ORDER P.S. Rana (R) President - Present consumer complaint is filed under section 17 of Consumer Protection Act 1986 pleaded therein that in the year 2012 complainant was persuaded by opposite party at Shimla to purchase the flat in total consideration amount of Rs. 4190000/-(Forty one lac ninety thousand) which was to be constructed by opposite party at Trishla City Zirakpur Punjab. It is pleaded that flat No.907B which was to be delivered to the complainant was park facing flat. It is pleaded that amount was to be paid at periodical intervals as per construction linked plan appended with the agreement. It is further pleaded that agreement was executed inter se parties on 24.09.2012. It is pleaded that earnest money of Rs. 800000/-(Eight lac) was paid to the opposite party and Rs. 200000/-(Two lac) extra was paid for park facing flat as demanded by opposite party. It is pleaded that complainant paid the installment amount from Shimla (h.P). It is pleaded that complainant also obtained loan from bank situated at Shimla (H.P). It is pleaded that complainant paid installments from Shimla as per schedule. It is pleaded that opposite party offer possession of flat No.907B vide letter dated 05.02.2016. It is pleaded that opposite party also demanded an amount of Rs. 304792/-(Three lac four thousand seven hundred ninety two) towards late payment charges. It is pleaded that complainant did not pay delayed installments. It is pleaded that complainant had already paid an amount of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five) against agreed price of Rs. 4190000/-(Forty one lac ninety thousand). It is pleaded that possession of park facing flat has not been delivered to complainant till date even after completion of four years of initial allotment. It is pleaded that opposite party has committed deficiency in service and also indulged in unfair trade practice. Complainant sought relief to the effect that opposite party be directed to deliver possession of park facing flat to complainant immediately as per original allotment letter dated 19.05.2012. In alternative complainant sought relief of refund of amount to the tune of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five). In addition complainant sought relief of compensation on account of mental harassment to the tune of Rs. 1000000/-(Ten lac). In alternative complainant sought relief of refund of amount to the tune of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five). In addition complainant sought relief of compensation on account of mental harassment to the tune of Rs. 1000000/-(Ten lac). In addition complainant sought relief to provide all necessary approval from all the regulatory authorities i.e. Occupation certificate, pollution board certificate, electrical inspectorate etc. with regard to the construction in question. In addition complainant sought withdrawal of letter dated 05.02.2016 and 05.10.2016 relating to late payment charges. Prayer for acceptance of consumer complaint sought. 2. Per contra version filed on behalf of opposite party pleaded therein that H.P. State Consumer Commission has no territorial jurisdiction to entertain and try the consumer complaint. It is pleaded that in view of the Arbitration clause H.P. State Commission has no jurisdiction to decide the consumer complaint. It is pleaded that flat was booked by complainant for commercial purpose and State Commission has no jurisdiction to dispose of consumer complaint. It is further pleaded that letter of possession was issued to complainant on 06.07.2015 by opposite party but complainant fails to take the possession of the flat. It is pleaded that complainant has suppressed material facts from State Commission. It is pleaded that complainant is estopped from filing the present consumer complaint due to his own act, conduct and acquiescence. It is pleaded that plea of complainant that flat No.907B is not a park facing flat is false and frivolous. It is pleaded that terms and conditions of allotment letter are binding upon complainant. It is pleaded that present complaint is hit by principles of delay and latches. It is admitted that flat in question was agreed to be purchased by complainant in Trishla City Zirakpur for a total consideration amount of Rs. 4190000/- (Forty one lac ninety thousand). It is denied that Rs. 200000/- (Two lac) initially was charged extra from complainant for park facing flat. It is pleaded that possession was to be delivered to the complainant within three years from the date of purchase agreement. It is admitted that allotment letter was issued to complainant on 19.05.2012 and purchase agreement was executed on 24.09.2012. It is pleaded that total consideration amount of flat was Rs. 4190000/-(Forty one lac ninety thousand). It is pleaded that possession was to be delivered to the complainant within three years from the date of purchase agreement. It is admitted that allotment letter was issued to complainant on 19.05.2012 and purchase agreement was executed on 24.09.2012. It is pleaded that total consideration amount of flat was Rs. 4190000/-(Forty one lac ninety thousand). It is further pleaded that in addition complainant was under legal obligation to pay service tax, club membership fee of Rs. 50000/-(Fifty thousand) and EDC/IDC charges of Rs. 85000/-(Eighty five thousand). It is pleaded that installment due, service tax, late payment charges, maintenance charges and holding charges etc. to the tune of Rs. 753212/-(Seven lac fifty three thousand two hundred twelve) are due from the complainant as on 30.09.2016 mentioned in letter dated 05.10.2016. It is pleaded that complainant shall be deemed to have taken possession of flat in question after expiry of thirty days from the date of offer of possession letter dated 06.07.2015. It is pleaded that partial completion certificate, building permit certificate already granted by M.C. Zirakpur. It is pleaded that NOC also given by Ministry of Defence. It is further pleaded that fire safety certificate already granted by Fire Station Officer and pollution certificate is also granted. Prayer for dismissal of complaint sought. 3. Complainant also filed rejoinder and reasserted the allegation mentioned in the complaint. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully. 4. Following points arise for determination in present complaint. 1. Whether complaint filed by complainant is liable to be accepted as mentioned in memorandum of grounds of complaint. 2. Final order. Findings upon point No.1 with reasons: 5. Complainant filed affidavit Ex.CW1 in evidence. There is recital in affidavit that in the year 2012 deponent was persuaded by opposite party at Shimla to purchase flat at Trishla City Zirakpur Punjab in consideration amount of Rs. 4190000/-(Forty one lac ninety thousand). There is recital in affidavit that possession was to be delivered within three years from the date of allotment letter. There is recital in affidavit that complainant has paid an amount of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five) to the opposite party. There is recital in affidavit that opposite party has demanded illegal amount from the complainant to the tune of Rs. 304792/-(Three lac four thousand seven hundred ninety two). There is recital in affidavit that complainant has paid an amount of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five) to the opposite party. There is recital in affidavit that opposite party has demanded illegal amount from the complainant to the tune of Rs. 304792/-(Three lac four thousand seven hundred ninety two). There is further recital in affidavit that park facing flat has not been allotted to the complainant as agreed by opposite party. State Commission has perused all annexures filed by complainant carefully. 6. Learned Advocate appearing on behalf of complainant has given statement before State Commission on dated 26.06.2018 placed on record that allotment of flat has already been cancelled by opposite party vide annexure-C32 dated 18.01.2017. Learned Advocate appearing on behalf of complainant further stated that on account of inordinate delay in the delivery of park facing flat complainant has relinquished his claim for delivery of park facing flat. Learned Advocate appearing on behalf of complainant has given further statement before State Commission that now complainant claim only for refund of money along with interest plus compensation amount. 7. Opposite party tendered in evidence affidavit of Sh. Harish Gupta Managing Director M/s. Trishla Buildtech Pvt. Ltd. There is recital in affidavit that H.P. State Commission has no territorial jurisdiction to entertain and dispose of consumer complaint. There is further recital in affidavit that in view of Arbitration clause mentioned in the agreement State Commission has no jurisdiction to dispose of consumer complaint on merits. There is recital in affidavit that flat was booked by complainant for commercial purpose. There is recital in affidavit that letter of possession was issued to complainant on 06.07.2015 by opposite party. There is recital in affidavit that complainant has suppressed material facts from State Commission. There is recital in affidavit that complainant is estopped to file consumer complaint before State Commission due to his own act and conduct. There is recital in affidavit that agreement was executed inter se parties on 24.09.2012 and possession was to be delivered within three years from agreement. There is recital in affidavit that an amount of Rs. 753212/-(Seven lac fifty three thousand two hundred twelve) is due to complainant as on 30.09.2016 as service tax, late payment charges, maintenance charges and holding charges. There is recital in affidavit that building permit already granted by M.C. Zirakpur. There is recital in affidavit that an amount of Rs. 753212/-(Seven lac fifty three thousand two hundred twelve) is due to complainant as on 30.09.2016 as service tax, late payment charges, maintenance charges and holding charges. There is recital in affidavit that building permit already granted by M.C. Zirakpur. There is recital in affidavit that NOC already given by Ministry of defence and Fire Safety Certificate already issued by Fire Station Officer. There is recital in affidavit that pollution certificate has already been issued and partial completion certificate has also been issued. State Commission has carefully perused all annexures filed by opposite party. 8. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for possession of park facing flat No.907B and on this ground complaint filed by complainant be allowed is decided accordingly. Learned Advocate appearing on behalf of complainant has given voluntarily statement before State Commission on dated 26.06.2018 that complainant relinquish his claim for delivery of flat. It is held that in view of voluntarily statement given by learned advocate of complainant dated 26.06.2018 placed on record relief of complainant for possession of flat No.907B has become infructuous. 9. Submission of learned Advocate appearing on behalf of complainant that in alternative complainant is entitled for refund of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five) is decided accordingly. It is proved on record that purchase agreement annexure-C8 was executed between complainant and opposite party and as per condition No.F of purchase agreement in case complainant would forfeit his claim for possession of booked flat then earnest money paid shall stand forfeited and purchaser would loose lien over booked flat. State Commission is of the opinion that terms and conditions of agreement are binding upon both the parties and no party should be allowed to approbate and reprobate terms and conditions of agreement. Terms and conditions has been signed by both the parties and both the parties are literate persons. It is held that no party shall be allowed to flout the terms and conditions of agreement. There is positive recital in written agreement that in case of refusal to take possession of booked flat by vendee then vendor shall be legally entitled for earnest money. As per agreement an amount to the tune of Rs. 800000/-(Eight lac) was paid by complainant to the opposite party as earnest money of flat. There is positive recital in written agreement that in case of refusal to take possession of booked flat by vendee then vendor shall be legally entitled for earnest money. As per agreement an amount to the tune of Rs. 800000/-(Eight lac) was paid by complainant to the opposite party as earnest money of flat. In view of the terms and conditions of agreement it is held that complainant is liable to forfeit his paid earnest money to the tune of Rs. 8.00 lac to opposite party. See CPR 2016 (4) 487 NC Amandeep Kaur vs. DLF Universal Ltd. & others. See 2017 (1) CPR 315 NC M/s. Krishna Kunj vs. Rabindra Nath Basu and others. As per condition No.(IV) of Article 4 of Agreement relating to possession purchaser shall not be entitled to raise any kind of dispute or question about the completion/occupation of complex which shall be totally separate matter vis-a-vis handing over of the possession of the apartment to the purchaser. 10. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs. 1000000/-(Ten lac) for mental agony and harassment is decided accordingly. It is proved on record that complainant has to approach State Commission for redressal of his grievances and has to engage advocate and has also paid litigation charges. In view of above stated facts it is held that complainant is legally entitled for reasonable compensation for mental agony and harassment and litigation costs. 11. Submission of the learned Advocate appearing on behalf of complainant that opposite party be directed to place on record all necessary approval from regulatory authorities i.e. Occupation certificate, pollution board certificate, electrical inspectorate etc. with regard to construction in question is decided accordingly. State Commission is of the opinion that in view of written statement of learned advocate appearing on behalf of complainant dated 26.06.2018 that complainant relinquish his claim for delivery of flat prayer has become infructuous. 12. Submission of learned Advocate appearing on behalf of complainant that opposite party be directed to withdraw letter dated 05.02.2016 and 05.10.2016 wherein demand of late payment sought is decided accordingly. In view of statement of learned advocate appearing on behalf of complainant dated 26.06.2018 that complainant relinquish his claim for delivery of flat prayer has become infructuous. 13. 12. Submission of learned Advocate appearing on behalf of complainant that opposite party be directed to withdraw letter dated 05.02.2016 and 05.10.2016 wherein demand of late payment sought is decided accordingly. In view of statement of learned advocate appearing on behalf of complainant dated 26.06.2018 that complainant relinquish his claim for delivery of flat prayer has become infructuous. 13. Submission of learned Advocate appearing on behalf of opposite party that State Commission has no territorial jurisdiction to entertain and decide the consumer complaint and on this ground complaint filed by complainant be dismissed is decided accordingly. It is proved on record that opposite party has addressed several letters to complainant at address of Shimla Himachal Pradesh and demanded remaining consideration amount as per address of Shimla (H.P). Plea of complainant that complainant has paid part consideration amount of flat from Shimla (H.P) by way of loan took from Shimla (H.P) bank remained unrebutted on record. Hence it is held that part of cause of action accrued to complainant within territorial jurisdiction of H.P. State Commission Shimla as per section 17(2)(c) of Consumer Protection Act 1986. 14. Submission of learned Advocate appearing on behalf of opposite party that in view of Arbitration clause mentioned in agreement State Commission has no jurisdiction to dispose of consumer complaint is decided accordingly. It is held that remedy under Consumer Protection Act 1986 is additional remedy in derogation of any other law. It is held that despite provision of Arbitration clause in the agreement State Commission has jurisdiction to dispose of consumer complaint on merits. See 2018 (1) CPR 466 NC Hitesh Ramji Javeri and others vs. Macrotech Constructions Pvt. Ltd. 15. Submission of learned Advocate appearing on behalf of opposite party that flat was booked for commercial purpose by complainant and on this ground complaint filed by the complainant be dismissed is decided accordingly. Opposite party did not adduce any evidence on record in order to prove that complainant has purchased the flat for commercial purpose. Plea of opposite party that flat was purchased by complainant for commercial purpose is defeated on the concept of ipse dixit (An assertion made without proof). 16. Submission of learned Advocate appearing on behalf of opposite party that letter of possession was issued to complainant on 06.07.2015 and on this ground complaint filed by complainant be dismissed is decided accordingly. Plea of opposite party that flat was purchased by complainant for commercial purpose is defeated on the concept of ipse dixit (An assertion made without proof). 16. Submission of learned Advocate appearing on behalf of opposite party that letter of possession was issued to complainant on 06.07.2015 and on this ground complaint filed by complainant be dismissed is decided accordingly. It is proved on record that letter of cancellation has been issued by opposite party to complainant vide letter annexure-C32 on dated 18.01.2017. Present consumer complaint was filed on dated 23.12.2016 before H.P. State Consumer Commission. Letter of cancellation of flat was issued by opposite party during pendency of consumer complaint before H.P. State Consumer Commission and same is hit on the concept of lis pendens as mentioned under section 52 of Transfer of Property Act 1882. In view of cancellation letter issued during lis pendens plea of opposite party has become infructuous. Even opposite party had admitted in version that partial construction completion certificate was issued by competent authority. Partial construction completion certificate does not mean entire construction completion certificate as per law. It is well settled law that facts admitted in version by opposite party did not require any further proof. 17. Submission of learned Advocate appearing on behalf of opposite party that complainant has suppressed material facts from State Commission and complainant is estopped to file present complaint due to his own act and conduct is decided accordingly. Onus to prove that complainant has suppressed the material facts from State Commission and onus to prove that complainant is estopped to file consumer complaint due to his own act and conduct lies upon the opposite party. Opposite party did not adduce any evidence on record in order to prove above stated facts. Hence plea of opposite party is defeated on the concept of ipse dixit (An assertion made without proof). 18. Submission of learned Advocate appearing on behalf of opposite party that complainant is under legal obligation to pay service tax, club membership fee and EDC/IDC charges and on this ground complaint filed by complainant be dismissed is decided accordingly. In view of the fact that opposite party has cancelled the allotment of flat in favour of complainant vide letter annexure-C32 dated 18.01.2017 during pendency of consumer complaint before H.P. State Consumer Commission present plea of opposite party has become infructuous. 19. In view of the fact that opposite party has cancelled the allotment of flat in favour of complainant vide letter annexure-C32 dated 18.01.2017 during pendency of consumer complaint before H.P. State Consumer Commission present plea of opposite party has become infructuous. 19. Submission of learned Advocate appearing on behalf of opposite party that complicated facts are involved in the present consumer complaint and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that in view of fact that opposite party has cancelled the allotment of flat vide letter annexure- C32 on dated 18.01.2017 during pendency of consumer complaint it is not expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court and State Commission is of the opinion that present consumer complaint could be disposed of properly and effectively by State Commission. No final completion certificate of construction of flat No.907B issued from competent authority placed on record by opposite party. See 2018 (3) CPR 374 NC M/s. Ittina Properties Pvt. Ltd. and others vs. Vidya Raghupathi and Anr. In view of above stated facts and case law cited supra point No.1 is decided partly in yes and partly in no. Point No.2: Final Order 20. In view of findings upon point No.1 above complaint is partly allowed. It is ordered that opposite party shall deduct an amount of Rs. 800000/-(Eight lac) received as earnest money from total amount of Rs. 4260145/-(Forty two lac sixty thousand one hundred forty five) and thereafter shall return remaining amount to complainant along with interest @ 9% per annum from date of institution of complaint till payment within one month from the date of receipt of certified copy of order. It is further ordered that opposite party shall pay compensation amount to the tune of Rs. 25000/-(Twenty five thousand) to complainant for mental agony and harassment. It is further ordered that opposite party shall pay litigation costs to complainant to the tune of Rs. 10000/-(Ten thousand). Purchase agreement annexure-C8 dated 24.09.2012, cancellation letter annexure-C32 dated 18.01.2017 issued by opposite party to complainant and written statement of learned advocate of complainant dated 26.06.2018 shall form part and parcel of order. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. File of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Complaint is disposed of. Pending application(s) if any also disposed of.