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CHANDIGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Jasbir Singh (Retd.), President, Mr. Dev Raj, Member and Mrs. Padma Pandey, Member
HARNEET SURI - Appellant
Versus
CHANDIGARH OVERSEAS PRIVATE LIMITED - Respondent
Complaint case No. 65 of 2016
Decided on : 19-07-2016
Sh. Ravinder Pal Singh, Advocate, for the Appellant; Sh. Surjeet Bhadu, Advocate, for the Respondent
Headnote:
Consumer Complaint - Fashion Technology Park - Consumer Protection Act 1986, Arbitration and Conciliation Act 1996 - The court discussed the jurisdiction of consumer fora in the presence of an arbitration clause, the definition of a consumer, force majeure circumstances, and the bar of limitation. The court held that the Consumer Foras have jurisdiction to entertain complaints despite the existence of an arbitration clause. It also found that the complainants fell within the definition of a consumer and rejected the force majeure circumstances claimed by the opposite party. The court also ruled that the complaint was not barred by limitation and fell within its pecuniary jurisdiction. It further held that the joint complaint filed by both complainants was maintainable. The court rejected the claim for buyback option but directed the opposite party to refund the deposited amount with interest and compensate the complainants for mental agony and physical harassment.
Fact of the Case:
The complainants purchased a unit in a project known as Fashion Technology Park, but the possession was delayed. They sought a refund, penalty for delay, and compensation for mental tension and harassment.
Finding of the Court:
The court found that the Consumer Foras have jurisdiction to entertain complaints despite the existence of an arbitration clause. It also held that the complainants fell within the definition of a consumer and rejected the force majeure circumstances claimed by the opposite party. The court ruled that the complaint was not barred by limitation and fell within its pecuniary jurisdiction. It further held that the joint complaint filed by both complainants was maintainable. The court rejected the claim for buyback option but directed the opposite party to refund the deposited amount with interest and compensate the complainants for mental agony and physical harassment.
Issues: Jurisdiction of consumer fora in the presence of an arbitration clause, definition of a consumer, force majeure circumstances, bar of limitation, pecuniary jurisdiction, and maintainability of joint complaint.
Ratio Decidendi: The Consumer Foras have jurisdiction to entertain complaints despite the existence of an arbitration clause. The complainants fell within the definition of a consumer. The force majeure circumstances claimed by the opposite party were rejected. The complaint was not barred by limitation and fell within the pecuniary jurisdiction of the court. The joint complaint filed by both complainants was maintainable. The claim for buyback option was rejected, but the opposite party was directed to refund the deposited amount with interest and compensate the complainants for mental agony and physical harassment.
Final Decision: The court partly accepted the complaint, directing the opposite party to refund the deposited amount with interest, compensate the complainants for mental agony and physical harassment, and pay the cost of litigation to the complainants.
ORDER
Mr. Justice Jasbir Singh (Retd.), President—The facts in brief are that the opposite party launched a project, known as Fashion Technology Park, in Sector 90, Mohali. It was widely advertised, with an offer of selling shops/units measuring 100/125 square feet. The said proposed complex was situated in Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali. In the information memorandum, it was specifically alleged that construction of the boundary wall and site office had already started and construction work of the project, commenced in the second week of September 2006, which will be completed within 24 months. It was further stated that possession of the unit will be handed over to the buyers, within 30 months, to be counted from second week of September 2006. To enable complainant No. 1 to earn her livelihood, by way of self-employment i.e. to setup a ready-made garments outlet, the complainants opted to purchase a unit, measuring 250 square feet (125 sq. ft x 2), design studio No. 5, 6th floor, Block A-2, (in short the unit) in the said project. At that time, an amount of Rs. 2.50 lacs was paid by the complainants through cheque. An amount of Rs. 1.25 lacs was paid on 14.08.2006. Vide letter dated 24.10.2006 Annexure C-4, unit was allotted to the complainants. To provide security for the investment made, in the information memorandum, buyback option of the unit was offered @Rs.7.50 lacs, for each unit of 100 square feet. Developer Buyer Agreement was signed on 26.12.2006. Against total price of unit, by 22.02.2007, the complainants had paid an amount of Rs. 9.50 lacs. Balance amount was to be paid at the time of delivery of possession of the unit. Vide letter dated 13.08.2006, intimation regarding eligibility for buyback was made by the opposite party to the complainants. It was accepted by them on 19.04.2009. However, no confirmation was received for the same. Project was to be completed by 18.01.2010. It was further said that construction at the site had stopped. Delivery of possession was going to be delayed, which forced the complainants to accept buyback offer. Vide letter dated 29.06.2010, the complainants were intimated that for delay in delivery of possession of the unit, they will be compensated by paying penalty amount @Rs.50/- per square feet, per month of the super area, till such time possession is not delivered. The said compensation amount, was paid by the opposite party, for few months, totalling Rs. 1,42,742/- and, thereafter, it stopped paying the same. It was alleged that on account of buyback option, the complainants are entitled to get an amount of Rs. 15 lacs. In the meantime, it also came to the notice of the complainants that the opposite party is selling the project to some other Company and the project will now be launched with a different name i.e. Jade Business Park. By stating as above, following relief was sought by the complainants:-
"(i) The Opposite Party be directed to pay to the complainants a sum of Rs. 15,00,000/- as per the buy-back agreement along with interest @18% p.a.
(ii) The Opposite Party be directed to pay to the complainants the amount of penalty on account of delay @Rs.50/- per sq.ft. total amounting Rs. 12,500/- per month for the delay in possession i.e. from 18.01.2010 till the date buy back amount (Rs. 15,00,000/- along with interest) is paid minus the amount of Rs. 1,42,742/- which was already paid to the complainants along with interest @18% p.a.
(iii) The Opposite Party be directed to pay to the complainants an amount of Rs. 5,00,000/- as compensation for causing mental tension, harassment, undue hardship and agony due to deficiency in providing the service, along with Rs. 1,00,000/- as cost of present litigation."
2. Upon notice, reply was filed by the opposite party, stating that in the face of existence of an arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain t
