State Consumer Disputes Redressal Commission
Gurdev Kaur Thind vs Emerging Valley Pvt. Ltd. on 21 December, 2020
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 15 of 2020 Date of Institution : 08.01.2020 Date of Decision : 21.12.2020 Gurdev Kaur Thind W/o Shri Gurdip Singh Thind, resident of House No.15, Balliol Way, Owlsmoor, Sandhurst, GU47 0QN, U.K. through her attorney Col. Surjit Singh Sandhu (Retd.) S/o Late Sh.Chanan Singh resident of House No.9, Green Vihar, Zirakpur, District SAS Nagar, Punjab (India). ......Complainant V e r s u s Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Harvinder Singh Behl, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Sushil Kumar, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. ....Opposite Parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Present through Video Conference:-
Sh.Amrik Singh, Advocate for the complainant.
Sh.J.S. Rattu, Advocate for the opposite parties, alongwith Sh.Gurpreet Singh Sidhu, Managing Director of Emerging Valley Private Limited.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The above captioned complaint has been instituted by the complainant seeking directions to the opposite parties, to deliver possession of the plot purchased by her; to pay interest by way of compensation for the period of delay in delivering possession; to pay compensation for mental agony harassment and also litigation expenses; or to pass any directions deemed appropriate in the facts and circumstances of the case.
It is the case of the complainant that despite receiving substantial amount of Rs.22,80,000/- by the opposite parties towards price of plot no.55, in their project named Emerging Valley, Village Naugiari, Tehsil and District Mohali, Punjab, as far as back by November 2012, neither agreement was executed between the parties nor possession of the said plot was delivered to her, for dearth of development activities. It has been stated that it also came to her knowledge that the project in question has been launched without obtaining necessary licence/approvals and sanctions from the Competent Authorities. It has been specifically stated in para no.15 of the complaint that for dearth of necessary formalities aforesaid, the opposite parties are unable to deliver possession of the plot in question, in near future also.
It has been submitted by the complainant that the plot in question was, in the first instance, purchased by her husband Sh.Gurdip Singh Thind, which was later on got transferred in her name, vide sale deed dated 09.01.2017, Annexure C-5, and in this manner, she became the sole owner of the said plot.
By stating that the aforesaid act and conduct of the opposite parties in not delivering possession of the plot in question; launching the project in question without obtaining necessary approvals/sanctions amount to deficiency in providing service and unfair trade practice, thereby causing mental agony, harassment and financial loss to the complainant, she has filed the present case.
Her claim has been contested by the opposite parties on numerous grounds, inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain this consumer complaint; that this Commission did not vest with pecuniary and territorial jurisdiction; that she did not fall within the definition of "consumer" as the plot in question was purchased for commercial purposes; that the complaint filed is barred by time; that the husband of the complainant was defaulter in making payment towards price of the plot in question; that since the plot in question was booked by the husband of the complainant and also the payments were made by him, therefore, this complaint having been filed by complainant is not maintainable; that this complaint is liable to be dismissed on the ground that special power of attorney filed on behalf of the complainant to defend this complaint, has not been got embossed from the Indian Authorities; that this complaint is bad of mis-joinder of parties; and that only 20% of sale consideration stood paid towards price of the said plot.
However, it has been stated that allotment letter in respect of the plot in question was sent to the husband of the complainant, as far as back on 28.10.2015, yet, he failed to send the same after signatures. Registration of sale deed of the plot in question, vide document Annexure C-5 dated 09.01.2017 in the name of the complainant has been admitted by stating that it is a matter of record. It has been submitted that it was only the assurance made by husband of the complainant that registration in respect of the plot in question was done in her favour in January 2017; and that possession of the plot in question was offered vide letter dated 27.06.2017, but the complainant failed to take over the same, on making payment of the remaining amount.
The parties led evidence in support of their case.
We have heard counsel for the parties and have also gone through the material available on record, very carefully.
First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the allotment letter is concerned, it may be stated here that though we did not find any such clause of arbitration in any of the document placed on record, still, we want to mention here that this issue has already been dealt with by the larger Bench of the Hon'ble National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon'ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon'ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties, otherwise also, in this regard, stands rejected.
Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant case, record reveals that almost all the letters/documents placed on record which have been issued by the opposite parties i.e. allotment letter dated 12.10.2013, Annexure C-2, payment confirmation letter dated 01.04.2014, Annexure C-3 and also all the letters enclosed by GMADA, alongwith the enquiry report reveals that the same were issued by them (opposite parties) and addressed to them (opposite parties) mentioning the address of the company as SCO No.46-47, First Floor, Sector 9-D, Chandigarh. Even as per condition no.O. of the allotment letter dated 12.10.2013, Annexure C-2, it was agreed that all the disputes shall be subject to the courts of competent jurisdiction at Chandigarh only, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Office at Chandigarh and personally work for gain thereat. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
Now coming to the objection taken by the opposite parties regarding pecuniary jurisdiction, it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, the Consumer Foras were required to take into consideration the value of the goods and compensation claimed if any. In the present case, if the total value of the plot in question and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
Now coming to the objection taken to the effect that the complainant did not fall within the definition of 'consumer', it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the plot in question, in the manner explained above, to indulge in 'purchase and sale of plots' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainant is a consumer as defined under the Act. Mere fact that the complainant or her husband is an NRI is not a ground to shove them out of the purview of consumer. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a residential property in India for his/her personal use. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. The complainant is an independent person and can purchase any house in India, in her own name or can get any property transfer in her name from his husband. Similar view was expressed by the Hon'ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016. Objection taken in this regard is rejected.
Another objection was taken by the opposite parties that since the plot in question was booked by the husband of the complainant and also amount towards the same was also paid by him, as such, this consumer complaint was required to be filed by him only and not by the complainant, as such, it is liable to be dismissed on this ground alone. We do not agree with the objection raised. No doubt, the plot in question was booked by husband of the complainant and payments were also made by him, yet, on account of interse family arrangements registration of the said plot was got done in favour of the complainant, which fact has not been denied by the opposite parties. In para nos.4, 9 and 11 (reply on merits), the opposite parties themselves have admitted that registration of the plot was got done in favour of the complainant, vide Annexure C-5 and that the said registration has been got done in favour of the complainant only on the assurance given to the company by her husband. If on account of some family arrangements, a husband wants to transfer his property in the name of her wife or vice-versa, no law debars him/her to do so. Thus, in view of admission made by the opposite parties themselves and also in the face of the document dated Annexure C-5 vide which the said plot stood transferred in the name of complainant, now at this stage, the opposite parties are barred to take such an objection.
Now coming to the main dispute qua non delivery of actual physical possession of the plot to the complainant, it may be stated here that to convince ourselves, as to whether the allegations leveled by the complainant in this complaint to the effect that the project has been launched without necessary approvals and licence and that the opposite parties are not in a position to deliver possession of the plot in question, in near future, this Commission, during pendency of this complaint, ordered an enquiry to be conducted by the Deputy Commissioner, SAS Nagar, Mohali and also by Chief Administrator Mohali Area Development Authority (GMADA), as to whether the opposite Parties i.e. Emerging Valley Private Limited were in fact the owner of plot No.55, Emerging Valley, Village Naugiari, Tehsil and District Mohali or not? However, this Commission was surprised, when enquiry report dated 27.11.2020 was received from the Additional Chief Administrator, GMADA, wherein, it was in a very candid manner stated that under the garb of permission of Change of Land Use (CLU), the opposite parties constructed unauthorized colony (the project in question) without obtaining licence in that regard, as a result whereof, FIR has also been registered against the Directors of the Company and also they have been directed to demolish the unauthorized construction in the said project but they failed to take any action in that regard. Other serious allegations alongwith documentary evidence (Annexure A-1 to A-13) has also been leveled by the GMADA, in the said enquiry report, relevant contents whereof are reproduced hereunder:-
"...Enquiry Report That in this regard, it is humbly submitted that the facts of the case are that on 05.07.2012 field staff of office of GMADA reported the matter that an unauthorised colony namely 'Emerging Valley' is being developed, on Landran-Banur scheduled road. On the basis of this field staff report, vide letter no. 1425 dated 17.07.2012 (Annexure A-I), a complaint was made to the SSP, SAS Nagar for registration of FIR for violation of the provisions of the Punjab Apartment and Property Regulation Act, 1995(hereinafter PAPRA, 1995).
That thereafter, vide letter no. 2728 dated 02.11.2012, the Assistant Public Relation Officer, GMADA, Ajitgarh (SAS Nagar) was directed by Estate Officer, GMADA to give the public notice in English and Punjabi newspapers about the development of unauthorised colonies/ Projects falling within the jurisdiction of GMADA and consequently public notices were given in various newspapers making the general public aware that 'M/s Emerging India Housing Corporation Private Ltd' has not been issued any License for the development as an approved colony by GMADA, as such no plot/ apartment can be offered for sale by the said company. Copy of letter dated 02.11.2012 and clips of newspapers have been annexed herewith as (Annexure A-2) colly.
That thereafter, M/s Emerging Valley Pvt. Ltd, after depositing tentative charges Rs. 1,45,66000( One Crore, Forty Five Lakh and Sixty Six Thousands only), obtained the permission for Change of Land Use (CLU) vide letter no. 1983 dated 04.07.2013 (Annexure A-3) Colly. This CLU was valid for two years from the date of grant of permission. As per the conditions v,vi and vii of CLU, the promoter company was bound to get License under PAPRA, 1995 before making any development/construction at the site.
That, but under the garb of permission for Change of Land Use the Promoter Company constructed the unauthorised colony without getting license from the Competent Authority.
That thereafter, when the Promoter company did not stop unauthorised construction and the Police Department did not take any action on the earlier complaint dated 17.07.2012, another" complaint, vide letter no. 1115 dated 23.04.2014 (Annexure A-4), was made to SSP, SAS Nagar to register FIR under PAPRA,1995 against the Promoter Company.
That thereafter, in reference to Promoter Company's application for issue of License of Colony, dated 28.01.2013 ,over 25 acres of land for which the Promoter Company had already obtained permission for change of land use, the Competent Authority-cum-Chief Administrator issued Letter of Intent (LOI) to the Promoter Company vide memo no. 1303 dated 06.05.2015 (Annexure A-5). This LOI was issued subject to certain conditions mentioned therein and these conditions were to be fulfilled within thirty days from the date of issue of the notice. However the Promoter Company failed to fulfill the conditions laid down in LOI, consequently LOI was cancelled vide letter no. 2465 dated 11.08.2015 and License of Colony could not be issued.
That thereafter, when even without getting the License of Colony, the Promoter Company started the development of unauthorised colony, a show cause notice, regarding demolition of unauthorised construction, was issued vide letter no. 4801 dated 01.12.2015, directing thereby to stop the unauthorised construction immediately and to come present, within thirty days, before the Competent Authority and show cause why the unauthorised construction made by the Promoter Company should not be demolished. This show cause notice was issued for violating the provisions of the Punjab Apartment and Property Regulation Act, 1995, the Punjab Regional and Town Planning and Development Act, 1995 and the Punjab New Capital(Periphery) Control Act, 1952. Copy of Show cause notice dated 01.12.2015 has been annexed herewith as Annexure A-6.
That thereafter, Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 1424 dated 23.06.2016 (AnnexureA-7) intimated to Chief Administrator, GMADA that M/s Emerging Valley Pvt. Ltd has applied in the office of Punjab Bureau of Investment Promotion (PBIP) for getting License. Through this letter Senior Town Planner has sought some legal opinion on the question as to whether the unauthorised construction made by the applicant may be considered under the compounding policy or in the process of issuing of License. In response to this query, Legal Cell GMADA opined that as the applicant is willing to develop his project as per law and if the applicant fulfils all the prescribed legal formalities, he may be allowed to join the main stream by issuing the License. This opinion was duly intimated to Senior Town Planner, Punjab Bureau of Investment Promotion(PBIP) vide letter no. 5530 dated 15.11.2016 (Annexure A-8), further through this letter it was also intimated that the applicant, by making application at the office of Punjab Bureau of Investment Promotion(PBIP), was just trying to buy time for making unauthorised construction because if he had bona fide intention for taking license he would have deposited all the due charges which were requisite under the conditions of LOI issued earlier on 06.05.2015.
That thereafter, when the Promoter Company did not stop the unauthorised construction, then Estate Officer, GMADA vide letter no. 5908 dated 30.11.2016 (Annexure A-9) directed the Subdivisional Engineer to immediately seal the project of the Promoter Company and further directed to ensure that in future, unless the Promoter Company gets the License, no construction takes place and if the Promoter company makes further construction without license and this matter is not reported to the office of GMADA, then Sub-divisional Engineer shall be held liable personally.
That thereafter, vide Notification no. 12/04/165-Hg2/891764/1 dated 15.12.2016, the Govt. of Punjab, Department of Housing and Urban Development, notified the regularization policy for the purpose of regularization of unauthorised colonies. The Promoter Company, for getting its unauthorised colony regularised, applied to the Senior Town Planner, Punjab Bureau of Investment Promotion (PBIP) on 16.12.2016 (Annexure A-10) for transferring its case to the office of GMADA. However, this policy was not applicable in this case because this colony falls within Periphery Controlled area.
That thereafter, in 2017, the people who had purchased plots/property, from the Promoter Company, filed complaints in consumer forums against the Promoter Company. Firstly, because of this litigation and investment made by the innocent people' and secondly it was seeming that the Promoter Company may get the due License of colony because it has been making representations in this regard in the office of GMADA (Annexure A-11) colly. Due to these reasons, at that time GMADA hold the process of demolition and only kept the project sealed for stopping further unauthorised construction at the site.
That thereafter, vide letter no. 5683 dated 22.08.2019 (Annexure A-12), Estate Officer GMADA wrote to the SSP, SAS Nagar to provide information about the registration of FIR against the Promoter Company. Finally, taking action on the earlier complaints and on this letter, FIR has been registered on 21.08.2019 at Police Station, Sohana, Distt. SAS Nagar, under section 36(1) of Punjab Apartment and Property Regulation Act, 1995, against Sh. Gurpreet Singh and Sh. Kamaljit Singh, Directors of the Promoter Company M/s Emerging Valley Pvt. Ltd. A copy of FIR has been annexed herewith as (Annexure A-13) co11y.
That thereafter, when the Promoter Company did not get the license of colony, the Competent Authority-cum- Additional Chief Administrator, GMADA vide order no. 1324 dated 17.07.2020 directed to Sh. Gurpreet Singh and Sh. Kamaljit Singh, the Directors of the Promoter Company to demolish the unauthorised construction within the period of thirty days from the date of issue of demolition orders. But the Directors of the Promoter Company did not take any action in compliance of demolition order. Thereafter, on 17.09.2020 and 18.09.2020 this unauthorised construction has been demolished by GMADA and in this regard in EA/446/2017 (Kuldeep Singh Negi Vs M/s Emerging Housing Corporation Pvt. Ltd.) due compliance report has been filed on 07.10.2020. Therefore, it is respectfully submitted that the office of GMADA, from the very initial stage of development of unauthorised colony, has been taking action, the Promoter Company has been making construction inspite of giving notices and sealing of project Though they had applied for CLU, LOI, regularization of colony under the Policy notified by the Govt. Of Punjab, but they were not able to get any approval from the Competent Authority. Therefore ' GMADA office has written to SSP, SAS Nagar vide letter 1425 dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019. There is no laxity in efforts from GMADA office against the Promoter Company.
Therefore, it is respectfully prayed that in view of the facts and circumstances narrated above this Compliance Report may_ kindly be allowed to be taken on-record and proceedings against GMADA may be dropped, in the interest of justice.
Place: S.A.S Nagar Addition Chief Administrator GMADA Dated:27.11.2020"
It is settled law that before launching the project and selling the units therein, the project proponent is legally bound to obtain all necessary approvals/permissions/clearances from the Competent Authorities. Whereas, in the present case, as is evident from the afore-extracted information culled out from the enquiry report submitted by the GMADA, it has been proved that the project launched by the opposite parties was farce. Not even licence for launching the project in question has been obtained by the opposite parties, what to speak of obtaining remaining approvals/permissions/clearances from the Competent Authorities. The office of GMADA, from the very initial stage of development of unauthorized project in question, initiated various legal actions with a view to stop the construction and development there but the company did not stop in doing so. Though, the company had applied for CLU, LOI for regularization of the project in question under the Policy notified by the Govt. of Punjab, but they were not able to get any approval from the Competent Authority in that regard. Written complaints by the GMADA office were also given to SSP, SAS Nagar vide letter 1425 dated 17.07.2012, vide letter no. 1115 dated 23.04.2014 and letter no. 5683 dated 22.08.2019, yet, the company did not stop and kept on booking the units/plots in the unauthorized project and usurped substantial amount from the buyers including the complainant. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It was so said by the Hon'ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-
"................This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.
It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency............"
In this view of the matter, plea taken by Counsel for the opposite parties that the company was in legal position to deliver possession in June 2017 or that the complainant failed to take over possession of the plot in question, being devoid merit stands rejected.
Now coming to the objection raised by the opposite parties, to the effect that this complaint is time barred, it may be stated here that not even a single document has been placed on record to prove that actual physical possession of the plot in question, in a developed project was ever offered and delivered to the complainant and also at the same time, once it has been proved from the afore-extracted information culled out from the enquiry report of GMADA, that the project in question was farce and the opposite parties were not even in a position to launch the same, what to speak of offering possession of units/plots therein, as such, there was a continuing cause of action in her favour to file this complaint, in view of principle of law down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer.
Now coming to the objection raised to the effect that the complainant was defaulter in making payment towards price of the said plot, it may be stated here that not even a single document has been placed on record by the opposite parties, wherefrom, it could reveal that there was any default on the part of the complainant or her husband in making payment towards the said plot. Even otherwise, in view of the findings given in para nos.14 and 15 above, it is evident that even the amount of Rs.22,80,000/- has been received by the company with animus of cheating and fraud. The facts of the case transpire that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant and her husband were entitled to rely upon it and may act in reliance on it. The complainant is thereby involved in a disadvantageous contract (allotment letter in this case) with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent of the opposite parties to induce the buyer to enter into a contract and also intent to deceive in the matter. This act also amounts to adoption of unfair trade practice.
As far as objection taken to the effect that opposite party no.2 has been wrongly impleaded as party to this complaint as he is not responsible for day to day affairs of the company, it may be stated here that the said objection is falsified from the representation letter dated 10.02.2018, Annexure A-11, having been signed by Sh.Gurpreet Singh Sidhu, in the capacity of Managing Director of the company, to the Additional Chief Secretary, Punjab, Chandigarh, for issuance of licence in respect of the project in question. In our considered opinion, opposite party no.2 alongwith opposite parties no.3 and 4 are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon'ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. As such, objection taken in this regard stands rejected.
As far as objection taken to the effect that power of attorney filed by the complainant is defective, as the same has not been got embossed from the Indian Authorities, it may be stated here that during arguments counsel for the complainant made a request to place on record power of attorney, duly embossed. Resultantly, vide email dated 10.12.2020, he sent power of attorney after getting the same duly embossed from the Deputy Commissioner concerned and the same has been placed on record and marked as Annexure 'X'. Even otherwise, the Consumer Protection Act is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties, unless until such act is causing any prejudice to the party opposite. It was also so said by the Hon'ble Supreme Court of India, in the case of V. Kishan Rao Vs, Nikhil Super Speciality Hospital and another, Civil Appeal NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010. Relevant contents of the said order reads thus:-
"The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice"
In view of the reason that the complainant has placed on record the duly embossed power of attorney, as such, objection taken by the opposite parties, in this regard, stands rejected.
It may be stated here that the Consumer Protection Act has been made to safeguard consumer rights and also for checking unfair trade practices, 'defects in goods' and 'deficiencies in services' and it works and protects consumers even in situations where they do not know their rights. Thus, under the circumstances explained above, we are of the considered opinion that no useful purpose shall be served, in case, this Commission orders delivery of possession of plot in favour of the complainant, especially, in the face of contents of the enquiry report extracted above, wherein it has been proved that the project in question is nothing but farce. If we order so, it will further amount to invitation for endless litigation for the complainant, to get legal physical possession of the plot in the said project, which infact is not feasible, as stated above. At the same time, in the complaint also, in para no.15, the complainant herself has stated that the opposite parties cannot deliver possession to her in near future, as they were not authorized to even sell/book plots in the said project. Therefore, we are of the considered opinion that ordering refund of amount paid alongwith suitable interest from the respective dates of deposits will meet the ends of justice. A similar question, as to whether, in the absence of prayer for refund, in case, the court/tribunal/fora feels that the consumer should be awarded refund of amount paid instead of delivery of possession of the unit/plot, keeping in mind the fact that the same (delivery of possession) is not feasible in the near future, was decided in the affirmative, by the Hon'ble National Commission, in the case titled as BPTP Ltd. Vs. Pradeep Sharma, First Appeal No. 1516 of 2019, decided on 23 Dec 2019, relevant part whereof is reproduced hereunder:-
". ....In the present Appeals also the Complainants cannot be asked to wait indefinitely as the possession of the booked Flats has not been handed over so far and there is also no possibility of handing over the possession in the near future inasmuch as the EWS Block has not been constructed so far by the Developer which was a condition for issuance of Occupation Certificate. The stand taken by the Developer that the Complainants are not entitled for refund of the deposited amount in absence of prayer to that effect, is unwarranted, unjustified and unsustainable. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest and compensation. The State Commission has only directed the Developers to refund the amount deposited by the Complainants with interest ranging from 10% to 12% p.a. Besides, a direction has also been given to the Developer to pay ₹50,000/- to the Complainants in this batch of Appeals. Hence, we are of the opinion that the impugned orders do not suffer from any illegality, warranting interference....."
For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-
To refund the amount of Rs.22,80,000/- to the complainant, alongwith interest @12 % p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs. 22,80,000/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization. It is also made clear that the opposite parties shall also be liable to refund the amount, if any, received from the complainant over and above Rs.22,80,000/-, in the manner ordered above.
To pay Rs.50,000/-, in lumpsum, towards compensation for causing mental agony and harassment and cost of litigation to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
In case any loan has been obtained for making payment towards price of the said plot, the bank/financial institution concerned shall have the first charge, against the amount due to be paid by the complainant.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced 21.12.2020 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.