Mr. Narinder Arora vs Altus Space Builders Private ...

on 25 March, 2019

State Consumer Disputes Redressal Commission

Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019
Daily Order

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.

337 of 2018

Date of Institution

31.08.2018

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 1

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Date of Decision

25.03.2019

Mr.Narinder Arora s/o Sh. M.L. Arora, residents of House No.37, Housing Board Colony,
Mr.Lalit Arora both s/o Sh. M.L. Arora, residents of House No.37, Housing Board Colony

...... Complainants

V e r s u s

Altus Space Builders Pvt. Ltd., Registered Office at SCF 22, 1st Floor, Phase 10, SAS

IInd Address:- Altus Space Builders Pvt. Ltd., SCO 846, Sector 22-A, Chandigarh.

The Greater Punjab Officer's Co-operative House Building Society, C/o Altus Space Buil
M/s Ajeet Associates, R/o 2741, Sector 69, SAS Nagar, Mohali, through Sh.Jatinder Pal

.... Opposite parties

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 2

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Argued by:- Sh.Ramnik Gupta, Advocate for the complainants.

Sh.R.S. Pandher, Advocate for the opposite parties.

======================================================

Complaint case No.

338 of 2018

Date of Institution

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 3

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

31.08.2018

Date of Decision

25.03.2019

Mrs.Urmila Yadav w/o Sh.Ram Avtar Yadav, resident of House No.1542, Pushpac Society, Sector 49-

...... Complainant

V e r s u s

Altus Space Builders Pvt. Ltd., Registered Office at SCF 22, 1st Floor, Phase 10, SAS
The Greater Punjab Officer's Co-operative House Building Society, Sector 3C & 4C, Mull
M/s Ajeet Associates, R/o 2741, Sector 69, SAS Nagar, Mohali, through Sh.Jatinder Pal

.... Opposite parties

Argued by:- Sh.Ramnik Gupta, Advocate for the complainant.

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 4

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Sh.R.S. Pandher, Advocate for the opposite parties.

Complaints under Section 17 of the Consumer Protection Act, 1986

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

MRS. PADMA PANDEY, MEMBER.

MR. RAJESH K. ARYA, MEMBER.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT By this order, we propose to dispose
of aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the
issues involved therein, except minor variations, here and there, of law and facts are the same. At
the time of arguments, on 07.03.2019, it was agreed by Counsel for the contesting parties, that facts
involved in the above complaints, by and large, are the same, and therefore, both the complaints can
be disposed of, by passing a consolidated order.

To dictate order, facts are being taken from consumer complaint bearing no.337 of 2018 titled
as Mr.Narinder Arora and another Vs. Altus Space Builders Private Limited and others. The
complainants have filed this complaint, seeking refund of amount of Rs.32,53,330/- paid by them,
to the opposite parties towards purchase of plot bearing no.529, measuring 342 square yards, in
their project named "MUIRWOODS ECOCITY" New Chandigarh, vide Agreement to Sell dated
26.10.2010, Annexure C-1. It is specific case of the complainants that despite the fact that promise
was made to deliver possession of the developed plot within a period of 30 months, from the date of
execution of said Agreement i.e. on or before 25.10.2013, yet, it was not so done. Whereas, on the
other hand, after more than five years from the date of execution of Agreement to Sell dated
26.10.2010, the complainants received copy of the Buyer's Agreement from the opposite parties,
which contained detailed terms and conditions, for signatures. Since, some terms and conditions of
the said Agreement were challenged by the complainants, the same were got changed and finally,
the said Agreement was sent back to the opposite parties after signatures but it was, thereafter,

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 5

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

never returned. Furthermore, on receipt of Buyer's Agreement (when sent for signatures initially),
the complainants had visited the project site and was shocked to see that there was no development
at all. Basic amenities such as roads, electricity etc. were found missing. An area meant for
cremation of dead bodies was also situated in the project site. The complainants became
apprehensive. As such, they made a request to the opposite parties, to show necessary approvals and
sanctions like CLU, approval layout plan etc., however, they failed to show even a single document,
in that regard. From similar located allottees, it also came to the notice of the complainants, that
when the project was launched, even CLU was not available with the opposite parties. The project
was launched contrary to the provisions of PAPRA and also conditions imposed in the Letter of
Intent (LOI), when CLU was granted. No exemption was available with the opposite parties, from
the provisions of The Punjab Apartment and Property Regulation Act, 1995 (PAPRA), when project
was sold. Left with no alternative, the complainants sent legal notice on 29.05.2018 Annexure C-39,
seeking refund of amount paid, compensation etc. However, despite the fact that legal notice was
received by the opposite parties, nothing was done.

By stating as above, a prayer has been made by the complainants that the opposite parties
be directed to refund the amount deposited alongwith interest; pay compensation for mental agony
and physical harassment; litigation expenses etc. In the reply filed by opposite party no.1, it was
pleaded that the complainants being investors, would not fall within definition of consumer, as
defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. To the averments made in
para no.4 of the complaint, in which the complainants have given details showing when application
to get permission to set up a mega residential housing project was moved and when other
permissions were given to the opposite parties, the facts were not seriously controverted. It was
admitted that CLU in respect of the project, in question i.e. in phase-II, where the plot was located,
was approved only on 10.09.2012. No dispute was raised qua payments made by the complainants.
It was stated that in the Buyer's Agreement, promise was made to hand over possession of a
developed plot, within a period of 30 months, with extended period of six months and provision was
also made to pay penal amount, in case of delay. It was specifically admitted that layout plan was
cleared by the Chief Town Planner, Punjab, on 31.03.2015. Thereafter, draw of lots was conducted
and plots were allotted to large number of purchasers. It was pleaded that opposite party no.2 has
no concern, whatsoever, with the dispute raised by the complainants. Agreement executed between
opposite parties no.1 and 2 was with regard to approval of the project land. The project, in question,
has been got registered under RERA. All clearances were obtained before sale of the said plot.
Photographs placed on record by the complainants are very old; development work at the project
site is at final stage and the plots carved therein are ready for possession, which will be delivered
soon. The remaining averments were denied being wrong. It was prayed that the complaint having
no substance, be dismissed.

Opposite party no.2 in its written reply stated that it has nothing to do with the dispute, interse,
between the complainants and opposite parties no.1 and 3. Opposite Party no.2 was to develop its
separate chunk of land. It was stated that the complainants were not the members of its Society,
and, as such, no plot was to be allotted to them. The complainants are not consumers. However, it
was specifically admitted that there was an agreement between opposite parties no.1 and 2,
regarding approval of the project, in question.

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 6

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

On 25.01.2019, Counsel for Opposite party no.3 stated that reply and evidence filed by opposite
party no.1 is adopted by opposite party no.3.

The contesting parties led evidence in support of their cases and also raised arguments in terms
of pleadings noted in earlier part of this order, which were heard, in detail.

First, we will deal with the objection raised by the opposite parties, that the complainants are
investors, therefore, they would not fall within the definition of consumer, as defined by Section 2
(1) (d) of the Act. It may be stated here that there is nothing, on record to show that the
complainants are property dealers and are indulged in sale and purchase of property, on regular
basis. On the other hand, the complainants, in para no.2 of their complaint, supported by their joint
affidavit, have clearly stated that the plot, in question, was purchased by them, for their personal
use. In the absence of any cogent evidence, in support of the objection raised by the opposite parties,
mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita
Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by
the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of
the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had
booked the same for commercial purpose. Similar view was reiterated by the National Commission,
in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid
down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall
within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection,
taken by the opposite parties, being devoid of merit, is rejected.

In connected consumer complaint bearing no.338 of 2018, it was argued with vehemence
by Counsel for the opposite parties that since the complainant is an NRI, as such, she would not fall
within the definition of consumer. It may be stated here that, no law debars NRIs, with roots in
India, to purchase a residential property in India, for his/her personal use. Under similar
circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr.
Vs. M/ s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04 .01. 2016 , held as
under:-

"We are unable to clap any significance with these faint arguments. It must be borne in mind that
after selling the property at Bangalore, and in order to save the money from riggers of capital gain
tax, under Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property,
anywhere, in whole of India. There is not even an iota of evidence that they are going to earn
anything from the flat in dispute. From the evidence, it is apparent that the same had been
purchased for the residence of the complainants. Moreover, Sh. Tarun S. Bhagat, who is an
independent person. It cannot be made a 'rule of thumb' that every NRI cannot own a property in
India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native
land. Each NRI wants a house in India. He is an independent person and can purchase any house
in India, in his own name."

The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of
the Act, in this case also. Such an objection, taken by the opposite parties, therefore, being devoid of

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 7

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

merit, is rejected.

It is not in dispute that an amount of Rs.32,53,330/- has been paid by paid by the
complainants, to the opposite parties towards purchase of plot, in question, in their project named
"MUIRWOODS ECOCITY" New Chandigarh, vide Agreement to Sell dated 26.10.2010. The said
agreement was signed by opposite party no.2, on behalf of opposite party no.1. It is not disputed that
opposite party no.3 had been selling the plots, at the instance and on behalf of opposite parties no.1
and 2. As per payment plan, attached with the Agreement to Sell, at the time of initial booking, an
amount of Rs.14 lacs, was to be paid and rest of the amount was to be paid, after issuance of CLU
and upto 90% of the amount was to be paid by the end of 10 months, from the date of issuance of
CLU certificate, which admittedly was issued on 25.06.2013. Admittedly, the complainant had
deposited an amount of Rs.32,53,330/-. The first payment of Rs.14 lacs was made in
October/November 2010. However, despite the fact that substantial amount had been received by
the opposite parties, Buyer's Agreement, containing detailed terms and conditions were not sent for
signatures of the complainants, within a reasonable period. The facts disclosed, clearly indicate that
there was a complete violation of the provisions of Section 6 of the PAPRA. The said provision reads
thus:-

"6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter
who intends to construct or constructs a building of apartments, all or some of which are to be taken
or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he
accepts any sum of money as advance payment or deposit, which shall not be more than twenty five
per cent of the sale price, enter into a written agreement for sale with each of such persons who are
to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in
the prescribed for together with prescribed documents and shall be registered under the
Registration Act, 1908 (Central Act no. 16 of 1908);"

Afore-extracted Section 6 of PAPRA clearly says that in no case, more than 25% of the sale
consideration can be received by the project proponent, before signing the Buyer's Agreement. In
the first instance, by not offering Buyer's Agreement, for signing within reasonable time, the
opposite parties committed unfair trade practice and are also deficient in providing service. Under
similar circumstances, it was earlier so said by this Commission, in a case titled as Usha Kiran
Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on
02.06.2016. Relevant portion of the said case, reads thus:-

"The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the
complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted
unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer's
Agreement was not put for signing in a reasonable time, say two to three months. She continued to
make payment and when Buyer's Agreement was got signed, on 18.08.2011, she had already paid an

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 8

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

amount of Rs.21,68,524/-. By not offering Buyer's Agreement, for signing in a reasonable time, the
opposite parties also committed unfair trade practice. The complainant is a widow. Her interest
needs to be protected".

Similar view was reiterated by this Commission in Shaminder Walia and another Vs. M/s
Manohar Infrastructure and Constructions Pvt. Limited, Consumer Complaint bearing No. 918 of
2016, decided on 08.05.2017 (alongwith 05 connected complaints). In the present case, the position
is worst. Buyer's Agreement has not even been executed by the Company. As such, in the present
case also, by not offering Buyer's Agreement, for signing in a reasonable time, and even thereafter
not executing the same despite it was sent back by the complainants, the opposite parties committed
unfair trade practice and were also deficient in providing service.

Besides as above, it has been vehemently contended by Counsel for the complainants that the
project was launched and sold by the opposite parties, without obtaining necessary approvals and
sanctions, to which, Counsel for the opposite parties refuted, yet, without any evidence. It is
significant to mention here that a complaint qua the same project, wherein similar facts were
involved, was filed by one Gurmukh Singh, complainant (Sh.Gurmukh Singh Vs. Altus Space
Builders Pvt. Ltd., Consumer Complaint No.02 of 2017 decided on 08.06.2017). Almost similar
allegations were levelled by the complainant in that case, to which, the opposite parties filed written
version, which is almost similar to the reply filed in the present case. This Commission after going
through the evidence and record of that case, allowed that complaint, in favour of the complainant,
while holding as under:-

"It is on record that application to get grant of package of incentives to setup mega residential
housing project was cleared by the empowering Committee only on 21.06.2010 (at page 48 of the
file). 'Letter of Intent' for the Grant of Special Package of Incentives under Industrial Policy 2009
(LOI) was issued in favour of opposite parties no.1 and 2, only on 25.05.2011. Numerous conditions
were imposed upon opposite parties no.1 and 2, before launch and sale of the project. CLU
certificate was issued for 229.77 acres of land only on 17.11.2011. Thereafter, further area was added
in the above said certificate on 14.05.2012 Annexure C-3. Still, further additional area was added on
25.06.2013 Annexure C-4. The total land approved comes to 279.93 acres. However, against the said
land, layout plan was approved only on 08.05.2014, qua 276.61 acres of land.

Furthermore, the Punjab Govt. issued notification dated 06.08.2014, Annexure C-6, vide
which, mega housing project of opposite parties no.1 and 2, for area 219.92 acres' land was
exempted from the provisions of PAPRA, except the provisions of Section 32 and Section 36 to
Section 39 etc. It is apparent from the record that approval was given only for developing an area of
219.92 acres of land. Furthermore, perusal of the said notification makes it very clear that
exemption given was conditional, as has been referred in para no.5 of the said notification. Besides
other conditions, condition no.5 (iv to viii), reads thus:-

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 9

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

"(iv). The promoter shall deposit the entire amount in respect of the contribution to the Punjab
Urban Development Fund, created under section 32 of the Punjab Apartment and Property
Regulations Act, 1995 (Act No.14 of 1995), within a period of 30 days of the sanctioning of their
layout plan.

(v). The promoter shall acquire the ownership of project land in its name including land under
agreement to develop and land under agreement to sell. The plots falling under land proposed to be
acquired through Govt. acquisition, plot through which revenue rasta or khali passes shall not be
developed and sold till these pockets are acquired and ownership is transferred in the name of the
Promoter.

(vi) The plots/land to which the access is proposed through the land to be acquired by the
Government shall not be developed and sold till that land under the access is acquired and
transferred in the name of the promoter and access is provided.

(vii) The promoter shall be responsible for obtaining the final NOC from Punjab Pollution Control
Board.

(viii) Before starting the development of the proposed project promoter shall obtain environmental
clearance from the Ministry of Environment & Forest Government of India as required under EIA
notification dated 14.9.2006 as well as consent to establish (NOC) from the Punjab Pollution
Control Board."

It is specifically mentioned that before starting development of the proposed project,

promoter was to obtain environmental clearance from the Ministry of Environment & Forest
Government of India, in terms of EIA notification dated 14.09.2006. There is nothing on record that
such clearance was obtained by the opposite parties. Further, it was also mentioned that requisite
amount be deposited towards Punjab Urban Development fund, within a period of 30 days, from the
date of sanctioning of layout plans. No evidence has been placed on record, showing payment of the
aforesaid amount. Furthermore, it is mandated that the promoter shall also be responsible for
getting 'No Objection Certificate' from Punjab Pollution Control Board. No document exists on
record, showing that such approval was obtained by the opposite parties.

Not only as above, in the LOI dated 25.05.2011, a specific condition no.4(iii)(d)(v), was
imposed upon the opposite parties, as under:-

"4 Further the L.O.I. is subject to the following conditions as per Industrial Policy for Mega
Residential Projects:-

to (ii) ..........

(iii)(d) (v) The project shall not be advertised/launched and no money will be collected from
general public for allotment of land/plot/flat/any space till such time the layout/zoning plans are
cleared from the Competent Authority and exemption u/s 44 of PAPRA is issued by the

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 10

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Government."

It is mandated that the project can only be launched when layout/zoning plans are cleared
from the Competent Authorities and exemption is granted from operation of the provisions of
PAPRA, by the Government concerned. However, on the other hand, it is on record that layout plan
was approved on 08.05.2014, but the plot was sold vide Agreement to Sell dated 21.12.2010. Above
facts clearly indicate that when the project was launched and sold, not even a single permission was
available with the opposite parties. Nothing has been said to the contrary, in the written statement
filed by opposite parties no.1 and 2, adopted by opposite party no.3 also. Not even a single document
has been placed on record to controvert the plea taken by the complainant, qua above said fact.

Above action taken by the opposite parties, shows scant regard to the rules and regulations
issued by the Govt. and provisions of law. The opposite parties were out to fleece the poor
consumers. Earlier also, similar controversy came up for consideration, before this Commission in
Kamal Anand Vs. M/s Altus Space Builders Pvt. Ltd. and ors. Consumer Complaint No.316 of 2015,
decided on 24.05.2016. Noting facts, as referred to above, it was observed as under:-

"The next question, that falls for consideration, is, as to whether the Opposite Parties are at fault for
not handing over possession of the unit to the complainant after receipt of huge amount from her.
The answer, to this question, is in the affirmative. It is, no doubt, true that the complainant booked a
residential plot of 350 sq. yards in the project of the Opposite Parties and paid the huge amount i.e.
approximately Rs.58 lacs to them. It is also true that after booking of the unit, Agreement to Sell was
also executed between M/s Ajeet Associates (Opposite Party No.2) and the complainant on
19.09.2011 (Annexure C-4 colly.). At that time, when the Agreement to Sell was executed, the
complainant already paid the amount of Rs.10,50,000/- to Opposite Party No.1 vide receipt
(Annexure C-2) and Rs.7 lacs to Opposite Party No.3 vide receipt (Annexure C-3). Strangely, in the
Agreement to Sell, not even a single line has been produced by the Opposite Parties, within which
period possession is to be given. Thereafter, the complainant paid the amount of Rs.10,50,000/- on
02.11.2011, Rs.10,50,000/- on 06.12.2011, Rs.7,70,000/- on 22.05.2012 and Rs.2,45,000/- on
24.03.2014. After payment of the aforesaid amounts, neither any Plot Buyer's Agreement was
signed from the complainant nor any plot number was provided to her. Thereafter, the complainant
received a copy of the Plot Buyer's Agreement in February, 2015 from the Company but she refused
to sign the same, after reading the terms of the Agreement, especially article No.5, in which, the
Opposite Parties mentioned to deliver possession of the unit is to be given within a period of 30
months (extended by six months) i.e. maximum period of 36 months. It means according to the
Company, possession of the unit is to be delivered to the complainant in the year 2018. It is true that
in the proposal form (Annexure C-1) and Agreement to Sell (Annexure C-4 colly.) no such promise
to hand over possession of the unit within 36 months from 19.09.2011 was mentioned by the
Company. A bare perusal of Agreement to Sell clearly revealed that the terms and conditions
incorporated therein by the Opposite Parties are only to their own taste and benefit and befooled the
consumers especially when such like clause was mentioned i.e. the complainant agreed to sign and
execute the allotment letter or the Buyer's Agreement on the company's standard format as and
when desire by the Company. It is pertinent to note that when the complainant visited the site of the
Company, she found that there was nothing on the site. So, it is clearly proved that the deficiency in

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 11

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

service on the part of the Opposite Parties is writ large because the unit was booked by the
complainant in the year 2011 and Agreement to Sell was entered on 19.09.2011, without mentioning
any time for delivery of possession, but after about four years of the Agreement to Sell, the
complainant received the Plot Buyer's Agreement with the article that possession is to be delivered
within a period of 36 months from the year 2015 i.e. to be given in the year 2018. So, it is clearly
proved that the Company enjoyed the money deposited by the complainant and was fetching
interest on the huge amount deposited by her, without handing over physical possession of the unit
to her nor refunded the amount to her, which certainly amounted to deficiency in service and
indulged into unfair trade practice on the part of the Opposite Parties."

As such, the opposite parties are guilty of launching the project, in question, contrary to the
provisions of law; PAPRA and also the LOI issued.

It is contended by the opposite parties that now development at the project is complete and
the opposite parties have applied for getting partial completion certificate on 14.12.2016. Be that as
it may, once we have come to the conclusion that the plot was sold without even a single permission
in their hands, by the opposite parties, no relief can be given to them, on this score. The
complainant/ consumers cannot be forced to purchase a plot, after lapse of reasonable time. It is
specifically stated in the complaint that when first payment was made, in the year 2010, there was a
promise to hand over possession within 36 months therefrom. Thereafter, by offering one sided
terms and conditions, further providing possession after 36 months, from the date of signing of the
Buyer's Agreement (not signed in the present complaint), which was sent in the year 2015, the
opposite parties have indulged into unfair trade practice. The complainant was justified in not
signing the said Agreement, as it was totally in favour of the opposite parties. It is not in dispute that
the opposite parties have failed to deliver possession of the plot, in question, despite the fact that the
same was booked in the year 2010 and now it is June 2017. The act and conduct of the opposite
parties, referred to above, is vivid and glaring, which certainly entitles the complainants, in all the
three complaints, to get refund of the amount deposited."

In the present case also, it is evident from record that the Company failed to send buyer's
agreement within a reasonable period and delayed the same for about five years and when it was
sent back to the opposite parties after signatures of the complainant, the same was not executed by
the Company. Furthermore, despite the fact that plot was booked as far as back in 2010, possession
thereof has still not been offered and delivered to the complainants and the opposite parties still did
not have any date to say when it will be delivered; plot was sold to the complainants without
obtaining necessary approvals/ sanctions; money deposited by them is being utilized by the
opposite parties without providing anything; there is nothing on record that, by the date when
arguments were heard in this complaint, the project was fully developed. At the same time, even in
the written reply filed by the Company still no exact date of delivery of possession has been given.
There is nothing on record to prove that the Company is about to get completion certificate from the

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 12

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Competent Authority, so that it is able to offer and deliver possession of the plot to the
complainants, in the near future. As stated above, since in the present case, the opposite parties
failed to execute Buyer's Agreement, despite request having been made by the complainants, after
sending a copy thereof after their signatures, as such, this Commission is inclined to held that end
date to hand over possession of the plot, needs to be taken as 08.11.2013 i.e. reasonable period of
two to three years, from the date of booking (09.11.2010), when first payment of Rs.14 lacs, was paid
by the complainants. Plot was booked as far as back in 2010 and now it is March 2019. There has
been an inordinate in the matter. Under these circumstances, this Commission is not inclined to
give any contrary findings, to what have been given in Sh.Gurmukh Singh case supra.

In the present case also, the complainants cannot be made to wait for an indefinite period.
It is settled law that when there is a material violation on the part of the builder, in not handing over
possession by the stipulated date or within a reasonable period of two to three years from the date of
booking in the cases where agreement is not executed, the purchaser is not bound to accept the
offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount
paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar M GF
Land Limited, Consumer Case N o . 70 of 2015, decided on 14 Sep 2016 and M/s. Emaar MGF Land
Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016. This view
has been reiterated by the National Commission, in the case titled as Sujay Bharatiya & Anr. Vs.
Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018.
Relevant part of the said order reads thus: -

"This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of
2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the
allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an
alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to
deliver possession of the property within the stipulated period, for any reason, save and except
a force majeure condition, agreed to between the contracting parties, an allottee cannot be
compelled to accept an alternate site/plot and he would be within his rights to seek refund of the
amount deposited with the Developer against allotment".

The complainants are thus held entitled to refund of the amount paid.

It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour
of the complainants, if yes, to what extent. It is not in dispute that an amount of Rs.32,53,330/- was
paid by the complainants, without getting anything, in lieu thereof. A period of about 8 years have
lapsed from the date of booking of the plot, but still the complainants are empty handed. The
amount paid has been used by the opposite parties, for their own benefit. It is well settled law that
whenever money has been received by a party and when its refund is ordered, the right to get
interest follows, as a matter of course. The obligation to refund money received and retained without
right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of
India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. The complainants are
certainly entitled to get refund of the amount deposited by them, alongwith interest, from the
respective dates of deposits, till realization. Apart from that, they are also held entitled to

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 13

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

compensation for mental agony and harassment suffered by them, at the hands of the opposite
parties.

Since, it has already been held that the complainants are entitled to refund of the amount
deposited, alongwith interest and compensation, as such, plea taken by Counsel for the opposite
parties, to the effect that the opposite parties are ready to pay penalty amount for the period of
delay, in delivery of possession, cannot be considered, at this stage. Plea of making payment of
delayed compensation for the period of delay, and that too as per existing law, comes into effect only
when the allottees are prepared to wait further for delivery of possession of the plot(s)/unit(s) and
not in the case, where they have sought refund of the amount paid, on account of inordinate delay in
the matter. Possession period cannot be unlimited. In view of the above, plea raised by Counsel for
the opposite parties, in this regard, being devoid of merit is rejected At the time of arguments,
in connected consumer complaint bearing no.338 of 2018, it was also argued by Counsel for the
opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this
Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred
to an arbitrator for adjudication.

We are not going to agree with the argument raised. It may be stated here that this issue
has already been dealt with, by this Commission, in a case titled as 'Sarbjit Singh Vs. Puma Realtors
Private Limited', IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon'ble Supreme
Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers
Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale
Developers Private Limited Vs. Aghore Bhattacharya and others, ( Civil Appeal No.20923 of
2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC
305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and
LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of
existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the
parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this
Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the
National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr.,
Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in
the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a
Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling
aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017
before the Hon'ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even
the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal
Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon'ble Supreme
Court of India, vide order dated 10.12.2018.

In view of above, objection raised by Counsel for the opposite parties, in this regard, being
devoid of merit is rejected.

As far as the liability of opposite parties no.2 and 3, is concerned, it may be stated here that a
similar question fell for determination before this Commission in Sh.Gurmukh Singh case supra,

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 14

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

wherein it was held as under:-

"As far as the liability of opposite party no.2, is concerned, it may be stated here that the documents
placed on record, clearly proves that the project was a joint venture of opposite parties no.1 and 2
including opposite party no.3. The said fact is reflected from the documents like LOI dated
25.05.2011 (at page 48); Change of Land Use Certificates dated 17.11.2011, 14.05.2012 and
25.06.2013 (at pages 56, 58 and 60); Layout plan dated 08.05.2014 (at page 63). Not only as above,
even in the letter dated 20.02.2011 Annexure C-12, sent by opposite party no.1 to the complainant, it
has been clearly admitted that opposite party no.1 is the JV partner of opposite party no.2. Once it is
so, opposite party no.2 is equally liable alongwith opposite parties no.1 and 3, to refund the amount
paid by them (complainants). As such, the plea taken by opposite party no.2, to the effect that it has
nothing to do with the interse dispute between the complainant and opposite parties no.1 and 3, is
liable to be rejected."

Under above circumstances, it is held that, in the present case also, opposite party no.2 is
equally liable alongwith opposite parties no.1 and 3, to refund the amount paid by the complainants.
As such, plea taken by opposite party no.2, to the effect that it has nothing to do with the interse
dispute between the complainants and opposite parties no.1 and 3, is liable to be rejected.

At the time of arguments, Counsel for the complainants submitted that the complainants are
also entitled to be compensated, by way of award of rent amount, being paid by them, to cover
financial loss suffered by them, for the period of non-delivery of possession of the plot, in question.
It may be stated here that this Commission is ordering refund of amount paid alongwith interest,
compensation for mental agony and harassment, keeping in mind all the factors, which will take
care of the financial losses, suffered by the complainants. As such, the complainants are not entitled
for separate award of any sort of amount, except what has been held above, in view of reasons given
in this paragraph.

In connected consumer complaint bearing no.338 of 2018, objection was also taken to the effect
that this Commission did not vest with pecuniary jurisdiction to entertain and decide this complaint.
It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal
Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the
value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but
does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the
National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous
Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. In the present case,
if total value of the plot, in question i.e. Rs.54,84,150/- (@Rs.15,669/- x 350 square yards), plus
compensation claimed by way of interest @12% p.a. on the amount deposited to the tune of
Rs.56,28,240/-; compensation to the tune of Rs.3 lacs claimed for mental agony and physical
harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 15

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

and fell below Rs.1 crore i.e. Rs.98,68,256.28ps. Thus, this Commission has got pecuniary
Jurisdiction, to entertain and decide this complaint. The objection taken by the opposite parties that
this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands
rejected.

In this connected complaint, plea was also taken by the opposite parties to the effect that
there was delay on the part of the Competent Authorities, in granting approvals with regard to
layout plans etc., which resulted into delay in delivery of possession of the plots. It may be stated
here that the said plea does not merit acceptance. It was bounden duty of the opposite parties, to get
approved the final layout plans, in respect of the project, in question before launching the project,
and only, thereafter, accept booking amount from the customers. The complainants including other
allottees cannot be penalized for the delay in the aforesaid sanction of layout plans. It is a known
fact that delay occurs in obtaining various permissions from different Governmental Authorities,
and this fact is well-known to the builder(s). The time normally taken in getting such permissions
could have been contemplated by the builder, before issuing the brochure. It is an unfair trade
practice, if the builder, without any planning and without obtaining any effective grant of
permissions/layout plans to allot plot or to construct building/apartments, invites offers and
collects money from the buyers. If the possession of plot(s)/unit(s), as also the construction of the
building/apartment is delayed, because of such reasons, and the possession thereof is not delivered
within the stipulated time, the builder itself is responsible for that, and it cannot take shelter under
force majeure circumstances. Similar view was taken by the National Commission in a case titled as
M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620
of 2013, decided on 17th Dec 2015. Relevant part of the said order reads thus:-

".................... As far as final sanction of layout by HUDA is concerned, in my view, the petitioner
cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay
cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in
my opinion, the petitioner should not even have accepted the booking without final sanction of the
layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the
layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing
the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction
of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot
and therefore any escalation in the registration charges on account of delay in final sanction of
layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot......".

As such, the plea raised by the opposite parties, in this regard, stands rejected.

No other point, was urged, by the contesting parties, in both the complaints.

For the reasons recorded above, both the complaints are partly accepted, with costs, in the
following manner:-

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 16

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

In Consumer complaint bearing no.337 of 2018, the opposite parties jointly and severally are
directed as under:-

To refund the amount of Rs.32,53,330/- to the complainants, alongwith interest @15% p.a., from
the respective dates of deposits onwards.

To pay compensation, in the sum of Rs. One lac, for causing mental agony and physical harassment,
to the complainants, as also escalation in prices.

To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.

In Consumer complaint bearing no.338 of 2018, the opposite parties jointly and severally are
directed as under:-

To refund the amount of Rs.56,28,240/- to the complainant, alongwith interest @12% p.a. (as
prayed), from the respective dates of deposits onwards.

To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment,
to the complainant, as also escalation in prices.

To pay cost of litigation, to the tune of Rs.35,000/- to the complainant.

The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in both the complaints, shall
be made, within a period of 02 (two) months, respectively, from the date of receipt of a certified
copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18%
p.a., instead of @15% p.a.; 15% p.a. instead of 12% p.a., respectively, from the respective dates of
deposits onwards, and interest @ 12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), in both
the complaints, from the respective dates of filing thereof, till realization.

However, it is made clear that, if the complainant(s) in any of the above complaint(s), have
availed loan facility from any banking or financial institution, for making payment towards the
respective plots, it will have the first charge of the amount payable, to the extent, the same is due to
be paid by them (complainants).

Certified copy of this order, be placed in connected complaint file, referred to above.

Certified copies of this order be sent to the parties, free of charge.

The files be consigned to Record Room, after completion.

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 17

 Mr. Narinder Arora vs Altus Space Builders Private ... on 25 March, 2019

Pronounced.

25.03.2019 Sd/-

[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-

(PADMA PANDEY) MEMBER Sd/-

(RAJESH K. ARYA) MEMBER Rg.

Indian Kanoon - http://indiankanoon.org/doc/84106375/ 18