Sham Sunder (Retd.), President:
1. The facts, in brief, are that, according to the complainant, the Opposite Parties made a number of assurances, through various newspapers, marketing emails and telemarketing, with regard to launching of their integrated residential township, under the name and style of Mohali Hills, Mohali, in Sectors 105, 108 and 109, Punjab, having salient features. It was also assured by the Opposite Parties, that since the development activity, at the site was in full swing, and near completion, on booking the plot, in the said project, possession thereof, complete in all respects, would be handed over to the purchasers/investors, within a period of 3 years, of clearing all the formalities and procedures, as prescribed by them (Opposite Parties). On such assurances, the complainant and his wife applied to the Opposite Parties, vide Advance Registration of Expression of Interest/Application No.MH/2135, for the allotment of a residential plot, measuring 500 square yards, in their proposed township, and paid a sum of Rs.13,80,000/-, as booking amount, on 30.09.2006.
2. The complainant and his wife were allotted plot no.256, approximately measuring 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, @Rs.11,500/- per square yard, vide Provisional Allotment letter dated 26.09.2007 Annexure C-1. The basic price of the said plot was to the tune of Rs.57,50,000/-. Apart from this amount, the complainant was also required to pay a sum of Rs.2,81,840/-, towards External Development Charges plus (+) Rs.7,18,750/-, towards Preferential Location Charges. Thus, the total sale consideration, in the sum of Rs.67,50,590/-, was required to be paid by the complainant, towards the said plot. Plot Buyer`s Agreement dated 04.07.2007, in respect of the said plot was executed between the parties, at Chandigarh. Installment payment plan/payment schedule was also attached with the Plot Buyer`s Agreement.
3. Thereafter, as per the installment payment plan, the complainant, in all, deposited an amount of Rs.64,63,090/-. The complainant and his wife, thus, qualified for waiver of 5% of the BSP. The complainant and his wife were given waiver of 5% of the BSP, to the tune of Rs.2,87,500/-, as indicated in Annexure C-2, statement of account. It was stated that, according to Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, the Opposite Parties were to handover physical possession of the residential plot, in favour of the complainant and his wife, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer`s Agreement). Thus, the Opposite Parties were to deliver possession of the residential plot, to the complainant and his wife, latest by 04.07.2010. The possession was not offered to the complainant and his wife, by 04.07.2010.
4. It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 04.07.2007, but they did not abide by their commitment. It was further stated that, as such, the amount of Rs.64,63,090/-, deposited by the complainant, towards the sale price of plot, was utilized by the Opposite Parties, as a result whereof, he was caused huge financial loss. It was further stated that since the Opposite Parties had not offered physical possession of the plot, in question, in favour of the complainant and his, they were not able to construct house thereon, and reside therein. It was further stated that besides that, the complainant and his wife, underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to them, and also suffered further financial loss, on account of non-payment of compensation.
5. 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to handover physical possession of the fully developed plot no.256, approximately measuring 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali; pay interest, @18% P.A., on the amount of Rs.64,63,090/- from the respective dates of deposits, till handing over possession of the plot in question; pay/reimburse the amount of rental @ Rs.33,000/- per month, from 04.07.2010, (the stipulated date of possession), till handing over possession of the plot, in question; compensation to the tune of Rs.3 lacs, on account of deficiency, in rendering service, damages, mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
6. The Opposite Parties, in their joint written version, pleaded that since the complaint, had not been signed by the complainant or his attorney holder, it was not legally maintainable, and, as such, on this ground alone, it was liable to be rejected. It was further pleaded that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, as no cause of action arose to the complainant, within the territory of Chandigarh. It was further pleaded that the complaint was barred by time. It was further pleaded that the complaint was bad for non-joinder of necessary parties, as the plot, in question, was allotted jointly, in favour of the complainant, and his wife. It was further pleaded that since, an arbitration Clause was incorporated, in the Plot Buyer`s Agreement dated 04.07.2007, disputes could only be adjudicated upon by the Arbitrator. It was further pleaded that the Consumer Complaint was not maintainable, and only a suit for specific performance, for the enforcement of Plot Buyer`s Agreement, could be instituted.
7. The factum of provisional allotment of plot, aforesaid, and the issuance of provisional allotment letter dated 26.09.2007 Annexure C-1, in favour of the complainant and his wife was admitted. It was also admitted that the Opposite Parties had received the entire sale consideration, towards the price of plot, in question, in the manner, referred to above. Execution of the Plot Buyer`s Agreement dated 04.07.2007, between the complainant, his wife, and the Opposite Parties, was also admitted. It was also admitted that possession of the apartment, in question, could not be delivered, to the complainant and his wife, till the date of filing the Consumer Complaint, or even till date. It was stated that the development activity, in the area, where the plot, in question, is located, was in full swing, and the delivery of physical possession thereof, was likely to be given, in the near future, on completion of internal services, as specified in Clause 23 of the Plot Buyer`s Agreement dated 04.07.2007. It was further stated that time was not the essence of contract. It was further stated that, as per the Agreement, referred to above, in case, the possession of fully developed residential plot was delayed, on account of the reasons, beyond the control of the Opposite Parties, they were only liable to pay penalty/compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same (Agreement), and, as such, the complainant was not entitled to any additional compensation, for mental agony and physical harassment, or interest, on the amount aforesaid, deposited towards the price of the plot, in question. 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. The remaining averments, were denied, being wrong.
8. The complainant, in support of his case, submitted the affidavit of Kulwinder Singh Suri, his Power of Attorney holder, by way of evidence, alongwith which, a number of documents were attached.
9. The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a copy of the Resolution, passed by their Board of Directors, in the meeting held on 27.03.2014, was attached.
10. We have heard the Counsel for the complainant, alongwith Sh. Kulwinder Singh Suri, his special power of attorney, as also the Opposite Parties, and, have gone through the evidence and record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, the complaint is bad for non-joinder of Mrs.Neemun Anand, wife of the complainant, who is a co-allottee. The complainant and his wife Mrs.Neemun Anand, have the same interest in the plot, allotted in their favour. One of the co-owners could certainly maintain a Consumer Complaint. According to Section 2(1)(b)(iv) of the Act, complainant means one or more consumers, where there are numerous consumers, having the same interest. Even otherwise, the Consumer Protection Act, 1986, is a beneficial legislation to provide speedy inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice. The proceedings before the Consumer Foras are summary, in nature. The controversy can be effectively and completely adjudicated upon, even in the absence of Mrs.Neemun Anand, being a co-complainant. The complaint, is, therefore, not bad for non-joinder of necessary parties. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
12. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. According to the Plot Buyer`s Agreement dated 04.07.2007, the possession was to be delivered, in respect of the plot, in question, within a period of three years, from the date of signing the same, in favour of the complainant and his wife. Neither the possession of plot, was handed over to the complainant and wife, by the stipulated date i.e. 04.07.2010, nor the penalty, as provided in the Plot Buyer`s Agreement dated 04.07.2007 was paid to them. There was, thus, a continuing cause of action, in favour of the complainant, to file the complaint. In Lata Construction and Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, the Consumer Complaint could 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 him. In the instant case, the Plot Buyer`s Agreement dated 04.07.2007, in respect of the plot, in question, was executed, between the complainant, his wife and the Opposite Parties, at Chandigarh. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Plot Buyer`s Agreement dated 04.07.2007. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection Act, 1986, is required to be made, which reads as under ;
œ3.Act not in derogation of any other law.”
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.?
Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Plot Buyer`s Agreement dated 04.07.2007, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. and another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
15. No doubt, an objection was taken by the Opposite Parties, in their written reply, that since the complaint had only been signed by the Counsel for the complainant, and not by the complainant, or his attorney holder, the same was not legally maintainable, and, on this ground alone, it was liable to be rejected. Since, this Commission was of the considered opinion, that it was only on account of a bonafide mistake, that such requirement of law was not complied with, by the Counsel for the complainant, the attorney holder of the complainant Sh. Kulwinder Singh Suri, was allowed to sign the complaint, and verification thereof, vide detailed order dated 29.04.2014. Accordingly, the attorney holder of the complainant signed the complaint and verification clause thereof, on 01.05.2014. Such an objection, thus having been taken by the Opposite Parties, in their written version, does not survive for decision.
16. It was next submitted by the Counsel for the Opposite Parties, that since the complainant sought enforcement of the Plot Buyer`s Agreement dated 04.07.2007, in respect of the immoveable property, only a suit for specific performance, under the Specific Relief Act, 1963, was maintainable. He further submitted that the Consumer Complaint was not maintainable, for the enforcement of a contract, in respect of the immoveable property. The submission of the Counsel for the Opposite Parties, in this regard, also does not appear to be correct. It may be stated here, that the complainant and his wife hired the services of the Opposite Parties, for purchasing the residential plot, in question, and they were allotted the same for consideration. According to Clause 8 of Plot Buyer`s Agreement dated 04.07.2007, subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). According to Clause 23 of the Plot Buyer`s Agreement dated 04.07.2007, the Opposite Parties were responsible to provide internal services, within the Project, which interalia included laying of the roads, water lines, sewer lines, electric lines etc. etc., to the complainant. It was not that the complainant and his wife, purchased the plot, in an open auction, on œas is where is basis?, without any further promise of the Opposite Parties, of providing amenities/ facilities, and developing the area, where the same (plot), is situated. Section 2 (1) (o) of the Act, defines service as under:-
œservice? means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service?
17. From the afore-extracted Clause 2(1)(o) of the Act, it is evident that housing construction, also comes within the definition a service. Under these circumstances, the complaint involved the consumer dispute, and the same was maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he fell within the definition of a consumer, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
18. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the complainant. According to Clause 8 of Plot Buyer`s Agreement dated 04.07.2007, subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties, were required to deliver the possession of plot, in question, in favour of the complainant and his wife, within three years, from the date of execution of the Plot Buyer`s Agreement dated 04.07.2007 i.e. latest by 04.07.2010. Admittedly, the possession of plot, in question, was not delivered to the complainant and his wife, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted that even the Opposite Parties were not able to deliver possession of the plot, in question, to the complainant, by providing all amenities, as mentioned in the Agreement, till date. The total sale consideration of the plot, as per the Plot Buyer Agreement, was Rs.67,50,590/-. The complainant and his wife, as per the admission of the Opposite Parties, and evidence, on record, deposited the amount of Rs.64,63,090/-, and they were given waiver of 5% of the BSP to the tune of Rs.2,87,500/-.The entire sale consideration of the plot, in question, had already been paid, by the time of filing the complaint, but the possession of plot, was not delivered in favour of the complainant and his wife, as the same had not been developed. By making a misleading statement, that the possession of plot, was to be delivered within three years, from the date of the Plot Buyer`s Agreement, dated 04.07.2007, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the plot.
19. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot, in question, by the Opposite Parties, by the promised date. According to Clause 8 of the Agreement, referred to above, the Company was liable to pay to the complainant, penalty/compensation, in the sum of Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same. Since possession of the plot, in question, was not delivered to the complainant and his wife, by the stipulated date, or even by the time, the complaint was filed, and even the Opposite Parties have shown their inability to hand over physical possession of the plot, in question, to him, till date, they (complainant and his wife) are entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 04.07.2010 (promised date) onwards, for the period of delay, as per Clause 8 of the Agreement, referred to above.
20. No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Honble Supreme Court to contend that time was not the essence of contract. The facts of Smt. Chand Rani`s case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani`s case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms, in the Agreement. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, the Opposite Parties were to hand over physical possession of the residential plot, within a period of 2 years, and not later than three years, from the date of execution of the same, i.e. latest by 04.07.2010. Even after the expiry of more than six years from the date of allotment of plot, and more than three and a half years, from the stipulated date, the possession thereof, was not delivered to the complainant and his wife. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
21. The next question, that arises for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited towards the part price of the plot, in question. In our considered opinion, the complainant is not entitled to interest, on the amount, deposited towards the sale consideration of the plot, in question. It is a settled principle of law, that the parties are bound by the terms and conditions of the contract, entered into between them. The delivery of possession of the plot, shall be made to the complainant and his wife, at the original price, which was prevailing in the year 2006-07, when the same was booked. The complainant will get the benefit of escalation, in the prices of real estate, in the meanwhile. It is not a case, in which the complainant had sought refund of the amount, deposited towards price of the said plot. In Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. 1996 (IV) 4 SCC 704, a case decided by a three Judge Bench of the Hon`ble Supreme Court, a question arose, that when the parties had contracted and limited their liabilities, whether the State/National Commission could go beyond the terms of the contract and give relief for damages, in excess of the limit, prescribed under the same (contract) or not. It was held that when there is a specific term, in the contract, signed by the parties, they are bound by the same, and relief for damages, in excess of the limit, prescribed under the same (contract), cannot be given. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Under these circumstances, as stated above, the complainant and his wife is only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 04.07.2010 (promised date of delivery of possession of the unit, in question) onwards, on account of delay, in delivery of possession of the plot, as per Clause 8 of the Agreement, referred to above. The complainant is, thus, not entitled to interest, claimed by him, @18% P.A., on the amount of Rs.64,63,090/-, deposited towards the price of the plot, in question. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
22. The next question, that falls for consideration, is, as to whether, the complainant and his wife are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, for a long number of years, by not delivering the physical possession of plot, to them. It may be stated here, that till date, i.e. even after the expiry of a period of more than three and a half years, from the promised date, i.e. 04.07.2010, delivery of physical possession of the plot, has not yet been made, to the complainant and his wife, by the Opposite Parties. The complainant and hiw wife underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, to the tune of Rs.1.5 lacs (Rs.One lac and fifty thousand only), on account of mental agony and physical harassment, caused to the complainant and his wife, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainant and his wife, is, thus, held entitled to compensation, in the sum of Rs.1.5 lacs, as indicated above.
23. No other point, was urged, by the Counsel for the parties.
24. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
i. The Opposite Parties, are directed to handover physical possession of the plot bearing no.256, approximately measuring 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, to the complainant and Mrs.Neemun Anand, within 3 (three) months, complete in all respects, from the date of receipt of a certified copy of this order, on payment of amount, if any, legally due against them.
ii. The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 04.07.2010 (the promised date of delivery of possession), till the delivery of possession of plot no.256, approximately measuring 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, to the complainant and Mrs.Neemun Anand, as per Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007.
iii. The Opposite Parties, are further directed to pay compensation, in the sum of Rs.1.5 lacs, (Rs.One lac and fifty thousand only), on account of mental agony and physical harassment, caused to the complainant and Mrs.Neemun Anand, at their hands.
iv. The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
v. Compensation, granted to the complainant, as mentioned in Clause (ii), which has fallen due upto 30.04.2014, shall be paid by the Opposite Parties, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 04.07.2010, till the delivery of possession of plot no.256, approximately measuring 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali.
vi. Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yard, w.e.f. 01.05.2014, per month, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9% P.A., from the date of default, till the delivery of possession.
vii. Compensation granted, in favour of the complainant, on account of mental agony and physical harassment, to the tune of Rs.1.5 lacs, as mentioned in Clause (iii), shall be paid by the Opposite Parties, within a period of two months, from the date of receipt of a certified copy of the order, to him, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.