Altus Space Builders Pvt. Ltd. vs Veena Bhardwaj on 4 February, 2022
Daily Order CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 74 of 2021 Date of Institution : 30.09.2021 Date of Decision : 04.02.2022 Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through its authorized signatory Sh. Jaswinder Singh. Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through Sh. Sanjay Carol Harrison s/o R.V.S. Harrison through its authorized signatory Sh. Jaswinder Singh. Harpreet Singh, Chief Executive Officer, Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through its authorized signatory Sh. Jaswinder Singh. Mohinder Singh, Managing Director, Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through its authorized signatory Sh. Jaswinder Singh. Hardev Kaur Sra, Director, Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through its authorized signatory Sh. Jaswinder Singh. Jaswinder Singh, Director, Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab. Gurtej Singh Sra c/o Altus Space Builders Pvt. Ltd., Regd. Office: SCF-22, 1st Floor, Phase-10, S.A.S. Nagar, Mohali, Punjab through its authorized signatory Sh. Jaswinder Singh. .....Appellants/Opposite Parties No.1, 3 to 8. Versus Veena Bhardwaj w/o Sh. Sandeep Bhardwaj, resident of House No.1785, Sector 23-B, Chandigarh. Sh. Sandeep Bhardwaj s/o Sh. Shiv Kumar Sharma, resident of House No.1785, sector 23-B, Chandigarh. .....Respondents/Complainants. Sh. Jatinder Pal Singh s/o Sh. Ajit Singh, M/s Ajeet Associartes, S.C.O. 846, Sector 22-A, Chandigarh. ...Respondents/Opposite Party No.2. Appeal under Section 41 of Consumer Protection Act, 2019. BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued Physically by:
Sh. Ramandeep Singh Pandher, Advocate for the appellants.
Sh. Sandeep Bhardwaj, Advocate - respondent No.2 in person and also for respondent No.1.
Respondent No.3 exparte vide order dated 06.12.2021.
PER RAJESH K. ARYA, MEMBER This appeal has been filed by opposite parties no.1 and 3 to 8 (appellants herein) against order dated 2.8.2021 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short 'the District Commission'), vide which, consumer complaint bearing No.445 of 2020 filed by the complainants (respondents no.1 and 2 herein) was allowed against them vide which, the appellants, jointly and severally, were directed as under:-
"a) To deliver actual and physical possession of Plot No.C-88 measuring 475 sq.yards in Phase I in "Muirwoods Ecocity", complete in all respects, alongwith agreed facilities, proper demarcation alongwith completion and occupation certificate issued by the competent authorities and execute the Registered Sale/Conveyance Deed in favour of complainants. In case the Plot size comes to 526 sq. yards at the time of handing over the possession of the plot as per approved layout by the competent authority, the complainants will pay the actual cost of the difference of size i.e.51 sq.yards which comes to Rs.4,33,500/- (BSP 8500 X 51 sq. yards) alongwith government charges i.e. EDC/IDC etc. to the tune of Rs.52,683/- (Rs.1033 x 51 sq.yards), at the time of possession.
b) To pay compensation for delay in delivery of possession at the rate of Rs.5/- per sq.ft. per month of the area of the unit, in question, after the expiry of the stipulated day of delivery of possession i.e. from 08.03.2020 till the delivery of possession of the Plot, as ordered above, as per clause 5.1(c) of the agreement Ex.C-21. In addition to it, the Appellants shall also pay simple interest on the entire amount deposited by the complainants i.e.Rs.67,72,500/- (Rupees Sixty Seven Lacs Seventy Two Thousand Five Hundred Only) at the rate of 6% per annum from 8.3.2020 till the delivery of the possession of the Plot in the manner as ordered above.
c) To refund the excess amount of Rs.21,39,226/- alongwith interest @12% p.a. as compensation from the date of deposit in 2011 till realisation.
d) To refund the excess amount of Rs.17,66,250/- received towards government charges in excess of the Punjab Govt. notification dated 6.5.2013 alongwith interest @ 12% p.a. as compensation from the date of deposit till realisation.
e) To pay cost of litigation amounting to Rs.50,000/ -.
No TDS shall be deducted on the awarded amount.
2. Briefly stated, the facts as alleged by the complainants/respondents No.1 & 2 in the complaint were that the complainants purchased one residential plot measuring 350 sq.yards from the appellants in their project "Muirwoods Ecocity" having salient features as specified in their Brochure such as Club, School, Parks, Commercial Hub, broad roads (Annexure C-1) at the quoted price of Rs.13,500/- sq.yds plus government charges to be claimed lateron. The appellants received an amount of Rs.14,00,000/- from the complainant towards initial deposit alongwith proposal form for provisional registration dated 20.12.2011 (Annexure C-2). Thereafter an amount of Rs. 23,20,000/- was received by the appellants on 20.3.2012 as per Annexure C-3. Thus, the appellants received the full payment of the plot including CLU except Rs.1,05,000/- which was less than 3% of the price of the plot whereas the Letter of Intent issued in favor of the appellants by PUDA, Mohali on 25.5.2011 for 'Mega Housing Project for grant of Special Package of Incentives under Punjab Industrial Policy' had a specific condition that the project could not be advertised/launched and no money could be collected from the general public by the appellants till the time, the layout plans/zoning plans are cleared by the competent authority. After issuance of LOI, permission for change of land use for residential mega housing project was issued in favour of appellants from time to time subject to terms and conditions mentioned therein (Annexure C-4/1 to C-4/5). Layout Plans were approved on 08.05.2014 (Annexure C-5). Thus, till May 2014, the appellants were not authorized to publicize the project and collect money from general public nor could enter into an agreement for the sale/purchase of the plots under the said scheme. When the complainants insisted for execution of Buyer Agreement, the appellants asked them to fill the form for preferential location option vide letter dated 26.9.2013 (Annexure C-6) to which the complainants agreed and gave such option to appellants as per Annexure C-7. Thereafter EDC was demanded vide letter dated 12.3.2014 (Annexure C-8) and the complainants paid Rs. 2,45,000/- towards EDC vide cheque no. 410766 dated 21.03.2014 (Annexure C-9). Further charges were received by appellants vide cheque no.957988 amounting to Rs. 1,42,738/- dated 21.05.2015 and then cheque bearing no.315025 dated 14.01.2016 for Rs. 1,42,738/- towards the charges against cheque no.315024 dated 29.12.2015 as the cheque remained unpaid (Annexure C-10). It was further averred that in August, 2015, the complainants were asked to execute Plot Buyer Agreement vide letter dated 03.08.2015 (Annexure C-11), however, in this agreement, the appellants were not accounting for the whole amount paid, therefore, when the complainants raised objection to it, the appellants took the agreement back and assured to revise the same as per actual amount received. Even thereafter the plot buyer agreement was not executed and on 13.04.2016, when the complainants approached the appellants for the possession of the plot, they were informed that possession in phase-2 of the project would take time and advised the complainants to opt for Phase-1 for the plot measuring 475 sq.yds with the option to refund the earlier amount and the promise to deliver possession in this block within six months. The complainants were shown the printed layouts (Annexure C-12) on 100 ft.wide road namely VR-5 which was connecting DLF as well as 200 ft road on which the PCA Stadium, Mullanpur is being built up by the State Government. Thereafter again the complainants were asked to pay the amount towards plot measuring 475 sq. yards with the promise to refund the amount received in 2011 and the complainants paid the amount on various dates as per following details:-
Sr.No. Amount deposited Receipt date Annexure
1.
Rs.14,00,000/-
20.12.2011 C-2
2. Rs.9,00,000/-
21.01.2012 C-33
3. Rs.23,20,000/-
23.03.2012 C-3
4. Rs.2,45,000/-
21.03.2014 C-9
5. Rs.1,42,738/-
21.05.2015/18.1.16 C-36
6. Rs.1,42,738/-
14.01.2016/18.1.16 C-36
7. Rs.10,00,000/-
13.04.2016 C-13
8. Rs.5,40,000/-
23.06.2016/29.06.2016 C-14/16
9. Rs.11,60,000/-
04.11.2016 C-17/C-18
10. Rs.2,61,250/-
05.11.2016 C-19
11. Rs.8,00,000/-
09.11.2016 C-20 Total Rs.89,11,726/-
3. It was further averred that the provisional allotment letter of Plot No.C-100 was issued on 23.6.2016 with the promise to deliver the possession soon and execute Buyer Agreement. However the Buyers Agreement was finally executed on 9.3.2017 (Annexure C-21) after repeated pursuance of the complainants, which the complainants signed, being on disadvantageous position, having already paid a considerable amount of money without any buyers agreement having been executed. As per Clause 5 of the Buyer Seller Agreement i.e. clause 5.1, the possession was to be delivered within a period of 30 months along with an extended period of 6 months from the date of execution of the agreement. Since, the agreement got executed on 09.03.2017, as such, the possession was due on or before 08.09.2019 and thereafter by 8.3.2020 (by taking into consideration the extended period also) but no possession was offered. Since the complainants have been insisting for refund of excess payment and possession of the plot, after visiting the site and repeated assurances, again Provisional Allotment Letter for Plot No.C-88 was issued on 15.6.2019 with the promise to deliver the possession of the plot within three months up-till September, 2019. The complainants visited the office of appellants after six months, as the possession was promised at this point of time, and the appellants handed over a document to the complainants in which the people handling company's work had made a promise with the allottees that the possession of the plots in phase I and II shall be delivered on or before 31.01.2018 as the company have already applied for the partial completion certificate as per Annexure C-22.
4. It was further averred that the charges claimed in the Buyers Agreement were over and above the government charges and the appellants are not liable to charge the same. The case of the complainants is that the appellants mentioned the total price of the plot as Rs.13,408/- per sq.yds in the Buyers Agreement dated 9.3.2017 which includes BSP, Charges and Club membership. The price of the plot as such was stated to be Rs.63,68,800/- as per the agreement whereas the appellants had received an amount of Rs.89,11,726/- from the complainants. The complainants had been requesting the appellants to refund the excess amount upon which, the appellants informed that the amount payable towards PLC is not clear as the amount received in excess will be refunded only after the final lay outs were approved by the Government and final status of plot yet to be allotted to the complainant will be clear. The complainants also requested the appellants to provide the detail of charges to be deposited by them with the Government Authorities as the charges cannot be for an amount of Rs.22,18,274/-. It was further averred that the Government of Punjab has notified the amount towards the External Development charges in their notification dated 06.05.2013 (Annexure C-27) and as per the notification, the total amount towards EDC, CLU, PF/LF and SIF comes to Rs. 4,90,702/- and the appellants have charged an amount of Rs. 22,56,250/- towards the government charges from the complainants whereas the calculation of charges as per government letter is as below:-
The amount of charges is Rs. 50,00,000/- per acre 1 Acre = 4840 Sq.yds Rs. 50 Lakh divided by 4840 sq.yds = Rs. 1033 Charges towards 475 sq.yds = Rs. 1033 * 475sq.yds Total charges payable to OPs comes to Rs. 4,90,702/-
5. When the complainants asked for the possession of the plot, the appellants further demanded an amount of Rs.6,62,024/- from the complainants as per account statement (Annexure C-24) of plot C-88 as follows:-
AS PER AGREEMENT, TOTAL COST OF PLOT Area * Price per sq.yds Total price BSP 475 * Rs. 8500/-
Rs. 40,37,500/-
Charges 475 * Rs. 4750/-
Rs. 22,56,250/-
Club Charges Rs. 75,000/ PLC 475 * Rs. 850/-
Rs. 4,03,750/-
10% of BSP Total cost of plot Rs. 67,72,500/-
6. It was further averred that as per the information received under Right to Information Act from GMADA, no completion certificate has been issued to the appellants till 09.07.2020. It was further informed that there are only 5 types of charges being approved by GMADA i.e. External Development Charges, License Fee, Urban Dev Fund, Social Infrastructure Fund and Cess on PR-7. It was further averred that the aforesaid government charges, leviable towards EDC/IDC, were provided in the annexure attached with RTI dated 09.07.2020 (Annexure C-25). It was further averred that not only this, the appellants have charged excess amount, which they did not deposit with Government Department as per the document available on GMADA website, Annexure C-26. It was further averred that the complainants have been requesting for possession of the plot repeatedly but the photographs attached with the complaint clearly proved that there is no progress at the site as the appellants had no intention to complete the project, therefore, they did not deposit the government dues with GMADA. It was further averred that the appellants indulged into unfair trade practice on the following grounds:-
There was no development at site and possession has not been offered till date.
The provisions of PAPR Act have totally been violated by the appellants because as per the agreement, the total cost of the plot is Rs.63,68,800/- and 25% of the total price comes to Rs. 15,92,200/- as such the appellants could not have received more than 25% of the total consideration of the plot without entering into agreement in accordance with Section 6 of the PAPR Act that too after the passing out of the layout plans from the government authority as per the conditions of LOI i.e. after May 2014.
The appellants received Rs.22,56,250/- towards the charges from the complainants claiming it as government charges. The appellants could charge only government charges. As per government rules, only Rs.4,90,702/- were chargeable whereas the appellants have received an amount of Rs.22,56,250/- which means an amount of Rs.17,66,250/- are refundable which have been received in excess by the appellants.
The appellants did not deposit the government charges with GMADA resulting in delay in the project causing further delay in handing over the possession and the appellants are using the money of the complainants which amounts to unfair trade practices.
7. Thus, alleging deficiency in rendering service and unfair trade practices on the part of appellants, the complainants filed consumer complaint before the District Commission.
8. On the other hand, Opposite parties No.1 and 3 to 8 (appellants herein), in their joint written reply filed before the District Commission, while admitting the factual matrix of the case, took certain preliminary objections that Sh. Jatinder Pal Singh of Ajeet Associates, who had received payments was not impleaded as party; the said Sh. Jatinder Pal Singh was not their authorised signatory to receive payments on behalf of company, therefore, the complaint was bad of mis-joinder and non-joinder of necessary parties and that complicated questions of facts were involved; that Plot No.C-88 is of bigger size i.e. of 528 sq yards and that a CWP No.22109 of 2020 has been filed before the Hon'ble High Court seeking directions against government authorities to complete development of road etc. including VR-5. In the reply other preliminary objections were taken such as, complainants purchased the plot for investment purpose and are not consumers; the Plot Buyer Agreement dated 9.3.2017 contains Arbitration Clause, therefore, this Commission has no jurisdiction to entertain the complaint and that the U.T. Fora has no territorial jurisdiction as the property is situated at Mohali. It was further pleaded that as per Plot Buyer Agreement dated 9.3.2017, the appellants are liable to pay penalty only @ Rs.5/- per sq. yards per month as per Clause 5.1(c) of the Buyers Agreement beyond the period of delay in offering possession. It was further pleaded that as per Clause 5.1(b) of the Buyer Agreement, the appellants are not responsible for delay being 'force majeure conditions'. It was further pleaded that the complainants were liable to pay more amount to the appellants since the plot No.C-88 is of 528 sq.yards and not 475 sq.yards. On merits, the appellants admitted Proposal Form, Annexure C-2 and the payments against which the receipts were lateron issued by Altus Space Builders after accounting for in their accounts. It was further pleaded that the complainants were liable to pay more amount as per Account Statement issued by them i.e. Annexure C-24. With regard to other charges, it was pleaded that the complainants were bound by Buyers Agreement dated 9.3.2017. In the written statement, the appellants stressed on the points that a Civil Writ Petition No.22109 of 2020 has been filed before the High Court for issuance of directions to government authorities to provide all External Development Works in time bound manner and to settle their account with GMADA for development of such work including the construction of road VR-5. It was further pleaded that in view of Clause 5.3 (c) of the Plot Buyer Agreement, if for any reason, the developer is not at all in a position to offer the plot, the developer may offer the purchaser an alternate property or refund the amount in full with interest @9% per annum without any further liability to pay damages.
9. The complainants filed rejoinder to the reply filed by the appellants wherein the averments made in the complaint were reiterated and those of the written statement was repudiated. Alongwith the rejoinder, the complainants also placed on record various judicial orders i.e. Annexure C-39 to C-50 showing that the appellants have been selling the plots through Sh. Jatinder Pal Singh of M/s Ajeet Associates and they were appearing jointly with the said Ajeet Associates through Jatinder Pal Singh before Hon'ble National Commission by filing joint appeals. Further they have also placed on record the information available on the website of appellants as well as of M/s Ajeet Associates where the plot of 'Muirwood Ecocity' are being sold jointly by the Altus Space Builders and Ajeet Associates whose Chairman is Sh. Jatinder Pal Singh. Such information and Brochure, Annexure C-1, is available on their website as well as on the website of Punjab RERA where the information has been provided by the appellants. The complainants also placed on record further documents signed by Sh. Jatinder Pal Singh as authorised signatory of Altus Space Builders on the letter head of Altus Space Builders Pvt. Ltd. such as Annexure C-55 and C-56.
10. The parties led evidence in support of their case.
11. The District Commission, after hearing the Counsel for the parties and going through the evidence on record, allowed the complaint against the appellants as stated above.
12. The arguments were addressed by the Counsel for the appellants and respondents no.1 and 2 were present in person to address arguments. Respondent no.3 was proceeded against ex-parte vide order dated 6.12.2021. The appellants as well as respondents no.1&2 also filed detailed written submissions which have been taken on record.
13. At the time of physical arguments in presence of respondents/complainants in person, Counsel for the appellants pleaded that they have no objection to the relief granted at point no.(a) and (b) of the relief part in Para 8 of the judgments.
14. The order has been impugned by the appellants on the ground that the District Commission erroneously did not consider the objections of the appellants that the complaint was bad for non-joinder and misjoinder of parties since Sh. Jatinder Pal Singh son of Sh. Ajit Singh of Ajeet Associates has not been impleaded as a party to whom the payments were made by the complainants/respondents No.1 & 2 who has received the excess payment of Rs.21,39,226/- which has been ordered to be refunded at point no.(c) of the relief part in para 8 of the judgment; that complicated questions of facts were involved in the case since the plot was of 528 sq. yards whereas the complainants/respondents No.1 &2 have pleaded that the plot is of 475 sq. yards; that the District Commission has wrongly granted relief in point (d) of para 8 of the judgment wherein the appellants have been directed to refund the excess amount received towards government charges in excess of the Punjab Government notification dated 6.5.2013 alongwith interest; that the respondents/complainants are not consumers; that the District Fora had no pecuniary and territorial jurisdiction to entertain and try the complaint; that the dispute was barred under the existence of arbitration clause in the agreement; that there was force majeure in non-delivering the possession of the plot and that the District Commission was not justified in allowing compensation @6% p.a. on the deposited amount over and above the compensation of Rs.5/- per sq. ft. as mentioned in the Buyer Agreement for delay in delivering the possession.
15. On the other hand, the respondents/complainants relied upon the various judgments passed by the Hon'ble National Commission at Delhi, State Commission, U.T. and Punjab wherein the appellants alongwith Sh. Jatinder Pal Singh son of Ajit Singh of M/s Ajeet Associates have been held responsible for the deficiency in rendering service and the orders passed by the Commissions to refund the amount to the complainants have been duly executed by the appellants alongwith Sh. Jatinder Pal Singh of M/s Ajeet Associates. In the judgments/orders Sh. Jatinder Pal Singh of M/s Ajeet Associates has been admitted to be the channel partner of M/s Altus Space Builders Pvt. Ltd. who has been executing the Agreement to Sell with the consumers since 2011. The respondents have also referred to the various appeals filed by the appellants jointly with Sh. Jatinder Pal Singh of M/s Ajeet Associates. The respondents also relied upon the information available on the website of M/s Altus Space Builders Pvt.Ltd.; M/s Ajeet Assocaites as well as the information available on the website of Punjab Real Estate Regulatory Authority (RERA) where the name of Ajeet Associates as Channel Partner/Business Associate of M/s Altus Space Builder is printed. It was argued that all the amounts were received from the complainants/respondents by the appellants through their authorised signatory i.e. Sh. Jatinder Pal of M/s Ajeet Associates which were further transferred to the company's account which is proved from the Account Statement issued by the Company (Annexure C-24). Not only this, all the letters as well as provisional allotment letter were received by the respondents/complainants and other similarly situated consumers also duly signed by the said Jatinder Pal Singh on the letter head of the company since 2011. The appellants cannot pick and choose to say that only part payments have been received from him.
16. With regard to the refund of the amount received in excess of the government charges, the respondents/complainants relied upon the notification dated 06.05.2013 issued by the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) which authorises the builders to receive the certain amount towards charges from the complainants to be deposited with GMADA for the development of the area. As per the said notification, total of Rs.50 lacs per acre can be charged for the residential plotted area at Mullanpur (where the plot of the complainants/respondents is situated), towards EDC/CLU/LF/PF/SIF etc. according to which the respondents/complainants are required to pay only an amount of Rs.4,90,702/- whereas the appellants were charging Rs.22,56,250/- towards charges for which no bifurcation/justification was given by the appellants nor any document was placed on record to show as to how such calculation was reached at. It was next argued, as averred in Para 26 of the complaint, that the appellants are also demanding the charges for CLU and Internal Development Charges (IDC), in addition to charges as mentioned above. Since the respondents have purchased the plot from the appellants, therefore, no other charges except those mentioned in the notification can be charged by the appellants. The respondents/complainants contended that they should have been granted compensation under Section 39(k) of the Consumer Protection Act, 2019.
17. After having given our thoughtful consideration to the contentions raised and going through the record of the case and written arguments filed on behalf of the appellants, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.
18. Counsel for the appellants specifically argued that the applications for dismissal of complaint on the ground of non-joinder and mis-joinder of parties as well as complicated questions of law, which points were raised in the written statement also were not considered by the District Commission while passing the order. We have perused the record. There is no application number allocated to any of the applications. However both the ground of the applications, which have been taken in preliminary objections in the reply, i.e. Jatinder Pal Singh is not authorised signatory as well as the plot is of 528 sq.yards and not of 475 sq.yards have been duly considered by the District Commission while passing the order. It has been specifically held that no action has been taken by the appellants against Jatinder Pal Singh who is receiving money from the consumers including complainants for the last many years coupled with the fact that the appellants have filed appeals with said Jatinder Pal Singh clearly proves their connection. So far as the measurement of plot is concerned, the District Commission has directed the appellants to receive the required extra amount, if the plot is found to be of 528 sq.yards at the time of handing over the possession. The District Commission has dealt with the objections in the final order and there was no need to pass a separate order on the applications on which no number was allocated and no notice was issued. The procedure applicable under the Consumer Protection Act, 2019 is summary in nature and there is no provision under the Act to file any such applications and the provisions of CPC are not applicable unless specifically provided in the Act. It has been provided in Consumer Protection (Consumer Commission Procedure) Regulations, 2020 that in all proceedings before the Consumer Commission, endeavour shall be made by the parties and their agents to avoid the use of provisions of CPC. The same objections taken by the appellants in the written statement have been considered by the District Commission while passing the order. However, following questions arise to be decided by this Commission in the present appeal:-
Whether the complaint was bad for mis-joinder and non-joinder of parties?
Whether Sh.Jatinder Pal Singh son of Ajit Singh of M/s Ajeet Associates is the authorised signatory of appellants/appellants.
Whether there are complicated questions of facts which cannot be decided in summary proceedings?
Whether respondents/complainants are consumers?
Whether the complaint was within pecuniary and territorial jurisdiction of District Commission?
Whether the dispute is barred under the existence of Arbitration clause in the agreement?
Whether appellants are justified in charging amount over and above the government notification under various heads such as EDC, CLU, PF/LF and SIF etc. and whether their demand on account of Internal Development Charges (IDC) is justified?
Whether there was any force majeure in non delivering the possession of the plot?
Whether the District Commission was justified in allowing compensation @ 6% p.a. on the deposited amount over and above the compensation of Rs.5/-per sq.feet as mentioned in Buyers Agreement for delay in delivering the possession.
19. So far as the first objection taken by the appellants with regard to the non-joinder and misjoinder of parties is concerned, the appellants pleaded that Sh.Jatinder Pal Singh son of Sh.Ajit Singh of M/s Ajeet Associates has not been impleaded as a party to whom the payments were made and Altus Space Builders have been arrayed as three respondents through authorised signatory/Jatinder Pal Singh and Sanjay Harrison whereas the same juristic persons cannot be arrayed as separate respondents. The stand of the appellants is liable to be rejected on the simple ground that Sh. Jatinder Pal Singh son of Sh.Ajeet Singh of M/s Ajeet Associates has been arrayed as a party in the complaint as opposite party no.2. All the receipts placed on record by the complainants bear the signature of Sh. Jatinder Pal Singh as authorised signatory of Altus Space Builders Pvt.Ltd. and as Channel partner of M/s Altus Space Builders Pvt.Ltd. Sh. Sanjay Harrison is the person who has signed Buyers Agreement on behalf of appellants with the complainants, therefore, he is also a necessary party and has been rightly impleaded as such. A juristic person can be impleaded as a party in accordance with the Section 2(31) of Consumer Protection Act. 2019 and it is a settled law that all the parties directly involved with the decision making process are necessary parties and can be impleaded as such. Similar view was taken by the Supreme court in the case of ' Anil Kumar Singh Versus Shivnath Mishra alias Gadasa Guru (1995) 3 Supreme Court Cases 147 and Hon'ble National Commission in 'M/s India Bulls Real Estate & Wholesale Services Ltd. and others Versus Vemparala Srikant & Another First Appeal No.797 of 2017 decided on 16.8.2017.
20. In the complaint filed before the District Commission, Sh. Jatinder Pal Singh son of Sh.Ajit Singh of M/s Ajeet Associates was impleaded as opposite party no.2 as under:-
"2. M/s Altus Space Builders Pvt.Ltd., SCO 846, Sector 22-A, Sector 22-A, Chandigarh through Sh.Jatinder Pal Singh s/o Sh.Ajit Singh, M/s Ajeet Associates, Channel Partner of M/s Altus Space Builders Pvt.Ltd."
21. Not only this, the respondents/complainants alongwith their additional written arguments placed on record copy of order dated 02.12.2021 of Hon'ble National Consumer Disputes Redressal Commission, New Delhi, showing that the appellants have filed First Appeal No.2253 of 2019 before the Hon'ble National Commission titled 'Altus Space Builders Pvt. Ltd. & anr. Vs. Anil Kumar Sharma' with the following memo of parties:-
"1.Altus Space Builders Pvt.Ltd. and another Through its Authorised Signatory, Sh.Narinider Singh Sidhu, SCF 22, 1st Floor, Phase 10, SAS Nagar, Mohali
2. Altus Space Builders Pvt.Ltd.
Through Jatinder Pal Singh, SCO 846, Sector 22A Chandigarh .........Appellants Versus Anil Kumar Sharma s/o Sh.Maya Ram Sharma, H.No.2638, Sector 37C, Chandigarh ...........Respondent
22. The respondents/complainants have also produced on record certified copy of Memo of Parties in the First Appeal No.777 of 2021 filed by the appellants before the Hon'ble National Commission titled 'Altus Space Builders Pvt. Ltd. Vs. Rakesh Chander Gupta HUF & another, on 9.11.2021 as under:-
"MEMO OF PARTIES Altus Space Builders Pvt.Ltd. Regd Office SCF-22, 1st Floor, Phase-10, S.A.S.Nagar Mohali, Punjab, through its authorised signatory Sh.Jaswinder Singh son of Sh.Nagar Singh, Authorised Signatory of M/s Altus Space Buuilders Pvt.Ltd.
M/s Ajit Associates having its head office SCO No.846, Sector 22-A, Chandigarh through its CEO Jatinder Pal Singh son of Sh.Ajit Singh resident of # 857, Sector 49-A, Chandigarh.
Jatinder Pal Singh son of Sh.Ajit Singh, resident of # 857, Sector 49-A, Chandigarh, CEO of M/s Ajit Associates having its head office SCO No.846, Sector 22-A, Chandigarh.
.........Appellants/Opposite parties Versus Ramesh Chander Gupta HUF son of Late Joginder Pal Gupta, resident of House No.53-59, Garden Colony, Near Arya School Ground, Nakodar, District Jalandhar.
Rakesh Chander Gupta HUF son of Late Joginder Pal Gupta, resident of House No.53-59, Garden Colony, Near Arya School Ground, Nakodar, District Jalandhar.
.......Respondents/complainants
23. In view of the facts stated above and the legal preposition referred to above, the objection of the appellants that the complaint was bad for mis-joinder and non joinder of parties is rejected.
24. The appellants have pleaded that Jatinder Pal Singh of Ajeet Associates is not their authorised signatory before the District Commission and before this Commission also. However, no document has been placed on record by the appellants in support of their contention either before the District Commission or before this Commission alongwith the Appeal to prove the fact that Jatinder Pal Singh is not authorised signatory/representative of Altus Space Builders Pvt. Ltd whereas the respondents/complainants have placed on record sufficient documentary evidence which clearly establishes the relationship of Jatinder Pal Singh of Ajeet Associates and Altus Space Builders Pvt. Ltd. The respondents/complainants have placed on record various orders of the Hon'ble State Commission wherein it has been held that the Altus Space Builders are selling plots through Ajeet Associates whose Chairman/CEO is Jatinder Pal Singh and the appellants/Altus Space Builders Pvt. Ltd. have filed joint appeals with Ajeet Associates through Sh. Jatinder Pal Singh as a joint appellants in appeals (Annexure C-39 to C-50). Some of the appeals wherein the appellants have filed joint appeals have been referred in the para referred to above. The other orders which have been referred are mentioned below:-
CC No.316 of 2015 decided by the U.T. State Commission on 24.5.2016 where alongwith Altus Space Builders Pvt. Ltd., M/s Ajeet Associates through Sh. Jatinder Pal Singh was a party and agreement to sell was executed by Sh. Jatinder Pal Singh of Ajeet Associates with the complainants. (Annexure C-39). Against the order, Joint Appeal filed by appellants with Ajeet Associates/Jatinder Pal Singh before the Hon'ble National Commission i.e.FA 803/2016 which was dismissed as withdrawn (Annexure C-40) pleading settlement of the matter.
CC 416 of 2016 decided by State Commission, U.T. Chandigarh on 21.11.2016 holding M/s Ajeet Associates through Jatinder Pal Singh as marketing agent/representative of Altus Space builders. (Annexure C-41). Joint Appeal filed by appellants with Ajeet Associates/Jatinder Pal Singh before Hon'ble National Commission i.e. FA No.37 of 2017 which was disposed of on the statement of settlement of the case (Annexure C-42).
CC No.2 of 2017, 3 of 2017 and 42 of 2017 decided by U.T.State Commission on 8.6.2017 against M/s Altus Space Builders and M/s Ajeet Associates through Jatinder Pal Singh where agreement to sell was executed by Ajeet Associates/Jatinder Pal Singh (Annexure C-43). Joint Appeal was filed by appellants with Ajeet Associates/Jatinder Pal Singh i.e. FA No.1597/2017 which was later on dismissed as withdrawn by settling the matter with consumer (Annexure C-44).
CC No.337 of 2018 and 338 of 2018 decided by State Commission, U.T. on 25.3.2019 (Annexure C-45) against Altus Space Builders and M/s Ajeet Associates with address of Ajeet Associates at Sector 22-A as address of Altus Space Builders Pvt. Ltd.
CC No.93 of 2019 and 148 of 2019 decided by U.T. State Commission against Altus Space Builders Pvt.Ld. alongwith Ajeet Associates through Jatinder Pal Singh vide order dated 28.11.2019 (Annexure C-46). Joint Appeal was filed by both before Hon'ble National Commission bearing no.FA 25 of 2020 (Annexure C-47).
Joint Appeal by Altus Space Builder alongwith Ajeet Associates through Sh.Jatinder Pal Singh before the Hon'ble National Commission in FA 133 of 2020 (Annexure C-48) and FA No.1599 of 2017 (Annexure C-49).
The appellants have filed joint appeal by impleading opposite party no.2 (as in the present complaint) i.e. Altus Space Builders Pvt.Ltd. through Sh.Jatinder Pal Singh, SCO 846, Sector 22-A, Chandigarh before the Hon'ble National Commission in FA No.2253 of 2019 (Annexure C-50), thereby, admitting Jatinder Pal Singh as their authorised signatory.
That Hon'ble State Commission, U.T in a recent judgment passed in C.C No. 16 of 2020 decided on 29.11.2021 titled as Manjula Garg W/o Jitendra Pal Garg versus Altus Space Builders Pvt. Ltd., C.C No. 97 of 2020 decided on 29.11.2021 titled as Ajay Kumar Singhal versus Altus Space Builders Pvt. Ltd. C.C No. 121 of 2020 decided on 29.11.2021 titled as Asha Kumari versus Altus Space Builders Pvt. Ltd. has specifically recorded in para 22 of the order that M/s Ajeet Associates have received cash payments also and has signed Agreement to Sell on behalf of Altus Space Builders Pvt. Ltd.
CC No.661 of 2018 was decided by the Punjab State Consumer Commission on 19.2.2020 against which First Appeal No.777 of 2021 has been filed by the appellants before the Hon'ble National Commission alongwith M/s Ajeet Associates and Jatinder Pal Singh in November, 2021. A certified copy of the memo of parties has been produced on record by the respondents/complainants as admitted by the appellants during oral arguments. In this appeal, only the interest amount has been pressed before the National Commission.
25. The appellants have admitted Annexure C-2 which is the proposal form duly signed by Jatinder Pal Singh by writing himself as Ajeet Associates, Channel Partner of Altus Space Builders Pvt. Ltd meaning thereby that Ajeet Associates is the company that partners with the Builder i.e. the appellants, to market and sell the residential plots of the developer. Thereafter, letter dated 26.09.2013 (Annexure C-6) was issued by the appellants under the signatures of Jatinder Pal Singh asking the complainants to give option for PLC Plot. The provisional allotment letter dated 23.6.2015 on the letter head of appellants was issued by Jatinder Pal Singh (Annexure C-15). The respondents/complainants have also placed on record the information available on the website of appellants, Altus Space Builders Pvt. Ltd., and that of M/s Ajeet Associates, that even today the plots of 'Altus Muirwoods' are being sold and the website includes the name and logo of M/s Ajeet Associates whose Chairman is Jatinder Pal Singh. Not only this, the appellants have provided information to Real Estate Regulatory Authority, Punjab and in the Brochure uploaded on the website of RERA Punjab, M/s Ajeet Associates has been shown as their Business and Marketing Associates with a clear logo. The documentary evidence in this regard has been placed on record as Annexure C-51 to C-54.
26. The aforesaid documentary evidence clearly establish that Jatinder Pal Singh son of Ajit Singh is associated with appellants as their Channel Partner and is signing Agreement to Sell on behalf of Altus Space Builders Pvt.Ltd. and receiving payments on their behalf which has been held in various judgments referred above which have been executed by the appellants. No effort was made by the appellants to disassociate with the said Jatinder Pal Singh from their company's affairs after the passing of the order of the District Commission and rather the appellants have filed joint appeal with said Jatinder Pal Singh before the Hon'ble National Commission in F.A.No.777 of 2021 after filing the present appeal before this Commission. Mere bald assertions in this regard cannot be accepted in the absence of documentary evidence. Rather the documentary evidence i.e. Judicial Orders and the information/brochure placed on record by the respondents/complainants, detailed above, clearly proves that the appellants have been indulging in unfair trade practices by collecting money from the complainants for the last nine years on one pretext and other and in order to defeat the claim of the complainants and to usurp their money, a false affidavit has been filed before this Commission. This contention of the appellants that opposite party no.2 who is respondent no.3 here is not authorised signatory/representative is false and misleading in order to defeat the purpose of compliant filed by the respondents/complainants as such the contention is rejected.
27. Even otherwise the complaint has been filed under the provisions of Consumer Protection Act, 2019 and as per the Consumer Protection Act, 2019, the trader/builder is responsible for the promises made through advertisements. The 'advertisement' and 'misleading advertisement' has been clearly defined under the Act as under:-
Section 2(1) of the Consumer Protection Act, 2019:-
"advertisement" means any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic, media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents.
Section 2(28) of the Consumer Protection Act, 2019:-
2(28) "misleading advertisement" in relation to any product or service, means an advertisement, which -
Falsely describes such product or services; or gives a false guarantee to, or is likely to mislead the consumer as to the nature, substance, quantity or quality of such product or services; or conveys an express or implied representation which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or deliberately conceals important information.
28. The appellants have specifically mentioned Ajeet Associates on their official website as well as the same has been mentioned before the website while getting registered at RERA and the said Ajeet Associates is still selling the plots of Altus on his website and the website of Altus Space Builder, Ajeet Associates is mentioned as marketing associates and the appellants are filing joint appeals with Jatinder Pal Singh of Ajeet Associates admitting the liability in the cases where Jatinder Pal Singh of M/s Ajeet Associates has executed Agreement to Sell with the consumers clearly establishes he is the authorized signatory/representative of the appellants.
29. As far as objection taken to the effect that this Commission is not vested with the power to adjudicate this complaint, under summary proceedings, it may be stated here that it is a very simple case of housing dispute and such kind of dispute involves the question of delayed possession, payments, permissions and approvals as such the same can be adjudicated upon under the Consumer Protection Act. The plea of the appellants is that there are complicated questions of facts since plot no.C-88 allotted to the complainants is of 528 sq. yards which is wrongly stated as of 475 sq.yards by the complainants/respondents for which detailed evidence is required. Further the appellants have stated that the complainants have paid the amount of Rs.28,76,250/- to Sh. Jatinder Pal Singh which are disputed facts and cannot be decided in summary proceedings.
30. The consideration received can be simply proved on the basis of documentary evidence i.e. receipts which have been established on record by the respondents/complainants, therefore, there is no complicated question in this regard. So far as the measurement of plot is concerned, the appellants have admitted in Annexure C-24 which is Account Statement issued by them in which the plot is stated to be 475 sq yards. No document has been placed on record by the appellants to show that Plot No.C-88 is more than 475 sq. yards. Such a plea could have been clearly proved by placing on record the layout duly approved by the Government authority which the appellants have failed to bring on record. On the other hand, the complainants/respondents have placed on record the layouts duly approved by the Chief Town Planner (Annexure C-5) dated 08.05.2014 which has not been disputed by the appellants (rather the same should have been placed on record by the appellant themselves) wherein under the description of residential plot Pocket C, Plot No.C-88 at serial no.22 has been shown with dimension as 47'-6"x90'-0" 3839.4 sq.feet (426 sq.yards) which is less than 475 sq.yards. However, the District Commission has specifically held that in case at the time of handing over the possession, the area is more than 475 sq.yards, the complainants/respondents shall pay the remaining amount as stated therein to which the respondents/complainants have agreed. Therefore, the nature of such transaction is covered by the expression 'service'. Our view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., II (2012) CPJ 4 (SC), wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down by the Hon'ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under: -
".......We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
"...when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act...."
The Hon'ble Supreme Court in the case titled ' Dr.J.J.Merchant vs.Shrinath Chaturvedi III (2002) CPJ 8 (SC); and 'C.Venkatachalam v.Ajitkumar C.Shah III (2011) CPJ 33 (SC) has specifically held that remedy under the Consumer Protection Act cannot be denied because complicated question was involved. It reads as under:-
"It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on the ground that complicated questions of facts cannot be decided in summary proceedings. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts required to be dealt with or decided. The Act provides sufficient safeguards."
31. So far as the objection of the appellants that the complaints are not consumers is concerned, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus was shifted to the appellants to establish that the respective plots in question have been purchased by the complainants, to indulge in 'purchase and sale of units/plots' i.e. for earning profits, as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants/respondents are consumers. Further in Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble 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....."
32. The appellants failed to prove that the respondents/complainants are investors and are involved in the business of sale and purchase of the residential/commercial plots at regular interval as such the objection is vague and rejected.
33. The complaint was filed before the District Commission on 9.9.2020 under the Consumer Protection Act, 2019. Since the complainants are resident of Chandigarh and the amount paid as consideration was less than Rupees One Crore, therefore, the U.T. District Commission had the pecuniary and territorial jurisdiction to entertain and decide the complaint.
34. The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreements aforesaid, jurisdiction of District Commission is barred, as has been contended by appellants? It may be stated here that this issue has already been set at rest by the larger Bench of the Hon'ble National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.
35. Now coming to the question, whether appellants are justified in charging amount over and above the government notification under various heads such EDC, CLU, PF/LF and SIF etc., it may be stated here that the appellants have received the amount towards charges from the respondents/complainants at the rate of Rs.4750/- per sq.yards i.e. (Rs.4750 x 475= Rs.22,56,250) by mentioning it as EDC/CLU, Licence Fee, Social Infrastructure Fund, Urban Development Fund + Cess on PR-7 , Internal Development Charges and as on date any other government charges under clause 1.3 of Buyers Agreement, Annexure C-21. The wording of the clause clearly shows that the amount was being charged as Government Charges. The appellants failed to prove the breakup of such charges before the District Commission or before this Commission through any documentary evidence. The only plea of the appellants is that the same have been agreed upon in the Buyer Agreement and is binding on the complainants/respondents. On the other hand, the respondents/complainants have placed on record the notification issued by the Government of Punjab dated 06.05.2013 (Annexure C-27) according to which the total amount towards EDC, CLU, PF/LF and SIF comes to Rs.4,90,702/- whereas the appellants have charged an amount of Rs.22,56,250/- towards the government charges from the complainants as has been mentioned in Clause 1.3 of the Buyer Agreement. As per notification dated 06.05.2013 issued by Government of Punjab (Annexure C-27), the calculation of charges in the case of plot of complainant comes to as under:-
The amount of charges is = Rs. 50,00,000/- per acre 1 Acre = 4840 Sq.yds Rs. 50 Lakh divided by 4840 sq.yds = Rs. 1033 Charges towards 475 sq.yds = Rs. 1033 x 475 sq.yds
36. Thus the total charges payable to the appellants comes to Rs.4,90,702/-. At the time of arguments, the notification has not been disputed by the appellants. However, I.D.C. has not been mentioned in the said notification. However, the appellants failed to prove the rate at which Internal Development Charges can be claimed from respondents/complainants for the purchase of a plot. The only plea of the appellants is that it was mentioned in Buyer Agreement. It is a case of high handedness that a builder is receiving an amount of Rs.22,56,250/- approximately towards charges and is unable to justify the same before the District Commission as well as this Commission. The fact of extracting the money from the genuine buyers under the garb of such like charges cannot be overlooked and strictly be interpreted as 'unfair trade practice' at large. The consumers being at a disadvantageous position has no other option than to pay the same to the builder under the impression of genuine demand so that they can fulfill their dream of having a residential house by paying their hard earnings and lifelong savings.
37. So far as the plea of the appellants that the respondents/complainants are bound to pay the charges agreed in the Buyer Agreement is concerned, it is stated that Section 2(6) of the Consumer Protection Act, 2019 defines "complaint" as under:-
"complaint" means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, that--
a trader or a service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price.
Fixed by or under any law for the time being in force;
38. The Hon'ble Apex Court has held in various judgments that the terms of the agreement heavily loaded in favour of the builder are not binding. Reference is made to the judgment reported as "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Geetu Gidwani Verma & Anr." II(2019) CPJ 34, wherein it was held by the Hon'ble Supreme Court that the Builder could not seek to bind flat purchaser with such one-sided contractual terms. In the present case, admittedly the amount was received from the respondents/complainants first in the year 2011 and the Buyers Agreement was executed in 2017 and it is the specific case of the respondents/complainants that they had no other option but to sign on the dotted lines as they were already at a disadvantageous position by spending a huge amount for their dream house. The plea of the respondents/complainants is well founded and accepted.
39. Legally, the appellants as such cannot receive charges in excess of the charges prescribed by the Government of Punjab. No document or government instruction has been placed on record to prove that I.D.C. to the extent of 17 lacs can be charged by the appellants in the case of purchase of residential plot when the same has not been mentioned in the notification dated 06.05.2013 or any other documentary evidence being issued by the Government to the appellants to receive such huge charges from the buyers.
40. The respondents/complainants have specifically pleaded in para 27 of the complaint about the charges received in excess by the appellants in contravention to the notification dated 06.05.2013 (Annexure C-27) according to which Rs.50 lacs are required to be charged towards the area of one acre. However, the appellants, while filing reply to the said para 27 in written statement, were totally silent on the notification as well as the contention of the respondents/complainants about the bifurcation of the charges which have been received by the appellants under various heads which clearly proves the receiving the amount of Rs.17,66,250/- in excess of the government charges. It may be stated here that the issue qua IDC was thread barely discussed by this Commission in the case of Darshan Singh Gill and another Vs. M/s Manohar Infrastructure & Construction Private Limited and others, Consumer Complaint No.76 of 2018 decided by this Commission on 18.07.2019, wherein also, apart from other allegations, it was the case of the complainants therein that they were also not liable to pay IDC as it was forcibly imposed by the opposite parties, when these charges were not mentioned in any of the documents i.e. application dated 20.04.2012, payment plan, acknowledgment dated 15.06.2012 & letter dated 18.01.2016. While holding the demand of such charges i.e. IDC from the complainants as illegal and arbitrary, this Commission held in Paras 36 to 39 as under:-
"36. As far as plea taken by the opposite parties with regard to payment of additional charges towards IDC by the complainants, is concerned, we do not agree with the same. It may be stated here that Counsel for the complainants has contended with vehemence that at the time of booking of the said plot, it was never agreed to, between the parties, that any such charges towards IDC is payable by the complainants except EDC, PLC if any. At the same time, we have also gone through the application form dated 20.04.2012 (Annexure C-1) and also application acknowledgement letter dated 15.06.2012 (Annexure C-3) and found that only the charges with regard to basic sale price of Rs.46,25,000/-, PLC if any, EDC and Govt. levies were payable by the complainants. We did not find anything, which says that the complainants were also liable to pay IDC. It appears that duplicate copy of the application acknowledgment dated 13.02.2015 (Annexure C-10) was issued after a period of about three years, only with a view to dupe the complainants by inserting the additional charges towards IDC. Otherwise also, it has not been clarified by the opposite parties that once the application acknowledgment letter was issued in favour of the complainants on 15.06.2012, then what again, the need arose to issue the said acknowledgment letter again on 13.02.2015. It appears that it was only with a view to insert the illegal demand of IDC therein, so that they can usurp more amount from the complainants, which act itself amounts to unfair trade practice, and as such, the same has no significant value in the eyes of law. The said conduct of the opposite parties needs to be deprecated.
37. A similar question fell for consideration before the Hon'ble National Commission in the case of JAIPURIA SUNRISE GREENS RESIDENTS WELFARE ASSOCIATION Vs. AIPURIA INFRASTRUCTURE DEVELOPERS PVT. LTD. Consumer Case No.38 of 2007 decided on 30.08.2018, as to whether any charges which have been incorporated subsequently, in a new document, are payable or not. The Hon'ble National Commission, while answering the aforesaid question in negative, held, interalia, as under:-
"20. As far as the cost of installation of fire-fighting and detection system is concerned, though the allotment letter duly signed by the complainants does provide for extra payment of the expenditure in obtaining clearance from the Fire Officer and provision of fire-fighting system equipment, as per the statutory requirements, the aforesaid clause is contrary to clause 8 of the terms & conditions of the allotment forming part of the application form wherein it was clearly stated that safety measures had been provided as per existing fire safety code/Regulations. Even the price list on the basis of which bookings were made by the complainants did not stipulate any extra payment towards the cost of fire-fighting equipment. In fact, no project of this nature can be approved without providing the prescribed fire-fighting equipment. The case of the complainants is that the opposite party unilaterally imposed several new terms & conditions in the allotment letters issued after booking of flats by them and after receiving substantial payment from them. Considering that neither the application form nor the price list provided for extra payment towards the cost of fire-fighting equipment, I hold that the complainants are not liable to pay to the opposite party for installation of fire-fighting and detection system. The learned Counsel for the opposite party submits that the allotment letter being a contract between the parties and being a subsequent contract must govern the rights and obligations of the parties. However, considering that the said terms & conditions was contrary to the terms & conditions contained in the application form and no extra charges for the fire-fighting and detection system was stipulated in the price list, I have no hesitation in holding that the aforesaid term was unilaterally imposed by the opposite party and was accepted by the allottees, under coercion. They having already made substantial payment, the complainants had no option but to sign on the dotted lines. I, therefore, find no merit in the contention advanced by the learned Counsel for the opposite party.
21. xxxxx."
38. As already stated above, in the present case also, neither any Plot Buyer's Agreement was executed by the opposite parties, nor any allotment letter was issued nor reference of IDC was ever made by the opposite parties in expression of interest shown by the complainant vide dated application dated 20.04.2012 (Annexure C-1) and also application acknowledgement letter dated 15.06.2012 (Annexure C-3) issued by the opposite parties. Demand qua IDC was raised for the first time in application acknowledgement letter dated 13.02.2015 (Annexure C-10), which was issued after three years.
39. At the time of arguments, Counsel for the opposite parties vehemently contended that in the absence of payment of IDC charges, the Company will not be able to provide the amenities adjacent to the plot in question. In this regard, it may be stated here that the builder is bound to deliver a fully developed plot with all basic amenities required for smooth habitation and not an undeveloped or barren piece of land surrounded by grass and bushes. No prudent person will ever think of purchasing such a plot in the project lacking in basic amenities, which is only a piece of barren land. Once a person is spending his hard earned money towards purchase of a plot to build his own house, he will expect the same to be equipped with all basic amenities and facilities. Be that as it may, as stated above, in the present case, the complainant is not liable to pay IDC on account of the reasons mentioned in Para 36 above."
In this view of the matter, the demand qua charges raised by the appellants to the extent of Rs.17,66,250/- is illegal and arbitrary, which the respondents/complainants are not liable to pay.
41. Now, we deal with the question, whether the delay in handing over the possession is due to force majeure. Admittedly the Buyer Agreement was executed on 09.03.2017 and the possession was to be delivered in 30 months with extended period of 6 months as such the possession was required to be delivered to the complainants/respondents on 08.03.2020 by considering the extended period also. During the course of arguments, the appellants admitted that the possession is still not ready at the site as on date and it will take some more time to handover the possession of the plot to the respondents/complainant as they have started the development work at the site where the plot is located. The appellants also admitted to the relief granted at point no.8(a). The only stand taken by the appellants in delaying the possession to the respondents/complainants is that the road i.e. VR-5 on which the plot of the respondents/complainants is situated is to be the constructed by the government which has been delayed by the Government. The appellants have pleaded that in such a case, as per Plot Buyer Agreement dated 9.3.2017 (Annexure C-21), if for any reason the appellants are unable to deliver the possession, they may offer the purchaser an alternative property or refund the amount in full with interest @ 9% per annum without any further liability. The appellants have referred to CWP No.22109 of 2020 filed by one Greater Punjab Officers Cooperative House Building Society against GMADA, which has been filed on 13.12.2020, Annexure OA-1, wherein the said petitioner has sought the relief in the prayer to the extent that the demand notices issued by the GMADA towards EDC charges be quashed and the policy of the State Government to levy such charges be also quashed.
42. The plea taken by the appellants is liable to be rejected for the simple reason that the appellants are not a party/petitioner in the said Civil Writ Petition being relied upon by them. Further the complaint was filed before the District Commission on 09.09.2020 and Civil Writ Petition was filed before the Hon'ble High Court of Punjab and Haryana in December, 2020 which cannot be made applicable in the case of respondents/complainants. The plea of the appellants that they are a joint venture with Greater Punjab Officers Cooperative House Building Society is not well founded in the absence of any documentary evidence. This clearly establishes the case of the complainants that after receiving huge amount of Rs.22,56,250/- towards charges, the appellants have not deposited the same with the government authority i.e. GMADA as would be clear from Annexure C-26 which is a document issued by GMADA that an amount of 14884.43 lacs is outstanding against appellants towards government charges i.e. EDC, Licence Fee, SIF, UDF and PR-4/7 Cess and an amount of Rs.12688.10 lacs was overdue up-to 26.3.2018. Annexure C-25 is a document obtained under RTI Act in which GMADA has attached a copy of demand notice issued to the appellants for depositing the required government charges. This demand is sought to be quashed in the Civil Writ Petition referred by the appellants. The Punjab and Haryana High Court has nowhere stayed the development of the project. The appellants have admitted during the course of arguments that Plot no. C-88 allotted to the respondents/complainant falls under the land belonging to M/s Altus Space Builders Pvt. Ltd. and not under the land belonging to Greater Punjab Officers Cooperative House Building Society which is sufficient to prove that there is no force majeure circumstance for the appellants for not delivering the possession of the plot to the respondents/complainants on time. Once the layout has been approved, the appellants have only to make arrangement of sewerage, water and electricity for handing over the possession of the plot and in not doing so, they are not justified in relying upon a Civil Writ Petition in which they are not even a party and which has been filed after the filing of complaint.
43. As narrated above, the appellants have received the amount of charges from the complainants and other consumers but they have failed to deposit the same with GMADA as is clear from Annexure C-26 and the prayer of CWP, on which the appellants are relying, no where stops the development. This clearly shows that the appellants had no intention to complete the project, that is why, they did not deposit the required amount of charges with the government and the delay cannot be attributed to the Government. This cannot be a force majeure condition for the appellants for not developing the site as the writ petition now being relied upon by the appellants has not stopped the development of the project; rather the same has been filed by a third party (in which the appellants are not a party) in order to settle their accounts/demand of charges by the government authorities which proves the unfair trade practices as the appellants were not justified in not depositing the amount collected from consumers with the government authority. The delay in handing over the possession by not developing the site is intentional as the appellants failed to prove that except road, the other basic amenities are available at plot no.C-88.
44. In the case of respondents/complainants, the provisional allotment letter of plot no.C-100 was issued on 23.06.2016 and after the completion of three years of such provisional allotment, the appellants again issued provisional allotment letter of Plot No.C-88 on 15.06.2019. If the appellants were aware that they have not deposited the government dues with GMADA and the road VR-5 will not be constructed by the said authority without the deposit of the government dues, the appellants should not have issued the allotment letter one after the other to the respondents/complainants, which clearly proves deficiency in rendering service and unfair trade practice on the part of the appellants. The plot is available on site as per the layout plans which is admitted by the appellants and they also admitted to the reliefs granted at point no.8(a) and (b) which is the direction to give possession of the plot with all amenities. The appellants are not justified by relying upon the refund clause, as the respondents/complainants have not prayed for the refund of the amount which proves that they are genuine buyers and want the plot for personal use.
45. Similar contention of force majeure has already been considered and rejected by the Hon'ble National Commission in CC No.1430 of 2017 titled as ' Smita Uban and another Versus M/s Pioneer Urban Land Infrastructure Limited' decided on 23.7.2020. Further in CC No.1442 of 2018 titled as ' Manoj Kawatra and another Versus Pioneer Urban Land Infrastructure Ltd.' decided on 1.11.2021, the contention of the builder with regard to force majeure circumstances has been considered and rejected holding that shortage of labour, water, dispute with construction agencies, delay in obtaining licenses, approvals etc. are not force majeure events. The appellants failed to prove that they were not in a position to deliver the possession of plot no.C-88 due to any force majeure condition, prior to date of delivery of possession i.e. 08.03.2020. The appellants have not placed on record any documentary evidence by way of letter or email about informing the respondents/complainant about any force majeure event on or before 08.03.2020 i.e. agreed date of possession.
46. So far as the construction of the road VR-5 is concerned, the complainants have placed on record the documentary evidence that the appellants have not paid the EDC/IDC and other charges to GMADA even though they have collected huge amounts, over and above the legal government charges from the complainants and many other consumers clearly proving that they are deliberately delaying the possession to enjoy the money collected from the consumers and later-on refund the same, after the consumers approach the Courts, as would be clear from the various judicial orders placed on record. The appellants started collecting money from the consumers since 2010 when their project was not launched, no CLU etc. was issued; no layouts were approved; no permission to sell the plots was available to them. After collecting the basic amount, they charged excessive charges on account IDC/EDC etc. from the consumers over and above the government charges and no effort was made to give possession. While entering into the agreement and while issuing provision allotment letters one after another, the appellants should have been conscious enough to complete the work of construction of road first. Now they cannot sit behind and let the consumer suffer on that account. The appellants have been taking money from the complainants since 2011 and in 2022, they are still struggling to build a road. Thus, their contention being devoid of any merit stands ejected.
47. Coming to the final question whether the District Commission was justified in allowing compensation @6% p.a. on the deposited amount over and above the compensation of Rs.5/-per sq.feet as mentioned in Buyer Agreement for delay in delivering the possession, it may be stated here that admittedly, the completion certificate of the project has not been obtained by the appellants as proved by the respondents/complainants in Annexure C-25. The complainants have placed on record RTI received from GMADA dated 09.07.2020 (Annexure C-25) that the appellants have still not applied for the completion certificate of the project and have not paid the demanded amount of charges to the GMADA, a copy of which has been attached with the RTI. The appellants have no intention to complete the project deliberately and they want to use the money of the poor consumers on the basis of misleading advertisement which is Brochure, Annexure C-1, attached with the complaint which talks about various facilities such as Club, Swimming Pool, School, Park, Commercial Hub etc. On the basis of such brochure, the appellants are still selling the plots through their website and other means also. What to talk of such facilities, the appellants have admitted that even the road is not built on which the plot of the respondents/complainants is situated. The appellants with open eyes issued allotment letters in 2016 and 2019 to the complainants and the possession was to be delivered in September, 2019 with extended period of six months till 8.3.2020, however, they knew that they have not deposited the required charges with GMADA towards EDC/IDC and other development charges and they will not be able to give possession clearly proving the case of the complainants against appellants of unfair trade practice and misleading advertisement. In the written statement, the appellants referred to Clause 5.1 (c) of the Plot Buyer Agreement, Annexure C-21, whereas in the same agreement under clause 1.6, the appellants parties have written that in case of delay in payment, interest @ 18% is chargeable from the consumer for the first month and 21% on delayed payments up-to next month. The Hon'ble Apex Court has held in various judgments that the terms of the agreement heavily loaded in favour of the builder are not binding. Reference is made to the judgment reported as "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Geetu Gidwani Verma & Anr." II(2019) CPJ 34, wherein it was held by the Hon'ble Supreme Court that the Builder could not seek to bind flat purchaser with such one-sided contractual terms. The relevant para of the said judgment is reproduced hereunder:-
"6.7 A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.
The contractual terms of the Agreement dated 8.5.2012 are ex facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
XX XX XX XX XX XX
9. We see no illegality in the impugned dated 23.10.2018 passed by the National Commission. The Appellant-Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent-Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent-Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent-Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent-Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent -Flat Purchaser was entitled to be granted the relief prayed for ....."
48. Thereafter in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt Ltd (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer's Agreements, the Hon'ble Supreme Court awarded simple interest at the rate of 6% per annum on the amount deposited by the buyers, in addition to penalty, as prescribed in the agreement, for delay in delivery of possession till delivery of actual and physical possession of the unit/plot/property. It was held in Para-32 as under:
"32. In the present case, there exist, clear and valid reasons for not holding down the flat buying consumers merely to the entitlement to receive compensation at the rate of 5 per square foot per month in terms of clause 14 of the ABA:
(i) There has been a breach on the part of the developer in complying with the contractual obligation to hand over possession of the flats within a period of thirty-six months of the date of the agreement as stipulated in clause 11(a);
(ii) The failure of the developer to hand over possession within the contractually stipulated period amounts to a deficiency of service within the meaning of Section 2 (1) (g), warranting the invocation of the jurisdiction vested in the NCDRC to issue a direction for the removal of the deficiency in service;
(iii) The triggering of an obligation to pay compensation on the existence of delay in handing over possession is admitted by the developer for, even according to it, it has adjusted compensation at the agreed rate of Rs 5 per square foot per month to 145 out of the 171 appellants;
(iv) The agreement is manifestly one-sided: the rights provided to the developer for a default on the part of the home buyer are not placed on an equal platform with the contractual right provided to the home buyer in the case of a default by the developer;
(v) There has been a gross delay on the part of the developer in completing construction ranging between two and four years. Despite successive extensions of time to deliver possession sought by the developer, possession was not delivered on time;
(vi) The nature and quantum of the delay on the part of the developer are of such a nature that the measure of compensation which is provided in clause 14 of the ABA would not provide sufficient recompense to the purchasers; and Judicial notice ought to be taken of the fact that a flat purchaser who is left in the lurch as a result of the failure of the developer to provide possession within the contractually stipulated date suffers consequences in terms of agony and hardship, not the least of which is financial in nature. Having paid a substantial amount of the purchase price to the developer and being required to service the debt towards loan installments the purchaser is unable to obtain timely possession of the flat which is the subject matter of the ABA."
49. The objection taken by the appellants to the effect that time was not the essence of contract is devoid of merit, in the face of their candid commitment made vide condition no.5.1 (a) of the Buyer Agreement dated 09.03.2017 that the seller shall make its best efforts to complete the development of the said plot/project within 30 (thirty) months or within extended period of six months from the date of signing of this agreement by the purchaser. It is well settled law that date of delivery of possession has to be reckoned from the conditions agreed to between the parties, by way of allotment letter/agreement only. It is, therefore, held that in the face of condition of 5.1 (a) of the allotment letter/agreement, time was unequivocally made the essence of contract. Thus, the objection taken by the appellants in this regard stands rejected.
50. As per condition no.5.1 (a) of the Buyer Agreement, the appellants committed to offer possession within a period of 30 months with grace period of 6 months i.e. total 36 months from the date of execution thereof, failing which, as per condition no.5.1(c) they were liable to pay compensation @Rs.5/- per square yard per month for the delayed period. Failure on the part of the appellants to provide complete/effective possession of the plot within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period, they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In case Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. (supra), while discussing the above authorities and discarding the one-sided terms of the Buyer's Agreements, the Hon'ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon'ble Supreme Court, the relief granted by the District Commission to pay interest @ 6% on the deposited amount alongwith Rs.5/- per square yards is fully justified.
As regards relief granted by the District Commission at Clauses No.(c) and (d), it may be stated here that since these amounts, being superfluous, were charged in excess by the appellants from the complainants, the District Commission rightly ordered refund thereof alongwith interest @12% per annum.
51. No other point was argued by the parties.
52. In this view of the matter, we do not find any illegality in the impugned order, which is based on true appreciation of facts and law and thus, the same is liable to be upheld and the appeal is liable to be dismissed for the reasons record above.
53. For the reasons recorded above, the appeal is dismissed being devoid of merit with no orders as to cost. The impugned order dated 02.08.2021 passed by District Commission-II, U.T., Chandigarh is upheld.
54. Certified copies of this order be sent to the parties free of charge.
55. File be consigned to the Record Room after completion.
Pronounced.
04.02.2022.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad
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