State Consumer Disputes Redressal Commission
Jyoti Prakash Shoor vs M/S Premium Acres Infratech Pvt. Ltd. on 12 November, 2021
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 153 of 2018 Date of Institution : 09.04.2018 Date of Decision : 12.11.2021 Jyoti Prakash Shoor son of Sh.Sukhdev Raj, 331-332, Guruteg Bhadur Nagar, Jalandhar-144001. ...... Complainant V e r s u s M/s. Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, through its Managing Director. Second Address:- M/s. Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acres Court Yard, Sector 110-111, S.A.S. Nagar (Mohali). Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o. H.No.1227, Sector 42-B, Chandigarh-160036. Second Address:- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, R/o. H.No.61-62, Sector 70 Mohali. .....Opposite Parties BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER.
Present through Video Conferencing:-
Mrs.Vertika H. Singh, Advocate for the complainant.
Sh.Parminder Singh, Advocate for the opposite parties.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT Brief facts of this case are that the complainant, vide application dated 15.02.2010, booked a residential unit bearing no.19901, measuring 192 square yards in the project of the opposite parties launched by them under the name and style 'The Courtyard', TDI City, Sector 110, Mohali, Punjab, for total sale consideration of Rs.26,66,800/-. It has been pleaded by her that despite the fact that total amount of Rs.27,72,640/- stood paid to the opposite parties, against total sale consideration of Rs.26,66,800/-, yet, neither agreement in respect of the unit was executed nor possession thereof was delivered to her, for dearth of construction and development activities. It has been stated that, on the other hand, in the absence of construction and development activities, the opposite parties started demanding more amount from the complainant, which she did not agree on account of the reasons aforesaid, yet, in a very arbitrary and illegal manner, they cancelled the allotment of the unit in question, vide letter dated 11.04.2016, Annexure C-8. Thereafter, she made lot of requests, in writing, to the opposite parties to withdraw the cancellation letter, complete the construction and development works and deliver possession of the unit in question to her, but all in vain. When nothing came positive, she filed this complaint seeking possession of the unit in question, alongwith other reliefs.
However, during pendency of this complaint, the complainant moved miscellaneous application bearing no.453 of 2019 stating therein that since there is still no hope of completion of construction and development at the project site, as such, she be allowed to make amendment in para nos.1 to 3 of the prayer clause of the consumer complaint, seeking refund of the amount paid alongwith other reliefs, instead of possession of the unit in question. The said application was allowed vide order dated 02.11.2020 and the amended complaint was ordered to be taken on record. In this manner, the complainant ultimately sought refund of the amount paid alongwith other reliefs.
The opposite parties in their joint written reply took numerous objections inter-alia that the complainant has concealed material facts from this Commission; that the letters Annexures C-2 and C-4 are of different dates; that this Commission is not vested with territorial jurisdiction to entertain this complaint; that the complainant has purchased the unit for earning profits and as such did not fall within the definition of consumer; that possession of the unit in question was offered to the complainant vide letter dated 31.10.2014, Annexure R-7, after obtaining completion certificate, yet she failed to take over the same, on making payment of the remaining amount; that she did not visit the office of the opposite parties for execution of agreement even; that the project in question is exempted from the provisions of Punjab Apartment and Property Regulation Act, 1995 (PAPR Act); that when after sending various reminders, neither balance payment was made nor possession of the unit was taken over by her, left with no alternative allotment of the unit was cancelled vide letter dated 11.04.2016; that still she is liable to make payment of Rs.20,24,964/-; that possession of the unit can still be delivered on making remaining payment by the complainant and that she can pay it in installments also; that she failed to take possession of the unit in question, when this Commission ordered to do so vide order dated 13.05.2019; that correct court fees has not been paid by her as such this complaint is liable to be dismissed on this ground alone; that the complainant in connivance with Sanjay Jain (Ex-Director of the company), forged and fabricated the documents pertaining to the unit in question; that Sanjay Jain has been shunted out from the company and FIRs have also been lodged against him before the police station concerned; that the National Company Law Tribunal (NCLT) has also passed order dated 09.01.2017 in favour of the opposite parties; that complicated questions of fact and law are involved in this compliant as such the complainant need to be relegated to the civil court; and that the complaint filed is barred by limitation.
On merits, purchase of the unit in question by the complainant in the project in question and payments made by her as mentioned in the complaint has not been disputed by the opposite parties. It has been averred that infact the opposite parties are the contractors, who purchased developed plots from TDI and are constructing unit thereon, on behalf of the complainant. Prayer has been made to dismiss the complaint with heavy cost.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in the written reply filed on behalf of the opposite parties.
This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents. Written arguments were also filed by the complainant.
We have heard the contesting parties and have gone through the entire material available on the record, very carefully.
First, we will deal with the objection taken by the opposite parties with regard to territorial jurisdiction of this Commission. 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, letters dated 31.01.2014 Annexure C-2 and 07.04.2014, Annexure C-4 placed on record in respect of the unit in question have been issued by the opposite parties from SCO Nos.56-57, 3rd Floor, Sector 17-D, Chandigarh-160017. Not only as above, even in letter dated 24.03.2010, Annexure C-1, it has been clearly mentioned by the opposite parties that their corporate and correspondence office is located at SCO No.139-141, Sector 17-C, First Floor, Chandigarh-160017. Thus, from the documents referred to above, it can easily be said that the Company was actually and voluntarily residing and carrying on business from its Offices at Chandigarh and personally work for gain thereat also. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap &Ors., I (2008) CPJ 404 (NC), the principle of law laid down by the Hon'ble National Commission was to the effect that a clause of Jurisdiction by way of an agreement between the Parties could not be made applicable to the consumer complaints, filed before the Consumer Foras. It was further held in the said case that there is a difference between Sections 11/17 of the Act, 1986, (under which this complaint has been filed) and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law laid down was that the restriction of Jurisdiction to a particular Court need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena& another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi&Anr I (2013) CPJ 169 (NC) the agreements were executed between the parties incorporating therein a condition excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission in the aforesaid cases held that such a condition incorporated in the agreements executed between the parties, excluding the Jurisdiction of a particular Court/Forum and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law laid down in the aforesaid cases is fully applicable to facts of the instant case. It is therefore held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken by the opposite parties in this regard stands rejected.
Now, we will deal with the objection taken by the opposite parties to the effect that the complainant did not fall within the definition of 'consumer' as she has purchased the unit in question to earn profits. It may be stated here that since the objection raised is not supported by any documentary evidence, as such, the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question to indulge in 'purchase and sale of units' as was held by the Hon'ble National Commission in Kavit Ahuja Vs. Shipra Estates & Jai Krishna Estate Developers Pvt. Ltd, 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. In this view of the matter, objection taken by the opposite parties stands rejected.
Booking of the unit in question by the complainant vide application dated 15.02.2010, in project of the opposite parties is not disputed. It has also not been disputed by the opposite parties that against total sale consideration of Rs.26,66,800/-, they had received an amount of Rs.27,72,640/- from the complainant. In her complaint, the grouse of the complainant is that despite making payment of the entire sale consideration, the opposite parties neither executed agreement in respect of the unit in question nor delivered possession thereof within a reasonable period of booking and on the other hand, cancelled the allotment vide letter dated 11.04.2016, Annexure C-8 on frivolous ground of nonpayment of alleged remaining amount.
On the other hand, to wriggle out of the allegations leveled by the complainant, the opposite parties contended that possession of the unit in question, completed in all respects and that too after obtaining completion certificate, Annexure R-4, was offered to the complainant vide letter dated 31.10.2014, Annexure R-7, followed by various reminders in the matter, yet, when she failed to come forward for making payment of the remaining amount and also to take over the same (possession), allotment stood cancelled vide letter dated 11.04.2016, Annexure C-8.
It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project and that all the permissions/approvals have been obtained in respect of the project in question, is on the builder/developer. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, to prove their case that the unit in question was complete in all respects, when possession was offered to the complainant vide letter dated 31.10.2014, Annexure R-7, the opposite parties have relied upon the completion certificate dated 29.12.2014 Annexure R-4 having been issued by an Architect, Sh.Kamaldeep Singh. Under above circumstances, following moot questions falls for consideration before this Commission:-
Whether the Architect, Sh.Kamaldeep Singh who has issued the completion certificate could be said to a competent authority?
Whether, genuine and actual physical possession of the unit in question was offered by the opposite parties, vide letter dated 31.10.2014 or not?
Whether, the action of cancellation of allotment of the unit in question by the opposite parties could be said to be genuine/legal or not?
Coming to the question posed at para no.11 (i) above, it may be stated here that it is well-settled law that only the competent authority can issue occupation and completion certificates to the project proponent. Since, the present case relates to the property situated in the State of Punjab, as such, it cannot be disputed that the competent authority to issue the said certificate, is only the Town and Country Planning Department, Punjab. The opposite parties have failed to place on record any evidence to prove that they ever applied for occupation and completion certificates in respect of the unit and project in question with the Town and Country Planning Department, Punjab. Mere obtaining of writing by some Architect (in the present case by Sh.Kamaldeep Singh, Architect) that the project is complete and obtaining completion certificate from him for which he was not competent to issue, has no significant value in the eyes of law. The said completion certificate dated 29.12.2014 Annexure R-4 has been issued by an Architect, Sh.Kamaldeep Singh, who is not any competent authority for issuing the same. Our answer to this question is in the negative.
Coming to the question posed at para no.11 (ii) above, it may be stated here that it is settled law that before offering possession of a unit/plot in a project, the project proponent is legally bound to complete the construction, development and basic amenities at the project site and also to obtain occupation and completion certificates from the competent authorities. In the present case, Counsel for the opposite parties has contended with vehemence that when possession of the unit in question was offered vide letter dated 31.10.2014, construction of the unit was complete in all respects and that all the basic amenities were in existence at the project site. We do not agree with the contention raised for the reasons to be recorded hereinafter. The reason for this disagreement is the contents of letter dated 27.12.2014, Annexure R-8 i.e. the letter sent after about 2 months from the date of alleged offer of possession letter dated 31.10.2014, Annexure R-7. In this letter (27.12.2014), the opposite parties raised demand of Rs.8,79,523/- from the complainant on the ground that the company has completed plastering work of the unit and that 90% work of the unit has been completed. In our considered opinion, once the opposite parties themselves have issued letter dated 27.12.2014 informing the complainant that plastering work of the unit has been completed by the said date and still 10% of construction work of the unit is remaining, then, they (opposite parties) have failed to explain to this Commission, as to how, possession of the said unit could have been offered on 31.10.2014. If, even construction of the unit was not completed till 27.12.2014, how can we agree that development work and other basic amenities which were required for smooth habitation, were in existence at the project site. Naturally, the said basic amenities were to be completed, once the construction work is completed. To further clarify and adjudicate this issue, it is necessary to reproduce the payment plan opted by the complainant for making payment towards price of the unit in question. The said payment plan is attached with the letter dated 31.01.2014, Annexure C-2, which is almost same as mentioned in the agreement placed on record by the opposite parties, though not got signed from the complainant, which is reproduced hereunder:-
At the time of registration 510000 Within 3 months of allotment 255000 Within 3 months of first instalment 255000 On commencement of demarcation of plot 255000 On casting of ground floor roof 191250 On casting of first floor roof 191250 On casting of second floor roof 220450 On start of brick work and internal plastering 220450 On start of flooring 156700 On start of electrification 156700 On start of plumbing 127500 On final notice of possession 127500 Total 2666800 From the payment plan extracted above even, it is evident that after plastering work, which has been claimed to be completed in letter dated 31.10.2014, a lot of work with regard to flooring, electrification and plumbing was pending to be done in the unit in question. It was only after completion of the pending construction work, that the basic amenities were to be provided for the said building. It is therefore held that the contention raised by the opposite parties that possession of the unit in question was offered by the opposite parties, vide letter dated 31.10.2014 cannot be accepted as correct.
Furthermore, Section 14 (1) of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties of the Punjab Apartment and Property Regulation Act, 1995 says that the project proponent is duty bound to obtain occupation and completion certificates from the competent authority before offering possession of a unit/plot. Further, Section 3 (2) (j) of the said Chapter provides that no person shall be allowed to enter into possession until an occupation certificate required is duly given by the appropriate authority and no person shall take possession of an apartment until such occupation certificate is obtained.
However, in the present case, the opposite parties have miserably failed to prove as to whether, they have obtained occupation and completion certificates in respect of the unit and project in question, from the competent authorities before offering possession of the unit in question to the complainant. From these certificates only, this Commission could have come to any firm conclusion regarding the project and unit in question and in the absence thereof, an adverse inference is attracted towards the opposite parties that since they are silent on these certificates to be obtained from the competent authority and on the other hand to escape from their liability have placed on record a certificate terming it as completion certificate having been obtained from the person/architect, which was not competent to issue the same. Since, the occupation and completion certificates issued by the competent authorities could be said to be the backbone for the project proponents to prove their case, which (certificates) have not been provided to this Commission alongwith the joint reply filed, as such, we have no hesitation to hold that the possession so offered vide letter dated 31.10.2014, Annexure R-7 was nothing but a demand letter only, just to grab more money from the complainant, which is not sustainable in the eyes of law and is accordingly ordered to be quashed. Our answer to this question is also in the negative.
Coming to the question posed at para no.11 (iii) above, it may be stated here that once it has been proved on record that the opposite parties were not ready with the delivery of actual physical possession of the unit in question by 31.10.2014 or thereafter even because neither construction was complete nor occupation and completion certificates have not been obtained from the competent authorities (as the same have not been produced on record), as such, we have no hesitation to say that the cancellation of allotment of the unit in question by the opposite parties vide letter dated 11.04.2016, Annexure C-8 was arbitrary and illegal and is accordingly ordered to be quashed.
Not only as above, deficiency in providing service and adoption of unfair trade practice on the part of the opposite parties is writ large, as they failed to send buyer's agreement for signatures of the complainant. Though, the opposite parties in their written reply have pleaded that it was the complainant who failed to sign the agreement, yet, this plea is without any evidence. On the other hand, the complainant has vehemently contended that despite making requests, agreement was not sent to her for signatures. Mere placing on record agreement dated 27.06.2011, Annexure R-6 which is signed by the opposite parties and even no space has been left/marked for signatures of the buyers, is of no help to them and the same has now been placed on record in order to escape from the allegations of the complainant. Thus, the act of raising demands and receiving substantial amount, as referred to above, in the absence of execution of the agreement, was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act, which lays a duty on the opposite parties to execute the agreements for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -
"6. Contents of agreement of sale:- (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 form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.
(2) xxxxxxxxxxxxxxxx..................
(3) xxxxxxxxxxxxxxxxx..................."
The opposite parties were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. The opposite parties were thus deficient in providing service and adopted unfair trade practice on this count.
However, the fact remains that agreement in respect of the unit was never got signed from the complainant. As per settled principle of law laid down by the Hon'ble Supreme Court of India, in the cases, where no agreement has been executed by the builder after booking of the plot/unit, then the reasonable period of two to three years has to be taken into account for completion of the construction & development activities and delivery of possession to the allottees/buyers thereof. Since, in the present case also, no agreement has been executed between the parties, as such, possession of the unit in question should have been delivered to the complainant by the opposite parties, within a maximum period of three years from the date of booking i.e. latest by 14.02.2013 (date of booking being 15.02.2010), which was not done, as explained above and, on the other hand, they adopted unfair trade practice by issuing paper possession in the absence of occupation and completion certificates. The opposite parties have failed to convince this Commission, that they encountered any force majeure circumstances (which means irresistible circumstances beyond ones control such like act of God etc.) as a result whereof, delay in handing over possession of the unit occurred.
Under above circumstances, we feel safe to hold that the complainant was right in seeking refund of the amount instead of possession of the unit, in question, and as such no benefit can be taken out of the same by the opposite parties saying that she did not take over possession thereof, despite the directions of this Commission, during pendency of this complaint, especially, when on her visit to the project, she find that still it was not habitable. At the same time it is also held that if the complainant did not make the remaining paltry amount towards miscellaneous charges (which were due to be paid on offer of actual possession) when she found that neither construction work of the unit has been completed, nor the project is habitable; she was right in doing so, in view of principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon'ble National Commission i n Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development and construction work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, plea taken by the opposite parties that the complainant was defaulter in making remaining payment, being devoid of merit, stands rejected.
The unit in question was booked as far as back in 2010 and now it is November 2021 and still the complainant is empty handed. As of now, there has been an inordinate delay of more than 10 years in the matter. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project by the promised date or where there is no agreement or specified date within a reasonable period of two to three years, is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid. It was also so said by the Hon'ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon'ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in M/s Fortune Infrastructure Versus Trevor D' Lima & Ors. (2018) 5 SCC 442 . In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest from the respective dates of deposits, as prayed by the complainant, by way of amending her relief, referred to above, that will meet the ends of justice.
Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amount paid. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he/she had deposited the money in the hope of getting a flat/plot but he/she is deprived of same; he/she is deprived of the benefit of escalation of the price of that flat/plot; and also he/she would have to take out more money for beating the escalation in price, for buying a new flat/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he/she had deposited the money in the hope of getting a flat/plot and therefore, he/she has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher.
Furthermore, a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession of residential units/plots, by the stipulated date or within a reasonable period, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon'ble National Commission in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd, Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainant, on the amounts to be refunded by the builder/developer from the respective dates of deposits. It is therefore held that in the present case, if interest @12% p.a. is awarded on the amount to be refunded to the complainant, that will meet the ends of justice.
As far as plea taken by the opposite parties, to the effect that the complainant in connivance with Sanjay Jain have fabricated number of documents placed on record and committed fraud with the company, it may be stated here that there is not an iota of evidence placed on record by the opposite parties to prove their stand in this regard. The only part which was to be complied with by the complainant, was to make payment of the sale consideration and in the present case, the opposite parties have not disputed that they have received the amount of Rs.27,72,640/- against total sale consideration of Rs.26,66,800/- from the complainant. It has been observed by this Commission that in earlier replies to the complaints filed by numerous consumers, the same very/stereotype pleas with regard to connivance of buyers with the Directors of the company, have also been taken by the opposite parties. In our considered opinion, for any alleged interse dispute between the opposite parties and its Director, Sanjay Jain, the third party i.e. the allottees of the units in the said project including the complainant cannot be made to suffer or blamed, especially when the amount paid towards the unit in question has not been disputed by the company. Thus, in the absence of any evidence, bald pleas raised by the opposite parties, in this regard, cannot be taken into consideration and are accordingly rejected.
At the same time, it is also held that there are no complicated questions of fact and law involved in this complaint, to refer it to the civil court. It is a simple case of non delivery of actual physical possession of the unit in question within a reasonable period of two to three years from the date of booking thereof, yet, on the other hand, the allotment of the unit was cancelled by the opposite parties on flimsy grounds. It was under those circumstances, that the complainant has approached this Commission seeking possession of the unit in question and has ultimately, sought refund of the amount paid alongwith interest, compensation etc. for the reasons explained above. In our considered opinion, since, the opposite parties had received substantial amount of Rs.27,72,640/- against total sale consideration of Rs.26,66,800/- from the complainant towards the said unit, and they were to deliver possession thereof within reasonable period of two to three years i.e. latest by 14.02.2013, as such, the nature of such transaction is covered by the expression 'service'. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. etc., II (2012) CPJ 4 (SC), wherein 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 by the Hon'ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under: -
".......We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
"...when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act...."
Furthermore, as stated above, the opposite parties did not deliver actual physical possession of the unit purchased by the complainant and on the other hand, cancelled the allotment thereof, on flimsy grounds, as such, it can very well be said that there is a denial of service on their part. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, 1994 SCC (1) 243, wherein the Hon'ble Supreme Court held that where the developer is at fault in not delivering possession of a property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. It is therefore held that the plea taken by the opposite parties that this consumer complaint is not maintainable before this Commission, as it allegedly contains complicate questions of fact and law, being devoid of merit, stands rejected.
Since, it is an admitted fact that possession of unit in question has not been delivered and on the other hand, allotment thereof stood cancelled arbitrary and illegally as explained above, as such, there is a continuing cause of action in favour of the complainant to file this complaint, in view of law laid 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 is not offered and delivered, there is a continuing cause of action in favour of the allottee/buyer. At the same time, it is also held that since the amount paid by the complainant towards price of the said unit has still not been refunded and is being utilized by the opposite parties, in this view of the matter also, the complaint cannot be said to be time barred. Our this view is supported by the observations made by the Hon'ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016, in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. As such, objection raised in this regard also stands rejected.
At the same time, it is also held that once it has been proved on record that the entire transaction viz. allotment of the unit; receipt of payment; etc. was carried out between the complainant and the opposite parties, as such, plea taken by them that they were only to construct units on behalf of the complainant on the land of TDI, has no legs to stand and is accordingly rejected.
Now coming to the objection taken by the opposite parties with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.4,000/- being the claim of the complainant above Rs.50 lacs and below Rs.1 crore, under the CPA, 1986, has been paid by her. Objection taken in this regard, as such, being frivolous, is rejected.
For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
Refund the amount of Rs.27,72,640/- to the complainant, alongwith compensation by way of interest @12% p.a., without deducting any TDS, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount 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.
Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice to the tune of Rs.50,000/- and Rs.25,000/- as 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 amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.
However, it is made clear that if the complainant has availed housing loan from any bank/financial institution, for making payment towards price of the unit in question, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by her.
Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
12.11.2021 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.