Chandigarh

StateCommission

CC/1/2023

YADVINDER SINGH BHATIA - Complainant(s)

Versus

EMAAR INDIA LIMITED - Opp.Party(s)

SAVINDER SINGH GILL

19 Sep 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint No.	:	1 of 2023
Date of Institution	:	06.01.2023
Date of Decision	:	19.09.2023

 

Sh. Yadvinder Singh Bhatia S/o Sh. Satwant Singh Bhatia R/o House No.486, Sector 63, SAS Nagar, Mohali, Punjab.

….Complainant.

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.

Consumer Complaint No.	:	2 of 2023
Date of Institution	:	06.01.2023
Date of Decision	:	19.09.2023

 

Sh. Rabinder Pal Singh S/o Sh. Satwant Singh Bhatia R/o House No.486, Sector 63, SAS Nagar, Mohali, Punjab through his General Power of Attorney Holder Sh. Rabinder Pal Singh S/o Sh. Satwant Singh Bhatia R/o House No.486, Sector 63, SAS Nagar, Mohali, Punjab.

….Complainant.

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 complainant(s). 

Sh. Vishal Singal, Advocate for the opposite parties.

 

PER  RAJESH  K. ARYA, MEMBER

 

                   By this common order, we are disposing of aforesaid two consumer complaints bearing Nos.1 of 2023 and 2 of 2023 filed by the respective complainants, namely, Sh. Yadvinder Singh Bhatia and Sh. Rabinder Pal Singh, against the opposite parties.

2]                As common questions of facts and law have been emerged in above captioned complaints and the facts thereof are analogous to each other to a great extent, therefore, this Commission would like to take them together and decide with a common order.

 

Brief facts of the case:- (CC/1/2023)

3]                Since the complainant was willing to own a residential plot for their family and personal use, he applied for plot measuring 300 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 ₹10,35,000/- on 06.09.2006. Accordingly, Plot No.455 measuring 300 sq. yds. was allotted to the complainant. It has further been stated that the opposite parties sent a letter dated 11.09.2007 to the complainant informing that on his request, plot has been changed to Plot No.470 measuring 300 sq. yards in the same project, the total sale consideration whereof was fixed at ₹36,19,104/-. It has further been stated that the opposite parties have wrongly mentioned in their letter dated 11.09.2007 that the plot was changed on the request of the complainant. It has further been stated that the opposite parties had earlier allotted a non-existent plot i.e. a plot for which they did not have the land. It has further been stated that the opposite parties through this letter instead tried to shift the burden on the complainant who had no other option but to accept the relocation offered as he wanted the plot for his residential use.

4]                It has further been stated that Plot Buyer's Agreement was signed between the complainant and the opposite parties on 04.07.2007 at Chandigarh, as per Clause 8 whereof, the opposite parties were to deliver the possession of the said apartment within two years from the date of agreement but not later than three years from the date of execution of the said agreement. It has further been stated that 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. It has further been stated that the complainant availed loan facility of ₹17,25,000/- from Punjab National Bank for the purpose of purchasing the said plot and a Tripartite Agreement was also executed. It has further been stated that the said loan has been fully repaid by the complainant and No Dues Certificate dated 16.09.2019 was issued by the Bank.

5]                It has further been stated that the complainant has made the total payment of ₹52,73,832/- up-to 16.01.2012. It has further been stated that possession of the plot was to be handed over by the opposite parties to the complainant by 03.07.2010. It has further been stated that the complainant again got in touch with the opposite parties regarding the possession of the allotted plot but they were always non-committal on the delivery of possession of the same. It has further been stated that the opposite parties were not having the land for the subsequently allotted plot again and were rather utilizing the funds of the complainant for all these years.  It has further been stated that the opposite parties rather than refunding the amount of the complainant again started thrusting relocation on the complainant without giving any compensation for the delay in delivery of possession. It has further been stated that the opposite parties started imposing allotment of 400 sq. yds. plot on the complainant but the complainant requested the opposite parties for the refund of the amount deposited, which was declined. It has further been stated that the opposite parties even started imposing arbitrary cost for the additional 100 sq. yds., which was allotted to the complainant due to the fault of the opposite parties since the opposite parties did not have the required land for the earlier allotted plots. It has further been stated that since the opposite parties were threatening to impose forfeiture on the amount deposited, the complainant agreed for relocation and thereafter, the opposite parties sent a letter dated 26.12.2011 to the complainant informing that on the request of the complainant, plot has been changed to Plot No.90 measuring 400 sq. yds. in the project "Pinewood Park" at Sector-108, S.A.S. Nagar, Mohali and wrongly mentioned that on the request of the complainant plot has been changed. It has further been stated that the opposite parties had earlier allotted non-existent plots but they through this letter instead tried to shift the burden on the complainant who had no other option but to accept the relocation offered as he wanted the plot for his residential use.

6]                It has further been stated that the opposite parties thereafter on 09.04.2012 sent a letter updating the complainant regarding the status of the development work of the project and admitted the fact with regard to the incomplete development on the site of the said project. It has further been stated that the complainant after receiving the above mentioned letter visited the site of the project and came to know that the entry points of the said sector have been sealed by the forest department and even the project lacked basic amenities. It has further been stated that moreover, the said letter dated 09.04.2012 was only a construction update as it is evident from the contents of the said letter. It has further been stated that the said letter was merely a construction update and the same has already been held by the Hon'ble State Consumer Disputes Redressal Commission. U.T., Chandigarh in Consumer Complaint No. 140 of 2015 tilted as "Manuj Chhabra Vs. Emaar MGF Land Limited" decided on 05.11.2015 and the said finding has been upheld by the Hon'ble National Commission.

7]                It has further been stated that there cannot be an inordinate delay in handing over the possession and the possession cannot be offered without the opposite parties having the completion certificate as per the judgment passed by the Hon'ble National Commission in First Appeal No.729 of 2013 titled "Inderjit Singh Bakshi vs. S.M.V. Agencies" decided on 30.11.2015. It has further been stated that the opposite parties till date have no completion certificate and in-fact at the time of allotment of plot in Sector-108, the complainant was shown a different lay-out plan which has further been revised and the complainant has rather been kept in dark regarding the same also. It has further been stated that the said revision in lay-out plan has caused some serious security issues as the complainant was told that the land behind his plot belonged to the opposite parties whereas the fact is that land belongs to railways and no arrangement for security except for barbed wires have been made by the opposite parties. It has further been stated that the complainant has since the last 3-4 years requested the opposite parties to clear the air on the same. It has further been stated that it has already become a part of various judgments passed by this Hon'ble Commission that regarding the main entrance of the Sector-108, there was a matter pending before the Ld. Civil Court, Kharar under Sections 29, 33 and 63 of Indian Forest Act, 1927 and the opposite parties have also violated the order passed by the Hon’ble Supreme Court dated 12.12.1996 which further proves that the opposite parties have no necessary clearances for the said project from the competent authorities. It has further been stated that the said fact has also been admitted by the opposite parties before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 14.09.2016. It has further been stated that moreover, 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. It has further been stated that the basic amenities like Sewerage Treatment Plant. Water Supply and Permanent electricity connection, etc., were not available and not even applied for by the opposite parties from the competent authorities, as per information received.

8]                It has further been stated that opposite parties no.2 to 5 are the persons who are managing the affairs of the company and are responsible for the act done by the company. It has further been stated that the act and conduct of the opposite parties amounted to grave deficiency in service and unfair trade practice of the highest degree as the legal possession of the said plot has not been offered till date. It has further been stated that the opposite parties have earlier allotted two plots for which, they did not even have the land and thereafter, allotted another plot, the possession of which, is still incomplete and the area where it is situated have safety concerns (as the said area has no fencing) and the land adjacent to the plot which was shown to be owned by the opposite parties at the time of the revision of the plot is not in their ownership. It has further been stated that the opposite parties have been keeping mum on the fact that the complainant was shown an inner service road at the revision of the plot but the same has not been built till date as the same was shown in the lay-out to the complainant at the time of the changing of the plot. 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." It has further been stated that the complainant had already deposited the amount of ₹52,73.832/- against the total sale consideration i.e. ₹53,71,332/- for the said plot but legal and complete possession of the plot has not been offered till date. It has further been stated that the complainant has paid the entire amount (rather in excess) as reflected by the statement of account issued by the opposite parties and rather the opposite parties have defaulted in handing over the complete and legal possession of the said plot.

Relief Claimed:-

9]                Terming the aforesaid act and conduct of the opposite parties as deficiency in service and unfair trade practice on their part, the complainant has prayed that the opposite parties be directed to deliver legal possession of the said plot complete in all respects including the completion certificate and completion of all basic amenities and services as promised by the opposite parties as per agreement and brochure and lay-out plan; to pay interest in the form of compensation @15% p.a. on the amount deposited i.e. ₹52,73,832/- from the stipulated date of possession i.e. 03.07.2010 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 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:-

10]              The claim of the complainant has been contested by the opposite parties on numerous grounds, inter alia:-

1. the complainant is not a consumer as he has purchased the plot for speculation purposes only;
2. this Commission has no jurisdiction to entertain this complaint in view of Arbitration clause 39 in the Buyer’s Agreement dated 04.07.2007,  as per which, all the disputes shall be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996;
3. the complaint is barred by limitation.
4. the complaint is liable to be dismissed as the complainant has suppressed and concealed material facts.

11]              On merits, it has been stated that the possession was offered on 09.04.2012, Annexure R-3, and he himself admitted receipt of possession letter vide email though denied in complaint. It has further been stated that after complainant was allotted plot measuring 400 sq. yards instead of 300 sq. yards and at that time, the complainant was given benefit of ₹8,50,000/- at the time of shifting of unit as prevailing price of plot in allotted sector was nearly ₹20,000/- per sq. yards and thus, the complainant was not charged allotment at new rates. It has further been stated that the complaint ought to be dismissed for concealment of facts as the possession was offered and compensation for delay was also credited/adjusted as per the terms and conditions of the buyer agreement.  It has further been stated that the complainant himself was not willing to execute the conveyance deed and pay the final dues. It has further been stated that the partial completion certificate dated 16.10.2015, Annexure R-15, has been issued by the competent authorities and plot of the complainant is well within the said layout plan. It has further been stated that the project of the opposite parties was exempted from PAPRA act vide notification dated 22.12.2006 and at that time, there was no requirement of any completion certificate. It has further been stated that when the government came up with circular/notification dated 02.09.2014, which provides for issuance of partial completion certificate, the opposite parties applied for the completion certificate, which was granted and thus, the opposite parties have valid partial completion certificate. It has further been stated that the STP was already operational and lots of families are already residing at the project site and said STP is catering to the needs of the allottees without any problem. It has further been stated that since the complainant failed to settle the dues and execute the conveyance deed, therefore, he is liable to pay the holding charges as per Clause 9 of the buyer agreement. Pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.

Rejoinder:-

12]              In the rejoinder filed, the complainant reiterated the averments contained in the complaint and controverted those contained in the written reply of the opposite parties.

13]              The parties led evidence in support of their case and also filed written arguments/submissions.

14]              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.

15]              Before dealing with the merits of the case, we would like to first decide the preliminary objections raised by the opposite parties as under:-

16]              Objection (i) : The complainant is not a consumer as he has purchased the plot for speculation purposes only.

 

                   As regards the objection taken by the opposite parties to the effect that the complainants is not a consumer as he purchased the flat only for speculation purposes only, it may be stated here that there is nothing on the record that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question was purchased by the complainant 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 complainant in the first line of Para 1 of his complaint has clearly stated that he was willing to own a residential plot for his family and personal use and accordingly, he 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 have leveled allegations against the complainant, 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. 

17]              Objection (ii) : This Commission has no jurisdiction to entertain this complaint in view of Arbitration clause 39 in the Buyer’s Agreement dated 04.07.2007,  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 04.07.2007, 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.

18]              Objection (iii) : The complaint is barred by limitation.

 

                   So far as this objection with regard to the complaint being barred by limitation, it may be stated here that definitely, there is a continuing cause of action in favour of the complainant as the opposite parties relocated the originally allotted plot and possession of the said plot has been delivered to the complainants only on 02.06.2023 on directions given by this Commission vide order dated 12.05.2023. Therefore, this objection also stands rejected.

19]              Objection (iv) : The complaint is liable to be dismissed as the complainant has suppressed and concealed material facts.

 

                   As regards this objection that the complainant concealed the factum of offer of possession vide letter dated 09.04.2012 and also that the compensation for delay was also credited/adjusted as per the terms and conditions of the buyer agreement, it may be stated here that we find no force in this argument of theirs as the complainant in Para 9 of his complaint has specifically stated that upon receipt of letter dated 09.04.2012, he visited the site of the project and came to know that the entry points of the said sector have been sealed by the forest department and even the project lacked basic amenities and the said letter dated 09.04.2012 was only a construction update. In this view of the matter, we find no suppression on fact on the part of the complainant and as such, this objection also stands rejected.

Merits of the case:

20]              Now coming to the merits of the case, it may be stated here that during the pendency of the complaint, on 12.05.2023, Counsel for the opposite parties submitted that they are ready to deliver the possession of the plot and as such, we directed the opposite parties to deliver possession of the plot in question to the complainant within a period of two weeks. It was on 29.08.2023, counsel for the complainants submitted before this Commission that possession of the unit in question has been handed over to the complainant on 02.06.2023 and he placed on record copy of Plot Handover Letter dated 02.06.2023 and Possession Certificate dated 02.06.2023. Now once possession has been delivered to the complainant by the opposite parties on 02.06.2023 on payment of the due amounts, the question remains with regard to the compensation for delayed possession as claimed by the complainant in his complaint. Bare perusal of Clause 8 of the Plot Buyer’s Agreement dated 04.07.2007 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 (complainant 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 03.07.2010. Admittedly, possession has been delivered during the pendency of this complaint on 02.06.2023 and that too on directions given by this Commission. The specific plea of the opposite parties is that their project was exempted from PAPRA act vide notification dated 22.12.2006 and at that time, there was no requirement of any completion certificate. It is further their case that when the government came up with circular/notification dated 02.09.2014, which provides for issuance of partial completion certificate, they applied for the completion certificate, which was granted and thus, now they are in possession of a valid partial completion certificate. It may be stated here that this aspect of the matter has already been settled by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled ‘Emaar MGF Land Ltd. Vs. Rajeshwar Bansal & ors.’, First Appeal No.494 of 2020 alongwith cross appeal No.638 of 2020 titled ‘Rajeshwar Bansal & anr. Versus Emaar MF Land Ltd. & Ors.’, decided on 26.08.2022, wherein the Hon’ble National Commission in Para 17 held as under :-

“17.   The Agreement for the Plot was executed on 04.07.2007 and as per the Agreement the development of the Plot was to be done within 3 years. However, the Opposite Party no. 1/Builder had still after lapse of more than 15 years failed to obtain Occupancy Certificate/Completion Certificate (OC/ CC) which clearly means that Plot is not ready for possession yet. Even if we agree with the arguments of the Opposite Party No.1 that the notification of the State Government came on 2.9.2014 and before that it was not required to obtain OC/CC in order to offer possession. We are not able to understand this argument as even after lapse of around 8 years it has failed to obtain OC/CC. Thus, the cause of action is continuing.”

21]              In the instant case also, the possession has been delivered to the complainant after almost a period of 13 years on 02.06.2023. Now it has to be seen, whether the possession offered on 09.04.2012 was complete or not. Bare perusal of said offer letter dated 09.04.2012, Annexure C-9, offering possession of Plot No.90 in project Pinewood Park, transpires that the development activities in all the three sectors of Mohali Hills i.e. Sector 105, 108 and 109 are in full swing and the opposite parties further informed that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. Therefore, we are of the concerted view that contents of this letter would suggest that on that date, the development activists in respect of the basic infrastructure as aforesaid were in full swing. Similar view was held by this Commission in case titled ‘Dr. Manju Chhabra Versus M/s Emaar MGF Land ltd. & anr.’, complaint No.140 of 2015 decided on 05.11.2015, which order was upheld by Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide order dated 19.04.2016 in First Appeal No.1028 of 2015 titled ‘M/s Emaar MGF Land Ltd. & anr. Vs. Dr. Manju Chhabra’. In view of facts and circumstances of the case, it is held that the possession so offered by the opposite parties vide letter dated 09.04.2012 was not complete.

22]              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, 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).

23]              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 complainant on the entire amount deposited by him, from the due date of possession onwards till delivery of actual possession thereof, that will meet the ends of justice. Therefore, the complainant is held entitled to delayed compensation @9% p.a. on the entire deposited amount from the committed date of delivery i.e. 04.07.2010 till the date of delivery of possession of the plot in question i.e. 02.06.2023. However, we make it clear that in case, at any stage, the opposite parties have given benefit of delayed compensation to the complainant, that amount shall be adjusted by the opposite parties.

24]              Now, when it is held that the possession offered vide letter dated 09.04.2012 was not complete, therefore, the opposite parties are not entitled to charge holding charges/delayed payment charges or penal interest from the complainant. The demand qua these charges stands quashed.  

25]              For the reasons recorded above, both the complaints bearing No.1 of 2023 and 2 of 2023 are partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

In Complaint No.1 of 2023: Yadvinder Singh Bhatia Vs. Emaar India Limited & Ors.

 

(i)       to pay to the complainant interest @9% p.a., towards delayed compensation, on the entire deposited amount of ₹52,73,832/-, starting from 04.07.2010 till 02.06.2023 (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 complainant.

However, in case, at any stage, the opposite parties have given benefit of delayed compensation to the complainant, that amount shall be adjusted by the opposite parties.

 (ii)     to pay to the complainant compensation to the tune of   ₹1 Lakh (Rupees One Lakh Only) for causing him 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 complainant.

In Complaint No.2 of 2023: Rabinder Pal Singh Vs. Emaar India Limited & Ors.

 

(i)       to pay to the complainant interest @9% p.a., towards delayed compensation, on the entire deposited amount of ₹54,46,332/-, starting from 04.07.2010 till 02.06.2023 (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 complainant.

However, in case, at any stage, the opposite parties have given benefit of delayed compensation to the complainant, that amount shall be adjusted by the opposite parties.

 (ii)     to pay to the complainant compensation to the tune of   ₹1 Lakh (Rupees One Lakh Only) for causing him 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 complainant.

26]              Copy of this order be placed in the connected complaint bearing No.2 of 2023.

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

28]              File be consigned to Record Room after completion.

Pronounced

19.09.2023.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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