DETAILS OF THE CASE.
The Appellant Mrs.Mansi Khanna sue against M/S Puma Realtors on 11
January, 2017 regarding attractive salient features of their project, launched by
them, under the name and style of 'IREO RISE' and decoy through various
advertisements given by the opposite parties, through newspapers, media,
marketing emails etc. The complainants, vide application dated 28.07.2011
Annexure C-1, applied for allotment of a flat therein. The complainants paid a
amount Rs.4.50 lacs through the medium cheque of cheque no.044526 dated
26.07.2011 Annexure C-2. A Provisional Allotment Letter dated 01.08.2011
Annexure C-4, the complainants were allotted flat bearing no.001, 5th Floor,
Tower Cassia Court-D, 3B2TS, measuring 1609 square feet of super area, with
one car parking space. It was further stated that, vide letter dated 02.09.2011
Annexure C-5, opposite party no.2, informed the complainants that allotment
made in their favour, is under the subvention scheme, subject to approval of
loan by Pro forma opposite party no.3/HDFC Bank. Apartment Buyer's
Agreement Annexure C-6 was executed between the complainants and opposite
parties No.1 and 2, on 22.08.2011. Forcing to pay interest on the loan and the
possession was not offered to them on time and after the visit it came in notice
that the construction was put on halt without any information provided to the
appellant.
So, as on 11th January 2017 the Appellant Mrs. Mansi Khanna , wife of
Sh.Kabir Khanna lodged the complaint against the entity in the STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,U.T.,
CHANDIGARH. Complaint under Section 17 of the Consumer Protection Act,
1986. The said Act (1986) was enacted to protect poor consumers against might
of the service providers/multinational companies/traders. As in the present case,
the complainant has spent his life savings to get a unit, for his residential
purpose. His hopes were shattered. Litigation in the Consumer Fora is cost
effective. It does not involve huge expenses and further it is very quick. A
complaint in the State Commission can be filed, by making payment between
Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-).
PARTIES INVOLVED IN THE CASE:
Plaintiff: Mrs.Mansi Khanna wife of Sh.Kabir Khanna, resedient of
Panchkula(Chandigarh).
Defendant: Parties 1 & 2 M/s Puma Realtors Private Limited, An IREO Group
Company,Of New Delhi and Chandigarh.
3rd Party: Housing Development Finance Corporation Limited
(Note: Opposite party no.3 not served, in view of statement given by Counsel
for the complainants)
Bench of Justice (Supreme Court): JUSTICE JASBIR SINGH (RETD.)
PRESIDENT: MR. DEV RAJ
Argued by: Sh.Deepak Aggarwal, Advocate for the complainants.
Sh.Ramnik Gupta, Advocate for opposite parties no.1 & 2.
RULE OF LAW:
According to Section 17 of the Act and under section 8 of 1996 a consumer
complaint can be filed, by the complainants, before the State Consumer
Disputes Redressal Commission, within the territorial Jurisdiction whereof, a
part of cause of action arose to them. In the instant case, it is evident from
Clause 33 of the Agreement, that the parties had agreed that "Hence this
Agreement shall be deemed to have been executed at Chandigarh even if the
Proposed Allotted has prior thereto executed this Agreement at any place(s)
other than Chandigarh", meaning thereby that the Agreement in question, was
deemed to be signed/executed at Chandigarh.
In the year 2015, many amendments were effected in the provisions of 1996
Act. After amendment, Section 8 of 1996 Act, reads as under: Power to refer
parties to arbitration where there is an arbitration agreement
ANALYSIS
This case is of the Arbitration agreement between the parties and not giving the
possession on time as mention in the agreement.
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. Under these circumstances, the
complaint involves the consumer dispute, and the same is maintainable. Not
only has this, Section 3 of the Act, provided an alternative remedy. Even if, it is
assumed that the complainants have a remedy to file a suit, in the Civil Court,
the alternative remedy provided under Section 3 of the Act, can be availed of by
them, as they fall within the definition of consumer, as stated above. In this
view of the matter, the objection raised by opposite parties no.1 and 2 in this
regard, being devoid of merit, must fail, and the same stands rejected.
In view of above, the complainants are certainly entitled to get refund of the
amount deposited by them, along with interest @12% compounded quarterly
(less than the rate of interest charged by opposite parties no.1 and 2). The said
amount of Rs.49,93,278.82Ps has been used by opposite parties no.1 and 2, for
their own benefit. Opposite parties no.1 and 2 were charging heavy rate of
interest @15% per annum, with quarterly rests, as per Clause 7.3 of the
Agreement, for the period of delay in making payment of instalments by the
complainants. It is well settled law that whenever money has been received by
a party which ought to be refunded, the right to interest follows, as a matter of
course.
Hence, Court gave the jurisdiction in the favour of the complainant and the
parties have to return the amount along with the interest.
CONCLUSION:
A Fair judgement was given by the law after hearing both the Parties i.e.
plaintiff and defendant. In view of aforesaid position, opposite parties no.1
and 2 are also under an obligation to compensate the complainants, for inflicting
mental agony and causing physical harassment to them, in not offering
possession of the unit, even as on today, as a result whereof, they have to seek
refund of amount paid. To refund the amount of Rs.49,93,278.82Ps. received
from the complainants, in the manner explained above, to them (complainants),
along with interest @12% compounded quarterly, from the respective dates of
deposits onwards. To pay an amount of Rs.2.50 lacs, to the complainants, as
compensation for mental agony, physical harassment, deficiency in rendering
service and unfair trade practices. To pay cost of litigation, to the tune of
Rs.35,000/- to the complainants.
However, it is made clear that, since the complainants have availed loan from
opposite party no.3, as such, it shall have the first charge on the amount
payable, to the extent, the same is due against them (complainants). Since
opposite party no.3 was impeded as Pro forma party to the complaint and n
