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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
Jasbir Singh (Retd.), President, Dev Raj, Member and Mrs. Padma Pandey, Member
Amit Goel —Complainant
versus
M/s Puma Realtors Private Limited —Opp.Party
Complaint Case No.317 of 2016
Decided on 1.11.2016
Counsel for the Parties:
For the Complainant:Sh. Savinder Singh Gill, Advocate
For the Opp.Party:Sh. Ramnik Gupta, Advocate
IMPORTANT POINT
Complainant cannot be made to wait indefinitely to get possession of unit booked by him.
Headnote:Consumer Protection Act, 1986—Sections 3 and 17—Arbitration and Conciliation Act, 1996—Section 8—Real estate—Plot Buyer’s Agreement—Denial of possession despite full payment—Jurisdiction of Consumer Fora to entertain consumer complaints, in face of arbitration clause in agreement, is in-built in 1986 Act—Complainant has spent his entire life earnings to purchase unit in project launched by opposite parties—However, his hopes were shattered when despite making substantial payment of sale consideration they failed to get possession of unit in a developed project—Even if it is assumed that complainant has a remedy to file suit for specific performance in Civil Court, alternative remedy provided under Section 3 of the Act can be availed of by him as he falls within definition of consumer—Complainant cannot be made to wait indefinitely—Complainant held entitled to refund of balance deposited amount alongwith 12% interest—Compensation of Rs.100,000/- and cost of Rs.35,000/- also awarded. (Paras 14, 22, 23 and 24)
Result: Complaint Partly allowed.
Dev Raj, Member—The facts, in brief, are that the complainant was willing to own a residential plot for his family and personal use. As such, he alongwith his friend, Shri Manoj Goyal jointly applied for a plot in the project of the Opposite Party, namely ‘IREO Hamlet’ in Sector 98, S.A.S. Nagar, Mohali on 20.02.2011. Plot No.62 measuring 273.79 sq. yards was allotted on 29.04.2011 vide allotment letter (Annexure C-2). The complainant paid an amount of Rs.6,50,000/- and Rs.2,94,576/- on 21.02.2011 and 28.07.2011 respectively. A Plot Buyer’s Agreement was executed between the parties on 24.08.2011 at Chandigarh. After execution of the Agreement, the complainant paid an amount of Rs.10,31,853/- each on 03.01.2012 and 20.03.2014 respectively. The friend of the complainant transferred his share to the complainant on 15.02.2014 vide Agreement to Sell (Annexure C-1). As per Clause 11 of the Agreement, Possession of the plot, in question, was to be delivered within a period of 24 months plus grace period of 6 months plus additional 12 months extended grace period, i.e. 42 months from the date of execution of the Agreement. The initial Time Linked Payment Plan was later on changed to Development Linked Payment Plan.
2. The Opposite Party sent a letter of offer of possession, which the complainant received on 19.11.2015. It was further stated that letter was just a mere possession as the site of the project is still not complete as of date. The complainant also raised two loans of Rs.39,10,549/- and Rs.10 Lacs towards the said plot. It was further stated that after receiving full consideration towards the plot, the Opposite Party till date has not given possession to the complainant. It was further stated that there was no development and even the roads dividing between Sectors 97-98 and approach road to reach the site were not there. It was further stated that the complainant visited the site in April, 2016 and still there was no development. It was further stated that the complainant requested the Opposite Party to provide necessary approvals/permission, regarding basic amenities/PHE services, obtained from GMADA and PSPCL but it did not bother to reply. It was further stated that the Opposite Party has not obtained the completion certificate till date.
3. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also 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 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to refund the amount of Rs.67,42,107/-, alongwith interest @18% p.a., from the respective dates of deposits till realization; pay compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1,00,000/-.
4. The Opposite Party, in its written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration clause No.33 in the Plot Buyer’s Agreement dated 24.08.2011; that present complaint related to the enforcement of agreement to sell/purchase of a residential plot i.e. an immoveable property and hence was not covered under the Act; that the complainant did not hire any services of the Opposite Party, as the parties did not enter into any contract for hiring the services and the contract was only to sell a piece of land to the complainant; that the complainant did not book the plot for his personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court. It was further pleaded that jurisdiction issues be decided as preliminary issues a
