Chandigarh

StateCommission

CC/62/2016

Mrs. (Dr.) Avneet Kaur Bajaj - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

In Person

02 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	62 of 2016
Date of Institution	:	15.02.2016
Date of Decision	:	02.06.2016

 

1. Mrs. (Dr.) Avneet Kaur Bajaj wife of Mr.P.S Bajaj, aged 40 years, House No.1501/2, Sector 43-B, Chandigarh-160022.
2. Mr.P.S. Bajaj son of Sh.Inderpal Singh Bajaj, aged 40 years, House No.1501/2, Sector 43-B, Chandigarh-160022.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, (Mohali Hills), SCO 120-122, 1st Floor, Sector 17-C, Chandigarh-160017, through its Managing Director/Director/Authorized Signatory.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Authorized Signatory.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Sandeep Bhardwaj, Advocate for the complainants alongwith complainants in person.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants,  having two daughters and also having a number of relatives, in and around Chandigarh, had a dream to have a residential house, so that they are able to settle themselves, permanently, in or around the tricity. It was stated that complainant No.1 (Dr.Avneet Kaur Bajaj) also wanted to secure the future of her daughters by purchasing a residential plot for construction of house thereon, for them and, as such, they decided to purchase a residential plot for the said purposes. It was further stated that the Opposite Parties made a number of assurances through various newspapers and telemarketing with regard to launching of their project, as such, complainant No.2 (Mr.P.S.Bajaj) i.e. husband of complainant No.1 approached the Opposite Parties for the purchase of residential plot in the said project. Thereafter, complainant No.2 purchased residential plot bearing No.112, measuring 400 square yards, Mohali Hills, Sector 109, Augusta Greens, SAS Nagar Mohali, Punjab, possession whereof was to be delivered latest by  17.06.2010, which event never happened, despite receipt of the entire sale consideration. It was further stated that it came to the notice of complainant No.2 that the said project was under litigation and, as such, a separate consumer complaint in that regard has already filed by him before this Commission.

2.           It was further stated that on the assurance given by the officers of the Opposite Parties with regard to purchase of a unit in Sector 108, as they are going to complete the development work in this pocket first and start the process of delivery of possession soon, whereas, development in the project of Sectors 105 and 109 would take some time, and also that the amount so deposited with them against original plot No.112, would be refunded, complainant No.2 decided to purchase a plot in Sector 108, Mohali Hills, Mohali. Thereafter, plot bearing No.73 was purchased by complainant No.2 on 25.07.2013 from Mr. Pradeep Parmeswaran and Ms.Sharika Verma, who had also purchased the same in resale from one Mr.Amandeep Dhillon, which was allotted to him vide provisional allotment letter dated 20.03.2008 (Annexure C-1) and the entire sale consideration in respect of the said plot was paid by him and, as such, complainant No.2, stepped into their shoes. Later on, on account of a nuptial dispute between the complainants, because of some misunderstanding, plot bearing No.73 was got transferred in favour of complainant No.1 (Dr.Avneet Kaur Bajaj) vide endorsement dated 03.01.2015 by  the Opposite Parties, vide letter of intimation  dated 09.01.2015 (Annexure C-2) and in this manner, she stepped into the shoes of complainant No.2.  It was further stated that Plot Buyer’s Agreement dated 17.08.2010 (Annexure C-3) was executed between the parties. As per the Agreement, total sale price of the unit, in question, was Rs.63,93,500/-, out of which, complainant No.1 paid an amount of Rs.67,58,734/- i.e. Rs.3,65,234/-in excess, as is evident from statement of account (Annexure C-5).

3.           It was further stated that as per Clause 8 of the Agreement, possession of the residential plot was to be delivered by the Opposite Parties within a maximum period of 3 years i.e. latest by 17.08.2013. It was further stated that when possession of the plot was not delivered by the stipulated date, the complainants visited the site in September, 2013 and found that there was no development. Thereafter, the complainants again visited the site in the year 2014 and found that due to lack of basic amenities, delivery of possession of the plot was not at all possible, in near future. It was further stated that complainant No.1 kept visiting the office of the Opposite Parties and requested to hand over possession of the plot, but they put off the matter on one pretext or the other. It was further stated that the Opposite Parties sent a letter dated 28.07.2015 (Annexure C-6), wherein, an illegal demand of Rs.2,83,540/- was raised. It was further stated that the contents of the said letter (Annexure C-6) were contrary to each other because it was not made clear by the Opposite Parties that when Agreement was executed on 17.08.2010, how could they offer possession of the plot vide letter dated 29.11.2009? It was further stated that there was no over-dues in respect of the plot, as it has been mentioned as “0” (Zero) against the column “Over Dues and Delayed Payment Charges”, as is evident from Annexure C-6. It was further stated that the amount of excess EDC, to the tune of Rs.5,02,000/- was illegally retained by the Opposite Parties for a sufficient longer time and even as the demand of registration and stamp duty charges is concerned, the said charges were required to be paid by complainant No.1, at the time of registration of the plot, which event never happened.

4.           It was further stated that on receipt of the letter (Annexure C-6), complainant No.1 again visited the site to see the progress of development but she was surprised to see that there was no development, at all.  Therefore, complainant No.1 sent detailed email dated 17.08.2015 (Annexure C-7) to the Opposite Parties, wherein, she requested for redressal of her grievance, which was acknowledged by them vide email (Annexure C-8). Thereafter, another email dated 22.08.2015 (Annexure C-9) was received from the Opposite Parties, wherein, they declined the request of complainant No.1 regarding payment of delayed compensation on the ground that possession had already been offered to her, in the year 2009. It was further stated that complainant No.1 again sent detailed email dated 17.09.2015 (Annexure C-10) to the Opposite Parties, wherein, she raised all the issues regarding offer of possession in the year 2009, which was undated, non-endorsement of the alleged offer of possession etc. and the said email was duly replied by them vide email dated 10.10.2015 (Annexure C-11) and assured to complainant No.1 that her case is being taken up and the status of the project would be updated shortly. It was further stated that the Opposite Parties vide email dated 23.12.2015, sent offer of possession letter dated 23.12.2015 (Annexure C-13), wherein complainant No.1 was asked to visit the site for inspection of her plot. After receipt of the aforesaid email, when the complainants tried to visit the site, they were surprised to see that even access to the plot was not available because the entry points of the project have been sealed/fenced and trenches have been dug before it, so that nobody was able to enter the site and when they (complainants) tried to visit the site, they were not even allowed to enter therein by the Guard deputed there. Thereafter, complainant No.1 approached the office of the Opposite Parties a number of times to apprise her in the matter, as  she wanted to see development of the project but they failed to give any reply. It was further stated that this fact is further fortified from the information obtained by similar located allottees under the Right to Information Act, 2005 (Annexures C-14 to C-17). It was further stated that till the date of filing of the complaint, the Opposite Parties were not in a position to deliver possession of the plot, which event was to happen latest by 17.08.2013, of which entire sale consideration including PLC and EDC had been received by the Opposite Parties. 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(s), 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.

5.           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 stated that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as complainant No.2 purchased 4 plots in the project of the Opposite Parties, in which, two plots bearing No.109-MLU-1-300 and 109-MLU-2-300 are subject matter of complaint bearing No.43/2016 pending before this Commission. It was further stated that the complainants also purchased another plot bearing No.108-PG-38-500, possession of which was taken over on 02.03.2012 and sold on 02.04.2012. It was further stated that the complainants are regularly buying and selling plots to make commercial gain and, as such, they are investors/speculators and had purchased plots for commercial purposes. It was further stated that complainant No.1 was told time and again that possession of the unit has already been offered and she could take the same after completing the relevant documents. However, complainant No.1 insisted on compensation, which was taken up at the time of final settlement of accounts and credited to her account. It was further stated that the Opposite Parties made all arrangements for handing over of the unit and credited compensation, complainant No.1 failed to take over the possession by citing extraneous reasons. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint. It was further stated that unit bearing No.109-AG-112-400 was initially allotted to Mr.Radhey Sham Goyal vide allotment letter dated 09.05.2007, which was subsequently purchased by Mr. Prabhujeev Singh Bajaj, who later requested to relocate him and allot him 2 units of 300 sq. yards each in Sector 109. It was further stated that there was no commitment made by the Company for refund of amount paid towards unit in Sector 109. It was further stated that the unit was initially allotted to Mr. Amandeep Dhillon and Buyer’s Agreement was executed on 17.08.2010 and subsequently, it was transferred to Mr. Pradeep Parmeswaran and Ms. Sharika Verma in August, 2010 and later on, complainant No.2 purchased the said unit, which was transferred in his name in August, 2013. It was further stated that complainant No.2 requested the name substitution of complainant No.1 in his place and the necessary endorsement was done in January, 2015 on completion of formalities. As such, the unit presently stands allotted in the name of Mrs. Avneet Kaur Bajaj (complainant No.1). It was further stated that the Opposite Parties received an amount of Rs.67,58,000/- against the unit till November, 2010, as is evident from statement of account (Exhibit OP/4). It was averred that the Opposite Parties had offered possession to the initial allottee but this letter was not endorsed in favour of the complainants inadvertently. It was further averred that the Company issued the settlement of final dues letter in July, 2015 (Annexure C-6) and as an exception credited the compensation of Rs.5.84 lacs in the complainant’s account. It was further stated that the area, in which, the plot of the complainants is located, has been developed in accordance with the Agreement terms.  It was further stated that possession of the unit was already offered in 2009 and 2010 to the initial allottee (Exhibits OP/6 & OP/7) but inadvertently, the said letter was not endorsed in favour of the complainant(s).  It was further stated that many customers have already taken possession in the area, where the unit of complainant No.1 is located, got their units registered and some of them have even constructed their homes and staying in them. It was pleaded that no grievance regarding lack of development was ever raised by complainant No.1. It was further pleaded that there is adequate motorable access to plot of complainant No.1, despite the alleged sealing of one entry point. It was denied the RTI information, annexed by the complainant(s) because the same pertained to information provided to some other person and they have no locus to rely on the same. It was further stated that the Company obtained the partial completion certificate (Exhibit OP/7) for all the sector including Sector 108, where unit of complainants is located. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor it indulged into unfair trade practice.

6.           Dr. Avneet Kaur Bajaj (complainant No.1), 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. 

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

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

9.           Admittedly, complainant No.2 purchased a plot bearing No.73 from Mr. Pradeep Parmeswaran and Ms. Sharika Verma and the said plot was allotted to him vide provisional allotment letter dated 20.03.2008 (Annexure C-1). It is also the admitted fact that the said plot was got transferred in favour of complainant No.1 (Dr.Avneet Kaur Bajaj) vide letter dated 09.01.2015 (Annexure C-2). It is also the admitted fact that Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 17.08.2010 (Annexure C-3) and as per Clause 2(a) of the Agreement, the total sale price was Rs.63,93,500/-, out of which, complainant No.1 paid an amount of Rs.67,58,734/-, as is evident from statement of account (Annexure C-5), in respect of the unit, in question.  It is also the admitted fact that as per Clause 8 of the Agreement, possession of the unit was to be delivered within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 17.08.2013. According to complainant No.1, possession of the unit, in question, was neither delivered to her, complete in all respects, nor refunded the amount to her, despite repeated requests.

10.          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 and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

11.             This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that 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 no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected”.

12.          Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

 

13.        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 andNational 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.”

 

14.        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.

15.          As regards objection raised by the Opposite Parties, in their written statement, with regard to pecuniary jurisdiction. However, the Opposite Parties have failed to state as to how this Commission has no pecuniary jurisdiction to try this complaint. It may be stated here, that complainant No.1 has sought refund of Rs.67,58,734/-,  paid by her, towards price of the said unit, alongwith suitable interest ; compensation to the tune of Rs.5 lacs, for harassment & mental agony and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.50 lacs and below Rs.1 crore. Thus, it is clearly proved that this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint and, as such, objection raised by the Opposite Parties, in this regard, is rejected.

16.          To defeat claim of complainant No.1, another objection raised by the Opposite Parties, in their written reply, was that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as complainant No.2 purchased total 4 plots in the project of the Opposite Parties, in which, two plots bearing No. 109-MLU-1-300 and 109-MLU-2-300 are subject matter of consumer complaint No.43 of 2016 pending before this Commission. It was further objected that the complainants had also purchased another plot bearing No.108-PG-38-500, possession of which was taken over on 02.03.2012 and sold on 02.04.2012. As such, the complainants are investors/speculators and had purchased the plots for commercial purposes. After going through the documents and record of the case, we do not find any merit in the contention of the Opposite Parties because the present unit i.e. bearing No.73, in dispute, is in the name of complainant No.1 (Dr. Avneet Kaur Bajaj) only and no relief has been sought in the name of complainant No.2  (Mr.P.S.Bajaj). Even complainant No.2 has no role in the present complaint but he has been impleaded as a party to the complaint because he was predecessor and husband of complainant No.1. Initially, complainant No.2 purchased residential plot No.112, measuring 400 sq. yards, Mohali Hills, Sector 109, Augusta Greens, Mohali, possession whereof was to be delivered latest by 17.06.2010, which event never happened, despite the receipt of entire sale consideration by the Opposite Parties. Thereafter, he was allotted 2 units of 300 sq. yards in lieu of the one unit bearing No.112 purchased by him, as admitted by the Opposite Parties in para No.2 of their written reply.  The complainant(s) mentioned in the complaint that it came to the notice of complainant No.2 that the said project was under litigation and, as such, separate consumer complaint in that regard, has already been filed by him before this Commission.  According to the Opposite Parties, the complainants had also purchased another plot bearing No.108-PG-38-500, which was sold by them on 02.04.2012. At the time of arguments, Counsel for the complainants stated that as the location was not suited to him due to a ditch in the said plot, therefore, they sold it. Even when the complainants filed the present complaint on 15.02.2016, only the two plots, which were allotted to complainant No.2 in lieu of only one plot and the said dispute in that regard is pending before this Commission. The other plot, which is in dispute of the present complaint, is in the name of complainant No.1 only and no relief has been sought in the name of complainant No.2. The complainants in their complaint has specifically stated that they have two daughters and having a number of relatives, in and around Chandigarh, so they had a dream to have a residential house, so that they are able to settle themselves, permanently, in or around the tricity. It was further stated complainant No.1 also wanted to secure the future of her daughters by purchasing a residential plot for construction of house thereon, for them, as such, they decided to purchase the residential plot for the said purpose.  So, it is clearly proved that complainant No.1 purchased the said plot for residential purpose.

            It may be stated here that there is nothing, on the record to show, that the complainants are property dealers, and are indulged in sale and purchase of property, on regular basis. On the other hand, the complainants are salaried persons and every salaried person, just to secure his/her and future of his/her children, had a day dream to have his/her own residential unit and puts his/her entire life hard earnings, which is no way can be termed as for commercial purpose or speculation. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principal of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by complainant No.1, by way of investment/ speculative purposes. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected. 

17.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered physical possession of the unit, in question, to complainant No.1, complete in all respects or not. In the present case, Plot Buyer’s Agreement was executed on 17.08.2010 (Annexure C-3), and as per Clause 8 of the same, subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the unit, within a maximum period of 3 (three) years i.e. latest by August, 2013. The Opposite Parties are claiming that possession of the plot was offered in the year 2009. It is not understandable that how it is possible that the Opposite Parties offered possession of the plot, prior to the execution of Buyer’s Agreement i.e. Agreement was executed in the year 2010 and the Opposite Parties are claiming that possession was offered in 2009 i.e. one year before the execution of the Agreement.  Once it has been proved on record that possession of the unit, in question, can never be offered or delivered before execution of Buyer’s Agreement, the plea taken by the Opposite Parties in their written statement to the effect that they had already offered possession of the unit to the initial allottee, has no legs to stand.  Even otherwise, for the sake of arguments, if it is admitted that the said letter was ever sent, the Opposite Parties failed to prove by which mode the same was sent. Otherwise also, a letter without date and in the absence of evidence of mode of sending the same has no evidentiary value in the eyes of law.

18.          Now the question arises as to within which period, the delivery of possession of the unit, was to be given to complainant No.1. As stated above, possession of the unit was to be delivered to complainant No.1 within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by August, 2013. Annexure C-13 is a copy of the Possession Offer Letter. From this document, it is proved that the Opposite Parties sent possession offer letter dated 23.12.2015 in respect of the unit, in question, to complainant No.1 but it is only a paper possession because in the said letter complainant No.1 was asked to visit the site for inspection of her unit. After receipt of the said offer of possession, when complainant No.1 alongwith her husband i.e. complainant No.2 tried to visit the site, they were surprised to see that even access to the plot was not available, as entry points of the project have been sealed/fenced and trenches have been dug before it, so that nobody is able to enter in the project. Even the guards, deputed on their project site, did not allow the complainants to enter in the same.  The fact of sealing of the entries of project has been admitted by the Opposite Parties in number of complaints filed before this Commission, one of which is in the case of Dr. Manuj Chhabra Vs. M/s Emaar MGF Land Limited, Complaint Case No.140 of 2015, decided by this Commission on 05.11.2015, in this case the Opposite Parties i.e. Emaar MGF have candidly admitted that since the entries have been sealed by the Forest Department, they have written a letter dated 15.04.2015 to the GMADA to take up the matter with the Forest Department regarding sealing of entry points of the project, as they are bound to deliver possession to the customers. Not only this, in Praveen Kumar Arora Vs. Emaar MGF Land Limited, Consumer Complaint No.198 of 2015, decided by this Commission on 04.04.2016 alongwith 11 connected cases, in which, the Opposite Parties have admitted that they did not possess various permissions and that the project is still under litigation in Civil Court, Punjab (Kharar).

19.          No doubt, a plea is taken by Counsel for the Opposite Parties that since the Opposite Parties have already obtained Partial Completion Certificate (Exhibit OP/7) in respect of the project, in question, as such, it could very well be said that the development at site was complete and that the Opposite Parties were in possession of all the necessary approvals/sanctions and was ready to offer/deliver possession of the units to the allottees, including complainant No.1. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Exhibit OP/7)  clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Parties shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc., as is evident from the RTI information (Annexure C-14 to C-17) on record.   It is the duty of the Opposite Parties to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. However, on the other hand, as stated above, admittedly, the project is under litigation, for want of necessary approval(s) from the Forest Department, as also, various permissions, are still pending with the Departments/Competent Authorities. Thus, mere obtaining partial completion certificate by the Opposite Parties on 16.10.2015, without complying with the conditions contained therein by them (Opposite Parties), is of no help to them. Thus, it could very well be said that the offer of possession made by the Opposite Parties on 23.12.2015 (Annexure C-13), was a mere paper possession and nothing more than that. The plea taken by Opposite Parties, to the contrary, in this regard, therefore, being devoid of merit, is rejected.

20.          The next question that falls for consideration, is, as to whether, complainant No.1 was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to her vide letter dated 23.12.2015, i.e. after long delay of about  1 ½ years, and that too, in the absence of any force majeure circumstances. 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.

 

                   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, by the stipulated date, as mentioned in the Agreement, complainant No.1 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.

21.          The next question, that falls for consideration, is, as to whether, complainant No.1 is entitled for refund of the amount of Rs.67,58,734/-, as claimed by her,  towards the unit, in question. It is the admitted fact that complainant No.1 paid an amount of Rs.67,58,734/- in respect of her unit, as is evident from Statement of Account (Annexure C-5). The Plot Buyer’s Agreement was executed between the parties on 17.08.2010 and as per Clause 8 of the said Agreement, possession of the unit was to be delivered within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by August, 2013 but the Opposite Parties failed to deliver physical possession of the unit, in question, complete in all respects, to complainant No.1, within the stipulated period.     Even the Opposite Parties had no right, to retain the hard earned money of complainant No.1, without rendering her, any service.  In our considered opinion, complainant No.1 is entitled to refund of amount of Rs.67,58,734/-, deposited by her.

              At the time of arguments, Counsel for the Opposite Parties stated that when complainant No.1 sought refund of the amount, forfeiture clause is applicable upon her. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. It is clearly proved that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to give physical possession of the unit to complainant No.1, complete in all respects, within the stipulated period. So, it is clearly proved that the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount to complainant No.1. 

22.          The next question, that falls for consideration, is, as to whether, complainant No.1 is entitled to interest, on the deposited amount of Rs.67,58,734/-, if so, at what rate. Complainant No.1 was deprived of her hard earned money, to the tune of Rs.67,58,734/-, on the basis of misleading information, given by the Opposite Parties, that it would be hand over legal physical possession of the unit, in question, within a maximum period of 3 years from the date of execution of the Agreement. The Opposite Parties only offered paper possession. However, the Opposite Parties neither delivered physical possession of the unit to complainant No.1, despite receipt of the huge amount. Complainant No.1 was, thus, caused financial loss.  Hard earned money, deposited by complainant No.1, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by complainant No.1, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, complete in all respects, by the stipulated date, nor refunding the amount to complainant No.1, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Agreement, the Opposite Parties were charging interest @15% per annum compounded from complainant No.1. Under these circumstances, in our considered opinion, if  interest  @15% P.A. compounded, on the amount deposited by complainant No.1, from the respective dates of deposits, is granted, that will serve the ends of justice.  

23.          The next question, that falls for consideration, is, as to whether, complainant No.1 is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to her. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, complainant No.1 suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as it neither delivered physical possession of unit to her, complete in all respects, nor refunded the amount to her, despite repeated requests. Complainant No.1 purchased the unit, with the hope to have a roof over her head, by raising construction thereon, but her hopes were dashed to the ground. Complainant No.1, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. Complainant No.1, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

24.          No other point, was urged, by the 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.67,58,734/-, to  complainant No.1, alongwith interest compounded @ 15% per annum, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and harassment, to complainant No.1, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to complainant No.1.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% P.A., instead of interest compounded @ 15% P.A., from the respective dates of deposits, till realization, and interest compounded @15% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

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

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

Pronounced.

June 2, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

rb