is provided under the agreement for the alleged delay. The complainants purchased the plot from secondary market after being duly satisfied and no assurance was ever given by the opposite parties. All the documents, including provisional allotment letter, Buyer's Agreement and receipts were duly endorsed in favour of the complainants on 15.05.2009. The complainants, being re-allottees, cannot claim any compensation or interest for delay in delivery of possession, as they cannot claim parity with the original allottees. The letter of the complainants dated 15.05.2013, asking for possession, was duly responded by the Company on 25.06.2013. They were duly informed that the development activity was being expedited and in case, they wanted early possession, then the opposite parties were willing to offer relocation of plot, where possession could be expedited. However, the complainants never reverted to the said offer. It was further pleaded that the Government of Punjab has granted exemption to the opposite parties from provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), which is duly mentioned in clause B of the agreement. There is no deficiency in service on the part of the opposite parties. All other allegations levelled in the complaint were also denied and it was prayed that the complaint be dismissed with exemplary costs.
Evidence of the Parties
4. To prove their claim, the complainants tendered affidavit of Ms. Manisha Mittal, complainant No.1 as Ex.CW/A, along with Consumer Complaint No.299 of 2017 8 documents Ex.C-1 to Ex.C-3, Ex.C-4/1 to Ex.C-4/10, Ex.C-5 to Ex.C- 11, Ex.C-12/1 to Ex.C-12/4, Ex.C-13 and Ex.C-14.
5. Opposite parties No.1, 14 & 15 tendered affidavit of Sh. Gurdeep Singh as Ex.OP-1/A, along with documents Ex.OP-1/1 to Ex.OP-1/7 Contentions of the Parties
6. We have heard learned counsel for the complainants and opposite parties No.1, 14 and 15, as opposite parties No.2 to 13 did not appear before this Commission despite their service and were proceeded against ex parte. We have also gone through the record carefully.
7. Learned counsel for the complainants vehemently contended that the opposite parties sold the plot, in question, to the complainants, for a total sale consideration of ₹54,43,192/- in resale and made endorsement in the agreement, vesting all the rights in favour of the complainants, which were vested in the earlier allottees. The said plot was earlier allotted to one Sandeep Goyal and Surbhi Goyal, in whose favour agreement was executed on 04.07.2007. The complainants paid ₹50,83,192/- to the said Sandeep Goyal and Surbhi Goyal, who further paid the same to the opposite parties. The complainants also paid the remaining instalment of ₹2,30,000/- to the opposite parties, vide cheque No.337435 dated 13.06.2009, vide receipt dated 16.06.2009. However, the opposite parties failed to complete/develop the plot and to deliver its possession within the stipulated period of 3 years, as per Clause-8 of the agreement, thereby Consumer Complaint No.299 of 2017 9 making themselves liable to pay penalty of ₹50/- per sq.yd. per month for the delay in delivery of possession till actual delivery of possession. The opposite parties, being not in a position to deliver the possession of the plot, in question, offered relocation of alternative plot, vide their letter dated 25.06.2013; which was totally an eyewash, as they even did not offer the plot in a Sector, in which development work had been completed. In fact, some dispute was going on between the management and contractor at the site of the plot, in question. It also transpired that the plot, in question, falls in the revenue passage and the opposite parties illegally sold the same to the complainants without any jurisdiction, by merging the public passage in their own project. Due to deficiency in service on the part of the opposite parties, the complainants suffered mental tension and harassment. Therefore, the complainants are entitled to refund of the amount deposited by them, along with interest, penalty and compensation. It was further contended that while determining the pecuniary jurisdiction, the interest component is not to be added. This Commission has the pecuniary jurisdiction to entertain and decide this complaint. Learned counsel for the complainants, in support of his contentions, relied upon the following cases:
i) M/s S.D. Enterprises v. National Insurance Co. Ltd. & 4 Ors.
2017 (1) CPJ 527 (NC);
ii) Manjit Kaur v. Emaar MGF Land Limited 2017 (1) CLT 438 (Chandigarh State Commission); and Consumer Complaint No.299 of 2017 10
iii) Harpreet Chawla v. Emaar MGF Land Limited & Anr.
Complaint Case No.332 of 2017, decided on 28.08.2017 (Chandigarh State Commission.
8. Learned counsel for opposite parties No.1, 14 and 15 vehemently contended that this Commission has no pecuniary jurisdiction to entertain this complaint, as the value of claim + compensation, including interest claimed, exceeds ₹1.00 Crore. As per Clause-39 of the agreement, the present dispute is liable to be referred to the arbitrator. It was further contended that there was no definitive agreement stating that the possession would definitely be delivered within 3 years. In cases of immovable property and construction, time is never regarded as the essence of the contract, specifically when the penalty clause is provided under the agreement for the alleged delay. The complainants purchased the plot from secondary market to their full satisfaction and the opposite parties gave no assurance regarding the plot, in question. Being re-allottees, the complainants are not entitled to any compensation or interest for delay in delivery of possession, as they cannot claim parity with the original allottees. The letter of the complainants dated 15.05.2013, asking for possession, was duly replied by the Company, vide letter dated 25.06.2013 Ex.OP/2, informing the complainants that the development activity was being expedited and in case, they wanted early possession, then the complainants can opt for relocation of plot, where possession could be expedited. However, the complainants never accepted the said offer. It was further contended that the opposite parties are exempted by the Consumer Complaint No.299 of 2017 11 Government of Punjab from provisions of PAPRA, as is evident from clause B of the agreement. There is no deficiency in service on the part of the opposite parties nor the complainants ever suffered any mental tension and harassment. The complainants are not entitled to any relief and the complaint is liable to be dismissed. Learned counsel for the opposite parties relied upon M/s Omaxe Chandigarh Extension Developers Primate Limited & 2 Ors. v. Lalitha Saini First Appeal No.1364 of 2017, decided on 21.08.2017 (Hon'ble National Commission).
Consideration of Contentions
9. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties.
10. First of all, we would like to dispose the preliminary objection raised by the opposite parties that as per Clause-39 of the agreement, Ex.C-2, the dispute between the parties is liable to be referred to the arbitrator.
11. This point has already been discussed exhaustively and decided by this Commission in M.A. No.1587 of 2015 in Consumer Complaint No.73 of 2015 (Jatinder Pal Singh & Anr. Vs. M/s Bee Gee Builtech & Anr.) decided on 08.03.2017 and, after discussing various judgments of the Hon'ble Supreme Court and National Commission, it was held that the remedy, provided under Section 3 of Consumer Protection Act, 1986, is an independent and additional remedy and existence of an arbitration clause in the agreement to Consumer Complaint No.299 of 2017 12 settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer.
12. Recently also, the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as "Aftab Singh Versus EMAAR MGF Land Limited & Anr held that an Arbitration Clause in the afore- stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Therefore, the aforesaid objection raised by the opposite party in the present case is rejected.
13. The further objection raised by the opposite parties is that the pecuniary jurisdiction of this Commission is barred, as the value of claim, compensation, including interest sought exceeds ₹1.00 Crore.
14. Similar question came up for consideration before the Hon'ble State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Consumer Complaint No.456 of 2016 decided on 11.1.2017 (Mrs. Mansi Khanna and another v. M/s Puma Realtors Private Limited) in which after discussing the judgment of Hon'ble National Commission in Ambrish Kumar Shukla's case (supra) it has been held by the State Commission as under:-
"18. Another objection taken by the opposite parties, with regard to pecuniary jurisdiction of the Commission, also deserves rejection. It may be stated here, that the complainants have sought refund of amount of Rs.52,97,183.82Ps., (excluding interest claimed @18% p.a. from the respective dates of Consumer Complaint No.299 of 2017 13 deposits); compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.2 lacs, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore.
No doubt, opposite parties no.1 and 2 have relied upon the ratio of judgment titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016, to say that if interest claimed @18% p.a. on the amount, referred to above, is added to other reliefs, this Commission has no pecuniary Jurisdiction to entertain the complaint. In the first instance, it is very necessary to mention here that, in the present case, even if for the sake of arguments, interest claimed is added in the reliefs claimed by the complainants, the aggregate value thereof comes to Rs.97,47,511.94Ps. which is below Rs.1 crore. As such, in no way, it can be said that this Commission has no pecuniary jurisdiction to entertain the present complaint.
Now coming to the stand of opposite parties no.1 and 2, taken under the ratio of judgment Ambrish Kumar Shukla and 21 ors. (supra), it may be stated here that to clarify the position, a similar question fell for determination before this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd., and another, Consumer Case No. 484 of 2016, decided on
15.12.2016, wherein while negating the said plea, it was held as under:-
"Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Consumer Complaint No.299 of 2017 14 Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.
In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint. However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties. Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-
"3. Complaint (at pp 17-36) was filed with the following prayer :Consumer Complaint No.299 of 2017 15
"It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant."
4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs.
18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage.
Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission."
It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the Consumer Complaint No.299 of 2017 16 particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.
As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).
In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua Consumer Complaint No.299 of 2017 17 one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co- equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition, it was observed as under:-
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for Consumer Complaint No.299 of 2017 18 consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi."
In Ambrish Kumar Shukla case (supra), ratio of judgment- Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above Consumer Complaint No.299 of 2017 19 proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Another's case and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission. If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected. "
15. Furthermore, it would be appropriate to reproduce the relevant provisions of Section 17 of the Act, which confers jurisdiction upon the State Commission. Section 17 (1) (a) (i) reads as follows:Consumer Complaint No.299 of 2017 20
Jurisdiction of the State Commission. -- (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore;
16. It is clearly mentioned in the above provision that to entertain a complaint, the value of the goods or the services and compensation, if any, claimed, if exceeds ₹20 Lacs, but does not exceed ₹1 Crore, has to be taken into consideration. The interest component is not mentioned therein.
17. Another aspect of the present case is that payment of compensation at the rate of ₹50/- per sq.yd. per month, as per Clause 8 of the Buyer's Agreement, is to be only paid by the opposite parties, if the complainants demand possession and the possession is delivered late. This clause of the agreement is not applicable in the present case, because the refund of the amount deposited by the complainants is going to be ordered, as the plot, in question, falls in public passage. Furthermore, the refund of the amount deposited, along with interest or may be without interest, can be ordered by this Commission.
18. In view of the proposition of law reproduced above as well as the above provision contained in Section 17 of the Act, we are of the view that interest component is not to be included for determining the pecuniary jurisdiction of this Commission. Accordingly, it is held Consumer Complaint No.299 of 2017 21 that this complaint falls within the pecuniary jurisdiction of this Commission, as the amount to be awarded will certainly be less than ₹1 Crore. The authority relied upon by the learned counsel for the opposite parties is distinguishable, in view of proposition of law.
19. Now coming to the merits of the case, admittedly, the complainants purchased the plot, in question, from the opposite parties in resale. In fact, the plot, in question, was earlier purchased by one Sandeep Goyal and Surbhi Goyal and Plot Buyer's Agreement Ex.C-2 was executed in their favour on 04.07.2007 by the opposite parties. The opposite parties made endorsement on the said agreement, vesting all the rights, which were vested in favour of Sandeep Goyal and Sudhir Goyal, in favour of the complainants with regard to the plot, in question. The total cost of the plot was ₹54,43,192/-. Admittedly, the complainants made payment of ₹50,83,192/- to Sh. Sandeep Goyal and Ms. Surbhi Goyal, who further paid that amount to the opposite parties. The copies of various payments receipts are Ex.C-4/2 to Ex.C-4/8, which shows deposit of various amounts by Sh. Sandeep Goyal and Ms. Surbhi Goyal to the opposite parties. The complainants further paid a sum of ₹2,30,000/- to the opposite parties, vide receipt dated 16.06.2009, Ex.C-4/9. Vide letter dated 30.03.2009, Ex.C-4/10, the opposite parties waived the last instalment i.e. 5% of the basic price, as the earlier allottee Sh. Sandeep Goyal has made payments of all the instalments well in time. Opposite parties produced Statement of Account, Ex.OP/2, which shows that a sum of ₹52,13,193/- was Consumer Complaint No.299 of 2017 22 deposited with them by the complainants. The complainants cannot claim refund of the amount waived off by the opposite parties.
20. As per Clause-8 of the agreement, Ex.C-2, the Company was to endeavour to deliver the possession of the plot, in question, within a period of two years from the date of execution of the agreement, but not later than three years, subject to force majeure conditions beyond the control of the Company, failing which the Company was liable to pay penalty at the rate of ₹50/- per sq.yd. per month for the period of delay. The agreement was executed in favour of original allottees on 04.07.2007 and the plot, in question, was transferred in favour of complainants, vide endorsement dated 15.05.2009 made on the agreement Ex.C-2. However, the opposite parties failed to deliver the possession of the plot, in question, either to the original allottees or to the complainants within the stipulated period. Even after the transfer of the plot, in question, in favour of the complainants, a period of more than 8 years has elapsed, but the complainants are still without possession of the plot, in question, despite making payment of approximately full price of the same to the opposite parties. Complainant No.1 wrote letter dated 17.05.2013, Ex.C-5, to the opposite parties, requesting to deliver the physical possession of the fully developed plot, in question. The Company sent reply dated 25.06.2013, Ex.C-6, stating that consideration infrastructure work had been accomplished in all the sectors at the site and that they were expediting the development activity in the concerned area. They also admitted in that letter about their liability to Consumer Complaint No.299 of 2017 23 pay penalty, in case delay in delivery of possession. It was further mentioned in that letter that in case the complainants wanted early possession, then they may offer an option to relocate an alternative unit (subject to availability). However, the complainants alleged that the said offer was just an eyewash and in fact no plot was offered to be relocated.
21. Still further, it is the specific averment of the complainants in Para No.22 of the complaint that on inquiry, it transpired that the plot, in question, falls in the revenue passage and the opposite parties illegally sold the same without any jurisdiction, by merging the public passage in their own project. In reply to the said Para, the opposite parties in the written reply has not specifically denied this fact. There is just general denial, is as usually done in the cases by the parties. It was just denied that there are no roads or other amenities or that there was any dispute at the site. In this respect, it is relevant to mention that the above said offer of relocation of the alternative plot given by the opposite parties to the complainants, vide their letter dated 25.06.013, Ex.C-6, strengthens the averment made by the complainants in Para No.22 of the complainant. It stands clearly proved that he said offer of relocation of alternative plot was given by the opposite parties, because they are in a position to deliver the possession of the plot, in question, to the complainants.
22. It stands proved that the opposite parties failed to hand over the possession of the plot, in question, to the complainants within the stipulated period, without any sufficient reason. The complainants Consumer Complaint No.299 of 2017 24 cannot be made to wait for delivery of possession for an indefinite period. The amount paid by the complainants is a deposit held by the opposite parties, in trust of complainants and it should be used for the purpose of building the plots/flats, as mentioned in Section 9 of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"). The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the opposite parties in shattering their hope of getting the plot by waiting for all this period. In these circumstances, the complainants are entitled to refund of the amount actually deposited by them with the opposite parties, along with interest and suitable compensation. The complainants purchased the plot, in question, from Sh. Sandeep Goyal and Mrs. Surbhi Goyal and opposite parties duly made endorsement in favour of the complainants on the agreement and, as such, the complainants stepped into the Consumer Complaint No.299 of 2017 25 shoes of the original allottees. Since the opposite parties are unable to deliver possession of the plot, in question, to the complainants, so the complainants have become entitled for the refund of the amount deposited by them with the opposite parties. Thus, the penalty clause at the rate of ₹50/- per sq.yd. per month, as contained in condition No.8 of the Agreement, is not applicable in the present case.
23. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-
section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
24. The facts and circumstances of the present case clearly show that the allotment in favour of the complainants has been made by the opposite parties, in a fraudulent manner, as the complainants have specifically alleged in the complaint that the plot, in question, has been shown to be in a public passage, which is not the ownership of the opposite parties. This fact clearly proves that the opposite parties not only committed deficiency in service by not delivering the possession of the developed plot to the complainants within the stipulated period, but also adopted unfair trade practice by allotting/transferring the plot, which falls in the public passage. In these circumstances, the opposite parties are also liable to pay punitive damages to the complainants, as per Section 14 of the Act. Consumer Complaint No.299 of 2017 26
25. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund the amount of 52,13,193/-, along with interest at the rate of 12% per annum from the respective various dates of payment (made by earlier allottees as well as by the complainants) till realization;
ii) to pay ₹3,00,000/-, as compensation as well as punitive damages, for the mental tension and harassment suffered by the complainants; and
iii) to pay ₹33,000/-, as costs of litigation.
26. The opposite parties are directed to comply with this order within a period of 30 days of the receipt of certified copy of the same.
27. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 01, 2017.
(Gurmeet S)