State Consumer Disputes Redressal Commission
Dinesh Kumar Sachdeva vs Greater Mohali Area Development ... on 9 May, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 1 of 2018
Date of Institution : 01.01.2018
Date of Reserve : 30.04.2018
Date of Decision : 09.05.2018
Dinesh Kumar Sachdeva S/o Sh.Ravinder Nath R/o 267, Sector
49-A, Advocates Enclave, Chandigarh.
....Complainant
Versus
1. Greater Mohali Area Development Authority (GMADA),
Mohali, through its Chief Administrator.
2. Estate Officer, Greater Mohali Area Development Authority
(GMADA), Mohali.
....Opposite parties
Consumer Complaint under Section 17
of the Consumer Protection Act, 1986.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh.D.K.Sachdeva, in person
For the opposite parties : Sh.Anuj Kohli, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The complainant has filed this complaint under Section 17 of the Consumer Protection Act stating that the opposite parties issued advertisement for allotment of 325 residential plots in IT Consumer Complaint No. 1 of 2018 2 City, Mohali and opened the Scheme on 28.02.2014 and close it on 15.04.2014. The complainant applied for the plot measuring 300 sq. yards. In the draw of lots, he was successful. LOI was issued and according to the terms of LOI the plot was to be allotted approximately within 36 months from the date of issuance of the LOI. The LOI was issued vide its No.GMADA-EO/2014 16416 dated 23.06.2014. As per the conditions under LOI 30% + 2% i.e. Rs.18,15,000/- was deposited vide Demand Draft No.109286 dated 11.07.2014 and Rs.1,41,000/- deposited vide demand draft No.109287 dated 11.07.2014 to the Estate Officer, GMADA and thereafter on 21.08.2014 another draft of remaining 70% i.e. Rs.46,88,250/- was also deposited with the Estate Officer, GMADA. In this way, he had deposited Rs.66,44,250/- to the GMADA. Out of which, Rs.33,00,000/- was taken as a loan from State Bank of Patiala, District Courts, Branch Sector 43, Chandigarh at the rate of 10.25% per annum and the remaining amount was arranged by withdrawal from Provident Fund of the complainant and his wife and some amount was borrowed/ arranged from the nears and dears. Period of 36 months has passed but till date there is no intimation from opposite party to allot and to deliver possession of the plot. Alleging deficiency in service on the part of the opposite parties, this complaint has been filed by the complainant to allot the plot at the earliest and till then pay compensation / interest at the rate of 18% p.a. as is being claimed by the GMADA and Rs.2,00,000/- as litigation expenses. Consumer Complaint No. 1 of 2018 3
2. Upon notice, opposite parties filed their written reply taking preliminary objections that there is no deficiency in service or unfair trade practice on the part of the opposite parties. Complaint involved disputed and complicated questions of fact and law, therefore, it be relegated to the Civil Court; the complainant is not consumer as he had purchased the plot for speculative purposes and that according to clause 24 of the LOI, it was provided (subject to the provisions of the Punjab Regional and Town Planning and Development Act, 1995) all disputes or differences which may arise in any manner touching or concerning the allotment shall be referred to Sole Arbitrator i.e. C.A. GMADA or any other person appointed by him in this behalf. According to Section 8 of the Arbitration and Conciliation Act, the matter is required to be referred to the Arbitrator. On merits, applying of plot and issuance of LOI is a matter of record. It was denied for want of knowledge with regard to taking of the loan or withdrawal of the provident fund from his account and from the account of his wife. Opposite parties have been diligently acting in the matter for allotment and possession of the plots and they will be making all endeavour to carry out the number of draw of lots in the month of March, 2018. After that the allotment letter shall be issued to the allottees. It has been stated that there is no merit in the complaint, it be dismissed.
3. In support of their contentions, complainant tendered into evidence the affidavit dated 21.03.2018 as Ex.C-A, Brochure as Ex.C-1, Receipt dated 11.07.2014 as Ex.C-2, receipt dated Consumer Complaint No. 1 of 2018 4 15.07.2014 as Ex.C-3, receipt dated 21.08.2014 as Ex.C-4, Loan account statement as Ex.C-5, Application for withdrawal of PF dated 13.06.2014 alongwith order 04.07.2014 as Ex.C-6, LOI dated 23.06.2014 as Ex.C-7, Representation dated 10.07.2017 as Ex.C- 8, Representation dated 26.10.2017 as Ex.C-9 whereas opposite parties tendered in evidence the affidavit of Mahesh Bansal, E.O. (Housing), GMADA dated 18.04.2018 as Ex.OP-A, copy of draw/ allocation letter as Ex.OP-1.
4. We have heard the counsel for the parties and have carefully gone through the averments as alleged in the complaint, evidence, written reply and documents filed by the parties.
5. It has been argued by the counsel for the opposite parties that disputed questions of facts and law are involved which cannot be decided in a summary procedure. The dispute between the parties is with regard to the delivery of possession of the plot applied for by him. As per the averments in the complaint, he has paid the entire agreed amount but the opposite parties did not deliver the possession within the agreed time according to the terms and conditions of the agreement. The matter can be settled on the basis of documents of the parties and the Consumer Fora are deciding similar complaints filed by the allottees against the builders for not delivering the possession and we do not see any complicacy in this matter. Moreover, the Presiding Officer of the State Commission are Retd. High Court & District Court Judges who have vast experience at their back. It was so held by the Consumer Complaint No. 1 of 2018 5 Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287.
6. A reference can be made to the judgment of the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 that:-
'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'.
7. It has been stated that the plot was booked for speculation purposes but it is mere an objection as no other property was referred by the opposite parties in the name of the complainant in the city SAS Nagar, Mohali. There is no evidence with the opposite parties that the complainant is trading in real estate business. They have not referred anything that earlier he had purchased or sold the properties and without these averments mere objection that the plot was booked for speculative purposes cannot be accepted. A reference can be given to the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the Consumer Complaint No. 1 of 2018 6 real estate. No such evidence has been brought on the record by the Ops. Therefore, we do not agree with the plea raised by the counsel for the Ops that the complainant is not consumer.
8. So far as the arbitration clause in the Letter of Intent is concerned, 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 C.P. Act is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer. Recently, 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 Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Therefore, the aforesaid objection raised by the opposite parties in the present case is rejected.
9. It is an admitted fact that on the basis of scheme floated by the opposite parties i.e. IT City, its brochure is Ex.C-1 and the complainant had applied for which and is a successful Consumer Complaint No. 1 of 2018 7 candidate in the draw of lots on the basis of which the LOI (Ex.C-7) was issued by the opposite parties on 23.06.2014. The complainant had deposited 30% of the amount (Ex.C-2) within the stipulated period and even the balance 70% amount was also deposited by the complainant vide application (Ex.C-4). The deposit of the payment has not been denied. The matter in dispute is only with regard to the possession of the plot for which clause No.18 of the LOI is relevant, which reads as under:-
"The possession of the said plot shall be handed over to the allottee after completion development works at site within a period of 36 months from the date of issuance of this Letter Intent. In case for any reason, GMADA is unable to deliver the possession of plot within the stipulated period, you will have a right to withdraw from the scheme by moving an application to the Estate Officer and in such case GMADA shall refund the entire amount deposited by the applicant along with 8% interest compounded annualy . Apart from this, there shall be no other liability of the Authority."
10. According to this clause, it has been agreed by the opposite parties that the possession shall be handed over to the allottee after completion of development work at site within a period of 36 months from the date of issuance of the LOI, which was issued on 23.06.2014 and period of 36 months completed on 23.06.2017 but till date letter of possession has not been issued and in the written reply a plea has been taken by the opposite parties that every effort is being made to deliver the possession of Consumer Complaint No. 1 of 2018 8 the plots to the allottees. A provision has been made for refund of the amount in case allottee is not interested to get the plot. In case its possession is not delivered within the period of 36 months then refund can be taken alongwith interest at the rate of 8% compounded annually but there is no provision that in case the complainant is to get the plot and not the refund and in case of delay what will be the penalty? According to Clause 6 of the LOI under which in case the payments are not made within the stipulated time then penal interest upto 18% has been provided. Therefore, opposite parties should pay reasonable interest to the allottee in case the possession is not delivered to the allottee. It has been stated by the allottee that he has taken a loan from Bank on interest at the rate of 10.025% per annum and some amount was taken out from the Provident Fund and some amount was borrowed from near relatives. In case 18% interest is excessive rate of interest then reasonable interest rate id 12% per annum. Therefore, till the opposite parties does not deliver the possession of the plot they will pay interest to the complainant at the rate of 12% per annum on the deposited payment.
11. No other point was argued.
12. Sequel to the above, we accept the complaint and opposite parties are directed as under:-
i) to pay interest at the rate of 12% per annum on the deposited amount of Rs.66,44,250/- w.e.f. 24.06.2017 till the date of possession is delivered.Consumer Complaint No. 1 of 2018 9
ii) to pay Rs.40,000/- as compensation for mental agony and harassment.
iii) to pay Rs.15,000/- as litigation expenses.
13. The compliance of this order shall be made by the opposite party within a period of 45 days from the date of receipt of the certified copy of this order.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 09, 2018 parmod