Chandigarh

StateCommission

CC/223/2019

Charanjit Bahl - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Sandeep Jasuja Adv.

21 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	223 of 2019
Date of Institution	:	27.09.2019
Date of Decision	:	21.12.2020

 

Charanjit Bahl aged about 70 years, wife of Late Sh. Baljit Rai Bahl, r/o D-1002, BPTP FREEDOM PARK LIFE, Sector 57, Gurgaon, Haryana 122002.

……Complainant

V e r s u s

1. EMAAR MGF Land Limited, ECE House, First Floor, Kasturba Gandhi Marg, New Delhi – 110001.
2. The Managing Director, EMAAR MGF Land Limited, ECE House, First Floor, Kasturba Gandhi Marg, New Delhi – 110001.

                                                                .... Opposite Parties

 

BEFORE:         JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

Sh. Sandeep Jasuja, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

              The facts, in brief, are that son of the complainant, who lives in Dubai, looking for accommodation for residence of his mother, as such, he came to know about the project “The Views of Mohali Hills” launched by the Opposite Parties. Thereafter, son of the complainant purchased a unit having a super area of 1350 sq. ft. alongwith car parking space by paying extra amount of Rs.1,35,000/- as preferential location charges. The Opposite Parties allotted unit No.TVM-H2-F05-504 in Tower H2 and Buyer’s Agreement was executed between the parties on 10.06.2011 (Annexure C-3). Later, son of the complainant transferred the said unit in the name of the complainant and endorsement of transfer is shown on the Agreement (Annexure C-3). It was further stated that son of the complainant paid an amount of Rs.40,05,707/- but after receipt of the huge amount, the Opposite Parties failed to deliver possession of the unit, in question, within stipulated time frame as mentioned in the Agreement. Therefore, the complainant had no option but to seek refund of the deposited amount alongwith interest but despite repeated requests through email/correspondence, the Opposite Parties failed to refund the amount. Ultimately, the complainant sent legal notice to the Opposite Parties but all in vain. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.                The Opposite Parties in their written version, have taken objection that the complainant did not fall within the definition of “Consumer” as defined in the Consumer Protection Act as she has a residence in Gurgaon and her son being NRI purchased two other units in the project of the Opposite Parties at Gurgaon purely for speculation purposes. It was stated that the present complaint is bad for misjoinder/non-joinder of the parties. It was further stated that since the project in question has been got registered under the Punjab Real Estate Regulatory Authority, as such, any grievance of the complainant has to be addressed by the adjudicatory authority under the RERA Act. It was further stated that this Commission has no jurisdiction to entertain the complaint as it has been specifically mentioned in Clause 43 of the Agreement that all the disputes shall be referred to an Arbitrator to be appointed as per the provisions of Arbitration and Conciliation Act, 1996. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint as value of the claim exceeds Rs.1 crores.  It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the impugned property is located at Mohali and payments were made at Delhi and registered office of the Company is at New Delhi. It was further stated that the Opposite Parties received an amount of Rs.39,96,019/- from the complainant. It was denied that possession was delivered by February, 2014 by stating that the project was registered with Real Estate Regulatory Authority, therefore, the Opposite Parties have been permitted to complete the project by June, 2020. It was further stated that offer of possession would be given to the complainant within few days as the Opposite Parties obtained Occupation Certificate on 26.11.2019 (Exhibit OP/5). It was further stated that the complaint was time barred having been filed more than two years after the alleged cause of action. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor it indulged into unfair trade practice.

3.                The Parties led evidence, in support of their case.

4.                The complainant filed replication, wherein it reiterated all the averments, contained in the complaint, and repudiated those, contained in the written statement of the Opposite Parties.

5.                We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

6.                First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause contained in the agreement, 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 the Opposite Parties in this regard stands rejected.

7.                The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. In the instant case, it is evident from the record, that Unit Buyer’s Agreement was executed between the parties at Chandigarh on 10.06.2011 (Annexure C-3). Not only this, the Opposite Parties have also annexed Final Notice dated 18.04.2011 (Exhibit OP-2) which was sent by the Opposite Parties from its Chandigarh Office, as the aforesaid documents bore the address as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8.                Another objection taken by the Opposite Parties in their written statement with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that at the time of arguments on 10.12.2020, Counsel for the complainant submitted that “the complainant shall seek compensation to the tune of Rs.5 lakhs only and also reduced the interest claimed @16% p.a. to 12% p.a.” If we add the deposited amount as claimed by the complainant i.e. Rs.40,05,707/- in the prayer clause alongwith interest @12% p.a., compensation of Rs.5 lakhs (reduced at the time of arguments) and litigation expenses of Rs.55,000/-, certainly this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

9.                Another objection raised by the Opposite Parties regarding misjoinder/non joinder of necessary party is concerned, the Opposite Parties while filing reply failed to mention the name of necessary party. Moreover, Managing Director/Directors, who headed the Company are obviously responsible for all the acts of the Company. Therefore, this objection has no value at all and the same stands rejected.

10.              As far as the contention raised to the effect that since the project in question has been got registered under the RERA, as such, jurisdiction of this Commission is barred to entertain this complaint arising out in respect of the unit in question located in the said project and that the complaint be relegated to RERA, is concerned, the same does not merit acceptance, in view of the ratio of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/S. Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-

 

24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.

25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.

 

*27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- “The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. *(See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking *Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint…”

 

                   In view of above findings, we can safely say that the provisions of the RERA will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Since, this complaint involves the consumer dispute and the same is maintainable before this Commission, as such, objection taken in this regard by the Opposite Parties stands rejected.

11.              The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act as she has a residence in Gurgaon and her son being NRI purchased two other units in the project of the Opposite Parties at Gurgaon purely for speculation purposes.  After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected. The complainant has specifically mentioned in her complaint that the unit, in question, was purchased by her son for the complainant, which was later on transferred in her name, as proved from the endorsement on Unit Buyer’s Agreement (Annexure C-3). The complainant further stated in written arguments that she has no other property except for the present property, which was purchased with specific purpose of living around her near relatives, who have their residences in tricity as the only son of the complainant is an NRI. Even the Opposite Parties failed to prove that the complainant has any other property in her name. As far as two other units, which were purchased by her son in the project of the Opposite Parties is concerned, the complainant clearly mentioned in her complaint that the same were purchased by him for settling his family in India and the complainant has no concern with the same. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion i.e. simply saying that the complainant purchased the property for speculation purposes and, as such, she did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavit Ahuja vs. Shipra Estates I (2016) 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. The principle of law, laid down, in the aforesaid case, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.

12.              As far as objections raised by the Opposite Parties, to the effect that this complaint is time barred and the time was not the essence of the agreement between the parties, it may be stated here that the same is devoid of merit, in view of observations made by the Hon’ble National Commission in a case titled as Ansal Housing and Construction Ltd. Vs.  Tulika Gupta & anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, to the effect that till the time either the possession is handed over to the allottees or the amount paid by them was refunded; there will be a continuing cause of action to file a consumer complaint. Relevant part of the said order is reproduced hereunder:-

“As regards the plea of limitation, ordinarily if the  possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded.......”

 

                   This view also finds support from the judgment of Hon’ble Supreme Court of India in case titled as Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Furthermore, since the Company is still utilizing the amount paid by the complainant and has not refunded the same, as such, in that event also, there is a continuing cause of action in her favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that the builder/opposite party cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. Relevant part is reproduced hereunder: -

“On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.”

 

                   In the present case, the possession has not been offered or delivered to the complainant till date. Under these circumstances, it is held that this complaint is not at all barred by limitation. Even otherwise, on the one hand, the Company is saying that this complaint is barred by time, whereas, in the same breath, it is saying that since time was not the essence of contract, as such, it is entitled for extension of time. In the same breath, both objections taken, which are contrary to each other, taken by the Company, cannot be taken into consideration and are, accordingly, rejected.  

13.              The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. In this regard Clause 21.1 of the  Unit Buyer’s Agreement (Annexure C-3) reads thus :-

 

“21.1 Subject to Force Majeure conditions and reasons beyond the control of the Company and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the unit within a period of 36 months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.”

 

In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainants within a maximum period of 36 months from the date of allotment. In the instant case, no allotment letter was attached by the parties. It is clear from the statement of account (Annexure C-4) that the complainant paid booking amount of Rs.7 lakhs on 27.11.2010. So, if we count three years from the date of receipt of booking amount i.e. 27.11.2010, the same was to be delivered to the complainant by November, 2013 and not more than that.  However, the Opposite Parties failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame, as mentioned in the Agreement or even the time when the complaint was filed.

14.              The next question, that falls for consideration, is, as to what amount was deposited by the complainant. The complainant in her complaint has stated that she deposited an amount of Rs.40,05,707/- and to prove this facts she has attached statement of account (Annexure C-4). On the other hand, the Opposite Parties stated that they received an amount of Rs.39,96,019/- and they also attached statement of account. Moreover, the complainant in para No.8 of her rejoinder admitted that some payment was delayed, as such, she paid the penalities/interest as per terms and conditions of the contract, which clearly reflected in the statement of account (Annexure OP/3) annexed by the Opposite Parties. The complainant further stated that after 18.04.2011 no such notice was issued, which shows that the Opposite Parties received the due amount with interest/penalty and that the Opposite Parties were satisfied with the payment. Even the complainant also annexed statement of account (Annexure C-4), which clearly shows that she deposited an amount of Rs.40,05,707/-. Now the Opposite Parties cannot wriggle out to their own document, which shows that amount of Rs.40,05,707/- received from the complainant. So, it is clearly proved that the complainant deposited an amount of Rs.40,05,707/-.

15.              The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is the admitted fact that the complainants deposited the total amount of Rs.40,05,707/- with the Opposite Parties in respect of the unit, in question.  It is also the admitted fact that the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated time frame as mentioned in the Agreement or even the time, when the complaint was filed. So, the complainant is thus, entitled to get refund of amount of Rs.40,05,707/-. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.

16.              It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is clearly proved that an amount of Rs.40,05,707/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The Opposite Parties were charging rate of interest @15% p.a. compounded, as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the complainant is held entitled to get refund of the amount deposited by her, to the tune of Rs.40,05,707/- alongwith simple interest @10% p.a., from the respective dates of deposits till realization. 

17.              As far as the plea taken by Counsel for the Opposite Parties at the time of arguments, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the unit, to be delivered to the complainant, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was the complainant who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant herself  is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties in this regard, have no legs to stand and are accordingly rejected.

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

19.              For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed, as under:-

1. To refund the amount Rs.40,05,707/-, to  the  complainant, alongwith interest @10% p.a.,  from the date of deposit onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @12% p.a., instead of 10% p.a. from the date of default, and interest @10% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

20.              However, it is made clear that, if the complainant availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).

21.              Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

December 21^st, 2020.                              Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

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