Chandigarh

StateCommission

CC/111/2014

Mrs. Shailja Misra - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Sh. Sandeep Bhardwaj Adv.

29 Dec 2014

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	111 of 2014
Date of Institution	:	15.09.2014
Date of Decision	:	29.12.2014

Ms. Shailja Misra, wife of Sh. Navneet Misra, House No.2166/1, Sector 45-C, U.T. Chandigarh.

……Complainant.

Versus

1. Emaar MGF Land Limited, having its Corporate Office at ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/ Authorized Signatory.

2. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh 160017, through its Managing Director/Director/Authorized Signatory.

....Opposite Parties.

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

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

SH. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER.

Argued by:

Sh. Sandeep Bhardwaj, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

PER DEV RAJ, MEMBER

It was further stated that thereafter the said plot was purchased by Mrs. Devinder Kaur and Mr. Amon Vitayakovit from Mr. Kailash Kr. Rughwani vide endorsement dated 13.02.2008 and they made the payments vide Annexure C-2 (Colly.). It was further stated that Plot Buyer’s Agreement (Annexure C-3) was executed between Mrs. Devinder Kaur, Mr. Amon Vitayakovit and the Opposite Parties in respect of plot No.86. It was further stated that according to Clause 8 of the Plot Buyer’s Agreement dated 06.02.2008, the Opposite Parties were to hand over physical possession of plot within the maximum period of 36 months from the date of execution of the same i.e. by 05.02.2011, failing which they were liable to pay compensation/penalty @ Rs.50/- per square yard per month for the period of delay till the delivery of possession. It was further stated that thereafter, as demanded, Mrs. Devinder Kaur and Mr. Amon Vitayakovit made the following payments to the Opposite Parties towards the price of plot no.86:-

Sr. No.	Cheque No./ Receipt No.	Amount (Rs.)




		172500.00
		172500.00
		172500.00
		222786.00
		222786.00
		86250.00
		86250.00
		18,44,772.00
Paid by first allottee		12,07,500.00
Grand total		30,52,272.00

It was further stated that by 09.07.2009, the Opposite Parties received an amount of Rs.30,52,272/- and only the balance amount of Rs.5,98,842/- was required to be paid. It was further stated that, in the meantime, the complainant with a view to purchase a residential plot visited the site of the Opposite Parties and came to know that the plot, which was selected by her, had already been sold to Mrs. Devinder Kaur and Mr. Amon Vitayakovit by the Opposite Parties. It was further stated that the complainant came to know that Mrs. Devinder Kaur and Mr. Amon Vitayakovit were selling their plot. It was further stated that, accordingly, the complainant approached the Opposite Parties for transfer of the said plot in her favour. It was further stated that the complainant requested the Opposite Parties to show her the final “Lay Out Plan” and other necessary permissions/approvals in respect of the project, in question, but the same were not shown on the pretext that the same had already been finalized and obtained, which had been sent to its Delhi Office and would be shown later on. It was further stated that thereafter the Opposite Parties issued “No Objection Certificate” dated 23.08.2010 (Annexure C-4).
It was further stated that the complainant obtained loan from the HDFC Bank and, thus, the amount of Rs.30,52,272/-, which had already been paid by Mrs. Devinder Kaur and Mr. Amon Vitayakovit to the Opposite Parties, was paid by her to them (Mrs. Devinder Kaur and Mr. Amon Vitayakovit). It was further stated that, accordingly, agreement to sell was executed between the complainant and Mrs. Devinder Kaur and Mr. Amon Vitayakovit on 23.08.2010. It was further stated that on completing all the formalities in respect of transfer of plot, the same was transferred in the name of the complainant and, as such, endorsement dated 25.08.2010 in this regard was made by the Opposite Parties on all the required documents.
It was further stated that on the same day, the complainant was asked to pay a sum of Rs.10,44,278/-. It was further stated that since it was made known to the complainant at the time of transfer that only an amount Rs.5,98,842/- was left/due to be paid to the Opposite Parties, she objected for payment of Rs.10,44,278/-. It was further stated that the Opposite Parties told her to pay the same on account of some miscellaneous/delayed payment charges and left with no other alternative, she paid the total amount of Rs.10,44,278/- i.e. Rs.84,050/- vide cheque No.030164 dated 25.08.2010, Rs.2 lacs vide demand draft No.844013 dated 31.08.2010, Rs.3 lacs vide cheque No.021089 dated 25.08.2010, Rs.1,18,072 vide cheque No.030161 dated 25.08.2010, and Rs.3,42,156/- vide cheque No.030162 dated 25.08.2010. Receipts dated 26.08.2014, Annexure C-5 (Colly.) and 31.08.2010 (Annexure C-6) in this regard were issued to the complainant by the Opposite Parties, though inadvertently in the name of Mrs. Devinder Kaur whereas the payments were made by the complainant and her husband from their account. It was further stated that, in all, the Opposite Parties received the total amount of Rs.40,96,550/- i.e. Rs.4,45,406/- in excess, against the total sale consideration of Rs.36,51,144/-. It was further stated that more than the entire sale consideration i.e. more than 100% of price of plot had already been paid to the Opposite Parties.
It was further stated that the complainant requested the Opposite Parties to make refund of the excess amount but when nothing came positive, she wrote email dated 14.11.2010 (Annexure C-7) to send detailed statement of account. It was further stated that reminder was again sent vide email dated 30.11.2010 (Annexure C-8). It was further stated that after around 30 days, the Opposite Parties sent an email dated 12.12.2010 (Annexure C-9) alongwith which statement of account dated 03.12.2010 (Annexure C-10) was also sent. It was further stated that the complainant was surprised to see that despite making 100% payment, more amount of Rs.1,74,761/- was demanded from her, as reflected in the statement of account (Annexure C-10). It was further stated that in the said statement, the Opposite Parties admitted receipt of delayed payment charges to the tune of Rs.1,03,250/- and still amount of Rs.88,511/- was shown to be due. It was further stated that the complainant wrote email dated 13.12.2010 (Annexure C-11) to the Opposite Parties and requested them to rectify the demand and send the fresh statement of account. It was further stated that email dated 21.12.2010 (Annexure C-12) in this regard was also sent to Mrs. Anu Toor, but nothing came positive.
It was further stated that on 07.02.2011, an email (Annexure C-13) was received from the Opposite Parties, wherein it was intimated that the concern with regard to payments was being coordinated with Finance Department. It was further stated that since nothing positive came out in next one month, again reminder vide email dated 02.03.2011 (Annexure C-14) was sent to the Opposite Parties, wherein it was clearly mentioned by the complainant that she had been following since November 2010 regarding refund of excess payment as also providing the statement of account but all in vain. It was further stated that email dated 12.03.2011 (Annexure C-15) was also sent to Mr. Mohit Kaura, followed by various reminders dated 16.03.2011 Annexure C-16 (Colly.) but to no effect.
It was further stated that, in the meantime, the possession of the plot fell due to be delivered and it was assured by the Opposite Parties that intimation regarding possession would be given in writing and also the amount including the excess amount and compensation for delay would be paid soon. It was further stated that shockingly, the Opposite Parties vide email dated 16.12.2011 (Annexure C-17) i.e. about 10 months after the stipulated date (05.02.2011), intimated the complainant that the offer of possession had already been sent to her. It was further stated that in the said email, it was also intimated that the Opposite Parties had initiated community development works like parks, golf course, road, electrical lighting and setting up of STP, rain water and electric substations. It was further stated that till 16.11.2011, not even a murmur with regard to possession of the plot was made by the Opposite Parties to the complainant. It was further stated that since this intimation of offer of possession was contrary to the actual facts and was allegedly given only to avoid payment of compensation for the period of delay, the complainant on 19.12.2011 sent email (Annexure C-18) informing the Opposite Parties that she had not received any offer of possession in respect of plot till date. It was further stated that it was also informed vide the said email that there were discrepancies in the payments received by the Opposite Parties i.e. the excess payment. It was further stated that the Opposite Parties were again requested to send the statement of account and, as such, they sent statement of account dated 26.12.2011 (Annexure C-19 Colly.). It was further stated that in this statement of account, the Opposite Parties gave waiver of delayed payment interest to the tune of Rs.86,233/- and, as such, the total outstanding against the complainant was shown to be Rs.1413/-, which vide email dated 16.05.2014 was also waived. It was further stated that till 26.12.2011, the complainant was not to pay even a single penny and rather, she was entitled to the refund of excess payment received from her by the Opposite Parties.
It was further stated that again a different statement of account, Annexure C-20 (colly.) dated 29.12.2011 was sent to the complainant, wherein Rs.2,59,094/- were shown to be received in excess from the complainant, which were to be refunded to her. It was further stated that in the said statement of account, the fact of receipt of Rs.40,96,550/- against the total sale consideration of the plot of Rs.36,51,144/- could be very well seen. It was further stated that, therefore, this statement of account was a very significant piece of document/evidence, to reflect the correct picture with regard to the payments made to the Opposite Parties and also the excess amount to be refunded to the complainant. It was further stated that the total amount which was required to be paid by the complainant till August 2010, towards the said plot was Rs.36,51,144/- (+) Rs.1,86,312/- (delayed interest) and out of this delayed payment interest of Rs.1,86,312/-, the Opposite Parties waived off Rs.88,511/-, as reflected in statement of account dated 03.12.2010. It was further stated that, thus, the complainant was required to pay Rs.36,51,144/- (+) Rs.1,03,250/- i.e. total Rs.37,54,394/-. It was further stated that it was crystal clear from Annexure C-20 (Colly) that the Opposite Parties had received total amount of Rs.40,96,550/- and if Rs.37,54,394/- was subtracted from Rs.40,96,550/-, the amount received, in excess, came to be Rs.3,42,156/-. It was further stated that, on the other hand, the Opposite Parties while generating the statement of account dated 29.12.2011, Annexure C-20 (Colly), did not subtract the amount of wavier of Rs.86,233/- given by them vide statement of account dated 26.12.2011, Annexure C-19 (Colly.) and wrongly showed the amount of Rs.2,59,094/- received in excess, as reflected in Annexure C-20. It was further stated that, thus, from 31.08.2010 till date, the Opposite Parties were utilizing this amount of Rs.3,42,156/-.
It was further stated that thereafter, the complainant visited the office of the Opposite Parties for settlement of her account and also requested to handover possession of plot but they lingered on the matter on one pretext or the other. It was further stated that again in the month of March 2012, the complainant visited the site and saw that there was no development, where her plot was located. It was further stated that even the roads were not made to approach the plot what to speak of development activities. It was further stated that shockingly, the complainant received letter dated 15.01.2014 (Annexure C-21) i.e. after a delay of about more than 3½ years of the stipulated date (05.02.2011), intimating her to pay the amount of Rs.5,30,096.14Ps on or before 13.02.2014 and to take possession of the plot on the said date i.e. 13.02.2014. It was further stated that in the said letter, it was also mentioned that intimation of offer of possession had already been sent to the complainant vide letter dated 17.05.2010. It was further stated that a threat was also given that in case the complainant did not deposit Rs.5,30,096.14Ps and take possession of the plot by 13.02.2014, she would have to bear holding charges after that.
It was further stated that it was reflected from the contents of the aforesaid letter dated 15.01.2014 that part of amount of Rs.3,01,200/- was also subtracted by the Opposite parties and the same was shown under the head of Reverse EDC, whereas this amount was never demanded/received by the Opposite Parties, under the said head. It was further stated that even delayed payment charges to the tune of Rs.1,42,620/- were charged despite the fact that till August 2010 i.e. before the stipulated date, more than 100% amount towards the plot in question alongwith Rs.1,03,250/- towards the delayed payment interest had been received by the Opposite Parties by 31.08.2010. It was further stated that not only this, even the stamp duty charges in the letter dated 15.01.2014 were shown to be @8% totaling to Rs.4,32,000/-, whereas in Punjab, it was @7% for females. It was further stated that this fact was admitted by the Opposite Parties and an email dated 06.05.2014 (Annexure C-22 Colly.) with regard to rectification of the same stamp duty charges from Rs.4,32,000/- to Rs.3,78,000/- was sent. It was further stated that vide the said email, the Opposite Parties bluntly refused to pay compensation for the period of delay on account of the vague reason that offer of possession had allegedly been made vide letter dated 17.05.2010. It was further stated that had the offer of possession been allegedly made on 17.05.2010 then why vide letter dated 15.01.2014, the monthly maintenance charges were charged only from the year 2013 to 2015, which in fact, should have been from 2014 to 2015 which was again an obscurity.
It was further stated that when the Opposite Parties did not listen to the complainant with regard to the refund of excess amount, delivery of possession of the plot, in question, and also payment of compensation for the period of delay, she wrote email dated 14.05.2014 (Annexure C-23). It was further stated that the complainant wrote email dated 21.02.2014 (Annexure C-24) wherein it was specifically written that she had made visits to the site during the years 2012 and 2013 and there were no roads what to talk of development and further, till 15.01.2014, no offer of possession was sent to her. It was further stated that finally to prove their wrong stand of sending offer of possession, the Opposite Parties vide email dated 15.05.2014 (Annexure C-25) asked the complainant to pay the balance amount of Rs.3,87,476.14 and they, cunningly, alongwith the email dated 15.05.2014, sent a copy of letter dated 17.05.2010 (Annexure C-26) i.e. the alleged offer of possession letter, which was even unsigned by the allottees. It was further stated that before 15.05.2014, the said letter dated 17.05.2010 was never brought into picture despite the fact that the complainant clearly informed the Opposite Parties on 19.12.2011 vide email that she had not been offered possession. It was further stated that the Opposite Parties had created the letter dated 17.05.2010 just to escape themselves from the liability of payment of the penalty as mentioned in Clause 8 of the agreement. It was further stated that till 2013, the Opposite Parties were not even in a position to offer or deliver possession of the plots in the said Sector, as the “Layout Out Plans” for the same were got finalized/revised/approved and obtained by them from the Government of Punjab only on 13.01.2013. It was further stated that since in the instant case, neither the Lay Out Plan was finalized till 2013, nor could the plot be demarcated in the absence of Lay Out Plan, the question of offer and delivery of plot by 17.05.2010 did not even arise.
It was further stated that, as per the information obtained under the RTI Act, 2005, the Opposite Parties applied for the approval of revised lay out plan of sector 105 vide application dated 21.01.2008 which was got approved on 29.02.2008 (Annexure C-27). It was further stated that thereafter again the Opposite Parties applied for approval of revised lay out plan for sectors 98, 99, 104, 105, 106, 108, 109 and 110 vide application dated 22.02.2011 and the approval was granted on 21.10.2011 (Annexure C-28). It was further stated that thereafter again, the Opposite Parties applied for approval of revised lay out plan and the approval was granted on 13.02.2012 (Annexure C-29). It was further stated that thereafter again, the Opposite Parties applied for approval of revised lay out plan, which was granted on 31.01.2013 (Annexure C-30). It was further stated that as per the information obtained from GMADA (Annexure C-31), the Opposite Parties had not applied for obtaining certificates regarding commissioning of sewerage treatment plant, water commissioning, electric supply and electric grid station till 09.04.2014. It was further stated that as per information (Annexure C-32), there was no road connectivity to main city through connecting sectors till 09.04.2014. It was further stated that when the Revised Lay Out Plan was finalized on 31.01.2013, the alleged offer of possession letter sent on 17.05.2010 was totally false, misrepresentation, misleading. It was further stated that since in the year 2013 only, the final Lay Out Plan was got finalized and approved and obtained by the Opposite Parties, thus the provision of basic amenities and facilities in the year 2010 did not arise. It was further stated that, thus, the Opposite Parties were not legally entitled to handover the possession of the plots to the allottees in the year 2010.
It was further stated that the complainant wrote a detailed email dated 26.08.2014 (Annexure C-33) to the Opposite Parties, with a request to pay compensation for 42 months with future compensation, till delivery of possession and also to rectify the statement of account, and refund the excess amount but to no avail. It was further stated that finally a notice dated 30.08.2014 (Annexure C-34) was served upon the Opposite Parties, but to no avail.

15. 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to handover the legal physical possession of plot no.105-CP-86-300, to her, immediately, complete in all respects after obtaining necessary certificates/permission/approvals like, occupation, completion etc. etc. and get the sale deed and conveyance deed executed in respect of the same in her favour; refund the amount of Rs.3,42,156/-alongwith interest @12% P.A. from 31.08.2010 till realization; overhaul the amount demanded vide letter dated 15.01.2014 (Annexure C-21) & withdraw the illegal demand of delayed interest as mentioned in the said letter alongwith Club Membership charges as it was not required by the complainant; not to demand any more amount; pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard per month from 05.02.2011 till realization; compensation to the tune of Rs.5 lacs on account of mental agony, financial loss and physical harassment, and cost of litigation to the tune of Rs.50,000/-.

16. The Opposite Parties, filed their joint written statement on 24.11.2014. In the written statement, Opposite Parties, pleaded that the complaint was time barred as the same was filed more than two years after accrual of alleged cause of action. It was stated that possession was offered to the previous allottee vide letter dated 17.05.2010 (Annexure C-26) and reminder sent to the complainant on 16.12.2011 (Annexure C-17) to take possession and initiate construction, which she failed to do till date. It was further stated that the complainant was a re-allottee and had bought the present plot from secondary market and transfer was accepted vide letter dated 28.08.2010. It was further stated that, thus, the cause of action accrued to the complainant on 17.05.2010, when possession was offered for the first time or at best 16.12.2011 when reminder was sent. It was further stated that the complainant was barred by time. It was further stated that the complainant was not a consumer as she was a re-allottee and no service was to be provided to her by the Opposite Parties. It was further stated that since the complainant prayed for handing over the legal physical possession, the same had already been offered, the Commission was having no pecuniary jurisdiction to entertain the complaint. It was further stated that the complaint was not maintainable as there existed an arbitration clause no.42 in the Plot Buyer’s Agreement, as per which, all the disputes were to be referred to an Arbitrator.

17. It was further stated that the complainant purchased the plot from subsequent allottees, who had executed agreement dated 6.2.2008 with the Opposite parties, which was further endorsed in her favour on 25.8.2010/28.08.2010. It was further stated that the amounts were paid by the allottees in accordance with the payment schedule signed by them. It was further stated that the previous allottees failed to remit the installments as per the agreed payment plan and, resultantly, an amount of Rs.83,744/- alone was outstanding towards delayed payment charges as per the attached statement of account. It was further stated that though the Opposite Parties endeavored to offer possession within 3 years from the date of signing of agreement, it offered possession to the earlier allottees on 17.05.2010, which was well within the time line under Clause 8 of the agreement. It was further stated that the Opposite Parties received the amount of Rs.30,52,272/- uptil 09.07.2009 i.e. Rs.30,33,072/- against the basic sale price and Rs.19,200/- towards delayed payments charges. It was further stated that on 09.07.2009, an amount of Rs.6,18,072/- was outstanding. It was further stated that the complainant purchased the plot from secondary market and applied for transfer to the Opposite Parties. It was further stated that it was well within the knowledge of the complainant that possession had already been offered to the allottees vide letter dated 17.5.2010. It was denied that any assurance was given by the Opposite Parties regarding payment of penalty for delay, when admittedly possession had been offered to the previous allottees and there was no cause to offer penalty. It was further stated that the agreement having been endorsed in favour of the complainant on 25/28.8.2010, it was deemed that all approvals, permissions and layout had been inspected by her as set out under Clause D of the agreement dated 6.2.2008.

18. It was further stated that No Objection Certificate dated 23.8.2010 was issued only for the purpose of transfer clearly stating that the Company was not having any objection if the unit was transferred subject to compliance/completion of terms of nomination. It was further stated that the complainant was well aware of the dues on account of installments etc, which had not been paid by the previous allottees as was clear from the statement of account. It was further stated that it was clearly communicated to the complainant that the unit would only be transferred from the earlier allottess on payment of 100% of the amount demanded and the receipts would be issued in the name of the earlier allottees only as the property stood allotted to them. It was further stated that Rs.3,42,156/- paid by the complainant were towards additional EDC as demanded vide possession letter dated 17.5.2010 (Annexure C-26). It was further stated that it was proved beyond doubt that the complainant was well aware of this demand as also of the possession letter. It was admitted that the Opposite Parties received Rs.10,44,278/-, which included Rs.6,18,072/- towards basic sale price; Rs.3,42,156/- against revised EDC and Rs.84,050/- towards part delayed payments charges.

19. It was further stated that no excess amount was charged and hence, there was no cause for any refund. It was further stated that the complainant had paid the amount as per demand raised vide letter dated 17.5.2010. It was further stated that the statement of account reflected the correct information. It was further stated that since one cheque of Rs.86,250/- was not locatable at the end of the Opposite Parties, the complainant was requested to provide details to incorporate the said amount in her account. It was further stated that pursuant to having received the information about the said cheque, the said amount was incorporated in the accounts of the complainant as was apparent from Annexure C-19. It was further stated that since possession was offered within a period of 3 years, there was no cause for any compensation to be paid to the complainant. It was further stated that the statement of account as relied upon does not include the amount of additional EDC of Rs.3,42,156/- demanded vide intimation of possession letter dated 17.5.2010. It was further stated that it was on account of this, that the excess amount received was being reflected in Annexure C-20. It was further stated that the complainant could not take advantage of system generated statement of account, in which, due to technical error, the amount of additional EDC was not included. It was further stated that the statement dated 29.12.2011 showed receipt of Rs.40.96 Lacs. It was further stated that waiver of Rs.0.86 lacs, which was confirmed to the complainant, was adjusted in the account statement upon submission of indemnity by the complainant. It was further stated that the alleged excess amount was received on account of the revised EDC demanded from the earlier allottee vide letter dated 17.5.2010. It was further stated that the complainant failed to take possession and was now trying to make an illegal gain by trying to get possession through order of the Commission.

20. It was further stated that the complainant was never given the credit of Rs.3.01 lacs since the EDC rates were finalized @Rs.807/- per sq. yard from Rs.1,811/- per sq. yard, after revision of EDC charges by the State Government. It was further stated that the EDC was levied by and payable to the Government of Punjab. It was further stated that the EDC demanded at the time of offer of possession was as per the Government of Punjab notification dated 19.09.2007 vide which EDC charges were calculated @Rs.1811/- per sq. yard. It was further stated that since any increase or decrease in the government levy was to be borne by the complainant as per agreement, it was earlier demanded and subsequently due to revision in the EDC from Rs.1811/- per sq. yard to Rs.807/- per sq. yard, the same had been shown as excess received and, therefore, adjusted. It was further stated that the State Government revised EDC from time to time vide notifications dated 12.7.2006, 17.8.2007, 19.9.l2007, 11.1.2008, 22.6.2010 and lastly vide notification dated 6.5.2013 (Exhibit OP/4). It was further stated that since various revisions were notified from time to time, it was decided, in principle, to calculate the EDC payable on the date when final settlement of dues letter was sent to the complainant and, accordingly, the EDC was adjusted in the said letter. It was further stated that the rate of stamp duty was inadvertently mentioned incorrectly and was revised. It was further stated that the compensation for delayed possession was not payable as possession was offered within time-lines endeavored under the agreement.

21. It was further stated that all engineering services had been physically laid prior to offering possession and their plans also submitted to GMADA for approval, prior to offering of possession to original allottees/complainant. It was further stated that all amenities as per Clause 23 of the agreement were completed when possession was offered. It was further stated that the correspondence cited nowhere stated that the services were not physically laid. It was further stated that the design approval was obtained in due course. It was further stated that the execution of laying of the services was carried out as per guidelines laid by GMADA and, therefore, the same was also approved by the Competent Authority. It was further stated that no objection was ever raised by GMADA in this regard and, hence, the RTI information allegedly obtained was patently false, contrary to facts and law. It was further stated that amount of Rs.3,42,156/- was towards additional EDC which was again revised by the government and due credit of Rs.3,01,200/- was given in the letter dated 15.1.2014 (Annexure C-21). It was further stated that when the complainant herself was in default, there was no cause for seeking possession through Court and rather the Opposite Parties were competent to levy holding charges. 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. The remaining averments, were denied, being wrong.

22. The complainant filed replication, wherein, she reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.

23. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

24. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal) and Authorized Representative, by way of evidence, alongwith which, a number of documents were attached.

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

26. The Counsel for the complainant submitted that originally Mr. Kailash Kumar Rughwani booked a residential plot with the Opposite Parties and paid an amount of Rs.10,35,000/- plus Rs.75,000/- as booking amount and was allotted plot No.86 measuring 300 Sq. Yards in Central Park, Sector 105, Mohali Hills, SAS Nagar, Mohali @Rs.11,500/- per sq. yard vide provisional allotment letter dated 09.04.2007 (Annexure C-1), the total price whereof was Rs.36,51,144/-. He further submitted that Mr. Kailash Kumar Rughwani also paid Rs.1,72,500/- on 31.05.2007 towards the first installment. He further submitted that by 31.5.2007, he paid Rs.12,07,500/- out of the total sale consideration of Rs.36,51,144/-. He further submitted that subsequently, the said plot was purchased by Mrs. Devinder Kaur and Mr. Amon Vitayakovit from Mr. Kailash Kr. Rughwani and a Plot Buyer’s Agreement (Annexure C-3) was executed between them and the Opposite Parties on 6.2.2008. He further submitted that subsequently, the plot, in question, was purchased by the complainant from Mrs. Devinder Kaur and Mr. Amon Vitayakovit, which was transferred in her name on 25.08.2010 vide endorsement dated 25.08.2010 by the Opposite Parties. He further submitted that by 09.07.2009, the Opposite Parties received an amount of Rs.30,52,272/- and only the balance amount of Rs.5,98,842/- was required to be paid. He further submitted that, in all, the Opposite Parties received the total amount of Rs.40,96,550/- i.e. Rs.4,45,406/- in excess, against the total sale consideration of Rs.36,51,144/-, which meant that more than 100% of price of entire plot had already been paid to the Opposite Parties.

27. He further submitted that in terms of Clause 8 of the Plot Buyer’s Agreement, the Opposite Parties were to deliver possession of the plot within a period of two years from the date of execution of the same but not later than three years. He further submitted that the Opposite Parties besides delivering possession within the stipulated period under Clause 8, were also to grant 60 days time on offering of possession as per Clause 9 of Agreement and after expiry of 60 days of offer of possession for the purpose of payment of maintenance charges or any other taxes, levies, outflows on account of the plot or for any purpose were to be borne by the allottee (complainant). He further submitted that as per Clause 23, the Company was responsible to provide internal services within the project. He further submitted that the Opposite Parties in their letter dated 28.08.2010, addressed to the complainant, at Page 63, while confirming name addition formalities on 25.08.2010, also admitted receipt of a total sum of Rs.36,51,144/- against the property/plot in question. He further submitted that the complainant sought detailed account statement vide her email dated 14.11.2010 (Annexure C-7) and email dated 30.11.2010 (Annexure C-8), which the Opposite Parties submitted alongwith their email dated 12.12.2010 (Annexure C-9). He further submitted that on receipt of account statement, in which principal overdue and DLI overdue in the sum of Rs.86,250/- and Rs.88,511/- was shown, the complainant requested the Opposite parties to update the payment status. He further submitted that vide email dated 16.12.2011 (Annexure C-17), the Opposite Parties informed the complainant that “Pursuant to the offer of possession sent to you, we are pleased to confirm that you may apply to the Estate Officer, GMADA for the sanction of building plans to initiate construction on your said Plot….”. He further submitted that in the aforesaid email, it was also stated that “…Upon completion of the above and receipt of Completion Certificate from GMADA, we shall commence the process of execution and registration of sale deeds and shall keep you updated on further developments in relation…”

28. He further submitted that the complainant vide email dated 19.12.2011 (Annexure C-18) informed that the possession was not offered to her and there were discrepancies in the payments. He further submitted that as per email dated 28.12.2011 (Annexure C-19 Colly), the statement of account was sent by the Opposite Parties, according to which, there was total outstanding of Rs.1,413/- only. He further submitted that the statement indicated that delayed interest in the sum of Rs.1,03,250/- was received and DLI of Rs.86,223/- was waived off. He further submitted that as per account statement received vide email dated 29.12.2011 (Annexure C-20 Colly), against the demand of Rs.36,51,144/-, the payment made by the complainant was in the sum of Rs.40,96,550/-, including a sum of Rs.1,86,312/- on account of delayed interest and, thus, a sum of Rs.2,59,094/- was received in excess. He further submitted that possession was not offered till date and had the possession been offered, the Opposite Parties would have levied holding charges for not accepting the offer of possession. He further submitted that while as per account statement (Annexure C-22), the total outstanding shown was in the sum of Rs.4,55,883/-, as per Exhibit C-25, the outstanding amount was Rs.3,87,476.14. He further submitted that as per letter dated 15.1.2014 (Exhibit C-21), the outstanding amount was Rs.5,30,096.14. He further submitted that in letter dated 17.05.2010, it was mentioned that in case the terms and conditions were agreeable, consent was sought by 4^th June 2010 but the Opposite Parties slept over for years. He further submitted that the alleged offer of possession on 17.5.2010 was not proper and the possession was, in fact, offered in 2014. He further submitted that in email dated 6.5.2014, the delayed payment charges of Rs.83,744/- were waived of (Annexure C-22 Colly.). He further submitted that permissions were not placed on record by the Opposite Parties. He further submitted that vide communication dated 24.12.2010 (Annexure C-35), the Opposite Parties informed the Punjab Pollution Control Board that work was in progress and not completed in all sectors and that STP shall be installed in due course of time. He further submitted that as per Exhibit C-39, which was copy of agenda of Cabinet Meeting, the exemption under PAPRA was subject to exceptions mentioned therein.

29. He further submitted that the demands regarding various amounts were contrary to each other. He further submitted that the Opposite Parties were deficient in rendering service and also indulged into unfair trade practice.

30. On the other hand, the Counsel for the Opposite Parties, submitted that the amounts due were intimated to the complainant vide letter dated 17.5.2010 (Annexure C-26). He further submitted that email dated 16.12.2011 was reiteration of offer of possession already made. He further submitted that the amount of Rs.3,42,156/- was not excess payment as alleged by complainant but the same was on account of revised/additional EDC. He further submitted that there was no requirement for the Opposite Parties to obtain completion certificate as they were exempted under the PAPRA Notification. He further submitted that the Opposite Parties already requested the State Government vide letter dated 30.5.2013 for reiteration of exemption granted to them vide notifications dated 11.8.2006, 22.12.2006 and 22.1.2008 as was evident from PUDA letter dated 10.6.2013 (Exhibits OP/5 and OP/6 Colly.). He further submitted that the documents referred to by the complainant are the documents seeking extension of permissions. He further submitted that the amenities/formalities stood completed and other allottees have since taken over the possession. He further submitted that during the period 2011 to 2014, the complainant never stated that there was no development. He further submitted that in pursuance of the Cabinet Meeting note, there was no notification. He further submitted that no affidavit from the competent person in support of 12 documents placed in evidence alongwith rejoinder by the complainant was filed. He further submitted that the complainant was very well aware that the possession had already been offered on 17.5.2010 and she was not entitled to any compensation. It was submitted that neither there was any deficiency in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

31. It is evident that Plot No.86, measuring 300 square yards in Central Park, Sector 105, Mohali Hills, SAS Nagar, was originally allotted to Mr. Kailash Kr. Rughwani vide allotment letter dated 9.04.2007 (Annexure C-1). The first allottee deposited a total sum of Rs.12,07,500/- out of total sale consideration of Rs.36,51,144/-. Thereafter , the said plot was purchased by Mrs. Devinder Kaur and Mr.Amon Vitayakovit from Mr. Kailash Kr. Rughwani vide endorsement dated 13.02.2008 and they made the payments vide Annexure C-2 (Colly). Mrs. Devinder Kaur and Mr.Amon Vitayakovit made payments in the sum of Rs.18,44,772/-, besides Rs.12,07,500/- paid by first allottee. By 9.07.2209, the Opposite Parties received a total sum of Rs.30,52,272/-. On the request of complainant, Opposite Parties issued “No Objection Certificate” dated 23.08.2010 in favour of complainant (Annexure C-4) and Plot Buyer’s Agreement was endorsed in her favour. As per Clause 8 of Plot Buyer’s Agreement, possession was to be handed over by 05.02.2011.

32. Against the total sale consideration of Rs.36,51,144/-, the complainant has averred that payment made to Opposite Parties was Rs.40,96,550/- (Annexure C-20 Colly).

33. An objection was raised by the Opposite Parties as regards the existence of arbitration clause in the Buyer’s Agreement. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996)6 SCC 385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

34. The question, that falls for consideration, is, as to whether the complaint filed by the complainant, was barred by limitation or not. While the Opposite Parties have averred that possession was offered to Mrs. Devinder Kaur, previous allottee, vide letter dated 17.05.2010 (Annexure C-26), the complainant has stated that the same was received by her for the first time along with email 15.5.2014 (Annexure C-25). It is evident from email dated 16.12.2011 (Annexure C-17), that the Opposite Parties informed the complainant that pursuant to the offer of possession sent to her, she could apply to the Estate Officer, GMADA for the sanction of building plans to initiate construction on her plot. In the email aforesaid, the Opposite Parties had also stated that they had already initiated community development works and upon completion, they shall commence the process of execution and registration of sale deeds. In reply to aforesaid email, the complainant vide her email dated 19.12.2011 (Annexure C-18) informed the Opposite Parties as under:

“This is in ref to your mail sent by your team following are the Queries:

Possession has not been offered to us for Unit No.105-CP-86-300.
Discrepancies in payments made to EMAAR, mails have marked to Mohit and Dharminder.”

The Opposite Parties vide email dated 28.12.2011 (C-19) sent account statement as on 26.12.2011 but remained silent to the query of the complainant that she had not received the offer of possession. The offer of possession allegedly made to Mrs. Devinder Kaur, previous allottee, vide letter dated 17.05.2010 (Annexure C-26) was received by the complainant along with email 15.5.2014 (Annexure C-25) and, in the absence of any evidence produced by the Opposite Parties that letter dated 17.05.2010 was either endorsed in favour of complainant or sent to her (complainant), benefit of not endorsing/sending letter dated 17.05.2010 deserves to be afforded to the complainant. Thus, it cannot be accepted that possession was offered to the complainant on 17.05.2010. Consequently the contention of the Opposite Parties that possession having been offered on 17.05.2010 the complainant was barred by limitation, is not sustainable being devoid of merit, and the same stands rejected.

35. The next question which falls for consideration, is, as to whether the complainant, being a re-allottee is a consumer or not. No doubt, the complainant purchased the plot from the previous allottees i.e. Mrs. Devinder Kaur and Mr. Amon Vitayakovit. As is evident from letter dated 23.08.2010, the Opposite Parties granted no objection to the transfer of Plot No.86 in favour of complainant and charged a sum of Rs.75000/- towards transfer. When the plot buyer’s agreement (Annexure C-3) was endorsed in favour of complainant, the terms and conditions thereof were binding upon complainant and Opposite Parties. The complainant, having stepped into the shoes of previous allottee, was consumer qua Opposite Parties. The Counsel for Opposite Parties, by placing reliance on Haryana Urban Development Authority versus Raje Ram, 1(2009) CPJ 56, has contended that the complainant is not a consumer. On the other hand, the Counsel for complainant contending that complainant is a consumer placed reliance on Vatika Limited Versus Mr.Rajneesh Aggarwal, Revision Petition No.525 of 2013, decided by the National Commission on 22.07.2014. In this case, the apartment, in question, was initially allotted to one H. Vikram (HUF) vide agreement dated 9.3.2004 but in August 2004, the aforesaid allottee approached the petitioner company for reallotment/assignment of the apartment in favour of one Shri Inderjeet Garg and the same request was allowed by the petitioner company. Thereafter again in April 2006, said reallottee Shri Inderjeet Garg approached the petitioner company for further reallotment/reassignment of the said apartment in favour of the respondent/complainant which request was accepted upon acceptance of the terms and conditions of the said reallotment/reassignment and the agreement by the respondent/complainant. Thus, the respondent was a second allottee of the original allotment, more than 2 years later. In view of this, learned counsel submitted that the respondent was not a consumer being reallottee and for that matter the second reallottee keeping in view the law laid down by the Apex Court in the case of H.U.D.A VS. Raje Ram [1 (2009) CPJ 56 (SC)]. The counsel for petitioner/ opposite parties had submitted that the respondent/ complainant was neither entitled to any relief for the so-called delay in terms of the provisions of the original agreement to which the respondent had become a party having accepted its conditions on assignment of the flat consequent upon reallotment in his favour and also the complaint itself was not maintainable in terms of the ratio laid down by the Apex Court in HUDA Vs. Raje Ram’s case (supra). The National Commission, in para 8 of its order held as under:

“8……………..The Foras below have already considered the aspects brought out by the petitioner company in the revision petition and nothing has been produced before us which would persuade us to take a different view. So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provided to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company .”

In our opinion, the facts of the instant complainant, are squarely covered by the facts in the Vatika Limited case (supra) and, as such, the complainant is a consumer. The objection raised by the Opposite Parties is, therefore, not sustainable, being devoid of merit, and the same stands rejected.

36. The next question that falls for consideration, is, as to whether the Opposite Parties, were, deficient, in rendering service, in delivering possession, as per the terms and conditions of the Plot Buyer’s Agreement. Clause 8 of the Plot Buyer’s Agreement dated 6.2.2008, endorsed in favour of complainant vide endorsement on 25.08.2010, which is extracted below:-

“8. Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver the possession of the Plot to the Allottee within a period of 2 (Two) years from the date of execution of this Agreement, but not later than 3 (Three) years. In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company exists. In the event that the Company fails to deliver possession of the plot without existence of any force majeure event or reason beyond the control of the Company within a maximum period of 3(Three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of the sum of Rs.50/- (Rupees Fifty only) per sq. yds per month for such period of delay beyond 3(Three) years from the date of execution of this Agreement.”

37. Though the Opposite Parties claim that possession was offered vide letter dated 17.5.2010, yet the complainant has asserted that the same was never received by her. Despite apprising the fact of non-receipt of letter dated 17.5.2010 by the complainant, vide email dated 19.12.2011(Annexure C-18), the same was received by her only along with email dated 15.5.2014. The Opposite Parties have also not adduced any evidence if the letter dated 17.5.2010 was sent to the previous allottees. The complainant has also stated that Opposite Parties could not offer possession on 17.05.2010 as approval of revised lay out plan of Sector 105 was sought vide applications dated 21.01.2008, dated 22.02.2011, 26.11.2011, and 16.04.2012 was granted on 29.2.2008, 21.10.2011, 13.02.2012 and 31.01.2013 (Annexure C-27, C-28, C-29 and C-30) respectively.

38. The Plot Buyer’s Agreement having been executed on 6.2.2008, computing maximum period of three years there from, the Opposite Parties were required to deliver possession by 5.2.2011, and, the same was offered to the complainant on 15.01.2014 and thus the same was offered, after delay of around 35 months. The complainant is, therefore, entitled to penalty in the sum of Rs.50/- (Rupees Fifty only) per sq. yard per month for such period of delay beyond 3(Three) years i.e. beyond 5.2.2011.

39. As regards exemption from PAPRA 1995, the Opposite Parties have placed on record copy of letter bearing No.PUDA-STP/2013/4848 dated 10.06.2013 which states that EMAAR MGF had been granted exemption under the PAPRA including exemption under Section 14 of the PAPRA,1995. It is clearly evident from Notification bearing endorsement No.18/41/2006-5HG-II/7397 dated 11.8.2006, that the Opposite Parties (M/s EMAAR MGF Land Private Limited) have been exempted from all provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995) for its Housing Project in an area of 106.66 acres at Sector 105, SAS Nagar, except Section 32, subject to the terms and conditions specified in the said Notification. It is also evident from exhibit Annexure C-36 that among other areas, land measuring 106.66 acres in Sector 105 was exempted under Section 44(2). Section 14 of the Act is reproduced hereunder:-

14.(1) It is the responsibility of the promoter:-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority, and

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under Section 5.

(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.

In view of the exemption aforesaid, the Opposite Parties were not required to obtain completion certificate. The documents placed by the complainant, on record, by way of Exhibits C-35, C-36, C-40, C-41 and C-42, pertained to the period much earlier to 15.1.2014, when possession was offered and the same do not, in any way, depict the status of permissions/approvals on the date of offer of possession. The reliance on the cabinet meeting note (Annexure C-39) by the complainant is of no help to her as the amendments were suggested to be incorporated in the overall procedure notified by Deptt. of Industries & Commerce vide memo No.4146 dated 29.10.2007. Nothing has been brought on record as to what was the follow-up action pursuant to the aforesaid meeting note. In the absence of any documents showing that the amendment was effected in the project of the Opposite Parties, no deficiency can be attributed to the Opposite Parties. On the other hand, the Opposite Parties have produced, on record, the Notification dated 12.8.2006 (Exhibit OP/5) and letters dated 30.5.2013 and 10.6.2013 (Exhibits OP/6 Colly). The contention of the complainant that the Opposite Parties did not have necessary approvals, permission is an afterthought.

40. The next question which falls for consideration as to the payments made by the complainant and due to be paid. The complainant has submitted that against the total sale consideration of Rs.36,51,144/- + Rs.1,03,250/- = Rs.37,54,394/-, the total payment made was in the sum of Rs.40,96,550/- and thus the amount in the sum of Rs.3,42,156/- was received in excess by the Opposite Parties. The complainant has stated that different and contrary account statements were submitted by the Opposite Parties. To arrive at the factual position, it would be necessary to look into contents of statements of account submitted by Opposite Parties.

41. The statement of account dated 3.10.2010 (Annexure C-10) indicated receipt of payment by Opposite Parties as under:-

Amount paid Amount Due

Principal amount :Rs. 35,64,894-00 Rs. 86,250-00

DLI amount :Rs. 1,03,250-00 Rs. 88,511-00

EDC :Rs. 3,42,156-00

Total :Rs.40,10,300-00 Rs.1,74,761-00

42. The statement of account dated 26.12.2011 (Annexure C-19) indicated receipt of payment by Opposite Parties as under:

Principal amount :Rs.36,51,144-00

DLI amount :Rs. 1,03,250-00

EDC :Rs. 3,42,156-00

Total :Rs.40,96,550-00

As per this statement of account, the delayed interest amount was in the sum of Rs.1,90,886-00 out of which, a sum of Rs.86,223-00 , was waived, and, therefore, total outstanding was Rs.1,413-00 on account of DLI [Rs.1,90,886 – Rs.1,03,250 + Rs.86,223 = Rs.1413/-). Since a sum of Rs.86,223-00 was waived off, the actual variation with regard to amount deposited as per the two statements was only Rs.86,250 (Rs.40,96,550 - Rs.40,10,300 = Rs.86250). The statement of account (Annexure C-20 Colly) as on 29.12.2011 indicated payment made in the sum of Rs.40,96,550-00 and Rs.2,59,094-00 in excess. Besides, payment in the sum of Rs.75,000-00 was extra.

43. The Opposite Parties vide letter dated 15.1.2014 informed the complainant that dues in the sum of Rs.5,30,096.14Ps. were payable by it (complainant) before execution and registration of conveyance deed in favour of complainant. While raising the aforesaid demand, the Opposite Parties reversed/deducted a sum of Rs.3,01,200/- on account of EDC.

44. As per statement of account as on 05.05.2014 (C-22 Colly), total outstanding against the complainant was indicated to be Rs.4,55,883-00 besides Rs.4,86,000-00 on account of stamp duty and registration charges and Rs.75,546-00 on account of water connection, interest free maintenance security, electrification and electricity connection charges.

45. The complainant in para 37 of the complaint has submitted the chart of amount which is required to be refunded to her and the amount which is payable by her, and the same is extracted hereunder:

Description	Amount	A
Total price of plot	3651144.00	B
Actually paid	4096550.00	C
Delayed interest as per statement of account dated 29.12.2011 Annexure C-19(colly)	103250.00	D
Refund needed to be made to the complainant (C-D)	342156.00
DEMAND TO BE MADE FOR REGISTRATION
Club Membership charges	00 (since optional as per Buyers Agreement, hence not required.	E
Registration Charges Rs.54000/-	54000.00	F
Stamp Duty Charges @7% instead of 8% the complainant being female	378000.00	G
IFMS	30000.00	H
Electricity Connection	24196.00	I
Water Connection	7100.00	J
Monthly Maintenance	15337.00	K
Total demand(E+F+G+H+I+J+K)	508633.00	L
To be paid by the complainant to the OPs(F+G+H+I+J+K) – (D)	508633.00 – 342156.00 = 166477.00
Compensation for delay for 42 months plus future compensation i.e. from 05.02.2011 to 05.09.2014 (43 months) Rs.15000 x 43	645000.00
To be paid by the complainant M-N	-Rs.478523.00 (plus future compensation

46. The Opposite Parties in their letter dated 15.01.2014 (Annexure C-21) informed the complainant regarding the commencement of process of execution and registration of conveyance deed and sought payment on account of following by 13 February, 2014 to enable them to hand over the possession of the Plot:

Sr.No.	PAYABLE COMPONENTS.	Amount Payable (Rs.)
1.	Over-dues (if any) including applicable Service Tax as on date	-567.00
2.	Delayed Payment Charges as applicable	142,620.00
3.	Electrification Charges @ 47.5 per SYD	14,250.00
4.	Club Membership charges Rs.100000/-	112,360.00
5.	Registration Charges Rs.54000/-	54,000.00
6.	Stamp Duty Charges Rs.4,32,000/-	432,000.00
7.	Reverse EDC Rs. -301200	-301,200.00
8.	Interest Free Maintenance Security @ 100 per SYD	30,000.00
9.	Electricity Connection Charges Rs.24,196.00	24,196.00
10.	Water Connection Charges Rs.7100/-	7,100.00
11.	Monthly Maintenance Charges from 01 Feb-2013 to 31- Mar-2015 @ 3.25 Per Sq Yd + Service Taxd @ 12.36%	15,337.15
	Total	530,096.14

47. From a comparison of the payable amounts admitted by the complainant in para 37 of the complaint and extracted above, with those demanded by the Opposite Parties in Annexure C-21, there is no dispute in regard to the following components:

Registration Charges Rs.54000/-	54000.00
Stamp Duty Charges @7% instead of 8% the complainant being female	378000.00
IFMS	30000.00
Electricity Connection	24196.00
Water Connection	7100.00
Monthly Maintenance	15337.00
TOTAL	508633.00

48. The Opposite Parties demanded stamp duty charges in the sum of Rs.4,32,000.00 @8% but the complainant contended that being a woman, stamp duty charges @7% are payable. The Opposite Parties in their email dated 6.5.2014 (Annexure C-22 colly) accepted the contention of the complainant that the same (charges) are in the sum of Rs.3,78,000.00. Regarding Electrification Charges @ 47.50 per SYD in the sum of Rs.14,250/- in the absence of any objection by the complainant, the same are payable. In so far as club charges of Rs.1,12,360.00 are concerned, since the complainant has specifically asserted that she would not be availing the facility, the same are not required to be paid. Thus, the payable amount by the complainant works out to be Rs.5,22,883/- (Rs.5,08,633.00 + Rs.14,250.00).

49. As regards delayed payment charges, while the complainant has stated that the same were in the sum of Rs.1,03,250-00 as is evident from Statement of Account as on 29.12.2011 (Annexure C-20 Colly) which already stood paid. Demand of Rs.1,42,620.00 by Opposite Parties in Annexure C-21, being without any basis, is neither correct nor justified. In our considered opinion, these charges are not payable by the complainant.

50. Regarding Rs.3,42,156.00, which the complainant claims were deposited in excess with the Opposite Parties, statement of account, Annexure C-20 colly clearly depicts payment of Rs.40,96,550.00 against demand of Rs.36,51,144.00. As per this statement, the excess receipt is shown in the sum of Rs.2,59,094.00 and the same has been arrived at after accounting for delayed interest in the sum of Rs.1,86,312.00 whereas it is clear from the statement of account aforesaid that delayed interest in the sum of Rs.84,050-00 was included in payment of Rs.40,96,550.00 whereas as per statement of account (Annexure C-19 colly), the delayed interest was Rs.1,90,886-00 out of which Rs.1,03,250-00 was acknowledged to have been received by the Opposite Parties and Rs.86,223-00 were waived off. The due amount on account of DLI was only Rs.1,413-00. Therefore, in the absence of any justification, the statement of account Annexure C-20 is apparently not correct.

51. It is also evident from account statement (Annexure C-19 colly) that EDC paid was in the sum of Rs.3,42,156-00 whereas the complainant has stated that amount to the tune of Rs.3,42,156.00 was paid in excess. Opposite Parties in para 15 on merits, in their written statement have submitted that they (Opposite Parties) had received the amount of Rs.10,44,278-00 viz. Rs.6,18,072-00 against the basic sale price, Rs.3,42,156.00 against revised EDC and Rs.84,050-00 towards part delayed payment charges. Perusal of Receipts dated 26.08.2010 (Annexure C-5 colly) reveals that the same were inclusive of aforesaid amount of Rs.3,42,156.00. Thus the amount in the sum of Rs.3,42,156-00 was not, in fact, excess, as wrongly projected by the complainant but was on account of revised EDC charges as is clearly evident from receipt dated 26.08.2014 (Page 69 of the file). As per clause 2(d) of the Plot Buyer’s Agreement, EDC could be increased. The relevant part of clause 2(d) is extracted hereunder:-

“2(d)………………The allottee agrees and undertakes to pay to the Company any further amount levied as EDC or any increase thereto by the Competent Authority, Government of Punjab, by whatever name called or in whatever form and manner and with all such conditions imposed by the Government and/or any competent authority (ies). Any increase in EDC shall be borne and paid by the Allottee in proportion to the area of the Project directly to the Company within 30 (Thirty) days of the receipt of any such communication.”

However, as is evident from Annexure C-21, EDC charges in the sum of Rs.3,01,200.00 have been reversed, apparently on account of reduction in such charges and benefit stands afforded to the complainant. Thus the grievance of complainant to that extent stands redressed. In our opinion, no deficiency in rendering service and indulgence into unfair trade practices, could be attributed to Opposite Parties for the alleged excess payment, which, in fact, was on account of increase in EDC.

52. The complainant is, thus, required to pay a sum of Rs.5,08,633 + Rs.14,250/- on account of electrification charges = Rs.5,22,883 – Rs.3,01,200 (reverse EDC charges) = Rs.2,21,683.00 instead of Rs.5,30,096.14 Ps. as demanded in Annexure C-21. On payment of this amount, the Opposite Parties shall hand over possession to the complainant and execute conveyance.

53. In fact, the complainant has herself admitted that payment in the sum of Rs.166477.00 was payable by her but she even did not deposit that amount. As per analysis made above, a sum of Rs.2,21,683/- is required to be paid by the complainant. On the other hand, on the date of filing the complaint, a sum of Rs.6,45,000/- was payable by the Opposite Parties on account of compensation @Rs.50/- per Sq. Yard per month for the period of delay w.e.f. 5.2.2011 till 15.09.2014.

54. In view of the above discussion, it is held that the complainant suffered physical harassment and mental agony, at the hands of the Opposite Parties, for which, she is, thus, entitled to compensation in the sum of Rs.1,00,000/- (Rupees One Lac only).

55. The Opposite Parties were, thus, deficient in rendering service and indulged into unfair trade practice by not handing over the actual physical possession of the plot by the stipulated date to complainant and by not paying compensation as provided for in the Agreement.

56. No other point, was urged by the Counsel for the Parties.

57. For the reasons recorded above, the complaint is partly accepted, with costs, directing the Opposite Parties, jointly and severally, in the following manner:-

(i) The complainant shall make the payment of Rs.2,21,683/- as against demand of Rs.5,30,096.14Ps, to the Opposite Parties, within a period of one month from the date of receipt of a certified copy of the order. No other amount on account of stamp duty and registration charges etc. shall be payable by the complainant.

(ii) The Opposite Parties shall hand over the legal physical possession of plot No.86 measuring 300 Square yards in Central Park, Sector 105, SAS Nagar Mohali, Punjab, complete in all respects, as per the terms and conditions of the Agreement, within a period of two months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant as indicated in Clause (i) above.

(iii)The Opposite Parties shall execute the sale deed/conveyance and get it registered in the name of the complainant after handing over the actual physical possession of unit, in question, as per direction in Clause (ii), above, within a period of one month thereafter.

(iv) The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 05.02.2011 (the promised date of delivery of possession), till delivery of possession of plot No.86 measuring 300 Square yards in Central Park, Sector 105, SAS Nagar Mohali, Punjab, to the complainant, as per Clause 8 of the Plot Buyer’s Agreement (Annexure C-3).

(v) The Opposite Parties, are further directed to pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac only), on account of mental agony and physical harassment, caused to the complainant, at their hands, within a period of two months from the date of receipt of a certified copy of the order.

(vi) The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

(vii)In case, the possession is not handed over within the stipulated period of two months, as indicated in Clause (ii), above, compensation granted to the complainant, as mentioned in Clause (iv) and Clause (v), above, shall be paid by the Opposite Parties alongwith penal interest @12% per annum from the date of filing the complaint, till the date of actual payment and delivery of possession, besides payment of costs of litigation.

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

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

Pronounced.

December 29, 2014.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

STATE COMMISSION

(Consumer Complaint No.111 of 2014)

Mrs. Shailja Mishra

Vs.

Emaar MGF Land Limited & Another.

Argued by:

Sh. Sandeep Bhardwaj, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

Dated the 29^th day of December, 2014

ORDER

On 17.12.2014, an application, for placing on record, copies of notification dated 11.08.2006 and letters dated 30.5.2013 & 10.06.2013 as Exhibits OP/5 and OP/6 (colly.), by way of additional evidence, was moved by the applicants/Opposite Parties on the ground, that the same are essential for the just decision of the complaint.

2. Arguments, on the application for placing on record, copies of notification dated 11.08.2006 and letters dated 30.5.2013 & 10.06.2013 as Exhibits OP/5 and OP/6 (colly.), by way of additional evidence, by the applicants/Opposite Parties, heard.

3. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. In the facts and circumstances of the case, though the complaint is at the stage of final arguments, yet to effectively adjudicate the issues involved therein, and to arrive at the just decision of the case, in our considered opinion, the documents sought to be placed on record are very much necessary. Thus, there is justification, to allow the application, for placing, on record, the aforesaid documents by way of additional evidence.

4. Accordingly, the application dated 17.12.2014 for placing, on record, the aforesaid documents by way of additional evidence is allowed and the same are taken on record.

5. The Counsel for the complainant does not want to lead any rebuttal evidence to the additional evidence.

6. Arguments, in the main complaint, already heard.

7. Vide our detailed order of the even date, recorded separately, the complaint has been partly accepted with costs.

Chandigarh

StateCommission

CC/111/2014

Mrs. Shailja Misra - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Sh. Sandeep Bhardwaj Adv.

29 Dec 2014

ORDER

STATE COMMISSION

(DEV RAJ)

MEMBER

(JUSTICE SHAM SUNDER (RETD.))

PRESIDENT

(PADMA PANDEY)

MEMBER

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