State Consumer Disputes Redressal Commission
Sarita Chopra vs Emmar Mgf Land Pvt. Ltd. on 29 October, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 210 of 2015 Date of Institution : 09.09.2015 Date of Decision : 29.10.2015 Sarita Chopra daughter of Sh. Inderjit Chopra, resident of House No.1029, Phase-7, Mohali (Punjab). ......Complainant V e r s u s Emaar MGF Land Pvt. Limited, S.C.O. 120-122, 1st Floor, Sector 17-C, Chandigarh, through its Director 2nd Address:- Landran Banur Road, Sector 105, Mohali, Distt. Mohali (Punjab). Emaar MGF Land Pvt. Limited, S.C.O. 120-122, 1st Floor, Sector 17-C, Chandigarh, through its Manager 2nd Address:- Landran Banur Road, Sector 105, Mohali, Distt. Mohali (Punjab). .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Sunil Toni, Advocate for the complainant.
Sh. Sanjeev Sharma, Advocate for the Opposite Parties. PER DEV RAJ, MEMBER
The facts, in brief, are that the complainant was allotted plot No.468, measuring approximately 300 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali (in short the plot) @ Rs.11,500/- per square yard, and Plot Buyer's Agreement dated 20.06.2007, Annexure C-2, in respect of the plot, in question, was executed between the parties. The basic price of the said plot was to the tune of Rs.34,50,000/-. Besides, the allottee was also required to pay a sum of Rs.1,69,104/-, towards External Development Charges plus (+) Rs.3,45,000/-, towards Preferential Location Charges. Thus, the total sale consideration was in the sum of Rs.39,64,104/-.
2. It was further stated that according to Clause 8 of the Buyer's Agreement, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement) i.e. on or before 19.06.2010. It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay.
3. It was further stated that the complainant, paid the entire sale consideration to the tune of Rs.39,64,104/-, in respect of the said plot, to the Opposite Parties. However, possession of the plot, in question, was not offered to the complainant..
4. It was further stated that the complainant approached Opposite Party No.2, a number of times, with a request to deliver possession of the plot, in question, but it lingered on the matter, on one pretext or the other.
5. It was further stated that the Opposite Parties collected the huge amount, towards price of the said plot, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 20.06.2007, but they did not abide by their commitment. It was further stated that legal notice dated 12.08.2015 was also served upon the Opposite Parties but to no avail.
6. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking refund of the amount deposited; compensation; cost of litigation etc. etc.
7. The Opposite Parties, in their joint written version, pleaded that since the complainant already owned a house, address whereof, has been mentioned in the head-note of the instant complaint, as such, she (complainant) did not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Act, meaning thereby, that the complainant had purchased the plot, in question, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further stated that the complainant has concealed the fact from this Commission, that possession of the plot, in question, has already been offered to her, by the Opposite Parties, vide letter dated 11.08.2015, and, on the other hand, she did not come forward to take the same. It was further stated that, otherwise also, since possession of the plot, in question, was to be delivered by 19.06.2010, cause of action, for the first time to file the consumer complaint, accrued to the complainant, within a period of two years, from that date (19.06.2010), and, as such, the complaint having been filed on 09.09.2015, is palpably barred by time. It was further pleaded that this Commission has got no pecuniary Jurisdiction to entertain and decide the complaint. It was further pleaded that the complainant was required to be relegated to an alternative remedy of Arbitration, as provided under Clause 39 of the Buyer's Agreement. It was further pleaded that, as such, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission. It was further pleaded that time was not the essence of contract. It was further pleaded that since the complainant sought the enforcement of Agreement, in respect of the immovable property, only a suit for specific performance, in the Civil Court, was maintainable. It was further pleaded that since the requisite Court fees, has not been paid by the complainant, the complaint is liable to be dismissed, on this ground alone. The factum of allotment of the plot, in question, in favour of the complainant was admitted. It was also admitted that the Opposite Parties had received the amount of Rs.39,64,104/-, as mentioned in the complaint, from the complainant. Execution of Buyer's Agreement of the plot, in question, between the parties, was also not disputed. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty had been provided in the said Agreement, which safeguarded her rights. It was further stated that the complainant defaulted in making payment of installments, in respect of the said plot. It was further stated that even the delayed payment charges, to the tune of Rs.8,75,923/- had been waived off, by the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
9. The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
10. We have heard Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, the complainant falls with the definition of consumer, as defined under Section 2 (1) (d) (ii) of the Act, or not. No doubt, it was submitted by Counsel for the Opposite Parties that since the complainant already owned one house, address whereof, had been mentioned in the head-note of the complaint, as such, she (complainant) did not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Act, meaning thereby, that the complainant had purchased the plot, in question, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. The submission of Counsel for the Opposite Parties, in this regard, does not appear to be correct. It may be stated here that mere mentioning of any address in the headnote of complaint, does not mean that the complainant is the owner thereof, until and unless, it is proved by the Opposite Parties, by way of placing on record, cogent and convincing material evidence, in that regard. At the same time, there is no reliable evidence, on the record, that the complainant has a number of other residential units, houses, or commercial plots. Even no evidence, was produced by the Opposite Parties, that the complainant is a property dealer, and, as such, dealing in the sale and purchase of the property, on regular basis. For proving so, the party alleging the same, is required to produce some evidence, in support thereto. Recently, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of consumer, as defined by Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, therefore, being devoid of merit, is rejected.
12. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here, that according to the Buyer's Agreement, possession of the plot, in question, was to be delivered, within a maximum period of three years, from the date of signing the same, in favour of the complainant. In the instant case, neither physical possession of the plot, in question, was handed over to the complainant, by the stipulated date i.e. 19.06.2010, or till date, nor the penalty, as provided in the Buyer's Agreement, was paid to her nor the amount deposited by her was refunded. There was, thus, a continuing cause of action, in favour of the complainant, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. No doubt, while placing reliance on document Annexure R-1 dated 11.08.2015, it was argued by Counsel for the Opposite Parties, that offer of possession was made to the complainant. It may be stated here that perusal of letter dated 11.08.2015 Annexure R-1 clearly goes to show that the same is not an offer of possession but, on the other hand, an intimation of possession to the complainant besides informing the complainant that the area of the plot, in question, stood increased to 329.82 square yards from 300 square yards, as a result whereof, the price of the same was revised to Rs.49,89,618/-.
14. The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the complainant has sought refund of an amount of Rs.39,64,107/- paid by her, alongwith interest @24% from the respective dates of deposits; compensation/ penalty to the tune of Rs.9 lacs, as per Clause 8 of the Buyer's Agreement; compensation to the tune of Rs.2 lacs, mental agony, physical harassment and financial loss; and cost of litigation, to the tune of Rs.33,000/-, the aggregate value whereof, if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
15. The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the existence of an arbitration Clause 39 in the Plot Buyer's Agreement. In support of their contentions, in this regard, heavy reliance by Opposite Parties has been placed on judgment of Calcutta High Court titled as Sudarshan Vyapar Pvt. Ltd. and another Vs. Madhusudan Gupta and another, (2013) 1 CALLT 546 (Calcutta H.C.).Further reliance was placed upon a case titled as M/s S.B.P. and Co. Vs. M/s Patel Engineering Limited and another, AIR 2006 SC 450.
16. On the other hand, Counsel for the complainant stated that in terms of Section 3 of the 1986 Act, above plea supported by the said judgments, needs to be rejected.
17. In the case of M/s S.B.P. and Co.'s case (supra), the Hon'ble Supreme Court dealt with altogether a different issue i.e. what is the nature of function of the Chief Justice or his designate, under Section 11 of the 1996 Act. Whether it is purely an administrative function or the Chief Justice or his designate, has the power to adjudicate upon the issues like existence of Arbitration clause in the Agreement/its validity. None of the provisions of 1986 Act were under consideration. The Hon'ble Supreme Court in M/s S.B.P. and Co.'s case (supra) discussed in detail, the provisions of the 1996 Act, and then gave a finding that power of the Chief Justice of India or the High Court, under Section 11 (6) is not an administrative power but it is a judicial power. When discussing the question, as to who would fall within the definition of Judicial Authority, in terms of Section (8) of the 1996 Act, by making reference to ratio of judgment in the case Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385 , it was only said that judicial authority will include the Courts, and also specific Tribunals like Consumer Fora. Whether the Consumer Fora is bound to refer the matter to the Arbitrator, was not under consideration, in the above case.
18. The part of ratio of judgment in case Fair Air Engineers Pvt. Ltd. & Anr. 's case (supra) dealing with above aspect, was not discussed in M/s S.B.P. and Co.s case (supra). In the former judgment besides opining that Consumer Fora have all the trappings of the judicial authority, further, by making reference to the provisions of Section 34 of the Arbitration Act, 1940 vis-à-vis Section 3 of 1986 Act, in Fair Air Engineers Pvt. Ltd. & Anr. 's case (supra), it was observed as under:-
"It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on their own and on the peculiar facts and circumstances of the particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
19. It was specifically opined that the remedy under Section 3 of the 1986 Act, is in addition to and not in derogation to any other remedy available to an individual. Section 3 of the 1986 Act, read thus:-
"3. Act not in derogation of any other law.--The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
20. The above question was again dealt with, by the Hon'ble Supreme Court of India, in National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC), and in Paras 27 to 31, it was held as under:-
"27. The next question which needs consideration is whether the growers of seeds were not entitled to file complaint under the Consumer Act and the only remedy available to them for the alleged breach of the terms of agreement was to apply for arbitration. According to the learned counsel for the appellant, if the growers had applied for arbitration then in terms of Section 8 of the Arbitration and Conciliation Act the dispute arising out of the arbitration clause had to be referred to an appropriate arbitrator and the District Consumer Forums were not entitled to entertain their complaint. This contention represents an extension of the main objection of the appellant that the only remedy available to the farmers and growers who claim to have suffered loss on account of use of defective seeds sold/supplied by the appellant was to file complaints with the concerned Seed Inspectors for taking action under Sections 19 and/or 21 of the Seeds Act.
28. The consideration of this issue needs to be prefaced with an observation that the grievance of a farmer/grower who has suffered financially due to loss or failure of crop on account of use of defective seeds sold/supplied by the appellant or by an authorised person is not remedied by prosecuting the seller/supplier of the seeds. Even if such person is found guilty and sentenced to imprisonment, the aggrieved farmer/grower does not get anything. Therefore, the so-called remedy available to an aggrieved farmer/grower to lodge a complaint with the concerned Seed Inspector for prosecution of the seller/supplier of the seed cannot but be treated as illusory and he cannot be denied relief under the Consumer Act on the ground of availability of an alternative remedy.
29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2-Judge Bench interpreted that section and held as under:
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force. It is true, as rightly contended by Mr. Suri, that the words 'in derogation of the provisions of any other law for the time being in force' would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the provisions of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent Court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
30. In Skypak Couriers Limited v. Tata Chemicals Limited (supra), this Court observed:
"Even if there exists an arbitration clause in an agreement and a complaint is made by the consumer, in relation to a certain deficiency of service, then the existence of an arbitration clause will not be a bar to the entertainment of the complaint by the Redressal Agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force."
31. In Trans Mediterranean Airways v. Universal Exports (supra), it was observed:
"In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other statute. It does not extinguish the remedies under another statute but provides an additional or alternative remedy".
21. Reading of ratio of the judgments referred to above, make it clear that in case of M/s S.B.P. and Co.'s case (supra), the issue before the Supreme Court of India was altogether different. The provisions of 1986 Act were not under consideration viz. a viz. the provisions of 1996 Act. Ratio of the judgments have left nothing to chance. The National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013 after taking ratio of judgment in the case of M/s S.B.P. and Co.'s case (supra), came to a specific conclusion that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law, for the time being in force. It was specifically stated that ratio of judgment passed in M/s S.B.P. and Co.'s case (supra), will not debar a Consumer Fora from entertaining the complaint, even in cases where an alternative remedy of Arbitration is provided. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged above order in the Hon'ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, ( Civil Appeal No.20923 of 2013), the Hon'ble Supreme Court of India, by making reference to the ratio of judgment in the case M/s S.B.P. and Co.'s case (supra), observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction can be exercised by the Consumer Fora or not. In that judgment, the Supreme Court had not interpreted the provisions of 1996 Act in the light of the provisions contained in 1986 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act is mandatory, cannot lead to an inference that the Consumer Fora is bound to make a reference to the Arbitral Tribunal. The Hon'ble Apex Court, also observed as under:-
"Before concluding, we record our strong disapproval of the mechanism employed by persons like the appellant to frustrate one of the main objectives of the Consumer Protection Act, 1986, namely, expeditious disposal of the consumer disputes. The record of the case shows that disposal of the objection raised by the appellant has consumed almost three years' time. If the appellant had not raised frivolous and vexatious objection, the main petition may have been finally disposed of by now. Therefore, the appellant is saddled with cost of rupees one lakh which shall be deposited with the Supreme Court Legal Services Committee within a period of one month from today."
22. The position has further been clarified by the National Commission, in the latest Judgment titled as Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided on 08.06.2015. It was observed as under:-
"It was also contended by the learned counsel for the opposite party that since the agreements between the parties contains arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. I, however, find no merit in this contention. As provided in Section 3 of the Consumer Protection Act, the provision of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade practices by him. This issue came up for consideration of the Hon'ble Supreme Court in National Seeds Corporation Vs. M. Madhusudhan Reddy & Anr. (2012)2 SCC 506 and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C.P. Act it was held that the plain language of Section 3 of the C.P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The Hon'ble Supreme Court has also held that the complaint filed by a consumer before the consumer fora would be maintainable despite their being an arbitration clause in the agreement to refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon'ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. Vs. Mridul Estate Pvt. Ltd., R.P. No.412 of 2011 decided on 13-05-2013, the aforesaid contention advanced by the learned counsel for the opposite party is liable to be rejected."
23. In view of the above, it is held that the submission of Counsel for the Opposite Parties, that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Plot Buyer's Agreement, being devoid of merit, stands rejected.
24. It was next submitted by the Counsel for the Opposite Parties, that since the complainant sought enforcement of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2, in respect of the immoveable property, as such, she should have availed remedy to file a suit, for specific performance, in the Civil Court only and, as such, the consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the plot, in question, and she was allotted the same, in the manner, referred to above, for consideration. According to Clause 8 of the Plot Buyer's Agreement (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the plot, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. According to Clause 23 of the Plot Buyer's Agreement dated 20.06.2007, the Opposite Parties were responsible to provide internal services, within the Project, which interalia included laying of the roads, water lines, sewer lines, electric lines etc. etc. It was not that the complainant purchased the plot, in an open auction, on "as is where is basis", without any further promise of the Opposite Parties, of providing amenities/facilities, and developing the area, where the plot, in question, is situated. Section 2 (1) (o) of the Act, defines service as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
25. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of, as she falls within the definition of a consumer, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
26. The next question, that falls for consideration, is, as to whether, time was essence of the contract or not. It may be stated here that, as stated above, as per Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, it was clearly stipulated that possession shall be delivered within two years, but not later than three years, from the date of execution of the same (Agreement). Even after the lapse of more than eight years of execution of the Agreement, aforesaid, physical possession of the plot, in question, was not delivered. Only intimation of possession and increase in area was given to the complainant vide letter dated 11.8.2015 (Annexure R-1). Perusal of postal receipt, affixed on the top left of letter dated 11.08.2015 (Annexure R-1) shows that only name of the complainant 'SARITA CHOPRA' and 'MOHALI' has been printed on it. The complainant has denied receipt of this intimation.
27. No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon'ble Supreme Court to contend that time was not the essence of contract. The facts of Smt. Chand Rani ' s case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani ' s case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. Since the time for delivery of possession was not mentioned in the Agreement in that case, it was held that time was not the essence of contract. Whereas, in the instant case, as per Clause 23 of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2, the Opposite Parties were to handover physical possession of the said plot, in favour of the complainant, within a period of 36 months, from the date of execution of the same (Plot Buyer's Agreement dated 20.06.2007, Annexure C-2), i.e. latest by 19.06.2010. Even after the expiry of more than about 8 years, from the date of execution of the Agreement aforesaid, and more than about 5 years, from the stipulated date, physical possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
28. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. As stated above, according to Clause 8 of the Plot Buyer's Agreement dated 20.06.2007, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of the complainant, within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 20.06.2007, Annexure C-2, i.e. latest by 19.06.2010. As held above, physical possession of the unit, in question, was not delivered to the complainant, despite lapse of eight years from the date of execution of Plot Buyer's Agreement. Only intimation of possession is said to have been given to the complainant vide letter dated 11.8.2015 (Annexure R-1). On the other hand, the Opposite Parties have already received a sum of Rs.39,64,104/-, towards the said plot, as is evident from the statement of account Annexure C-4, at page 36 of the file. By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 20.06.2007, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. Rather the Opposite Parties have tried to wriggle out of inordinate delay in offering possession stating that there was delay in making payment of installments. The total amount of Rs.39,64,104/- stood paid by the complainant by 19.06.2012 (Annx.R-5). The plea of the Opposite Parties that the complainant could not claim possession in a time bound manner, is not logical when even after making complete payment, the Opposite Parties further delayed possession inordinately.
29. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.39,64,107/-, (in fact Rs.39,64,104/- deposited by her), towards the part price of plot, in question. The complainant, in the complaint has sought refund of the amount, deposited by her, towards the same. Under these circumstances, the complainant is entitled to refund of the amount, deposited by her, towards the said plot. By not refunding the amount to the complainant, the Opposite Parties were deficient, in rendering service.
30. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the National Commission, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the National Commission, holding as under:-
"It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment, with grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.
23. As appellants did not offer possession within the period prescribed under Clause 21 of the 'Apartment Buyer Agreement', the deficiency on the part of appellants, started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked, then we fail to understand as to how before completing the construction appellants demanded the aforesaid amount. This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment, subject to certain payments.
24. Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013, which was against the terms of the Agreement. The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013. Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.
25. The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of 'Apartment Buyer Agreement', The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case."
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill's case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In the above case, it was laid down as a matter of fact that non-acceptance of possession after the agreed date, would not amount to rescinding of contract. Thus, even if it is assumed for the sake of argument that intimation of possession vide letter dated 11.8.2015 amounted to possession, in view of law laid down in the aforesaid case, the complainant is entitled to refund.
31. The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.39,64,104/-, if so, at what rate. The complainant was deprived of his hard earned money, to the tune of Rs.39,64,104/-, on the basis of misleading information, given by the Opposite Parties, that she would be handed over legal physical possession of the plot, in question, on or before 19.06.2010, but they failed to do so. The complainant was, thus, caused financial loss. Hard earned money, deposited by the complainant, towards price of plot, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the plot, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer's Agreement, the Opposite Parties were charging interest @15% per annum from the complainant for delayed payment but since, in the instant case, the delayed payment charges in the sum of Rs.8,75,923/- were waived of, refund of the amount alongwith interest @12% per annum, in our considered opinion, would be just and adequate. The complainant is, therefore, held entitled to the refund of Rs.39,64,104/- amount, alongwith interest @12% P.A., from the respective dates of deposits.
32. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment caused to her. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant. The word 'compensation' is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of 'compensation'. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a long number of years, as they failed to deliver the physical possession of plot, in question, to her (complainant), by the promised date i.e. 19.06.2010. The complainant purchased the plot, with the hope to have a roof over her head, by raising construction thereon, but her hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than about 5 years, from the promised date, i.e. 19.06.2010, physical possession of the plot, has not yet been offered, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.2,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.2,00,000/-.
33. No other point, was urged, by the Counsel for the parties.
34. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-
To refund the amount Rs.39,64,104/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.30,000/- to the complainant.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
35. Certified Copies of this order be sent to the parties, free of charge.
36. The file be consigned to Record Room, after completion.
Pronounced.
October 29, 2015.
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[JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad