1. The instant First Appeal has been filed under section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the Act, challenging the Order dated 19.08.2013 of the State Consumer Disputes Redressal Commission Haryana, hereinafter referred to as the State Commission, in C.C. No. 49 of 2013 whereby the State Commission has accepted the Complaint and directed the Opposite Party Builder Co. to refund the respective deposited amounts to the Complainants with interest at the rate of 9% per annum from the dates of respective deposits till realisation and Rs.22,000/- each for mental agony, harassment and cost of litigation.
2. Admitted facts of the case, shorn of unnecessary rhetoric, are that the six Complainants, Ujjawal Kumar, Avinash Singh Jawa, Shashi Mohan, Abhishek, Vivek Srivastava and Ajay Yadav, had deposited Rs.10,97,607/-, Rs.8,78,048/-, Rs.10,22,893/-, Rs.13,15,684/-, Rs.8,66,000/- and Rs.7,45,631/-, in all totalling Rs.59,25,863/-, with the Builder Co. in July / August 2007, as detailed in para 4 of the State Commission’s impugned Order. As per the agreed terms and conditions, the construction of the subject Unit was to be completed in 36 months with a grace period of 6 months. The Complainants filed C.C. No. 113 of 2010 before this Commission on 15.06.2010. It was transferred to the State Commission by this Commission vide its Order dated 22.05.2013.
As per the record on file, Completion / Occupancy Certificate was not obtained by the Builder Co. till the date (15.06.2010) of the filing of C.C. No. 113 of 2010 before this Commission, it was not obtained till the date (19.08.2013) when the State Commission decided the matter, which was well beyond the assured period of 36 months and 6 months thence.
3. We have heard the learned Counsels from both sides, and perused the material on record.
4. The Order dated 22.05.2013 of this Commission in C.C. No. 113 of 2010 inter alia reads as below:
“2. The Commission having doubts about the pecuniary jurisdiction directed the complainant on 13.07.2010 to file additional affidavit giving details of the compensation claimed with reference to the claim of each of the complainants besides some other information. Additional affidavit was filed and on 28.10.2020 after perusing the additional affidavit filed by complainant No.1, the Commission admitted the complaint and directed issue of notice to the OP. The OP on the receipt of the notice filed written statement contesting the claim. The complainant also filed rejoinder to the reply filed by the OP. The parties, thereafter, filed their evidence by way of affidavit. While the matter rested, thus, complainant No.7 Sandeep Mukhopadhyay settled his dispute with the OP. Consequent upon this settlement, his name was deleted from the array of complainants and amended complaint deleting his name and also amending the prayer clause was filed. As a result the claim filed by the complainants got reduced to Rs.59,25,863/-, plus 30 lakhs, plus Rs.1,05,000/-, which is less than rupees One Crore.
“3. Learned counsel for the OP has thus raised a plea that this matter is within the pecuniary jurisdiction of the State Commission and as such complaint be returned.
“4. During the course of arguments on maintainability on the ground of pecuniary jurisdiction, parties agreed to an arrangement and they requested that the matter be transferred to the State Commission with the direction to decide the same after hearing the parties from the existing stage.
“5. In view of the aforesaid arrangement arrived at between the parties which will not cause prejudice to either of the parties, instead of returning the complaint for de-novo adjudication which would entail unnecessary delay, we transfer this matter to the State Commission Haryana, Panchkula for deciding the complaint in accordance with law from this stage onward after giving due hearing to the parties.”
(emphasis supplied by us)
5. Mr. Rohit Sharma, learned Counsel for the Appellant argued that the individual Complainants should have filed individual Complaints, and had it been so, the individual claims would not have been within the pecuniary jurisdiction of the State Commission. Moreover, while clubbing their individual claims, the Complainants did not file an Application under Section 12(1)(c) of the Act. Nor was Notice under Section 12(1)(c) issued. Transfer of the matter to the State Commission by this Commission did not in any manner affect the right to agitate an issue of law [i.e. apropos Section 12(1)(c)] before the State Commission. The State Commission erred in dismissing its preliminary Objection regarding Section 12(1)(c) by holding that “hyper technicalities are not required to be observed in the summary proceedings of the Complaint filed by the Complainants, otherwise, it would frustrate the very purpose of the legislation of consumerism.” Consent before the National Commission cannot override the Statutory Provisions / requirements regarding Section 12(1)(c). Relying on the decision of the Hon’ble Supreme Court in the case of Rameshwar Prasad Shrivastava and Others v/s Dwarkadhis Projects Pvt. Ltd. and Others, 2018 (15) SCALE 629 he submitted that the impugned Order passed by the State Commission is void ab initio.
6. We may first note, in relation to Section 12(1)(c), that Notice on an Application filed under Section 12(1)(c) has to be issued, opportunity to file reply thereto has to be afforded, both sides have to be heard, the relevant record including the complaint and specifically inter alia its prayer clause has to be considered, and a reasoned Order allowing or disallowing an Application under Section 12(1)(c) has to be passed. In the instant case, the provisions of Section 12(1)(c) were not considered by this Commission while transferring C.C. No. 113 of 2010 filed before it to the State Commission, and the only issue considered was that of pecuniary jurisdiction, as is evident from the extracts of this Commission’s Order dated 22.05.2013 quoted in para 4 above.
7. Normally we would have held that the State Commission should not have proceeded with the Complaint when it had been filed by Six Consumers without there being an Application under Section 12(1)(c) of the Act, but taking into consideration the fact that
(i) all the Six Complainants have deposited the respective amounts in July / August 2007 i.e. now more than 12 years have passed,
(ii) they have filed the Complaint in the year 2010 i.e. now more than nine years have passed,
(iii) the Complaint had been admitted by this Commission in the year 2010,
(iv) Neither the Order admitting the Complaint was challenged nor any effort to review/recall of the Order was made by the Builder Co. who had appeared before this Commission and only the plea of pecuniary jurisdiction was raised and a Consent Order transferring the Complaint Case to the State Commission was passed,
(v) Each of the Complainants have a Right to file individual Complaints before the Consumer Forum even after a period of 9 years by seeking condonation of delay under Sections 5 and 14 of the Limitation Act, 1963,
(vi) Even though there was one Complaint being Complaint Case No. 49 of 2013 (earlier registered as Complaint Case No. 113 of 2010 filed before the National Commission), it being filed jointly by Six Consumers/Complainants, we can assign six numbers i.e. 49A / 2013, 49B / 2013, 49C / 2013, 49D / 2013, 49E / 2013 and 49F / 2013 and as the pleadings, Evidence have been filed by the respective Parties and submissions on merits have also been made and considered by the State Commission, it would not be in the interest of justice to set aside the impugned Order, and
(vii) Under the Act, the Consumer Forum in view of the decisions of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra II (2019) CPJ 29 (SC) and Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan II (2019) CPJ 34 (SC) can refund the amount deposited with interest.
we are of the considered opinion that the impugned Order passed by the State Commission should not be set aside on this ground alone and a fresh round of litigation be started de novo.
8. Accordingly, in the peculiar facts and special circumstances of this case, we hold that as Section 12(1)(c) was not considered by this Commission, a consequence thereof is that the Order dated 19.08.2013 passed after adjudication on merit by the State Commission can not and shall not be construed to imply that it is applicable mutatis mutandis to all similarly situate Consumers. The Award shall remain confined and restricted to the six Complainants only i.e. to the six Respondents herein.
9. In respect of pecuniary jurisdiction, we may note that, ideally, individual Complaints should have been filed by the six individual Complainants before the Competent Consumer Forum having the pecuniary jurisdiction therefor.
10. We but note that both Parties consented that the matter be transferred to the State Commission. The matter was transferred to the State Commission on an ‘as-is-where-is basis’ for further adjudication from that stage onwards. Once the Complainants and the Opposite Party had consented for transfer of the matter to the State Commission, neither side can raise that issue again.
11. The issue of pecuniary jurisdiction was not specifically agitated by either side before the State Commission. Only the issue of Section 12(1)(c) was raised by the Opposite Party. However, we have already made it explicit in para 8 above that the Award of the State Commission shall be confined and restricted to the six Complainants only, and shall not be applicable in rem.
12. Mr. Rohit Sharma further argued that the subject Apartments have since been completed and Completion / Occupancy Certificate obtained. Therefore, the State Commission’s order of refund with interest and cost is erroneous.
13. We find this argument to be bereft of merit. The Complainants had made their deposits in July / August 2007, the Project had to be completed within 36 months with a grace period of 6 months. Completion / Occupancy Certificate was not obtained till the date (15.06.2010) of the filing of C.C. No. 113 of 2010 before this Commission, it was not obtained even till the date (19.08.2013) when the State Commission decided the matter, which was well and unreasonably beyond the assured period of 36 months and 6 months thence. Unreasonable and undue delay is self-evident.
14. We may state that prior to, or, at the least, simultaneous to, getting a Consumer to enter into its Agreement and accepting the first payment towards the total cost of the subject Unit, the Builder Co. was required and expected to have the due pragmatic and realistic assessment and preparation of the Project Planning, Execution and Completion.
It was the prime responsibility of the Builder Co. to ensure that it was in a position to deliver the possession of the subject Unit/s to the Buyer/s Consumer/s within the assured period of 36 months and in all contingencies within the extended grace period of 6 months thence.
Planning, Execution and Completion were its responsibility, and not of the consumer.
(Normal) impediments or problems that arise in Planning, Execution and Completion were its responsibility, and not of the consumer.
Specifically, availability of land (/ acquisition of land), as well as all approvals from the concerned Government and Municipal Authorities, as and when due, being fundamental basic requirements of a residential housing project, were decidedly the Builder Co.’s primary responsibilities, and not of the consumer.
Cost and Time overruns were its responsibility, not of the consumer.
Non-fulfilment of its overall responsibilities of Project Planning, Execution and Completion can not be and are not grounds for condoning or overlooking delay in completion and failure to hand over possession within the assured period.
And, Force Majeure, unforeseeable circumstances, irrespective of its various ‘liberal’ or ‘strict’ interpretations, and irrespective of its various interpretations in different sets of facts, can, but, not be nebulously and irrationally articulated in the agreement, or contended and argued for anything and everything related to the Builder Co.’s responsibilities for completion of the Project without Cost or Time overruns.
15. A Consumer cannot be made to wait indefinitely or unreasonably. Indefinite or unreasonable delay cannot continue ad nauseam, ad infinitum (such situation would be absurd). In the facts of the present case, unreasonable delay is writ large. A natural corollary thereof is that two rights accrue to the consumer:
one : the option to wait for the subject unit to be handed over, if and when the construction is completed and the offer of possession of the subject unit is made by the Builder Co., at his (the Consumer’s) considered wisdom and discretion, and in addition to seek just and equitable compensation under the Act for unreasonable delay and loss and injury.
two : to claim refund of the principal amount with just and equitable
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interest / compensation / cost of litigation. That is, the Consumer has both options available, one, to obtain possession of the subject Unit if and when offered by the Builder Co. and in addition seek just and equitable compensation under the Act for unreasonable delay in possession, and, two, to opt for a fair amount from the Builder Co. comprising of refund of the deposited amount with just and equitable interest / compensation / cost of litigation. 16. It is seen that of the two options available to the Complainants herein they opted for obtaining a fair amount comprising of refund of the principal amount paid to the Builder Co. with interest / compensation / cost of litigation. 17. The State Commission has awarded refund of the respective deposited amounts with interest at the rate of 9% per annum and Rs.22,000/- each for mental agony, harassment and cost of litigation. We find the Award to be just and equitable. 18. The Statement of Objects and Reasons for the Act 1986 speaks of ‘speedy and simple redressal to consumer disputes’. The Act is for “better protection of the interests of the consumers.” The complainants made their deposits in July / August 2007. We are now in 2019. 19. After this brief examination, we find no reason evident to interfere with the award made by the State Commission. The first appeal is dismissed. The Award made vide the Order dated 19.08.2013 of the State Commission is upheld and sustained.