State Consumer Disputes Redressal Commission
Balwinder Kaur vs Nitishree Infrastructure Ltd. on 10 August, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 360 of 2016
Date of Institution : 18.11.2016
Date of Decision : 10.08.2017
Balwinder Kaur D/o Gurbachan Singh, resident of 18, Sharney
Avenue, Langley Slough, Berkshire, SL3 8EA, United Kingdom
through her Power of Attorney Kirat Pal S/o Tarsem Lal, resident of
H. No. 1831, Phase-7, Mohali (Punjab).
....Complainant
Versus
1. Nitishreet Infrastructure Limited, Shourya Green Surya
Enclave, Amritsar Bypass Road, Near Trinity College, Jalandhar
through its Authorized Signatory.
Alternate Address
(Regd. Office) 78-B, Sector D2, Group II, DDA Flat, Kondli Gharoli
Mayur Vihar, Phase-II, Delhi-110096
2. Shourya Towers Pvt. Ltd., Co-operative Office B-111, Sector
5, Noida, G.B. Nagar, 201301 (UP) through its Authorized
Signatory.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 360 of 2016 2
Present:-
For the complainant : Sh. Parvez Chugh, Advocate
For the opposite parties: Sh. Ramneek Gupta, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that she is NRI, presently residing in Berkshire, United Kingdom and she had duly appointed Kirat Lal s/o Tarsem Lal as her legal and lawful attorney vide special power of attorney dated 19.9.2016. It has been stated that in pursuance to the advertisement of a residential project by the Ops under the name and style of Shourya Greens as Lotus Towers at Jalandhar. Complainant applied for allotment of an apartment. Op No. 1 allotted Flat No. E-3/504, Lotus Towers, Jalandhar, subject to terms and conditions mentioned in the flat agreement No. SG/REST/E3-504/001 dated 5.2.2008 executed between the parties i.e. the complainant, Harbans Singh Kular and the Ops. It has been stated that this complaint is also being pursued by the complainant on behalf of Harbans Singh Kular. The price of the flat was fixed as Rs. 22,30,125/-. In addition to the basic sale price, Ops were charging a sum of Rs. 54,775/- as preferential location charges, Rs. 20,000/- as power back up and Rs. 15,650/- as interest free security, total Rs. 23,20,550/-. As per Clause 9 of the agreement, Ops were to deliver the possession of the apartment Consumer Complaint No. 360 of 2016 3 within 24 months with grace period of 3 months. In this way, the Ops were required to hand over the possession of the apartment by May, 2010. The complainants paid a sum of Rs. 7,13,640/- by 5.2.2008. They further paid Rs. 12,31,142/- on 5.2.2010, thus, a total of Rs. 19,44,782/- was paid to the Ops. However, as per the agreement, the Ops failed to deliver the possession of the flat as agreed. The complainant had been contacting the Ops and they were promising to deliver the possession by end of 2011. Then they promised to deliver it by October, 2015 and then by December, 2015. Then they received the letter dated 20.8.2016, demanding Rs. 2,44,025/- without any reference when the possession will be delivered. Alleging deficiency in service on the part of Ops, complaint was filed against the Ops with following reliefs:-
a) That the Opposite Parties be directed to refund the amount of Rs. 19,44,782/- along with 12% interest till the payment of the same.
b) That the Opposite Parties be directed to pay Rs. 5 Lakhs as compensation and damages in lieu of the harassment and deficiency in service faced by the complainant.
c) That the Opposite Parties be directed to pay the litigation expenses to the tune of RS. 1,00,000/- for hiring services of an advocate and serving legal notice.
d) Any other relief that this Hon'ble Commission.
2. Complaint was contested by the Ops, taking preliminary objections that as per the buyer's agreement, there is Clause 43 to Consumer Complaint No. 360 of 2016 4 refer the matter for arbitration, therefore, complaint before this Commission is not maintainable. On merits, Clause of arbitration was again reiterated. It was further stated that they had already raised a demand of Rs. 2,44,025/- vide their letter dated 24.8.2016 (20.8.2016) but the complainant failed to pay the amount. Therefore, the complainant cannot seek performance of the contract under Section 51 of the Indian Contract Act, 1872; present complaint has been filed only by Balwinder Kaur and Harbans Singh Kular is not party to the complaint and the complaint is barred by limitation as the flat was to be handed over by February, 2010 and after that the complaint was to be filed within 2 years, therefore, the complaint is barred by limitation under Section 24A of the Act. The complaint is false and frivolous. The project could not be completed due to force majeure. There was no deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
3. To support his contentions, the parties were directed to lead their respective evidence. Complainant in his evidence has tendered his affidavit of Kirat Pal Singh as Ex. CW-1/A and documents Exs. C-1 to C-3. On the other hand, Ops had tendered in evidence affidavit of Vijay Inder Pratap as Ex. Op-A and resolution Ex. Op-1.
4. We have heard the learned counsel for the complainant Sh. Parvez Chugh, Advocate, counsel for the Ops Sh. Ramneek Gupta, Advocate and have carefully gone through the averments made in the complaint, evidence and documents on the record. Consumer Complaint No. 360 of 2016 5
5. The first point raised by the counsel for the complainant is that the complaint has been filed by Balwinder Kaur only and that Harbans Singh Kular is also a party to it, is not a proper complainant, therefore, the complaint on behalf of Balwinder Kaur is not maintainable. However, it has been stated by Balwinder Kaur in her complaint that she has also been instructed by Harbans Singh Kular to pursue the complaint on his behalf. The consent may be in writing or the oral, which has not been denied by the Ops in any manner. So far as the competency of Balwinder Kaur, the complaint has been filed through Special Power of Attorney in favour of Kirat Pal s/o Tarsem Lal is Ex. C-1 duly embossed by Deputy Commissioner, SAS Nagar (Mohali), therefore, the complaint has been filed by authorized person.
6. It has been referred that according to Clause 43, it has been referred as under:-
"43. Any dispute or difference of any nature whatsoever any claim, cross-claim, counterclaim or set off or regarding any right, liability act, omission or account of any of the parties here to arising out of or in relation of this agreement whether during its subsistence or thereafter shall be referred to the sole Arbitrator, the sole arbitrator shall be nominated by the company only the arbitration proceedings shall be subject to the provisions contained under The Arbitration and Conciliation Act 1996, the venue of arbitration shall be at DELHI alone."Consumer Complaint No. 360 of 2016 6
It has been stated that matter be referred to the Arbitrator in accordance to this Clause. No doubt that there is arbitration clause in the agreement, but in case the Ops No. 1 & 2 wanted to refer the matter to the Arbitrator, no application as required under Section 8 of the Conciliation and Arbitration Act was filed alongwith the written reply. Otherwise, as per the judgment of the Hon'ble Supreme Court in "National Seeds Corporation Ltd. versus M. Madhusudhan Reddy & Anr.", (2012) 2 SCC 506 wherein it has been held by the Hon'ble Supreme Court as under:-
"The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force."
in which there was a reference of "Fair Air Engineers (P) Ltd. v. N.K. Modi" (1996) 6 SCC 385 decided on 28.8.1996. The Hon'ble National Commission in Consumer Case No. 701 of 2015 "Aftab Singh versus EMAAR MGF Land Limited & Others", after Consumer Complaint No. 360 of 2016 7 considering the new amendments in the Act held that an arbitration clause in the agreement between the complainant and the builder cannot subscribe the jurisdiction of the Consumer Fora, notwithstanding the amendment made to Section 8(1) of the Arbitration Act. The counsel for the Op was unable to rebut these legal pronouncements. The complaint filed by the complainant was barred by limitation because as per the buyer's agreement, the possession of the flat was to be delivered on or before February, 2010 i.e. within 2 years from the date of alleged cause of action whereas the complaint was filed in the year 2016 i.e. duly barred by limitation. However, we are of the opinion that the limitation will not start by the end of 2 years as mentioned in the agreement. Till the possession is delivered, the complainant will have the recurring cause of action. In 2016 vide letter dated 20.8.2016, they demanded another amount of Rs. 2,40,025/- without giving any cut of date to deliver the possession and in November, 2016, the complaint was filed, therefore, we do not agree with the plea raised by the counsel for the Ops that the complaint filed by the complainant is barred by limitation. We are of the opinion that the complaint filed by the complainant is within limitation.
7. It has been further stated that the complainant failed to make the payment demanding from the complainant i.e. Rs. 2,44,025/- vide their letter dated 20.8.2016 (Ex. C-3) and according to Section 51 of the Contract Act, if the complainant fails to perform his part of the agreement then he cannot seek for specific performance of the agreement and in case we go by the Buyer's Consumer Complaint No. 360 of 2016 8 Agreement, payment plan was given. As per the buyer's agreement, 10% was to be given at the time of booking and 10% within 30 days of booking and the remaining amount was to be given at the stage of the construction as referred hereinafter:-
1. At the time of booking 10% BSP 223012.5
2. Within 30 days of booking 10% BSP 223012.5
3. On the start of Foundation 7% BSP 156108.75
4. On the Completion of plinth 5% BSP 111506.25 beam
5. On start of Ground Floor 7% BSP 156108.75 Roof Slab
6. On start of 1 Floor Roof Slab 7% BSP + 33% of 185949 PLC & OC
7. On start of II Floor Roof Slab 7% BSP 156108.75
8. On start of III Floor Roof 7% BSP 156108.75 Slab
9. On start of IV Floor Roof 7% BSP 156108.75 Slab
10. On start of V Floor Roof 7% BSP + 33% of 185949 Slab PLC & OC
11. On start of VI Floor Roof 7% BSP 156108.75 Slab
12. On start of internal Plaster 7% BSP 156108.75
13. On start of External Plaster 7% BSP 156108.75
14. On possession 5% BSP + 34% of 142250.75 PlC & OC The letter Ex. C-3 does not show the level of the construction when the complainant has already made the payment of Rs. 19,44,782/-.
Further in case Ops are not following to the schedule as given by them then the complainant has a right to stop the payment. Therefore, when the Ops are themselves in default then they cannot say that specific performance of the agreement cannot be asked for in case of non-payment as referred by them. Payment of Rs. 19,44,782/- has been admitted in the letter Ex. C-3. The Ops have filed affidavit of Vijay Inder Pratap, which is as per the averments in the complaint alongwith the resolution and no other document has been placed on the record showing the stage of Consumer Complaint No. 360 of 2016 9 construction and the reasons for non-developing of the project as agreed by them. Mere writing of the word 'force majeure' in the pleading is not sufficient till it is corroborated by evidence and reasons and the circumstances for 'force majeure'. The Ops have not placed on the record whether they have complied with the basic provisions as required under PAPRA, 1995 i.e. Licence, CLU, Environment Certificate, Pollution Certificate etc. but nothing has been said by them on the subject. In case the Ops are not developing the project then the complainants have a right to refund of the amount. Accordingly, we accept the complaint and direct the Ops as under:-
(i) refund the amount of Rs. 19,44,782/- alongwith interest @ 12% from various dates of deposit till payment.
(ii) Rs. 1 Lac as compensation on account of unfair trade practice done by the Ops with the complainant, to launch the project without taking any licence, CLU and environment clearance certificate, pollution certificate and other requirements as provided under the PAPRA on account of mental and physical harassment to the complainant.
(iii) Rs. 21,000/- as litigation expenses.
The above directions be complied within 45 days from the receipt of certified copy of the order.
Consumer Complaint No. 360 of 2016 10
8. However, this amount will be entitlement of Balwinder Kaur as well as Harbans Singh Kular, who is also a party to the agreement dated 5.2.2008.
9. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
10. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER August 10, 2017.
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