Chandigarh

StateCommission

CC/72/2022

MUKUL GOYAL - Complainant(s)

Versus

EMAAR INDIA LIMITED - Opp.Party(s)

SAVINDER SINGH GILL ADV.

28 Feb 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Addl. Bench]

Consumer Complaint No.	:	CC/72/2022
Date  of  Institution	:	28/09/2022
Date   of   Decision	:	28/02/2023

 

 

 

 

1]     Mukul Goyal son of Sh. R.D. Goyal, Resident of GF-15, Hans Bhawan, 1, Bahadurshah Zafar Marg, New Delhi - 110002.

 

2]     Venkatachalam Ganesh son of Late Sh. V.V. Chalam, Resident of F23, Hauz Khas Enclave, New Delhi - 110016.  

…. Complainants

Vs.

 

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.Mohamed Ali Rahed Alabbar, Smt. Shivani Bhasin and Sh.Jason Ashok Kothari. 

 

2]     Sh.Mohamed Ali Rahed Alabbar, Director, Emaar India Limited [formerly known as Emaar MGF Land Ltd.], having its office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab. 

 

3]     Smt.Shivani Bhasin, Director, Emaar India Limited [formerly known as Emaar MGF Land Ltd.], having its office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab.

 

4]     Sh.Jason Ashok Kothari, Director, Emaar India Limited [formerly known as Emaar MGF Land Ltd.], having its office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab.

…… Opposite Parties

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

 

PRESENT	:	Sh. Savinder Singh Gill, Advocate for Complainants.
	:	Sh. Sanjeev Sharma, Advocate for Opposite Parties.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

In brief, for constructing a residential house for their family and personal use, the Complainants applied for a residential plot measuring 500 sq. yards in the project of the Opposite Parties under the name & style “Augusta Greens” situated at Sector 109, S.A.S. Nagar, Mohali by paying an amount of ₹10,35,000/- on 12.01.2007 to the Opposite Parties. In pursuance of the said booking, Plot No. 52 measuring 500 sq. yards was allotted to the Complainants vide provisional allotment letter dated 05.05.2007 (Annexure C-1). The total consideration of the said Plot was fixed at ₹60,31,840/-. Plot Buyer’s Agreement dated 12.06.2008 (Annexure C-2) was also executed between the parties, as per Clause 8 whereof, the opposite parties committed to deliver possession of said plot, within a maximum period of three years i.e. on or before 11.06.2011.  The Complainants have made the payment of ₹56,78,000/- towards the sale consideration of the aforesaid plot (Annexure C-3 & C-4), yet, the Opposite Parties in 2009 vide undated letter (Annexure C-6) offered incomplete possession of the said plot as the project lacks basic amenities, till date and forced the Complainants to take the incomplete possession of the Plot on 06.05.2010. It has been alleged that the deadline given by PUDA to complete the said project in all respects was already over on 30.06.2015. The entrance of the project in question was sealed by the Forest Department for want of permissions and also basic amenities such as sewerage treatment plant, water, electricity etc. were not in existence there. Also, the Opposite Parties have also illegally charged excess EDC from the Complainants. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainants have preferred the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

3.         Opposite Parties contested the claim of the Complainants, 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 did not fall within the definition of “consumer” as defined under the Act; that the complaint filed is beyond limitation. On merits, while admitting the basic facts of the case, Opposite Parties have pleaded that the Complainants had already received the possession of the plot in question on 06.05.2010 which negates their claim of forced possession; the alleged EDC charges of ₹5,02,000/- were duly reversed vide letter dated 30.06.2014; the Complainants never raised any grievance as to delay in possession, amenities not complete, alleged sealing of road etc.; in 2015 at the time of payment of maintenance charges also the Complainants did not raise any demand or protest. It has been asserted that exemption to the project was granted by the State Government from applicability of the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short the PAPR Act) in 2006; and that though not required even then partial completion certificate has been obtained from the Competent Authorities vide letter dated 16.10.2015. The STP was already operational and large numbers of families are residing in the project and the Complainants are making false allegations so as to avoid payment of holding charges. Pleading that there was no deficiency in service or unfair trade practice on their part, a prayer has been made for dismissal of the complaint.

 

4.         Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the replication.

 

5.         Parties led evidence by way of affidavits and documents.

 

6.         We have heard the learned counsel for the contesting parties and gone through the record of the case, including the written arguments advanced on behalf of the parties.

 

7.         After scanning of record, including written arguments, our findings are as under:-

 

8.         First, we would like to deal with the objection raised by the opposite parties to the effect that in the face of existence of provision in the agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with by the larger Bench of the National Commission in a case titled as “Aftab Singh  Vs. Emaar MGF Land Limited & Anr.”, Consumer Case No. 701 of 2015, vide order dated 13.07.2017, wherein it was 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 the opposite parties in this regard, stands rejected.

 

9.         As far as 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 the opposite parties 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 living in a house at Delhi or anywhere else, cannot be made a ground to shove them out of the definition of a consumer. Objection taken in this regard is rejected.

 

10.         Now, on adverting to the merits of the consumer complaint, it may be stated here that the foremost document of importance in such proceedings is the Complaint itself as it unravels the grievance of an allottee/Complainant. It is therefore expected that the Complaint should encompass material particulars regarding which the Opposite Parties are put on notice so as to enable it to respond appropriately. The Complaint cannot be left to ambiguities of words or ambivalence of phrases. It is expected to be forthright with regard to deficiencies and violations of the project as also the shortfalls in delivery by the developer. If we see the Complaint in the instant case, then all these ingredients were lacking.  

 

11.         In this complaint, the complainants sought refund of the excess external development charges along with interest and as noted hereinabove have alleged that the project sans basic amenities and incomplete possession was offered to them. As against, it Opposite Parties maintained that the project has been well developed and the club house, water works, STPs & all other facilities are also existing and families are already residing at the project site

 

12.         Ld. Counsel for the Complainants spun his arguments around Annexure C-6 and submitted that the area in and around the plot of the complainants was not complete as per the layout plan as showed while allotting the said plot. We have perused the said document and are not inclined to accept the aforesaid arguments.  The offer of possession Annexure C-6 mentions continuing development works in Mohali Hills, Sector 105, 108 and 109, for this may be suggestive of some works going on in that area, but does not conclusively point out to lack of infrastructure, where the Complainants plot is situated, so as to render the offer of possession invalid and that too when such issues have been raised belatedly.  

 

13.         Undisputedly, the Complainants have taken the possession of the plot in question on 06.05.2010. Record shows that the Complainants have even executed the possession certificate dated 06.05.2010 after taking over of physical possession of the Plot in question and getting it demarcated. Interestingly, the Complainants have withheld the said document of taking over of physical possession of plot dated 06.05.2010 and also sending a letter dated 09.09.2014, wherein they themselves have admitted that they have taken possession of the allotted plot and further requested for deferment of registration/ execution of conveyance deed in their favour by a period of six months.  Not only this, the Complainants have also concealed the letter dated 30.06.2014 sent by the Opposite Parties to them for execution of conveyance deed and has thus suppressed the fact that the EDC charges of ₹5,02,000/- were duly reversed in the letter dated 30.06.2014.       

 

14.         We are of the considered opinion that a person who suppressed material facts from a Court/Commission, is not entitled to any relief. This was so said by the Hon’ble Supreme Court of India in the case titled as “Kishore Samrite Vs. State of U.P. and Ors. (2013) 2 SCC 39”, relevant part of which reads thus:-

“No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy.”

The Hon’ble Supreme Court in “Bhaskar Laxman Jadhav & Ors. Vs. Karam Veer Kaka Saheb Wag”, (2013) 11 SCC 531, has observed as under:-

“It is not for a litigant to decide what fact is material for adjudicating a case and what is not material. It is the obligation of a litigant to disclose all the facts of a case and leave the decision making to the Court.”

The Hon’ble National Consumer Disputes Redressal Commission in “BTM Industries Ltd. Vs. New India Assurance Co. Ltd.”, Consumer Case No.86 of 2010, decided on 15.01.2016, inter alia, held that:-

“Since the complainant withheld material fact from this Commission not only while filing this complaint but also during pendency of this complaint, it is not entitled to any relief whatsoever through the process of this Commission.  We therefore, need not examine the claims of the complainant on their merit.”

 

15.         Thus, manifestly, the Complainants projected before us that possession was not taken by them, as the project was incomplete; whereas, conversely, they had taken physical possession of the plot in the year 2010 itself after demarcation and had requested for deferring of execution of conveyance deed in 2014 also and further on being satisfied by the development of area and their plot, had even paid the maintenance charges also. Be that as it may, the fact remains that no such grievance had been raised by the complainants at the time of taking over possession of the plot, while sending letter dated 09.09.2014 and on 14.10.2015  while depositing the maintenance charges towards the plot. All this clearly negates the assertion of the Complainants made in para 6 of the Complaint that they were coerced to take the possession. 

 

16.         In the complaint, the Complainants merely talks of a blockade by the Forest Department to the access regarding which the matter was pending before the Civil Courts. Apart from this, all that has been said is that the possession offered was not a valid possession in the absence of a completion certificate by the competent authority. It is in this backdrop of lack of material particulars that the delay in initiating the proceedings also assumes a greater significance. The possession was given to the Complainants on 06.05.2010 and the Complaint was filed in the year 2022. Even if it is assumed that some other allottee received some information under the RTI Act regarding the blockage by the Forest Department qua the ingress and egress as provided in the layout plan, yet there is not a word in the Complaint whether the plot was completely inaccessible altogether. Needless to mention here that for almost twelve years, if a person is deprived of access to his property then it is not possible that he would not make a complaint in this regard. It is possible that some legal proceedings with regard to that access in the layout plan may have been pending, but it does not imply that the plot was inaccessible altogether so as to put the Complainants to a disadvantage and assuming, such a disadvantage was existing, then it should have been succinctly set out in the Complaint to form the basis of a valid claim.

 

17.         As our discussion hereafter would unfold, it is pertinent to mention here that recently the Hon’ble Supreme Court in Civil Appeal No. 3343 of 2020 titled as “Debashis Sinha & Others Vs. M/s R.N.R. enterprise Rep. by its Proprietor/ Chairman, Kolkata & Ors.”, has observed that flat-owners, who are often forced by the circumstances to take possession of apartments even if the amenities promised by the builder are not provided, do not forfeit their right to claim such services from the builder. However, the peculiar approach, as adopted by the Complainants herein by playing pick & choose, thereby withholding the true and material facts from this Commission, dissuaded us to give any benefit to them flowing from the aforesaid judgment of the Hon’ble Supreme Court since they are guilty of approaching this Commission with soiled hands. At any rate, what pre-empted the complainants to place on record the aforesaid material documents is nowhere specified, much less explained in their pleadings nor argued by their counsel during the course of arguments?

 

18.         Pertinently, grievance of the Complainants if put in a narrow compass is that the Plot offered was sans basic amenities. The offer of possession was made on 06.05.2010 and instead of raising any issue with the Opposite Parties regarding their grievance revolving around infrastructural deficiencies/basic amenities, the Complainants remained quiet upto 2022 and they then filed the present Complaint on 28.09.2022.

 

19.         Now, it is legitimately proved on record that the complainants have filed the complaint after the lapse of more than 10 years from the date of taking the possession. No application for condonation of delay has been filed. Section 69 of the Consumer Protection Act, 2019 (equivalent to Section 24-A of the Consumer Protection Act, 1986) lays down that the Consumer Commission shall not entertain a complaint, unless it is filed within two years from the date on which the cause of action has arisen. The Hon’ble Supreme Court in “State Bank of India v. B.S. Agricultural Industries (I)”, 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 observed in Para No.8 as under:-

 

“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

 

This view of law was further reiterated by the Hon’ble Supreme Court in its judgment reported as “V.N. Shrikhande (Dr.) v. Anita Sena Fernandes” 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon’ble Supreme Court as under:-

 

“Section 24-A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768.”

 

 

20.         Keeping in view the above discussion as well as the law laid down in the above noted cases, it is vouch safe to conclude that the present present proceedings are hit by delay and latches.

 

21.         No other point, was urged, by the Counsel for the parties.

 

22.         For the afore-stated reasons when there is an unexplained delay in initiating the proceedings and for the reason that there is concealment of facts and lack of material particulars we are of the opinion that the Complaint is without any merit and hence it is dismissed as such, leaving the parties to bear their own costs. 

 

23.         However, to our minds, the Complainants cannot be deprived of the conveyance deed, if they otherwise satisfy all the requirements in this regard.

 

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

 

25.         The file be consigned to Record Room, after completion.

Pronounced

28^th February, 2023                                                           

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”