Padma Pandey ORDER
Padma Pandey, Member
1. The facts, in brief, are that the complainant wished to have her own independent house near city beautiful Chandigarh/Mohali for her two children for their future upbringing & quality education, decided to buy the plot in the project of the Opposite Parties. The complainant purchased plot bearing No. 152, measuring 300 sq. yds. in Central Greens, Sector 105 and the total sale price of the plot, in question, was fixed at Rs. 40,82,394/-. It was stated that the complainant also purchased one more plot from the Opposite Parties for her second child, for which, separate complaint is being preferred. The complainant made the payment of Rs. 10,35,000/- as booking/registration amount to be paid to one Sh. Rakesh Gupta, authorized person for M/s. M.M. Agritech Pvt. Ltd., from whom, the complainant bought the plot, in question, through the Opposite Parties. Thereafter, Plot Buyer Agreement was signed and executed between the parties at Chandigarh on 20.06.2007. As per Clause 8 of the Agreement, possession of the plot was to be given within a maximum period of three years i.e. latest by 20.06.2010. Thereafter, the aforesaid plot was transferred in the name of the complainant vide letter dated 05.09.2007 (Annexure C-2). The complainant paid the total amount of Rs. 40,82,395/- to the Opposite Parties in respect of the plot, in question. It was further stated that from the aforesaid amount of Rs. 40,82,395/-, the payment of Rs. 19,20,143/- was paid by the complainant by taking a loan. It was further stated that despite receipt of the huge amount from the complainant and repeated visits & letters/emails, the Opposite Parties failed to give possession of the plot, in question. Copies of the emails and letters are Annexure C-7 (Colly.). It was further stated that permissions for raising colony/development of the land is not there. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the 'Act' only), was filed.
2. The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also, they separately, moved an application u/s. 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainant did not fall within the definition of "Consumer", as envisaged in the Consumer Protection Act, 1986, as the complainant is residing in her house at Phagwara and she is a speculator, as she purchased multiple properties with the Opposite Parties for commercial purposes. It was further stated that the complainant purchased plot bearing No. 104-AG-109 having total consideration of Rs. 54,00,472/-, which is subject matter of CC/828/2017 and in addition, the complainant also purchased plot bearing No. 109-AG-104-400 for Rs. 54,00,472/-, which was cancelled on 02.05.2016. It was further stated that the complainant also purchased three commercial units for total consideration of Rs. 98,15,040/-, Rs. 1,06,08,014/- and Rs. 66,93,940/- respectively, which were also cancelled on 01.11.2013 (Exhibit OP/2 colly.). It was further stated that this Commission has no territorial jurisdiction to entertain and decide the complaint, as the property is situated at Mohali, registered office of the Opposite Parties is at New Delhi and as per settled law, a Company can be sued only at the place its registered office is located. It was further stated that this Commission has no pecuniary jurisdiction to try the complaint, as the value of the plot and compensation including interest exceeds Rs. 1 crore. It was further stated that the complaint was time barred, as it has been filed more than 2 years after accrual of alleged cause of action. It was denied that there was any allurement by the Opposite Parties or any promises made to the complainant. The complainant bought the unit in resale on 05.09.2007 from the original allottee Mr. Rakesh Gupta. It was admitted regarding receipt of the amount of Rs. 40,82,394/- from the complainant. It was further stated that as per Clause 8 of the Agreement, the company "endeavored" to hand over possession within a period of two years and not later than three years. It was further stated that there was no definitive agreement stating that possession would definitely be delivered within a period of three years from the date of execution of Agreement. The word used is "endeavour", which means to try/make effort. It is settled law that in cases of sale of immovable property, time is never regarded as the essence of the contract. It was further stated that the Opposite Parties offered relocation to the complainant, where possession could be expedited but she failed to respond. It was further stated that the plot was initially provisionally allotted to Sh. Rakesh Gupta vide letter dated 05.09.2007 (Exhibit OP/4). It was further stated that the complainant took loan from HDFC Bank for Rs. 34 lacs and in this regard, the Opposite Parties duly signed the Tripartite Agreement. It was further stated that development work in the area has been completed and the Opposite Parties obtained partial completion certificate from the competent authority (Exhibit OP/9). It was further stated that possession would be offered shortly to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
3. The Parties led evidence, in support of their case.
4. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
5. The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs. Anjani Dass v. DLF Universal Limited, Complaint Case No. 295 of 2017, decided on 19.07.2017. Para No. 12 of the said order, inter-alia, being relevant, is extracted hereunder:-
"12. At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.
We are not going to agree with the argument raised. This Commission, in a case titled as 'Sarbjit Singh v. Puma Realtors Private Limited', MANU/SF/0009/2016 : IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon'ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another v. N.K. Modi MANU/SC/0141/1997 : (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. v. Development Credit Bank Ltd. MANU/SC/0642/2003 : (2003) 7 SCC 233, Rosedale Developers Private Limited v. Aghore Bhattacharya and others, (Civil Appeal No. 20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha MANU/SC/1025/2003 : (2004) 1 SCC 305 and United India Insurance Co. Ltd. v. M/s. Pushpalaya Printers, MANU/SC/0164/2004 : I (2004) CPJ 22 (SC), and LIC of India and another v. Hira Lal, MANU/SC/1463/2011 : IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. v. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016, held as under:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) Through LRs. & Others - MANU/SC/1025/2003 : (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. v. Tata Chemicals Ltd. - MANU/SC/0845/2000 : (2000) 5 SCC 294 and National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr. - MANU/SC/0038/2012 : (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
Furthermore, the National Commission in a case titled Omaxe Limited v. Dinesh Lal Tarachandani, First Appeal No. 1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-
"We are unable to persuade ourselves to agree with the Learned Counsel. In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon'ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. v. M/s. Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon'ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) Through LRs. & Ors. (Supra) still holds good, no fault can be found with the view taken by the State Commission.
Consequently, the Appeal fails and is dismissed accordingly.
Recently, the larger Bench of the National Commission in a case titled as Aftab Singh v. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.
In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected."
Against the order passed by the larger Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, M/s. Emaar MGF Land Limited filed Civil Appeal No. (s) 23512-23513 of 2017 in Hon'ble Supreme Court of India, which was also dismissed.
In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.
6. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.
According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident from the record, that Plot Buyer's Agreement was executed between the parties on 20.06.2007 at Chandigarh (Annexure C-1). Not only this, letter - Annexure C-2 and receipts Annexure C-6 were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as "SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017". Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
7. Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. In the present case, even if the interest component is added to the amount claimed/price of the unit, the case is well within the pecuniary jurisdiction of this Commission. In view of above, this objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.
8. The next question, that falls for consideration, is, as to whether, the complainant fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. Counsel for the Opposite Parties stated that the complainant is residing in her house at Phagwara and she purchased plots bearing Nos. 104-AG-109 & 109-AG-104-400 having total consideration of Rs. 54,00,472/- each and also she purchased three commercial units, which were also cancelled on 01.11.2013 (Exhibit OP/2 colly.), as such, the complainant is a speculator and purchased multiple properties with the Opposite Parties for commercial purposes. On the other hand, Counsel for the complainant by filing rebuttal evidence by way of affidavit of the complainant, stated that the Opposite Parties twisted the number of plots by wrongly stated that the complainant purchased two plots i.e. bearing Nos. 104-AG-109 & 109-AG-104-400. With regard to three commercial units, Counsel for the complainant stated that these are not three different commercial units but they are part of one single unit consisting of ground, first and second and secondly, the aforesaid commercial unit(s) have been booked and purchased by the complainant's father from his own resources and initial payment to the tune of Rs. 40 lacs was also paid by the complainant's late father and after that no payment made by the complainant, meaning thereby, that by way of love and affection, the complainant's late father has got the name of the complainant added in the property. It was denied by the complainant that she has any role whatsoever in purchasing the commercial unit. Even the documents annexed by the Opposite Parties with their reply states that regarding those commercial properties, a letter has been addressed to the Opposite Parties for transfer in the name of the complainant as a legal heir. Counsel for the complainant further submitted that as per the knowledge of the complainant, those properties stood cancelled without any amount being refunded, which clearly shows that the agenda of the Opposite Parties to usurp the amount of the complainant. After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected. It is pertinent to note that the Opposite Parties failed to deliver possession of the plot to the complainant, despite repeated requests. Not only this, the complainant in her complaint has clearly stated that she wished to have her own independent house near city beautiful Chandigarh/Mohali for her two children for their future upbringing and quality education. Moreover, at the time of arguments on 03.04.2018, referring to the rebuttal evidence/rejoinder filed by the complainant, Counsel for the Opposite Parties admitted that plot No. 104-AG-109 and plot No. 109-AG-104-400 are one and the same. It is not the case that the complainant concealed the fact regarding purchase of another plot in the project of the Opposite Parties. Even the complainant clearly stated the factual position in the complaint as well as in the rebuttal affidavit filed by her. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion i.e. simply saying that the complainant purchased the property for speculation purposes, as such, she did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. MANU/CF/0937/2015 : 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited v. Nirmala Devi Gupta, MANU/CF/1154/2015 : 2016 (2) CPJ 316._ Not only this, recently in a case titled as Aashish Oberai v. Emaar M GF Land Limited, Consumer Case N o. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. "
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.
9. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here that since it has been frankly admitted by the Opposite Parties, in para No. 12 of their written statement that possession would be offered shortly to the complainant. It means that the Opposite Parties are not ready to hand over possession of the plot to the complainant within the stipulated period as mentioned in the Agreement or even at the time when the complaint was filed. Not only this, the amount deposited was also not refunded to the complainant, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in Lata Construction & Ors. v. Dr. Rameshchandra Ramniklal Shah and Anr., MANU/SC/0741/1999 : II 2000 (1) CPC 269 : AIR 1999 SC 380 and Meerut Development Authority v. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
10. Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall "endeavor" to deliver possession of the plot/unit within maximum period of three years from the date of execution of the Agreement, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a maximum period of three years from the date of execution of the Agreement, subject to force majeure circumstances or reasons beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years from the date of execution of the Agreement, as such, time was, unequivocally made the essence of contract.
Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word endeavour/tentative/proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract.
Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer's Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon'ble National Commission, in Rajeev Nohwar & Anr. v. Sahajanand Hi Tech Construction Pvt. Ltd., MANU/CF/0123/2016 : 2016 (2) CPR 769. Relevant portion of the said case reads thus:-
"Merely making endeavour to deliver possession by a particular date will also not meet the requirement of law and the promoter is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer".
In view of above, the plea of the Opposite Parties in this regard also stands rejected.
11. The next question, that falls for consideration, is, as to whether, the complainant is entitled for the refund of the amount of Rs. 40,82,394/- as claimed by them. It is evident from statement of account (Annexure 6) that an amount of Rs. 40,82,394/- was deposited in respect of the unit, in question. However, the Opposite Parties failed to deliver actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed, as the Opposite Parties in their written statement clearly stated that possession would be offered shortly to the complainant. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by her. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.
12. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs. 40,82,394/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI v. Tata Chemicals Ltd. (Supreme Court), MANU/SC/0213/2014 : (2014) 6 SCC 335 decided on March 20th, 2014. In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs. 40,82,394/-, alongwith interest @10% p.a., from the date of transfer of the plot i.e. vide letter dated 05.09.2007 (Annexure C-2), till realization.
13. As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that it was ready with possession of the unit, complete in all respects, to be delivered to the complainant, by the stipulated date or even by the time when the complaint was filed but it was her (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant herself is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are directed, as under:-
i. To refund the amount of Rs. 40,82,394/-, to the complainant, alongwith interest @10% p.a., from the date of transfer of the plot vide letter dated 05.09.2007 (Annexure C02) onwards.
ii. To pay compensation, in the sum of Rs. 1.50 lacs, for causing mental agony and physical harassment, to the complainant.
iii. To pay cost of litigation, to the tune of Rs. 33,000/- to the complainants.
iv. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @12% p.a., instead of @10% p.a. from the date of default, and interest @10% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
16. However, it is made clear that, if the complainant, has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
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