State Consumer Disputes Redressal Commission
Shakuntla Devi vs Emerging Valley Private Limited on 24 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 304 of 2017 Date of Institution : 07.04.2017 Date of Decision : 24-Aug-17 Smt.Shakuntla Devi wife of Late Ranjit Singh, resident of House No.581, Deep Nagar, Village Kajheri, Chandigarh. ......Complainant V e r s u s Emerging Valley Private Limited through its Director, Corporate Office SCO No.46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009. Gurpreet Singh Sidhu, Director of Emerging Valley Private Limited, Corporate Office SCO No.46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009. .... Opposite Parties Argued by: Sh.Deepak Aggarwal, Advocate for the complainant. Sh.Ravinder Singh Dhillon, Advocate for the 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 PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.272 of 2017 titled as Mohan Singh Vs. Emerging Valley Pvt. Ltd. and another, this complaint has been partly accepted with cost.
Certified copy of the order passed in consumer complaint bearing No. 272 of 2017 shall also be placed on this file.
Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 272 of 2017, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Sd/- Sd/- Sd/- (DEV RAJ) MEMBER (JUSTICE JASBIR SINGH (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 272 of 2017 Date of Institution : 31.03.2017 Date of Decision : 24-Aug-17
Mohan Singh son of Inder Singh, resident of House No.301/4, Defence Colony, Railway Road, Gurdaspur, Punjab.
......Complainant V e r s u s Emerging Valley Pvt. Ltd., Registered Office, B-57, Lower Ground South Extension, Part-II, New Delhi-49, through its Managing Director/Authorized Signatory.
Emerging Valley Pvt. Ltd., (A unit of Emerging India, Housing Corporation (P) Ltd.), through its Authorized Signatory.
SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg Chandigarh.
.... Opposite Parties Argued by:Sh.Sunil Mallan, Advocate Proxy for Sh.Inderjeet Sharma, Advocate for the complainant.
Sh.Ravinder Singh Dhillon, Advocate for the opposite parties.
===================================================== Complaint case No. :
273 of 2017 Date of Institution :
31.03.2017 Date of Decision :
24-Aug-17 Shiv Kumar son of Tara Chand, resident of House No.133, resident of Model Town, near Fire Brigade Office Pathankot, Tehsil and District Pathankot.
......Complainant V e r s u s Emerging Valley Pvt. Ltd., Registered Office, B-57, Lower Ground South Extension, Part-II, New Delhi-49, through its Managing Director/Authorized Signatory.
Emerging Valley Pvt. Ltd., (A unit of Emerging India, Housing Corporation (P) Ltd.), through its Authorized Signatory.
SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg Chandigarh.
.... Opposite Parties Argued by:Sh.Sunil Mallan, Advocate Proxy for Sh.Inderjeet Sharma, Advocate for the complainant.
Sh.Ravinder Singh Dhillon, Advocate for the opposite parties.
===================================================== Complaint case No. :
274 of 2017 Date of Institution :
31.03.2017 Date of Decision :
24-Aug-17 Balbir Raj Saini son of Sh.Mangat Ram Saini, resident of Mohalla Sarain, Tehsil and District Pathankot, Punjab.
......Complainant V e r s u s Emerging Valley Pvt. Ltd., Registered Office, B-57, Lower Ground South Extension, Part-II, New Delhi-49, through its Managing Director/Authorized Signatory.
Emerging Valley Pvt. Ltd., (A unit of Emerging India, Housing Corporation (P) Ltd.), through its Authorized Signatory.
SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg Chandigarh.
.... Opposite Parties Argued by:Sh.Sunil Mallan, Advocate Proxy for Sh.Inderjeet Sharma, Advocate for the complainant.
Sh.Ravinder Singh Dhillon, Advocate for the opposite parties.
===================================================== Complaint case No. :
304 of 2017 Date of Institution :
07.04.2017 Date of Decision :
24-Aug-17 Smt.Shakuntla Devi wife of Late Ranjit Singh, resident of House No.581, Deep Nagar, Village Kajheri, Chandigarh.
......Complainant V e r s u s Emerging Valley Private Limited through its Director, Corporate Office SCO No.46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009.
Gurpreet Singh Sidhu, Director of Emerging Valley Private Limited, Corporate Office SCO No.46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh-160009.
.... Opposite Parties Argued by:Sh.Deepak Aggarwal, Advocate for the complainant.
Sh.Ravinder Singh Dhillon, Advocate for the opposite parties.
Complaints under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT By this order, we propose to dispose of the aforesaid four consumer complaints. Arguments were heard in common, in all the cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. During preliminary hearing, in all the consumer complaints, Counsel for the complainants, confined the prayer qua refund of the amount paid by the complainant(s), towards price of the respective plots/flats, alongwith interest, compensation etc. At the time of arguments, on 04.08.2017, it was agreed by Counsel for the contesting parties, that, in view of above, all the four complaints can be disposed of, by passing a consolidated order.
Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.272 of 2017 titled as Mohan Singh Vs. Emerging Valley Pvt. Ltd. and another. The facts, in brief, are that the complainant booked one residential flat, in the project of the opposite parties, namely 'Emerging Height-4', Emerging Valley, Landran-Banur Road, Mohali, Punjab, on 28.03.2012, for which he deposited initial amount of Rs.6,12,775/-. He was issued provisional registration no.EW/2BHK/E/202, having Sr.No.9675 on 19.05.2012. Thereafter, he paid another amount of Rs.3,67,650/- vide receipt dated 06.10.2012 Annexure C-3. On 10.07.2013, he was issued provisional allotment letter, in respect of the unit, in question. Basic sale price of the said unit, after discount, was fixed at Rs.24,51,000/-. Apart from said amount, the complainant was also required to make payment towards power back up, car parking charges, club membership etc. It was averred that as per Clause (K) of the allotment letter dated 10.07.2013, the opposite parties committed to hand over possession of the unit, in question, within a period of three years from the date of allotment, failing which, they were liable to pay interest @12% p.a. on the deposited amount, for the period of delay.
It was further stated that, thereafter, as per demands raised by the opposite parties, the complainant kept on making payment towards price of the said unit. In all, by 12.08.2013, he paid an amount of Rs.12,98,000/- to the opposite parties, however, possession of the unit, was not offered to him. When, possession of the unit was not offered to the complainant, he, vide letter dated 02.06.2015 Annexure C-8, requested the opposite parties to update him, on the status of the project and also completion date of construction of the unit and delivery of possession thereof, however, the said letter was not responded by the opposite parties. Thereafter, letters dated 04.07.2015, 20.08.2015 and 22.01.2016, were also written to the opposite parties, but the same were also not replied by them.
It was stated that, visits to the site reveal that construction of the units have not even been started, and as such, possession is not feasible in the near future. It was further stated that on the other hand, despite making requests, a number of times, the opposite parties failed to apprise the complainant, as to by which date, construction will be started and after completing the construction, possession of the unit, will be delivered to him.
By stating that in not handing over possession of the unit, in time, the opposite parties have indulged into unfair trade practice and by not acceding to his request to deliver possession, it was also deficient in providing service, this complaint has been filed by the complainant.
In the reply filed by the opposite parties, territorial jurisdiction of this Commission was challenged. It was stated that mere encashment of cheques of payment, in the Bank at Chandigarh, will not confer territorial jurisdiction to the complainant, to file complaint before this Commission at Chandigarh. It was stated that making of timely payments was essence of the contract. It was pleaded that in the face of existence of arbitration Clause in the allotment letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was averred that the complaint is bad for mis-joinder/non-joinder of necessary parties.
On merits, sale of the unit, is not disputed. Payments made by the complainant are also not disputed. It was also not seriously disputed that possession of the unit was to be delivered within a period of three years, from the date of allotment. However, nothing was stated about construction and date to hand over possession of the unit, in question. Prayer was made to dismiss the complaint.
In the rejoinder filed, the complainant reiterated all the averments, contained in the complaint, and repudiated those, contained in written version of the opposite parties.
The contesting parties led evidence in support of their cases and raised arguments, in terms of pleadings noted in earlier part of this order, which were heard, in detail.
The first question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this complaint or not. It may be stated here that according to Section 17 (2) (b) of the Consumer Protection Act, 1986 (in short the Act) a complaint can be filed in the State Commission, within the limits of whose jurisdiction, any of the opposite party, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite party who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution. Further, as per Section 17 (2) (c) of the Act, a complaint can also be filed in the State Commission, where the cause of action, wholly or in part, arises to the party, filing the complaint. It is significant to mention here that perusal of almost all the documents placed on record, issued by the opposite parties, in favour of the complainant, including payment receipts, in respect of the unit, in question, clearly reveals that the same have been issued from its Corporate Office at Chandigarh i.e. SCO 46-47, First Floor, Sector 9-D, Madhya Marg, Chandigarh-160009. Not only as above, the opposite parties, in their reply have very candidly admitted that they have received payments, in respect of the unit, in question, at Chandigarh. If it is so, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the National Commission, in a case titled as Ravinder Kumar Bajaj Vs. Parsvnath Developers Pvt. Ltd. & 3 ors., First Appeal No. 515 of 2016, 23.08.2016, wherein it was held as under:-
"Since in the Grounds of Appeal, a specific averment is made by the Appellant to the effect that in the year 2007, when the subject flat was booked, the Respondent Company did have a Branch office at Chandigarh, where the payments in respect of the project used to be received regularly, on a pointed query, learned Counsel appearing for the Company very fairly states, on instructions, that the stand of the Appellant is correct.
In light of the statement by learned Counsel for the Respondent Company, I am of the view that in the present case, the State Commission UT, Chandigarh has the Territorial Jurisdiction to adjudicate upon the Complaint filed by the Appellant".
Therefore, in our considered view, since a part of cause of action, accrued to the complainant, within the territory of Chandigarh, as such, the instant complaint can be entertained and adjudicated upon by this Commission, at Chandigarh, in view of the provisions of Sections 17(2)(b) and 17 (2) (c) of the Act. The contention raised by Counsel for the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
The next question that falls for consideration, is, as to whether, even as on today, the opposite parties are in a position to deliver possession of the unit, in question, complete in all respects or not. It is pertinent to mention here that not even a single document has been placed on record to show that construction of the tower, in which the unit, in question, is located is complete and ready for offer of possession. Even in their written reply, the opposite parties are silent on it. Already a period of about four years has lapsed from the date of booking of the unit, but possession has not been offered to the complainant, despite the fact that substantial amount of Rs.12,98,000/- has been paid to the opposite parties.
Not even a single document has been placed on record, to apprise this Commission, as to at what stage, construction of the units has reached. Even in the written statement, nothing has been mentioned about the status and stage of construction. The opposite parties are mum on it. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. Thus, in case, all the development activities, had been undertaken, and construction of the flats is going on or completed, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. As such, in the absence of such evidence, an adverse inference can very well be drawn against the opposite parties, construction at the site is not complete or it has not yet even been started.
Not only as above, unfair trade practice, on the part of the opposite parties, is writ large. Despite the fact that substantial amount of Rs.12,98,000/- out of Rs.24,51,000/- i.e. more than 50% has been received by them, from the complainant, yet, Buyer's Agreement was not got signed from him. This act of the opposite parties amounts to violation of the provisions of Section 6 of the PAPRA, which reads thus:-
"6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;"
Buyer's Agreement on accepting application for purchase of unit etc., and that too, after receiving substantial amount equal of 25%, should have been executed within a reasonable time say about two to three months. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-
"The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer's Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer's Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer's Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected".
Under above circumstances, it is held that by not executing Buyer's Agreement after accepting more than 50% of the sale consideration, or even till date, the opposite parties were guilty of providing deficient service to the complainant and also indulged into gross unfair trade practice.
To defeat the genuine claim of the complainant, a plea was also taken by Counsel for the opposite parties that the complainant did not make further payment, as such, he was a defaulter.
We are not going to accept this plea. It may be stated here that in the present case, the opposite parties have miserably failed to prove as to whether, construction at the site was even started or not. At the time of arguments also, Counsel for the opposite parties failed to apprise this Commission, as to what is the status of the project, as on today; whether construction has started or not; whether delivery of possession of the flats, after starting and completing the construction, is feasible in the near future; and whether, the opposite parties have obtained all necessary approvals and sanctions or not. At the same time, not even a single document has been placed on record by the opposite parties to show that they made any further demand from the complainant, when he had already paid the said amount of Rs.12,98,000/- or that when the further demanded amount was not paid by him, he was served with reminders, in that regard. Under above circumstances, it cannot be said that the complainant was defaulter in making payment.
Even if, for the sake of arguments, the plea raised by the opposite parties is taken as correct, even then, the complainant was well within his right, to withhold the further payment, in view of principle of law laid down in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work is not carried out at the site, the payment of further installments can be stopped by the purchaser.
As far as the objection taken by the opposite parties, to the effect that the complaint is bad for non-joinder and misjoinder of party(s), is concerned, it may be stated here that the opposite parties failed to clarify, as to which party(s) was/were required to be added or deleted, in the head-note of the instant complaint, which could have affected the facts of the case. Such an objection taken by the opposite parties, in this regard, therefore, being without any justification, is rejected.
In connected consumer complaint bearing no.304 of 2017, position is almost the same. In this case, the only difference is that the complainant had purchased plot, in the said project, instead of flat. The opposite parties in this case also, failed to develop the project. Same grounds, as have been taken by the opposite parties, in connected complaints, referred to above, have been taken in this case also. Possession of the developed plot was not offered and delivered to the complainant, by the stipulated date, despite receiving huge amount of Rs.12 lacs. As such, the opposite parties are held guilty of providing deficient service to the complainant, in this case also. Further, they also indulged into gross unfair trade practice.
The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.12,98,000/- deposited by him. It has been held above that the opposite parties failed to deliver possession of the unit, in question, for want of construction; basic amenities etc. even as on today. The complainant cannot be made to wait for an indefinite period, for delivery of possession of the unit purchased by him. Under above circumstances, prayer of the complainant, claiming refund of the amount paid, cannot be negated. Non-delivery of possession of the unit, in question, by the stipulated date, is a material violation on the part of the opposite parties. It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar M GF Land Limited, Consumer Case N o . 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
"I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest."
Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No. 59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same."
Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
Furthermore, it is stipulated in Clause (K) of terms and conditions attached with the provisional allotment letter dated 10.07.2013 that, in case, there is a delay in delivery of possession of the unit, the opposite parties will pay interest @12% p.a. on the amount paid, by way of compensation, for the period of delay. There is nothing on record to show that such amount of compensation was ever offered to the complainant.
Under above circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit, in question, by the stipulated date, or even till date, as such, the complainant is entitled to get refund of amount paid by him.
It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainant. It has been proved on record that an amount of Rs.12,98,000/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest @18% p.a., as per Clause E of the Allotment Letter, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.12,98,000/- alongwith interest, from the respective dates of deposits till realization.
Now, we will deal with the objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.
This objection has been raised in the written statement, by placing reliance on Clause 10.9 contained in the allotment letter. However, in view of reasons given hereinafter, no relief can be granted, in favour of the opposite parties. This issue has already been dealt with, by this Commission, in a case titled as 'Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon'ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, ( Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-
"We are unable to persuade ourselves to agree with the Learned Counsel. In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon'ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon'ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors. (Supra) still holds good, no fault can be found with the view taken by the State Commission.
Consequently, the Appeal fails and is dismissed accordingly."
Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the 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.
In view of the above, the objection raised in this regard, being devoid of merit is rejected.
No other point, was urged, by the contesting parties.
For the reasons recorded above, all the four complaints are partly accepted, with costs, in the following manner:-
Consumer Complaint bearing No.272 of 2017. The opposite parties, through their Managing Directors, jointly and severally, are directed as under:-
To refund the amount Rs.12,98,000/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.
Consumer Complaint bearing No.273 of 2017. The opposite parties, through their Managing Directors, jointly and severally, are directed as under:-
To refund the amount Rs.12,98,000/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.
Consumer Complaint bearing No.274 of 2017. The opposite parties, through their Managing Directors, jointly and severally, are directed as under:-
To refund the amount Rs.12,98,000/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.
Consumer Complaint bearing No.304 of 2017. The opposite parties, through their Director, jointly and severally, are directed as under:-
To refund the amount Rs.12,00,000/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.75,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices. To pay cost of litigation, to the tune of Rs.11,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in all the four complaints, shall be made, within a period of 02 (two) months respectively, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @12%, from the respective dates of deposits onwards, and interest @15 % p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of the respective complaints, till realization. However, it is made clear that, if the complainants, in any of the complaints, referred to above, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants). Certified copy of this order be placed in connected files.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion.
Pronounced.
24-Aug-17 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.