Chandigarh

StateCommission

CC/334/2016

Manjit Kaur - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Munish Goel Adv.

03 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	334 of 2016
Date of Institution	:	06.07.2016
Date of Decision	:	03.01.2017

 

Manjit Kaur w/o Late B.S.Sandhu, r/o H.No.645, Sector 29-A, Chandigarh.

……Complainant

V e r s u s

1.  Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001 through its Managing Director/Director/Partner/Authorized Signatory.
2. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Director/Regional Manager/Branch Manager/ Authorized Signatory.  

                                                    .... Opposite Parties

Argued by:      

 

Sh. Munish Goel, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	335 of 2016
Date of Institution	:	06.07.2016
Date of Decision	:	03.01.2017

 

1. Lakhvinder Singh Bhullar, s/o Sadhu Singh, H.No.1534, Sector 18-D, Chandigarh.

 

2. Col. Shiv Dayal Singh s/o Late Piara Singh, H.No.5779-A, Sector 38 West, Chandigarh c/o Wg. Cdr. Surinder Singh Tiwana, General Power of Attorney Holder 5779-A, Sector 38 West, Chandigarh.

……Complainants

V e r s u s

1.  Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001 through its Managing Director/Director/Partner/Authorized Signatory.
2. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Director/Regional Manager/Branch Manager/ Authorized Signatory. 

                                                     .... Opposite Parties

                                                     

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Munish Goel, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                 By this order, we propose to dispose of, following cases:-

1.	CC/334/2016	Manjit Kaur	Vs.	Emaar MGF Land Ltd. & Anr.
2.	CC/335/2016	Lakhwinder Singh Bhullar & Anr.	Vs.	Emaar MGF Land Ltd. & Anr.

2.           Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.           At the time of arguments, on 09.11.2016, it was agreed between Counsel for the parties, that facts involved in all the complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No. 334 of 2016, titled as “Manjit Kaur Vs. Emaar MGF Land Limited & Anr.”

5.           The facts, in brief, are that one Sh. Jagdeep Singh purchased 300 sq. yard plot from the Opposite Parties in the year 2006 and paid the booking amount of Rs.10,35,000/- vide receipt (Annexure C-1). Sh. Jagdeep Singh had made further payment of Rs.1,72,500/- vide receipt (Annexure C-2). Thereafter, Plot Buyer’s Agreement was executed between Sh.Jagdeep Singh and the Opposite Parties on 30.06.2007 (Annexure C-3). It was stated that Sh. Jagdeep Singh had made further payments (Annexures C-4 & C-5).  It was further stated that the complainant is working at Ordanance Cable Factory, Chandigarh and is living in factory quarter and she is to retire from service in December, 2016, as such, she wanted to build a dream house for self living, for which, she approached the Opposite Parties, where they brought to her notice that development in Sector 109 was in full swing and have permission/approval from the authorities. It was further stated that the complainant came to know that Sh.Jagdeep Singh was interested in selling his plot, as such, she purchased the plot from him vide Agreement dated 24.01.2008 (Annexure C-6). The price of the plot was Rs.34,50,000/-. It was further stated that the plot was duly transferred in favour of the complainant after payment of requisite fee (Annexures C-7 & C-8). It was further stated that as per Clause 8 of the Agreement, possession of the plot was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years i.e. latest by 30.06.2010 and in case of default, the Opposite Parties would be liable to pay penalty.  Thereafter, the complainant made several payments (Annexures C-9 to C-16). It was further stated that the complainant further received letter dated 04.02.2009 (Annexure C-18) from the Opposite Parties for congratulating on qualifying for the “pay on time” reward as per letter dated 29.11.2008. It was further mentioned that the complainant was eligible for last installment 5% basic price waived off. It was further stated that the complainant till now had paid the total amount of Rs.32,78,507/- to the Opposite Parties. The complainant was informed by the Opposite Parties that balance payment of Rs.1,71,493/- stands waived off in lieu of letter dated 04.02.2009 (Annexure C-18), as such, nothing remains due towards the complainant. Thereafter, the Opposite Parties called the complainant in their office and asked to pay a sum of Rs.3,45,000/-, otherwise the allotment would be cancelled, as such, the same was deposited on 16.08.2011 vide receipt (Annexure C-19). It was further stated that the Opposite Parties had not issued any notice for any payment after February, 2009 till August, 2011. As such, the complainant by now made the total payment of Rs.36,23,507/-. It was further stated that the Opposite Parties called the complainant at their office in the year 2014 and asked to sign on some documents for giving physical possession in future with all basic amenities completed because they needed these documents duly signed from customers to be shown to the Government Authorities for carrying on development work at the site. Therefore, the complainant being unaware of the full details, believed the Opposite Parties and signed on possession certificate but they did not provide the copy of said certificate to the complainant. It was further stated that the Opposite Parties did not provide details of total payment i.e. Rs.36,23,507/- made by the complainant against the total sale price of Rs.34,50,000/- and even they did not calculate compensation payable by them on account of delayed possession. The complainant went to the Opposite Parties, a number of times but no information was provided by them. Therefore, the complainant visited the site on 01.06.2016 and found that roads are not completed and nor the other services like sewage pipelines, electricity and water supply have been completed, as such, they are not in a position to give physical possession of the plot. The photographs showing the incomplete services and the overall progress in that complex are at Annexures C-20 to C-26. It was further stated that the complainant had sought information under Right to Information Act from GMADA qua project of the Opposite Parties and the GMADA informed vide letter dated 30.05.2016 (Annexure C-28) that they had issued partial completion certificate in favour of the Opposite Parties only on 16.10.2015 and, as such, it is clear that they were not in a position to give possession till 16.10.2015 and only paper possession was given by them. It was further stated that the complainant further sought information under RTI from PSPCL, in which, they replied vide letter dated 06.06.2016 (Annexure C-29) that in the absence of any release of regular land in Sector 109 of M/s Emaar MGF no individual could be released individual connection separately by said PSPCL. It was further stated that the Opposite Parties failed to provide any physical possession to the complainant, despite repeated requests.  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.

6.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was further stated that the sale price of the plot is Rs.36,98,510/- and refund as claimed alongwith interest @18% and compensation as well as litigation expenses exceeds the valuation of Rs.1 crore and, therefore, this Commission has no pecuniary jurisdiction to entertain the complaint. It was further stated that the possession of the plot was offered to the complainant in 2013 itself and accepted by the complainant. It was further stated that the amount of Rs.8,19,890/- is due towards the complainant, which includes Rs.1,16,823/- as delayed payment charges for making delayed payment of installments, which shows that there was delay in making of payments and, therefore, waiver of 5% or last installment would not be waived. It was denied that the possession was notional/paper, as the project of the Opposite Parties was exempted from the provisions of PAPRA and the Opposite Parties were not to seek completion certificate from the competent authorities. It was admitted that the unit was initially allotted to Mr.Jagdeep Singh vide letter dated 05.05.2007. Copy of the statement of account is Annexure R-3. It was further stated that Buyer’s Agreement was executed with the initial allottee on 30.06.2007 and the same was endorsed in her favour in March, 2008. It was further stated that as per Clause 8 of the Agreement, the company was supposed to handover the possession of the unit within 3 years from the date of execution of the Agreement and in case of any delays, it was agreed to pay compensation to the allottees @Rs.50/- per sq. yard per month. It was further stated that the complainant delayed the payment of installment, and accordingly reminders were issued to the complainant (Annexure R-4 colly.). It was further stated that the complainant had paid an amount of Rs.36,19,112/- against the unit and also credited the compensation for delays in handing over by the Company amounting to Rs.5,03,014/-. Hence, the total amount collected towards the principal amount is Rs.41,22,126/- as per statement of account attached. It was further stated that the entire story regarding possession has been concocted by the complainant and she duly signed and accepted the possession and now the plea of the complainant regarding paper possession is false. Copies of the possession letter and statement are Annexures R-5 and R-6. It was further stated that all the amenities have been completed and possession was offered after completion of all amenities, as per the Buyer Agreement and possession was duly accepted by the complainant. It was further stated that many customers have already taken possession of their units in Sector 109 and executed the sale deeds in their favour. It was further stated that the company has also credited the compensation for delay in handing over possession and in case of seeking refund, the Agreement has to be cancelled and forfeiture clause would come into operation It was further stated that the competent authorities only in September, 2015 have asked for seeking completion certificate and as on date of offering possession of plot, the completion certificate was not required. Thereafter, the Opposite Parties applied for completion certificate and have been provided Partial Completion Certificate by the competent authorities. It was further stated the temporary electricity is available at the project site and the complainant could start the construction.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

7.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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

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

10.          It is the admitted fact that initially, the plot was booked by Sh. Jagdeep Singh. Plot Buyer’s Agreement was executed between Sh. Jagdeep Singh and the Opposite Parties on 30.06.2007. It is also the admitted fact that the plot was endorsed in favour of the complainant vide endorsement dated 06.02.2008. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years i.e. latest by 29.06.2010. It is also the admitted fact that possession of the unit was delivered to the complainant vide letter dated 15.04.2013 (Annexure R-5).

11.          The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

12.          Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs.36,98,507/- paid by her, towards price of the plot, alongwith interest @18% p.a. from the respective dates of deposits, till realization;  to pay Rs.50/- per sq. yards per month till the deposited amount is refunded to the complainant ; compensation to the tune of Rs.5 lacs, for mental agony & physical harassment; and cost of litigation, to the tune of Rs.33,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

              As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

13.          Another objection raised by Counsel for the Opposite Parties at the time of arguments that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within maximum period of three years, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the plot will be delivered by the Opposite Parties, within a period of maximum three years, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of three years from the date of execution of the same, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

14.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the  complainant. According to Clause 8 of the Plot Buyer’s Agreement dated 30.06.2007 (Annexure C-3), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the plot, in question, within a period of 2 years, from the date of execution of the Agreement, but not later than 3 years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the plot, in question, in favour of  the complainant,  within the maximum period of 3 years, from the date of execution of the Plot Buyer’s Agreement dated 30.06.2007, i.e. latest by 29.06.2010. Even, possession of the plot, in question, was neither offered nor delivered to the complainant, within the stipulated period, as contained in the terms and conditions of the Agreement. By making a misleading statement, that possession of the plot, was to be delivered within a maximum period of 3 years, from the  date of execution of the Agreement, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

15.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainant, complete in all respects or not. As per Clause 8 of the Agreement, possession of the unit was to be delivered to the complainant within a period of 2 years from the date of execution of the Agreement but not later than 3 years. So, the period of 3 years from the date of execution of the Agreement dated 30.06.2007 has expired on 29.06.2010. However, the Opposite Parties sent letter of intimation to the complainant vide letter dated 15.04.2013 (Annexure R-5) i.e. after a delay of about 3 years. A bare perusal of the said possession letter clearly reveals that the same was signed by the complainant. At the time of arguments, the Counsel for the complainant stated that the possession offered by the Opposite Parties is only a paper possession and not more than that because the complainant in his complaint has specifically stated that he has recently visited the site on 01.06.2016 and found that roads were not completed and nor the other services like sewerage pipe lines, electricity and water supply have been completed. As such, the Opposite Parties are not in a position to give physical possession of the plot. The complainant has also placed on record photographs (Annexures C-20 to C-26) to prove the said fact. The complainant also sought some information under RTI from GMADA, in which, GMADA has informed vide letter dated 30.05.2016 (Annexure C-28) that they had issued Partial Completion Certificate in favour of the Opposite Parties only on 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainant vide letter dated 15.04.2013 (Annexure R-5) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about two years of offer of possession. So, it is clearly proved that when the possession letter was sent to the complainant, the project was not complete. A bare perusal of possession letter (Annexure R-5) clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. The relevant portion of the said possession letter dated 15.04.2013 (Annexure R-5) reads thus :-

“x x x x x x

Kindly note on completion of the infrastructure work for the entire project we shall execute sale deed, in your favour, for the plot, subject to you making payment for Stamp Duty and Registration Charges at the rate prevailing on the date fixed for execution of the sale deed. However, till the time of execution of the sale deed the terms and conditions under the Plot Buyer’s Agreement shall remain valid and would be binding between us.”

From the afore-extracted paragraph, it is clearly proved that the infrastructure in Sector 109 was not completed and as on date, the position was the same. Even the Opposite Parties failed to place on record any document, which could prove that all the basic amenities were complete at the site. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by this Commission regarding the issue of sealing of project by Forest Department and other issues in Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

“31. However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”,permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

              Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

              It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the possession offered by the Opposite Parties is only a paper possession and not more than that.

16.          The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to her vide letter of intimation of possession dated 15.04.2013 (Annexure R-5), i.e. after a long delay of 3 years from the stipulated period and that too, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainant within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 29.06.2010. However, the Opposite Parties sent letter of intimation of possession only vide letter dated 15.04.2013 to the complainant i.e. about 3 years  after the completion of the stipulated period. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

Moreover, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

17.          The next question, that falls for consideration, is, as to what amount was deposited by the complainant in respect of the unit, in question. The complainant has claimed an amount of Rs.36,98,507/-. On the other hand, the Opposite Parties claimed that an amount of Rs.36,23,507/- was deposited by the complainant and an amount of Rs.5,03,014/- credited into the account of the complainant and the total of both the amounts is Rs.41,26,521/-. It is relevant to mention here that with regard to payment of compensation amounting to Rs.5,03,014/- is concerned, the complainant in her rejoinder has clearly stated that she has no information about the credit of Rs.5,03,014/-. A bare perusal of the receipts/acknowledgment-cum-receipts placed on record by the complainant shows that an amount of Rs.36,98,507/- was deposited by the complainant. It is pertinent to note that the complainant is adding Rs.75,000/- as transfer fee in respect of purchase of the unit in the claimed amount. So, we are of the view that the complainant is not entitled to the aforesaid amount of Rs.75,000/- as transfer fee and it is clearly proved that she deposited an amount of Rs.36,23,507/- in respect of the unit, in question.

18.          The next question, that falls for consideration, is, as to whether, the complainant had delayed payment of installments. The Opposite Parties stated that several reminders were sent to the complainant for making payment but she failed to make the payment. The complainant in her rejoinder has clearly admitted that she received letters dated 11.11.2008, 16.08.2008 and 23.06.2008 but denied the receipt of other letters i.e. dated 24.03.2009, 20.05.2008 and further stated that she has no knowledge of letters dated 24.12.2007, 20.02.2008, 22.11.2007 and 24.08.2007 being written to Sh.Jagdeep Singh (initial allottee). The complainant has also denied receipt of settlement of final dues vide letter (Annexure R-6). A bare perusal of the aforesaid letters received by the complainant shows that it is only routine letters sent to her for making payments. The onus is upon the Opposite Parties to prove the same whether the aforesaid letters were sent in which mode i.e. through registered post or through courier but they failed to place on record any document to prove the same.  So, we are of the view that the objection of the Opposite Parties has no force at all. 

19.           It is to be further seen as to whether there was continuing cause of action to file the present complaint or not. It may be stated here that it is very clear from the record that possession though paper possession in nature was offered on 15.04.2013 but the complainant filed the instant complaint on 06.07.2016 i.e. after a gap of three years for redressal of her grievance against the Opposite Parties. It is pertinent to note that the Opposite Parties failed to give physical possession complete in all respects to the complainant, despite receipt of the huge amount from her, so it is clearly proved that there is continuing cause of action, in her favour, in view of principle of law laid down, in  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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.36,23,507/-, deposited by her. It is an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, within the stipulated period, as mentioned in the Agreement, and firm date of delivery of possession of the unit, could not be given to her (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by her. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by her. 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.

21.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is no doubt true that an amount of Rs.36,23,507/-, 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. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15%) as per Clause 3 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. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.36,23,507/-alongwith interest @10% p.a. compounded, from the respective dates of deposits till realization because the paper possession was offered to the complainant in the year 2013 and he filed the present complaint in the year 2016 i.e. after a long gap of three years. 

22.          As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money 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 plot, to be delivered to the complainant, by the stipulated date but it was she (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by the Opposite Parties 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 the earnest money, 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, has no legs to stand and is accordingly rejected.

23.          Since we are refunding the whole deposited amount to the complainant alongwith compensation and litigation expenses, therefore, we are of the view that she is not entitled to claim any other relief, as claimed by her in the prayer clause.

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

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

1. To refund the amount Rs.36,23,507/-, to  the  complainant, alongwith interest @10% p.a. compounded,  from the respective date of endorsement of the unit dated 06.02.2008 onwards.
2. To pay compensation, in the sum of Rs.1 lac, 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) shall carry penal interest @12% p.a. compounded, instead of @10% p.a., from the respective date of endorsement of the unit onwards, and interest @10% p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Complaint Case No.335 of 2016 titled ‘Lakhwinder Singh Bhullar & Anr. Vs. Emaar MGF Land Limited & Anr.’

 

26.          It is the admitted fact that earlier the plot was purchased by Sunita Gupta & Manika Gupta (initial allottees) in the year 2006. Plot Buyer’s Agreement was executed between the initial allottees and the Opposite Parties on 04.07.2007 (Annexure C-3). Thereafter, the complainants purchased the said plot from the initial allottees and paid an amount of Rs.21,56,250/- to the sellers and balance was to be paid directly to the Opposite Parties, which was endorsed in favour of the complainants on 27.03.2008 (Annexures C-1 to C-5). As per Clause 8 of the Agreement, possession of the unit was to be delivered within the maximum period of three years from the date of execution of the Agreement i.e. latest by 03.07.2010. According to the complainants, they made the total payment of Rs.45,19,101/-, out of the total price of the plot was Rs.40,50,354/- as per the Agreement. The complainants contacted the Opposite Parties number of times since 2014 but nothing was done by them. The complainants recently visited the site in April, 2016 and found that roads are not completed and nor the other services like sewage pipe lines, electricity and water supply have been completed. As such, they are not in a position to give physical possession of the plot and also attached photographs (Annexures C-23 to C-28) to prove the said fact.

27.          On the other hand, the Opposite Parties admitted the factual position and stated that the complainants made the total payment of Rs.44,24,550/-, as per statement of account. The Opposite Parties further stated that the possession letter has already sent to the complainants vide letter dated 11.02.2010 (Annexure R-4).

28.          After going through the documents placed on record, we are of the view that the complainants deposited the total amount of Rs.44,24,550/- in respect of the unit, in question, as is evident from statement of account (Annexure R-3) because if we added the amount of receipts attached by the complainants, the total of the amount, as per receipts attached are not the same, as claimed by the complainants. So, the complainants are certainly entitled for refund of the amount of Rs.44,24,550/- alongwith interest, compensation and litigation expenses because the possession offered to the complainants is only a paper possession and not more than that, as discussed in the connected matter i.e. CC/334/2016 titled “Manjit Kaur Vs. Emaar MGF Land Limited.”

29.          In view of reasons recorded above, the complaint bearing No.335 of 2016 is partly accepted with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.44,24,550/-, to  the  complainant, alongwith interest @10% p.a. compounded,  from the respective  date  of  endorsement on 27.03.2008 onwards.
2. To pay compensation, in the sum of Rs.1 lac, 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) shall carry penal interest @12% p.a. compounded, instead of @10% p.a., from the respective date of endorsement onwards, and interest @10% p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

30.          However, it is made clear that, if the  complainant(s), in both the aforesaid cases, have 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 the complainant(s).

31.          Certified copy of this order be placed in Consumer Complaint No.335 of 2016.

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

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

Pronounced.

January 3^rd, 2017.                                         Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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