Chandigarh

StateCommission

CC/86/2019

Jasvinder Kaur Chauhan - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

23 Jan 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	86 of 2019
Date of Institution	:	18.04.2019
Date of Decision	:	23.01.2020

 

Jasvinder Kaur Chauhan w/o Sh.Joga Singh, R/o 17, M.L. Ganga Nagar, Rajasthan, currently residing at 8737 Wentworth Ct. Rose Ville, California, U.S.A., through General Power of Attorney Holder Sh.Ranbir Singh Sidhu s/o Sh.Tehal Singh, R/o Khera Bet, Ludhiana, Punjab-141204

……Complainant

V e r s u s

1. Emaar MGF Land Limited, Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director, Sh.Hadi Mohd. Taher Badri and Chief Executive Officer Sh.Prashant Gupta.
2. Sh. Hadi Mohd. Taher Badri , Managing Director of Emaar MGF Land Limited, having its Office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali-160062.
3. Sh.Prashant Gupta, Chief Executive Officer of Emaar MGF Land Limited, R/o G-1, Fine Home Apartments, Mayur Vihar, Phase-1, Delhi-110092.

….Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

Argued by:    Sh.Savinder Singh Gill, Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.49,85,404/- paid by the complainant towards purchase of flat bearing no.TVM-L1-F04-404, measuring 1550 square feet, in the project named “The Views”, Sector 105, SAS Nagar, Mohali. Total sale consideration of the unit was fixed at Rs.62,47,551/-. It is the case of the complainant that despite the fact that she has paid substantial amount of Rs.49,85,404/- i.e. more than 80% of the total sale consideration, for the period from 25.02.2008 to 14.08.2018, yet, possession of the said unit was not delivered within a period of 36 months from the date of allotment i.e. from 17.03.2008 as envisaged under Clause 21.1 of the agreement. However, possession was offered after an inordinate delay on 30.08.2018.

                   By stating that the aforesaid act and conduct of the opposite parties in not handing over possession of the unit in question, by the committed date and on the other hand offering possession after an inordinate delay, amount to deficiency in providing service, negligence and adoption of unfair trade practice, the complainant has filed the present case seeking refund of amount paid alongwith interest, compensation etc.

2.           Her claim has been contested by the opposite parties, 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 complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction; that the complaint filed is beyond limitation; that time was not the essence of contract as it was mentioned in the agreement that the Company only proposes to complete construction and development work within 36 months from the date of allotment of the unit; that for any delays, stipulated penalty has been provided in the agreement, which safeguarded the interest of the complainant; that the power of attorney filed on behalf of the complainant is defective; and that the names of opposite parties no.2 and 3 need to be deleted from the array of parties, as they have no role to play in the matter.
3.           On merits, purchase of the unit by the complainant; payments made as mentioned in the complaint; execution of agreement; and that there was inordinate delay in offering possession of the unit has not been disputed by the opposite parties. It has been averred that for the delay caused, the complainant will be suitably compensated as per terms and conditions of the agreement. It has been contended that after completing the construction and basic amenities, possession of the unit in question was offered to the complainant vide letter dated 30.08.2018 (Annexure C-5) and that too after obtaining partial completion certificate but instead of taking over the same, she has filed this complaint seeking refund of the amount paid; and that she is liable to make the payment of amount demanded from her, yet, she failed to do so, as such, she is liable to pay the same alongwith delayed interest; holding charges and also differential amount towards increase in area of the said unit. It has been pleaded that, still if she wants refund of the amount paid, forfeiture clause contained in the agreement will be applicable. Prayer was made to dismiss the complaint.
4.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
5.           We have heard the contesting parties and have carefully gone through record of the case, very carefully.
6.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether the arbitration clause contained in the agreement bars the jurisdiction of this Commission?
   2. Whether this Commission has pecuniary and territorial jurisdiction to entertain this complaint?
   3. Whether the complainant falls under the definition of consumer?
   4. Whether time was essence of the contract?
   5. Whether the complainant is bound to take over possession offered after an inordinate delay of more than about 7 years?
   6. Whether the complaint filed is within limitation?
   7. Whether the complainant is entitled to get refund of the amount deposited and if yes, at what rate of interest?
   8. Whether forfeiture clause will be applicable to the present case?

 

7.           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.
8.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the unit agreed to be purchased by the complainant; plus interest claimed @10% p.a. on the deposited amount, are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
9.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that in the instant case, perusal of application form dated 12.03.2008 (Annexure R-1) in respect of the unit in question reveal that the same has been received by the opposite parties at Chandigarh Office i.e. SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh. Even the Agreement in respect of unit in dispute, containing detailed terms and conditions has been executed at Chandigarh Office of the Company, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on business from their branch office at Chandigarh and personally work for gain hereat.
10.           As far as objection taken to the effect that the complainant 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 complainant has purchased the unit/flat in question to indulge in ‘purchase and sale of flats’ 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 that onus, hence we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act.                                Furthermore, the mere fact that the complainant is an NRI and residing in America, is no ground to snub her out of the purview of ‘consumer’. No law debars NRI and any other person sitting abroad, with roots in India, to purchase a residential property in India for his/her personal use. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. The complainant is an independent person and can purchase any house in India, in her own name. Similar view was expressed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016. Objection taken in this regard is rejected.
11.           There is no dispute with regard to the fact that against total sale consideration of Rs.62,47,551/-, the complainant paid an amount of Rs.49,85,404/- i.e. more than 80% of the total sale consideration, for the period between 25.02.2008 to 14.08.2018, to the opposite parties towards purchase of the said unit. Despite the fact that it was in a clear-cut manner, committed by the opposite parties vide Clause 21.1 of the agreement that possession of the unit will be delivered within a period of 36 months from the date of allotment i.e. on or before 16.03.2011 (date of allotment being 17.03.2008), yet, the opposite parties miserably failed to do so and on the other hand, possession was offered to the complainant on 30.08.2018 i.e. after an inordinate delay of more than seven years. The opposite parties have not disputed the said inordinate delay in offering possession of the unit in question. However, without giving any justification of such an inordinate delay; to wriggle out of the situation, it has been simply stated in the reply that the Company is ready to compensate the complainant for the period of delay, as per terms and conditions of the agreement.

                   At the time of arguments also, we asked the Counsel for the opposite parties to apprise this Commission, as to why such a huge delay took place in offering possession of the unit in question; he was having no answer and said that because the possession so offered was a genuine one, though belatedly, the complainant is bound to take over the same. On the other hand, Counsel for the complainant contended that since there has been an inordinate delay in the matter, the complainant was not bound to take over possession of the unit and is entitled to seek refund of the amount paid.

                   Under above circumstances, the moot question which needs consideration is, as to whether, the complainant was bound to take over possession of the unit in question, offered after an inordinate delay of more than seven years. It may be stated here that a similar question as to whether an allottee is obliged to take possession, in case there is a delay in offering the same, fell for determination before the Hon’ble National Commission in Govindan Raghavan Vs. Pioneer Urban Land And Infrastructure Ltd., Consumer Case No. 239 of 2017, decided on 23 Oct 2018, wherein while negating the plea taken by the builder, refund of the amount paid was ordered, by holding as under:-

“16.    The learned counsel for the OP submits that in CC No.239 of 2017, not only the construction of the apartment has already been completed, even the requisite Occupancy Certificate has been obtained on 23.07.2018 and therefore, the complainant should now take possession of the allotted flat instead of insisting upon the refund of the amount paid by him towards the cost of the flat.  The learned counsel for the said complainant states on instructions that the complainant is no more interested in taking possession of the allotted flat and wants refund of the amount paid by him alongwith appropriate compensation.  Considering that the last date for completion of the construction expired about three years before the Occupancy Certificate was obtained, and in fact, it had expired more than one year before this complaint was instituted, the complainant, in my opinion, cannot be compelled to accept possession of the flat at this belated stage.”

 

12.           Feeling aggrieved, against the order dated 23.10.2018, the builder went in  Civil Appeal No.12238 of 2018,  before the Hon’ble Supreme Court, which was dismissed by it vide order dated 02.04.2019, while holding as under:-

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired…….”

13.           Because in the present case there is an inordinate delay of more than seven years in offering possession of the unit in question, as such, in view of settled law that non-delivery of possession of plots/units in a developed project by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid, if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice.  The complainant is therefore held entitled to get refund of the amount paid alongwith interest, from the respective dates of deposits till realization.
14.           The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. Vs. M/S. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a.
15.           Though, in view of principle of law laid down by the Hon`ble Supreme Court of India and also the National Commission, this Commission could have granted interest @12% p.a. to the complainant, yet, we cannot go beyond the rate of interest sought for by her in her complaint i.e. @10% p.a. As such, it is held that the complainant is entitled to get interest @10% p.a. from the respective dates of deposit on the amount of Rs.49,85,404/-, as prayed for by her in her complaint. In no way the opposite parties can forfeit any amount out of the deposited one, as it is not their case that the complainant has sought refund of amount paid on account of some personal reasons and is quitting before expiry of the period committed for possession, as contained in the agreement.
16.           As far as objection raised by the opposite parties, to the effect that this complaint is time barred, 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 given 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.  Of course, the complainants would also have an earlier cause of action in case allotment is cancelled.”

 

                   Even otherwise, in the present case, if period of two years is counted from 30.08.2018 i.e. the date when possession was offered to the complainant, even then this complaint having been filed on 18.04.2019 is within limitation.

17.           The next question under our consideration is as to whether, time for handing over possession of the unit to the complainant, was essence of the contract or not? It may be stated here that a specific period of 36 months from the date of allotment, for delivering possession of the unit to the complainant, has been mentioned in Clause 21.1 of the Agreement.  Other than this Clause contained in the agreement, there is no Clause, which speaks about the period/date for delivery of possession of the unit to complainant. The opposite parties has not placed on record an iota of evidence to convince this Commission that they actually encountered any force majeure circumstances, as a result whereof, they were legally entitled for extension of time for delivering possession of the unit to the allottees, including the complainant. The opposite parties cannot wriggle out of the commitments made vide Clause 21.1 of the agreement with regard to time period for delivery of possession. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of the opposite parties to the effect that time was not essence of the contract or that no definite period was given to offer possession of the unit in question, being devoid of merit stands rejected.
18.           An argument was also raised by Counsel for the opposite parties to the effect that opposite parties no.2 and 3 have been wrongly impleaded as parties, in their personal capacity. We do not agree with the objection raised. It may be stated here that it is not the proven case of the opposite parties that the above-named persons are not their Officers. As such, it is held that these persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017.  Objection taken in this regard is rejected.
19.           As far as objection taken by the opposite parties to the effect that the general power of attorney filed is defective, it may be stated here that we have gone through the same and found that Sh.Ranbir Singh Sidhu has been assigned as power of attorney on behalf of the complainant, to carry out all the acts, required for filing case in respect of the unit in question. Even otherwise, the Consumer Protection Act is a beneficial legislation, to provide speedy, inexpensive and hassle-free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. Unnecessary technicalities deter an individual consumer from approaching the consumer fora, thereby frustrating the objective of the Act. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital and another, Civil Appeal No.2641 of 2010, (Arising out of SLP(C) No.15084/2009), decided on  March 8, 2010. Relevant contents of the said order are reproduced hereunder:-

“The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act  are not applicable and the Fora under the Act are to follow principles of natural justice”.

 

20.           For the reasons recorded above, this complaint is accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.49,85,404/- to the complainant, alongwith interest @10% p.a. (as prayed) from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.49,85,404/- shall carry 3% penal interest i.e. 13% p.a. (10% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay cost of litigation to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order, till realization.

21.           However, it is made clear that if the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
22.           Certified Copies of this order be sent to the parties, free of charge.
23.           The file be consigned to Record Room, after completion.

Pronounced

23.01.2020

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 

(RAJESH K. ARYA)

MEMBER

 Rg.