Chandigarh

StateCommission

CC/88/2019

Vikash Mittal - Complainant(s)

Versus

Emaar India (formerly known as EMMAR MGF Land Limited - Opp.Party(s)

Sandeep Khunger, Nitika Jaura & Gaganvir Singh Gill Adv.

15 Dec 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	88 of 2019
Date of Institution	:	23.04.2019
Date of Decision	:	15.12.2020

 

1. Vikash Mittal son of Mr.Ashok Mittal.
2. Sumita Mittal wife of Mr.Vikash Mittal

Both residents of AM-1, Shalimar Bagh, New Delhi-110088

……Complainants

V e r s u s

1. Emaar India (Formerly Known as EMAAR MGF Land Limited) having their Office at SCO No.120-122, Sector 17-C, Chandigarh, through its Managing Director/Authorized Officer. feedback@emaar-india.com
   2^nd Address:- ECE House, 28 Kasturba Gandhi Marg, New Delhi through its  Managing Director/Authorized Officer. Email:- feedback@emaar-india.com
2. Sh.Hadi Mohd Taher Badri, Managing Director EMAAR having site office - Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali. Email:- feedback@emaar-india.com
3. Greater Mohali Area Development Authority (GMADA) PUDA Bhawan, Sector 62, SAS Nagar, Mohali, through its Chief Administrator. E-mail:-eo@gmada.gov.in

….Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                     

                      Sh.Sandeep Khunger, Advocate for the complainants.

Sh.Rana Gurtej Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte vide order dated 27.05.2019.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted by the complainants seeking directions to the opposite parties, to obtain completion certificate from the competent authorities after completing development works at the project site; to pay interest by way of compensation for the period of  delay in delivering possession of plot no287 purchased in their project; to pay compensation for mental agony harassment and also litigation expenses.

2.           It is the case of the complainants that in the first instance, complainant no.1 and Mr.Ashok Mittal had booked plot no.157, measuring 300 square yards, on 07.09.2006, on making payment of booking amount of Rs.13.50 lacs, to opposite parties no.1 and 2 on 23.09.2006, in their project named “Mohali Hills”, Sector 105, Central Park, SAS Nagar, Mohali, Punjab, total sale consideration whereof was fixed at Rs.37,64,812.50ps. Resultantly, plot buyer’s agreement, was executed on 04.07.2007. However, thereafter, despite the fact that on demands made by opposite parties no.1 and 2, from time to time, more than 85% of the total sale consideration stood received  by them, possession of the plot no.157 was not offered by 03.07.2010 i.e. within a period of three years, as envisaged under Clause 8 of the agreement dated 04.07.2007 or even thereafter. 
3.           Thereafter, vide letter dated 21.05.2012, Annexure C-9, i.e. after about two years of the promised date aforesaid for delivery of possession of plot bearing no.157, opposite parties no.1 and 2 unilaterally relocated complainant no.1 and Mr.Ashok Mittal to plot no.287, measuring 300 square yards in the same project, without giving any justification, as to why, possession of originally purchased plot no.157 was not offered and delivered to them. Left with no choice, they had to accept the relocation, as a result whereof amended agreement dated 01.06.2012, Annexure C-10, was executed in respect of relocated plot no.287. During the period intervening, on account of death of Mr.Ashok Mittal, his share was got transferred in the name of complainant no.2. It has been stated that actual physical possession of the relocated plot no.287 was also not delivered to the complainants for dearth of development activities at the project site and also completion certificate from the Competent Authorities. Various letters sent by the complainants in the matter, did not yield any result. However, to the utter shock of the complainants, incomplete possession of the relocated plot no.287 was offered to them  vide letter dated 02.12.2016, Annexure C-15, which was challenged vide letter dated 03.05.2017, Annexure C-17, whereby the issues with regard to payment of delayed compensation; non obtaining of completion certificate etc. were raised by the complainants. Though possession of the relocated plot no.287 was thereafter handed over vide letter dated 23.05.2017, Annexure C-20, yet the same was not a valid possession because thereafter also vide email dated 07.12.2018, Annexure C-21, it was intimated to the complainants that overall infrastructure work at the site where the plot in question is located is under progress and will be completed at the earliest.

                   By stating that the aforesaid act and conduct of  opposite parties no.1 and 2 amount to deficiency in providing service and unfair trade practice, the complainants have filed the present case.

4.           Their claim has been contested by opposite parties no.1 and 2 on numerous grounds, inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain this consumer complaint; that the complainants have misrepresented the facts before this Commission; that they did not fall within the definition of “consumer” as they have purchased the plot in question for commercial purposes; and that the complaint filed is barred by time.
5.           On merits, the fact that allotment of plot no.157, in the first instance in the project in question; execution of plot buyer’s agreement in respect of the same on 04.07.2007; non delivery of possession thereof by 03.07.2010 i.e. within a period of three years, as envisaged under Clause 8 of the agreement dated 04.07.2007; relocation to plot no.287, measuring 300 square yards in the same sector and that on account of death of Mr.Ashok Mittal, his share was got transferred in the name of complainant no.2, is not disputed by opposite parties no.1 and 2. However, it has been stated that relocation to plot no.287 was done on the request having been made by the complainants only and that  vide letter dated 07.06.2014, Annexure OP-3, the complainants were intimated that the process to hand over  possession of the relocated plot no.287  will commence within 60 days from 07.06.2014. Thereafter, letters dated 09.12.2015 and 16.07.2016, Annexure OP-6 colly., were also sent in the matter. It has been stated that since possession of relocated plot no.287 has already been taken over by the complainants, on 23.05.2017, as such, they ceased to be ‘consumers’ as the said act attained supremacy over agreement. It has been stated that though the project in question was exempted under the provisions of Punjab Apartment and Property Regulation Act, 1995, yet, partial completion certificate dated 16.10.2015 was obtained by the Company in view of Notification dated 02.09.2014, having been issued by the Government of Punjab. It has been stated that it was only on receipt of partial completion certificate and completion of all development activities that the complainants were repeatedly asked to take physical possession of relocated plot no.287. It has been submitted that delayed compensation for the period of delay in handing over possession has been credited in the account of the complainants. Prayer has been made to dismiss the complaint with cost.
6.           Despite deemed service, non put in appearance on behalf of opposite party no.3, as a result whereof, it was proceeded against exparte vide order dated 27.05.2019.
7.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in the written reply filed by  opposite parties no.1 and 2. 
8.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the complainants and opposite parties no.1 and 2 have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by them.  
9.           We have heard counsel for the contesting parties and have also gone through the material available on record, including the written arguments, very carefully.
10.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the agreement is concerned, it may be stated here that this issue has already been dealt with 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 complainant 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. As such, objection raised by  opposite parties no.1 and 2 in this regard stands rejected.
11.           Now coming to the objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to  opposite parties no.1 and 2 to establish that the complainants have purchased the plot in question to indulge in ‘purchase and sale of plots’ 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 are consumers as defined under the Act. Mere fact that the complainants are residing in a house at New Delhi or at any other place is not a ground to shove them out of the purview of consumer. Objection taken in this regard is rejected.
12.           Since the fact with regard to allotment of plot no.157 aforesaid in the first instance; execution of agreement in respect of the same; payments made by the complainants; non delivery of possession thereof by the promised date or even thereafter; relocation to plot no.287 is not in dispute, as such, the only moot question in this complaint, which needs to be decided by this Commission is, as to whether, possession of the relocated plot no.287,  so handed over vide letter dated 23.05.2017, by opposite parties no.1 and 2 to the complainants was a valid one or not?.  

                   Before dealing with the said question, first of all, we would like to mention here that admittedly in the first instance, the complainants had purchased plot no.157 aforesaid, possession whereof was to be delivered  latest by 03.07.2010, but, admittedly,  opposite parties no.1 and 2 have miserably failed to do so, despite the fact that more than 85% of the sale consideration stood  collected by them and, on the other hand, the complainants were  relocated to plot no.287, without their consent, which was accepted by them under no choice, as there is nothing on record to prove that any request was made by them for relocation. In the entire written reply filed by the opposite parties no.1 and 2 or during arguments, no plausible reason has been given by them, as to why possession of originally allotted plot no.157 was not delivered to the complainants.  This act of  opposite parties no.1 and 2, in itself amounts to deficiency in providing service, negligence and adoption of unfair trade practice.

                   Now we will deal with the moot question aforesaid to the effect that whether, the possession so handed over by opposite parties no.1 and 2 of the relocated plot no.287, vide letter/certificate 23.05.2017, was a valid one or not. It may be stated here that before offering and delivering possession of any plot purchased by a  person in a Mega Project, the builder is duty bound to provide all the basic amenities such as roads, water lines, sewer lines, electric lines etc. so that he/she is able to get the construction material available upto the said plot through transport, to construct a house; get water and sewer lines connected and obtain electricity connection from the lines laid down by the builder leading to his/her plot. Apart from above, it is also a settled law that before offering and delivering possession of a residential unit/plot in a mega project, the builder is duty bound to obtain occupation and completion certificates from the Competent Authorities. It is also a settled law that a buyer of a unit/plot is not bound to take over possession thereof, in the absence of development/construction work and also occupation and completion certificates. No doubt, in the present case, Counsel for opposite parties no.1 and 2, in order to defeat the claim of the complainants, have placed heavy reliance on possession certificate dated 23.05.2017, Annexure C-19, and contended with vehemence that all the development activities where the relocated plot no.287 was located had been completed as far as back in 2014 itself, yet, it was the complainants who have taken over possession after such a huge delay on 23.05.2017 and that otherwise, all the development activities had been completed by 2014 itself. It is very significant to mention here that the said contention raised by Counsel for opposite parties no.1 and 2 stands falsified, when we go through the contents of email dated 07.12.2018, Annexure C-12, sent by opposite parties no.1 and 2 to the complainants which read as under:-

 

“…….We would like to inform you that the possession of the unit was offered as per terms of the buyer's agreement which explicitly mentions that the company shall be responsible for providing internal services within the project which includes laying of the roads, water lines, sewer lines and electrical lines etc.

We would like to reassure that we are working on the completion of overall infrastructure works of sector 105 where your unit is located and all efforts are being put in to complete the same at the earliest.…..”

 

From the afore-extracted contents of email, it is evident that it has been in a very candid manner informed to the complainants that completion of overall infrastructure works of sector 105 where the relocated plot no.287 was located is in progress and that all efforts are being put into to complete the same at the earliest, meaning thereby that even by December 2018, development works at the project site, where the relocated plot was located, were not complete.

                   Furthermore, it is also coming out from the record that even completion certificate has not been obtained by opposite parties no.1 and 2 till the date when this complaint has been filed or arguments were heard therein. No doubt, to wriggle out of the situation, Counsel for opposite parties no.1 and 2 by placing reliance on notification dated 11.08.2006, Annexure OP-12 contended that since the company was exempted from the provisions of PAPR Act, as such, there was no need of obtaining completion certificate, yet, partial completion certificate had been obtained by the company on 16.10.2015, in view of Notification dated 02.09.2014, having been issued by the Government of Punjab. We have gone through the relevant contents of the said notification dated 02.09.2014 and found that the Government of Punjab framed guidelines under which the developers of colonies and Mega Housing Project were required to obtain completion certificate and also partial completion certificates on completion of development works viz. roads, water supply, sewerage and drainage system, street lighting etc. Under these circumstances, it can very well be said that the exemption granted to opposite parties no.1 and 2 with regard to occupation and completion certificates stood nullified in view of issuance of Notification date 02.09.2014 and opposite parties no.1 and 2 were required to obtain completion certificate for the projects, possession wherein were to be handed over after 02.09.2014. It is therefore held that opposite parties no.1 and 2 were legally bound to obtain completion certificate before delivering possession of relocated plot no.287 and mere obtaining partial completion certificate and that too with various conditions mentioned therein like clause xv) which say that  opposite parties no.1 and 2 were required to obtain final completion certificate, is of no use. Opposite parties no.1 and 2 failed to produce on record any document having been issued by the competent Authority, after 02.09.2014, whereby, they were given blanket immunity to obtain completion certificate, on offering and delivering possession of the unit/plot to the buyers. Even in the partial completion certificate, as mentioned above, as per clause (xv) they were bound to obtain final completion certificate from the competent Authority, which has not so far been obtained, as the same has not been placed on record.

                   Even otherwise, in the face of candid admission of opposite parties no.1 and 2 in the email dated 07.12.2018, Annexure C-12 regarding non completion of development works in Sector 105 till the said date (07.12.2018) no reliance can be placed on partial completion certificate having been issued to the company on 16.10.2015 i.e. about more than three years prior thereto. Thus, it leaves no doubt that the possession certificate so issued by the company in favour of the complainants on 23.05.2017 is nothing but a paper possession, which is not sustainable in the eyes of law and their claim cannot be defeated on that ground too. No documentary evidence has been placed on record by opposite parties no.1 and 2 to prove that the commitment of completion of infrastructure work as made by them, vide email dated 07.12.2018 aforesaid, has been completed. It is settled law that onus to prove the stage and status of infrastructure and development work at the project site and that all the permissions/certificates/approvals have been obtained in respect of the project in question, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In case, the development/construction activities are being undertaken and are about to complete as has been committed vide email dated 07.12.2018 or the same have been completed, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but they failed to do so.

13.           In view of above, the objection raised by opposite parties no.1 and 2 to the effect that since possession of the plot in question has been delivered to the complainants vide letter dated 23.05.2017, as such, they ceased to be consumer being devoid of merit stands rejected, especially in the face of the reason that by the said date, infrastructure work was still not completed in that area, as explained above, keeping in the mind the contents of email dated 07.12.2018. Our this view is supported by the made by the Hon’ble National Commission in First Appeal No. 115 of 2017, Pranav Mittal Vs. M/S. Dynamic Infradevelopers (P) Ltd. & 4 Ors., decided on 27 Feb 2017, wherein it was held as under:-

“10.      It is observed from the aforementioned letter dated 05.05.2014, that the possession would be given within 12 to 14 months from the date of the sale deed. Sale deeds were executed on 27.05.2014. It is the main case of the Complainants that the premises could not be occupied since the very basic amenities were not complete.  There is a specific pleading in para 10 of the Complaint that the Complainant was constrained to issue a legal notice, dated 28.02.2016, demanding completion of the works and handing over of the possession of the subject property within 30 days of receipt of the legal notice. The State Commission has not addressed itself to this aspect.  The finding of the State Commission that once the sale deed is executed and possession is offered, the purchaser ceases to be a “Consumer” is contrary to what has been laid down by this commission in Yash Pal Marwaha versus Pushpa Builders Ltd. &Anr., II (2006) CPJ 259(NC)…….”

14.           A similar question as to whether a buyer ceases to be consumer after taking over possession or execution of sale deed in respect of the unit also fell for determination before the Hon’ble Supreme Court of India, in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors Versus DLF Southern Homes Pvt. Ltd. Civil Appeal No. 6239 of 2019, decided on 24.08.2020, which was answered in favour of the consumer while holding as under:-

“35 The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.

36 It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India21, this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of „service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration.

To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the (2012) 5 SCC 359  transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.” The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats. 37 However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.”

15.           Now coming to the objection raised by opposite parties no.1 and 2, to the effect that this complaint is time barred, it may be stated here that if period of two years are counted from 23.05.2017 i.e. the date when possession certificate in respect of relocated plot no.287 was issued in favour of the complainants, which has been challenged by them by way of filing this complaint and infact has been held to be a paper possession by this Commission, this complaint having been filed on 23.04.2019 is well within limitation. As such, objection taken in this regard stands rejected.
16.           For the reasons recorded above, this complaint is partly accepted with costs and opposite parties no.1 and 2, jointly and severally, are directed as under:-

1. To complete development/overall infrastructure works of Sector 105, wherein the plot in question is located, complete in all respects as committed vide email dated 07.12.2018, Annexure C-21, and obtain completion certificate from the competent Authorities.
2. To pay compensation by way of simple interest @9% p.a., on the entire deposited amount, to the complainants, from 03.07.2010 to 31.12.2020, within one month, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @12% p.a. instead of 9% p.a., from the date of default, till realization.
3. To pay compensation by way of interest @9% p.a. on the entire deposited amount w.e.f. 01.01.2021, onwards (per month), till delivery of actual physical possession of plot no.287, complete in all respects i.e. after obtaining completion certificate from the competent Authorities, by the 10^th of the following month, failing which, the same shall also carry penal interest @12% p.a., instead of 9% p.a., from the date of default, till payment is made, which shall continue till actual physical possession of the plot in question is delivered to the complainants, in the manner ordered above.

                             However, it is made clear that opposite parties no.1 and 2 shall be at liberty to deduct the amount of compensation already credited by them for the period mentioned in the statement of accounts, referred to above, out of the compensation amount arrived out, as ordered in para nos. (ii) and (iii) above or any other amount payable by the complainants strictly as per terms and conditions of the agreement. It is further made clear that opposite parties no.1 and 2 shall not charge any delayed interest from the complainants for the payments demanded from them in the absence of development/infrastructure works or holding charges, as fault if any was on their part, for which they are not entitled to seek any benefit out of it.  

4. To pay compensation for causing mental agony and harassment  to the complainants and cost of litigation, in lumpsum, to the tune of Rs.50,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

17.           Since no deficiency in providing service or adoption of unfair trade practice has been proved on the part of opposite party no.3 as far as the present case is concerned, as such, complaint against it is dismissed with no order as to costs.
18.           Certified Copies of this order be sent to the parties, free of charge.
19.           The file be consigned to Record Room, after completion.

Pronounced

15.12.2020

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (PADMA PANDEY)

          MEMBER

 

 

 

 (RAJESH K. ARYA)

MEMBER

 Rg.