
MANOJ MEHTA filed a consumer case on 19 Sep 2023 against EMAAR INDIA LIMITED in the StateCommission Consumer Court. The case no is CC/66/2022 and the judgment uploaded on 21 Sep 2023.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Consumer Complaint No. | : | 66 of 2022 |
Date of Institution | : | 09.09.2022 |
Date of Decision | : | 19.09.2023 |
1] Manoj Mehta (since deceased) S/o Sh. C.P. Mehta, R/o House No. 11/26 Old Rajinder Nagar, New Delhi-110060 through his legal representatives, Sangita Mehta w/o Late Sh. Manoj Mehta, Sh. Dhruv Mehta s/o Late Sh. Manoj Mehta and Sh. Kartik Mehta s/o Late Sh. Manoj Mehta.
2] Sangita Mehta W/o Sh. Manoj Mehta, R/o House No. 11/26, Old Rajinder Nagar, New Delhi-110060
….Complainants.
Versus
1] Emaar India Limited (Formerly known as Emaar MGF Land Ltd), Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali, Punjab through its Directors. Sh. Hadi Taher Badri. Smt. Shivani Bhasin, Sh. Mohamed Ali Rashed Alabbar and Sh. Jason Ashok Kothari.
2] Sh. Hadi Mohd Taher Badri, Director of Emaar India Limited (Formerly known as Emaar MGF Land Ltd), having office at Mohali Hills, Office No.40, Central Plaza, Sector-105, Mohali, Punjab.
3] Smt. Shivani Bhasin, Director of Emaar India Limited (Formerly known as Emaar MGF Land Ltd), having office at Mohali Hills, Office No.40, Central Plaza, Sector-105, Mohali, Punjab.
4] Mohamed Ali Rashed Alabbar, Director of Emaar India Limited (Formerly known as Emaar MGF Land Ltd), having office at Mohali Hills, Office No.40, Central Plaza, Sector-105, Mohali, Punjab.
5] Jason Ashok Kothari, Director of Emaar India Limited (Formerly known as Emaar MGF Land Ltd), having office at Mohali Hills, Office No. 40, Central Plaza Sector-105, Mohali, Punjab.
….Opposite Parties.
BEFORE: | JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. RAJESH K. ARYA, MEMBER |
ARGUED BY:
Sh. Savinder Singh Gill, Advocate for the complainants.
Sh. Sanjeev Sharma, Advocate for the opposite parties.
PER RAJESH K. ARYA, MEMBER
Brief facts of the case:-
1] Since complainant No.1 had expired on 21.04.2021, as such, the present complaint has been filed through his legal representatives/ heirs. The complainants were willing to own a residential plot for their family and personal use and with an intention to move to a less polluted city and accordingly, they applied for plot measuring 500 sq. yds. in the project being developed by the Opposite parties under the name and style "Augusta Park" situated at Sector-109, S.A.S. Nagar, Mohali by paying booking amount of ₹17,25,000/- on 03.09.2006. Accordingly, Plot No.8 measuring. 500 sq. yds. was allotted to the complainants vide provisional allotment letter dated 15.05.2007, Annexure C-1. The total consideration of the said plot was fixed at ₹74,69.340/- and the said plot was booked under Construction Linked Plan. Plot Buyer's Agreement was signed between the complainants and the opposite parties on 11.07.2007, Annexure C-4. According to the same clause, the company was also liable to pay a penalty of Rs.50/- per Sq. Yards per month for the period of delay beyond 3 years from the date of execution of the Agreement. Till 17.06.2009, the complainants paid an amount of ₹76,08,337/- to the opposite parties, as per detail given in Para 5 of the complaint.
2] As per Clause 8 of the Plot Buyer's Agreement, the opposite parties were to deliver the possession of the said plot within two years from the date of agreement, but not later than three years from the date of execution of the agreement and accordingly, the possession was to be handed over by 10.07.2010. The opposite parties sent a letter dated 31.03.2020, Annexure C-7, to the complainants offering possession of the said plot to the complainants after the delay of more than 10 years and demanded an amount of ₹12,08,153/- without incorporating any compensation for delay. It has been stated that the said act and conduct of the opposite parties showed unfair trade practice on their part since they used to charge interest @15% p.a. compounded for default in any payment of installment by the complainants as per Clause 5 of the Buyer's Agreement, whereas the opposite parties did not even incorporate any compensation for delay in the statement of accounts issued at the time of offering the possession. The complainants visited the site in June, 2020 since the possession letter was issued by the opposite parties when the entire country was under lockdown and found the said plot was no longer a preferentially located plot and thereafter, the complainants wrote a letter dated 04.07.2020, Annexure C-8, to the opposite parties and raised the issue of delayed compensation and PLC charged from them. The opposite parties thereafter got in touch with the complainants and tried settling the matter and sent a draft settlement agreement, Annexure C-9, in which they admitted about the plot not being PLC anymore and also offered some compensation for delay which was not as per the mental and physical harassment suffered by the complainants over the years.
3] It has further been stated that the deadline given by PUDA to complete the said project in all aspects is already over by 30.06.2015 as per information received under RTI, Annexure C-10. Even the basic amenities like Sewerage Treatment Plant, Water Supply and Permanent electricity connection etc.. were not available and were not even applied for the opposite parties from the competent authorities when the complainants had booked the said plot, as per information received, Annexure C-11. It has further been stated that at the time of booking the plot, the complainants were told that there would be an exclusive golf course/range which being developed in the said project and as such, the opposite parties charged PLC from the complainants and many development updates in regard to the same were sent by the opposite parties to the complainants, Annexure C-12, where it was shown that the said golf range was operational. The complainants were also shown the lay out map of Sector-109 where a specific area was earmarked for the Golf Course/Range by the opposite parties whereas on their latest visit to the site, the complainants were shocked to see that the area shown for the golf range has been seized by the Greater Mohali Area Development Authority (GMADA) and the same is not accessible to the allottees since the opposite parties do not own the land and have illegally built up a golf course/range over the said land. It is pertinent to mention here that the opposite parties have not even built up a club as promised and have also not even constructed the community center as promised at the time of booking. It has further been stated that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing no. 342 of 2014 titled as "Emaar MGF Land Ltd. & anr. vs. Karnail Singh & anr." decided on 25.07.2014 has observed: "The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice."
4] It has further been stated that at the time of selling of the said plot to the complainants, the opposite parties were not even having the clear title of the land on which the plot of the complainants is situated and collecting money without having clear title at the time of booking amounts to unfair trade practice. It has further been stated that the opposite parties do not even have the requisite completion certificate from the competent authorities and as such, the possession offered by them is not valid and they are liable to pay compensation for delay in handing over possession till the receipt of completion certificate and completion of services as promised in the brochure and updates issued by them from time to time.
5] It has further been stated that the environmental clearance granted to the opposite parties by the Ministry of Environment and Forests vide letter dated 18.06.2008 clearly mentioned that the opposite parties had committed to develop a Sewerage Treatment Plant in Sector-109 separately and the same has only been completed this year and the company had applied partial completion certificate from the competent authorities for the same vide public notice dated 28.07.2021 and even for the plot of the complainant, the completion certificate is pending from the competent authorities and as such, the possession offered by the opposite parties is incomplete and illegal in the eyes of law. It has further been stated that the documents placed on record clearly show that the opposite parties have violated the conditions as imposed in the environmental clearance granted to it in June, 2008, moreover, they while obtaining the said clearance had also stated that there shall be facilities of school and hospital within the Mega Housing Project but the same are yet to see the light of the day till date.
6] It has further been stated that opposite parties no.2 to 5 are the active Directors, who are managing the affairs of the company and are responsible for the deficiencies and unfair trade practices on behalf of the company i.e. opposite party No. 1 and the complainants have annexed the copy of the information obtained from the website of Registrar of Companies regarding the same as Annexure C-15 alongwith the complaint.
Relief Claimed:-
7] Alleging the act and conduct of the opposite parties amounting to grave deficiency in service and unfair trade practice of the highest degree as the possession of the said plot was offered after the delay of more than 10 years without incorporating any compensation for delay, the complainants have prayed that the opposite parties be jointly and severally directed to deliver possession of the said plot complete in all respects including the completion certificate and completion of all basic amenities and services as promised in the agreement and brochure and lay-out plan; to pay interest in the form of compensation @15% p.a. on the amount deposited i.e. ₹76,08,337/- from the stipulated date of possession i.e. 10.07.2010 till the handing over of the plot complete in all respects including the completion certificate and completion of all promised basic amenities and services; to refund Preferential Location charges amounting to ₹7,34,922/- with interest @12% from the date of deposit till realization; not to charge any kind of holding/delayed payment charges since the legal and complete possession of the plot has not been offered; to pay compensation for mental agony, harassment and deficiency in service amounting to ₹3,00,000/- and pay litigation expenses of ₹1,00,000/-.
Reply of opposite parties:-
8] The claim of the complainants has been contested by the opposite parties on numerous grounds, inter alia:-
9] On merits, it has been stated that the possession of the unit was delayed on account of reasons beyond the control of the opposite parties, however, the possession was already offered to the complainants(s) on 31.03.2020. It has further been stated that the complainants had been a chronic defaulter and had on several occasions had substantially delayed the payments towards the plot and as such, they are liable to pay penal charges. It has further been stated that in cases of sale of immovable property, time is never regarded as the essence of the contract. It has further been stated that the opposite parties have also paid/credited an amount of ₹29,84,299/- towards delayed compensation in the account of the complainant(s). It has further been stated that PLC charges were reversed by the opposite parties in account statement dated 03.10.2022, which was communicated earlier to the complainants vide letter dated 04.07.2020. It has further been stated that the complainants are liable to pay enhanced charges, if any, as well as taxes/cess etc. imposed by government alongwith registration charges/stamp duty as maintenance charges. It has further been stated that area of the plot has increased to 511.25 sq. yards from earlier 500 sq. yards and amount payable was ₹6,62,159/- by 01.05.2020. It has further been stated that partial completion certificate was obtained by the opposite parties on 24.01.2020. It has further been stated that the complainants have not taken physical possession after offer of possession dated 31.03.2020 and as such, they are liable to pay the holding charges as per Clause 9 of the buyer agreement. It has further been stated that in case the complainants are not satisfied with the possession offered, then the opposite parties are ready to refund the amount alongwith 9% interest. It has further been stated that the STP was already operational and lots of families are residing at the project site and the complainants are unnecessarily projecting on STP in Sector 109 only whereas earlier STPs have been installed and are operational and catering to the needs of allottees living therein without any problem. It has further been stated that environmental clearances granted for the project have been extended from time to time. It has further been stated that all the promised facilities are at place. Pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.
Rejoinder:-
10] In the rejoinder filed, the complainants reiterated the averments contained in the complaint and controverted those contained in the written reply of the opposite parties.
11] The parties led evidence in support of their case and also filed written arguments/submissions.
12] We have heard the contesting parties and have gone through the record of the case, including the written arguments/submissions filed by them, very carefully.
13] Before dealing with the merits of the case, we would like to first decide the preliminary objections raised by the opposite parties as under:-
14] Objection (i): The complaint is not maintainable as the complainants have not filed any succession certificate on the basis of which, they are seeking relief in their favour.
As regards this objection, it may be stated here that the complainants alongwith their complaint have annexed the surviving member certificate issued by the Revenue Department, Delhi as Annexure C-1, wherein it has been mentioned that Manoj Mehta had expired on 21.04.2021 and also certified that Manoj Mehta s/o Chander Prakash Mehta had left following surviving members in his family:-
In view of above, this objection raised by the opposite parties stands rejected.
15] Objection (ii) : The complainants are not consumers as they have purchased the flat only for speculation and their sole intention is to sell the flat at a premium and to earn profit.
As regards the objection taken by the opposite parties to the effect that the complainants are not consumers as they have purchased the flat only for speculation and their sole intention is to sell the flat at a premium and to earn profit, it may be stated here that there is nothing on the record that the complainants are property dealers and deal in the sale and purchase of property, on regular basis, and as such, the plot, in question was purchased by the complainants by way of investment with a view to resell the same as and when there was escalation in the prices thereof. On the other hand, the complainants in the first line of Para 1 of their complaint have clearly stated that they were willing to own a residential plot for their family and personal use and with an intention to move to a less polluted city and accordingly, they applied for plot in question in the project of the opposite parties. It is significant to mention here that a person cannot be said to have purchased a residential plot for a commercial purpose only by proving that he/she has purchased more than one house or plot. Separate plots may be purchased by a person for the individual use of his family members. A person may buy two or three houses/plots, if the requirement of his family cannot be met in one house/plot. Thus, 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. Since the opposite parties has leveled allegations against the complainants, the onus lay upon them, to place on record, documentary evidence in that regard, which they failed to do so. Otherwise also, 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 Hon’ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the Hon’ble National Commission, while rejecting similar plea raised by the builder, observed as under:-
“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra &Ors. Vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”
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 a ‘consumer’, as defined under the Act. Such an objection taken by the opposite parties therefore, being devoid of merit is rejected.
16] Objection (iii) : This Commission has no jurisdiction to entertain this complaint in view of Arbitration clause 39 in the Buyer’s Agreement dated 11.07.2007, as per which, all the disputes shall be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996.
As regards this objection that this Commission has no jurisdiction to entertain this complaint in view of Arbitration clause 39 in the Buyer’s Agreement dated 11.07.2007, as per which, all the disputes shall be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996, 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 buyer 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, this objection also stands rejected.
Merits of the case:
17] Now coming to the merits of the case, it may be stated here that during the pendency of the complaint, this Commission vide order dated 20.03.2023 directed the opposite parties to deliver possession of the unit, in question, to the complainants on their depositing an amount of ₹6 Lakhs, within a period of 15 days from the said date and also to execute the conveyance deed on or before 29.03.2023. It was on 03.08.2023, learned counsel for the complainants submitted before this Commission that possession of the unit in question has been handed over to the complainants on 31.07.2023 and he placed on record copy of Plot Handover Letter dated 31.07.2023 as Annexure ‘X’. Now once possession has been delivered to the complainants by the opposite parties on 31.07.2023 after payment of ₹6 Lakhs, on directions issued by this Commission, the question remains with regard to the compensation for delayed possession as claimed by the complainants in their complaint. Bare perusal of Clause 8 of the Plot Buyer’s Agreement dated 11.07.2007 transpires that subject to force majeure conditions and reasons beyond the control of the opposite parties (company), the possession of the plot, in question, was to be delivered to the allottee (complainants herein) within a period of 2 (Two) years from the date of execution of the said agreement but not later than 3 (Three) years and in the event of failure on the part of the Company to deliver possession within a maximum period of 3 years from the date of execution of the agreement, the opposite parties were to pay to the complainant(s), a penalty of the sum of Rs.50/- (Rupees Fifty only) per sq. yds. per month for such period of delay beyond 3 years. As such, the possession of the plot in question, was to be delivered by the opposite parties to the complainant by 10.07.2010. Admittedly, possession has been delivered during the pendency of this complaint on 31.07.2023 and that too on directions given by this Commission and the opposite parties have also given credit of ₹29,84,299/- in the account of the complainants towards delayed compensation. It may be stated here that in DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-
“……8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.
9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC….”
Thereafter also, irrespective of what was mentioned in the agreements, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora’s case (supra).
18] Further in Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In Basanta Kumar Nandy & 14 Ors. Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in our considered opinion, in the present case, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards till delivery of actual possession thereof, that will meet the ends of justice. Therefore, the complainants are held entitled to delayed compensation @9% p.a. on the entire deposited amount from the committed date of delivery onwards i.e. 11.07.2010 till the date of delivery of possession of the plot in question i.e. 31.07.2023. However, it is made clear that the amount of ₹29,84,299/- already credited in the account of the complainants towards delayed compensation, shall be adjusted from the amount of delayed compensation to be calculated @9% p.a. for the aforesaid period.
19] Now coming to the next prayer of the complainant with regard to refund of preferential location charges amounting to ₹7,34,922/- with interest @12% p.a., it may be stated here it is admitted position on record vide draft of Settlement-cum-Amendment Agreement placed on record by the complainants as Annexure C-9 that as a goodwill gesture, the opposite parties - Company had agreed to give benefit of reversal of PLC charges of ₹7,34,922/- to the complainant apart from credit of delayed compensation of ₹29,84,299/- and waiver of delayed payment charges of ₹1,39,614/-. It is the case of the complainants that after visiting the site, they found that the said plot was no longer a preferentially located plot and they raised issued of PLC charged vide letter dated 04.07.2020, Annexure C-8 and the opposite parties vide the aforesaid proposed draft agreement admitted the plot not being PLC anymore and reversed the PLC charges of ₹7,34,922/- in account statement dated 03.10.2022. Thus, in view of admitted position on record, we are of the concerted view that the complainants are entitled to interest @9% p.a. on the aforesaid amount of ₹7,34,922/- from the respective dates of its deposit till the date of its reversal by the opposite parties in the account of the complainant(s).
20] Since, the plot in question was no longer a preferentially located plot at the time of offer of its possession and the complainants had raised issue with regard to PLC charges, which was reversed by the opposite parties in the account of the complainants, therefore, the opposite parties are not entitled to charge holding charges/delayed payment charges or penal interest from the complainants. The demand qua these charges stands quashed.
21] For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
(i) to pay to the complainants interest @9% p.a., towards delayed compensation, on the entire deposited amount of ₹76,08,337/-, starting from 11.07.2010 till 31.07.2023 (date when possession delivered), within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till its actual realization to the complainants.
However, it is made clear that while calculating the aforesaid delayed compensation @9% p.a. on the entire deposited amount for the aforesaid period, the opposite parties shall deduct/adjust the amount of ₹29,84,299/-, which was already credited in the account of the complainants towards delayed compensation.
(ii) to pay interest @9% p.a. on PLC amount of ₹7,34,922/- from the respective dates of its deposit till the date of its reversal by the opposite parties in the account of the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the opposite parties shall pay interest @12% p.a., instead of 9% p.a., to the complainants for the period aforesaid.
(iii) to pay to the complainants compensation to the tune of ₹1 Lakh (Rupees One Lakh Only) for causing them mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of ₹35,000/- (Rupees Thirty Five Thousand Only) within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of default till its actual realization to the complainants.
22] Pending miscellaneous application(s), if any, stand disposed of accordingly.
23] Certified copies of this order be sent to the parties, free of charge.
24] File be consigned to Record Room after completion.
Pronounced
19.09.2023.
[RAJ SHEKHAR ATTRI]
PRESIDENT
(RAJESH K. ARYA)
MEMBER
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