STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH
Raj Shekhar Attri, President; Padma Pandey & MR.Rajesh K. Arya, Members
(Through Video Conferencing)
Shamsher Singh Dinarpur – Complainant
Versus
Emerging India Housing Corporation Pvt. Ltd. & Anr. – Opposite Parties
Complaint case No. : 181 of 2019 with Complaint case No. : 27 of 2020; Complaint case No. : 60 of 2020; Complaint case No. : 107 of 2020; Complaint case No. : 113 of 2020; Complaint case No. : 18 of 2020; Complaint case No. : 58 of 2020
Decided on 01.06.2021

IMPORTANT POINTS
(1) Existence of arbitration clause does not bar judgment of the commission.
(2) District Forum holds territorial jurisdiction over all consumer matters occurring in its territory.
(3) Purchaser of residential property is a consumer.

Headnote:

Consumer Protection Act, 1986 – Section 14 (Consumer Protection Act, 2019 – Section 35 – Complaint - Complainants/buyers paid installments for purchase of their respective flats from Opp. Parties (Builders) – Opp. Parties failed to provide Buyer’s Agreement or possession despite promised period running out – Complainants asked for refund – Opp. Parties alleged that possession was ready and complainants did not pay bal. amt., therefore, not given flat – Opp. Parties further questioned jurisdiction of commission, given existence of an arbitration clause and territorial jurisdiction – Also alleged whether Complainants falls within the definition of “Consumer” w.r.t Section 2(1)(d) of the act – Commission ruled that existence of arbitration clause does not bar complainants to file complaints before consumer fora – Purchaser of residential property falls within the definition of consumer - Deficiency committed on part of Opp. Parties – No Buyer’s Agreement executed on payment of first installment – No completion certificate obtained as proof of flat being ready for possession.

Held: The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined in the Act as he is having own house at Panchkula and he purchased the said unit in the project of the Opposite Parties purely for investment purposes only. 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 because the complainant has specifically mentioned in para No.3 of the complaint that “the complainant for the purpose of his residence booked a flat in the Emerging Heights project on 03/04/2014 and paid Rs.2,50,000/- on 03.04.2014.” 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 investment/speculation purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavit Ahuja vs. Shipra Estates I (2016) 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. The principle of law, laid down, in the aforesaid case, 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.

The next question, that falls for consideration, is with regard to non joinder of necessary party i.e. the registered office of the Opposite Parties is concerned, it is submitted that not even a single document has been placed on record by the Opposite Parties to show any alleged registered office of the company or any communication by the complainant with the registered office. Even all the correspondence between the parties have taken place from their Chandigarh Office. So, the said objection raised by the Opposite Parties stands rejected.

The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. In the instant case, it is evident from the record, that the complainant annexed the documents i.e. Annexures C-2 to C-4 (receipts/provisional allotment letter & Offer Letter etc.) were sent by the Opposite Parties from their Chandigarh Office, as the aforesaid documents bore the address as “SCO 46-47, First Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh – 160009”. 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.

The next question that falls for consideration before us is as to whether the Opposite Parties offered possession of the unit, in question, to the complainant complete in all respects or not. The Opposite Parties in their written statement have submitted that flat was ready for possession as the complainant was issued Offer Letter dated 16.09.2014 (Annexure C-4) for the allotted flat and was told to clear the payments, as per the payment schedule but he never paid the balance amount. Admittedly, the complainant booked unit in the project of the Opposite Parties namely Emerging Heights III situated in Sector 115, Mohali and paid the total amount of Rs.6,15,000/-. It is also the admitted fact that provisional allotment letter 18.09.2014 (Annexure C-3) was issued, in which, flat No.E-501 was allotted. It is also the admitted fact that Offer Letter dated 16.09.2014 (Annexure C-4) was issued in favour of the complainant. The allegation of the complainant is that after receipt of the amount of Rs.6,15,000/-, the Opposite Parties assured to execute Buyer’s Agreement but no Agreement was executed between the parties. On the other hand, the Opposite Parties submitted that no balance amount was paid by the complainant, as such, no Agreement was executed. Perusal of Annexure-II Payment Schedule (at page No.31 of the file) shows that net sale price of the unit, in question, was Rs.30,60,000/- and at serial No.1, it has been specifically mentioned that the complainant has to give 1st installment “At the time of Buyer Agreement” but in the present case, no Agreement was executed between the parties, therefore, no balance payment was made. If for the sake of arguments, we believe the version of the Opposite Parties that flat was ready for possession, the Opposite Parties have failed to place on record any document i.e. Completion/Occupation Certificate to prove the same and without placing on record completion/occupation certificate by the Opposite Parties, only offer letter issued to the complainant has no value at all. The complainant also annexed coloured photographs of the project, in question (Annexure C-5) to prove his case, which clearly shows that no basic amenities are there. Moreover, as per Clause N of the terms and conditions of the provisional allotment letter, possession was to be delivered by the maximum time limit of three years after allotment i.e. latest by 2017 and not more than that but in the present case, neither Agreement was executed nor delivered any possession within the stipulated time frame. It may be stated here that even not only in the present case but also in large number of cases, the Opposite Parties failed to deliver possession of the unit, in question. The aforesaid act of the Opposite Parties amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part. It is well settled law that non-delivery of possession of unit in a developed project by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee 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 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 @12% p.a. from the respective dates of deposits, that will serve the purpose.

The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is not disputed fact that the complainant deposited the total amount of Rs.6,15,000/- with the Opposite Parties in respect of the unit, in question. It is also the admitted fact that the Opposite Parties neither executed any Buyer’s Agreement nor delivered possession of the unit, complete in all respects, to the complainant within the stipulated time frame as mentioned in the terms and conditions of the allotment letter and only issued Offer Letter just to save their skin. So, the complainant is thus, entitled to get refund of amount of Rs. 6,15,000/-. 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 him. (Paras 7, 8, 9, 10 & 11)

Result: Complaint case no. 181 of 2019 - Complainant awarded refund of initial installment of Rs. 6,15,000/- with 12% interest, Rs. 1 lakh for mental agony and physical harassment and Rs. 33,000/- as litigation costs.

Complaint case no. 27 of 2020 - Complainant awarded refund of initial installment of Rs. 38,30,400/- with 12% interest, Rs. 1.5 lakhs for mental agony and physical harassment and Rs. 33,000/- as litigation costs.

Complaint case no. 60 of 2020 – Complainant awarded refund of initial installment of Rs. 3,45,000/- with 12% interest, Rs. 75 thousand for mental agony and physical harassment and Rs. 33,000/- as litigation costs.

Complaint case no. 107 of 2020 - Complainant awarded refund of initial installment of Rs. 36,32,165/- with 12% interest, Rs. 1.5 lakhs for mental agony and physical harassment and Rs. 33,000/- as litigation costs.

Complaint case no. 18 of 2020 – Opp. Parties to pay compensation by way of simple interest @12% p.a., on the entire deposited amt. from 18.05.2017 to 31.05.2021, to pay compensation by way of interest @12% p.a. on the entire deposited amt. w.e.f. 01.06.2021, onwards (per month), till delivery of actual physical possession, Rs. 50,000/- for mental agony, physical harassment and litigation costs.

Complaint case no. 58 of 2020 - Opp. Parties to pay compensation by way of simple interest @12% p.a., on the entire deposited amt. from 06.05.2019 to 31.05.2021, to pay compensation by way of interest @12% p.a. on the entire deposited amt. w.e.f. 01.06.2021, onwards (per month), till delivery of actual physical possession, Rs. 50,000/- for mental agony, physical harassment and litigation costs.