Chandigarh

StateCommission

CC/380/2016

Mulkeet Singh - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Munish Goel, Adv.

21 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	380 of 2016
Date of Institution	:	22.07.2016
Date of Decision	:	21.02.2017

 

Mulkeet Singh s/o S. Dilip Singh r/o H.No.4704, R-Block, AWHO Flats, Sector 68, Darshan Vihar, Mohali – 160062.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through its Managing Director/Director/Partner/Authorized Signatory.
2. Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Director/Regional Manager/Branch Manager /Authorized Signatory.  

                                                    .... Opposite Parties

Argued by:      

 

Sh.  Munish Goel, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	443 of 2016
Date of Institution	:	09.08.2016
Date of Decision	:	21.02.2017

 

Malikat Singh son of Sh. Bhag Singh, resident of H.No.256, Sector 45-A, Chandigarh and now at #4051, Sector 68, SAS Nagar, Punjab.  

……Complainant

V e r s u s

1. Emaar MGF Land Pvt. Ltd., SCO 120-122, Sector 17-C, Chandigarh, through its Managing Director.
2. Emaar MGF Land Pvt. Ltd., ECE House, # 28 Kasturba Gandhi Marg, New Delhi through its Director.   

                                                                 .... Opposite Parties                 

Argued by:      

 

Sh.  Rakesh Bajaj, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	446 of 2016
Date of Institution	:	10.08.2016
Date of Decision	:	21.02.2017

 

1. Ranjan Narula s/o Late Sh.R.C.Narula, r/o House No.7, Birch Court, Nirvana Country, Sector 50, Gurgaon – 122018, Haryana.
2. Rachna Narula w/o Ranjan Narula, r/o House No.7, Birch Court, Nirvana Country, Sector 50, Gurgaon – 122018, Haryana.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi – 110001, through its Chairman /Managing Director/Director/Partner/ Authorized Signatory.
2. Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh, through its Chairman/Managing Director /Director / Regional Manager/ Branch Manager /Authorized Signatory. 

                                                     .... Opposite Parties

Argued by:      

 

Sh.  Munish Goel, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	679 of 2016
Date of Institution	:	06.10.2016
Date of Decision	:	21.02.2017

 

1.    Ms. Diljott Kaurr d/o Sh. Avtar Singh r/o H.No.2623, Sector 69, SAS Nagar, Mohali.

2.    Dr. Param Preet Ghuman w/o Sh. Avtar Singh r/o H.No.2623, Sector 69, SAS Nagar, Mohali.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi – 110001, through its Managing Director.
2. M/s Emaar MGF Land Ltd., SCO No.120-122, Sector 17-C, Chandigarh – 160017.
3. M/s Emaar MGF Land Ltd., through its Authorized Signatory Mohit Kaura, AGM Customer Services, SCO No.120-122, Sector 17-C, Chandigarh – 160017.  

                                                     .... Opposite Parties

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Sushil Kumar Attri, Advocate for the complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

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

1.	CC/380/2016	Mulkeet Singh	Vs.	Emaar MGF Land Limited & Anr.
2.	CC/443/2016	Malikat Singh	Vs.	Emaar MGF Land Pvt. Ltd. & Anr.
3.	CC/446/2016	Ranjan Narula & Anr.	Vs.	Emaar MGF Land Limited & Anr.
4.	CC/679/2016	Diljott Kaurr & Anr.	Vs.	M/s Emaar MGF Land Ltd. & Ors.

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

3.           At the time of arguments, on 23.01.2017, it was agreed between Counsel for the parties, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 380 of 2016, titled as “Mulkeet Singh Vs. Emaar MGF Land Limited”.

5.           The facts, in brief, are that the complainant booked a flat in the project of the Opposite Parties, after making the initial payment of Rs.7 lacs on 18.07.2008 vide receipt (Annexure C-1). Thereafter, Buyers Agreement was executed between the parties on 01.08.2008 (Annexure C-2). As per the Agreement, the Opposite Parties duly allotted flat in Tower L, unit No.L3-F05-503 having super area of 1930 sq. ft. having preferential location and reserved car parking at a total sale price of Rs.62,72,558/- to the complainant. It was stated that as per Clause 21 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment i.e. by 01.08.2011 and in case of failure, the Opposite Parties would be liable to pay penalty of Rs.5/- per sq. ft. per month of the super area to the allottee on account of delay in offering possession to the complainant. The complainant took a loan from HDFC Bank, which was sanctioned on 30.09.2008. It was further stated that the complainant went at the site of the project to know the status of construction and found that no construction had started at the site. The complainant immediately took up the matter with senior officials of the Opposite Parties, who vide their email dated 14.05.2009 (Annexure C-6) informed him that the construction would commence shortly. The complainant again wrote another email dated 22.07.2009 (Annexure C-7) to the Opposite Parties and enquired about the construction but they did not reply the same. It was further stated that the complainant made the payment, as and when demanded by the Opposite Parties (Annexures C-3 to C-5, C-8 to C-13 and C-16 to C-20). The complainant received an email dated 10.06.2014, vide which, the Opposite Parties informed him that they are in process of completing the Tower L and it would take another 10-12 months and, as such, possession would be given by June, 2015 (Annexure C-21). The complainant duly went to the Opposite Parties in June, 2015 and demanded possession but he found that there was no construction going on at the site. Therefore, the complainant demanded his money back and further wrote an email dated 08.08.2015 (Annexure C-22). It was further stated that the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainant and also they have not got the necessary approvals from the Government for carrying out construction.  It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

6.           The Opposite Parties, in their joint written version, have taken objection that this Commission has no jurisdiction to entertain the complaint, as it has been specifically mentioned in the Agreement that all the disputes should be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996.  It was further stated that as per Clause 8 of the Agreement, the possession was “endeavored” to be handed over within 3 years of execution of the Agreement. Thus, there was no definitive agreement stating that possession would definitely be delivered within 3 years and 90 days for occupation certificate. It is a well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract, more so when there is penalty clause under the Agreement for any alleged delay. It was further stated that the development is going on in full swing and the Opposite Parties were committed to hand over possession of the flat, in question, to the complainant after completion of amenities. It was further stated that the complainant did not fall within the definition of “Consumer” as per the Consumer Protection Act, 1986, as he purchased the unit for commercial purposes/speculation, because the complainant is a resident of Chandigarh and he has not disclosed as to what profession/business he is pursuing and why he want to purchase the second flat/house at Mohali. It was further stated that this Commission has no pecuniary jurisdiction as well as territorial jurisdiction to try and entertain the complaint. It was further stated that both the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that in case of failure of the allottee to perform all obligations as set out in the Agreement, the allottee has authorized the Company to forfeit the earnest money as stipulated in Clause 2(f) of the Agreement alongwith any interest paid, due or payable, any amount of non refundable nature. It was further stated that the complainant was provisionally allotted unit No.TVM L1-F05-501, which was booked on 11.07.2008 and paid the booking amount of Rs.7 lacs. On the request of the complainant, vide letter dated 24.07.2007, the Opposite Parties relocated TVM L3-F05-503 (Annexures R-1 & R-2). It was admitted regarding execution of the Agreement between the parties on 01.08.2008. It was further stated that the complainant purchased the unit for the total consideration of Rs.62,72,558/-. It was further stated that the structure work of Tower L has been completed and the Opposite Parties are expediting internal finishing and are expected to hand over possession of the unit by August, 2017. It was further stated that the complainant made the payment with little delay, resulting in delayed payment charges for Rs.1,11,242/-, however, waiver for the same has been given by the Opposite Parties to the complainant as a service gesture. Copy of statement of account is Annexure R-3. It was denied regarding receipt of email dated 22.06.2009 and stated that the said email was not sent on centralized email id. It was further stated that in case the complainant is genuinely in need of flat for his residence then relocation in different tower in same group housing could be offered to him, in which, possession could be handed over at the earliest. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

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

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

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

10.          The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Unit Buyer’s Agreement was executed between the allottee(s) and the Opposite Parties at Chandigarh (Annexure C-2). Not only this, even the receipts (Annexures C-1, C-3 to C-5 and acknowledgment-cum-receipts (Annexures C-9 to C-13, C-16 to C-20),  were also sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

11.          Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that the complainant in the prayer clauses of the complaint sought refund of the principal amount of Rs.54,66,811/- alongwith 18% compound interest p.a. ; to pay Rs.5/- per sq. ft. per month ; compensation of Rs.5 lacs for mental tension, harassment and mental agony and Rs.33,000/- as cost of litigation. So, if we counted the amount of Rs.54,66,811/- alongwith compensation and litigation expenses, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

              As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment reads thus :-

“13.  Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.         In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

 

15.         It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

12.          The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, as he purchased the unit for commercial purposes/speculation, also deserves rejection. The complainant in para No.31 of the complaint clearly stated that he purchased the flat for personal use/self-living. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties that the  complainant being investor/speculator, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

13.          Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the possession was “endeavored” to be handed over within 3 years from the date of allotment, as such, there was no definitive agreement stating that possession would definitely be delivered within 3 years , therefore, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that subject to force majeure conditions and reasons beyond the control of the Company, the Company proposes to hand over possession of the unit within a period of 36 months from the date of allotment and further grace period of 90 days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of allotment, as such, time was,  unequivocally made the essence of contract.

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

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

 

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

14.           The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. As per Clause 21.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment  and more than that. In the present case, the Opposite Parties placed on record copy of letter dated 15.07.2008 (Annexure R-1), from which it is clear that unit No.L3-F05-503 was allotted to the complainant vide the aforesaid letter and if we counted 36 months from 15.07.2008, the possession would be delivered to the complainant latest by 14.07.2011 but the Opposite Parties failed to offer/deliver possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement or by the time when the complaint was filed.  Moreover, the Opposite Parties already received a huge amount of Rs.54,66,811/-, towards the said unit. By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of allotment, the Opposite Parties failed to abide by the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

15.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.54,66,811/-, as claimed by him. It is an admitted fact that the complainant deposited an amount of Rs.54,66,811/-, as is evident from statement of account (Annexure R-3) and after receipt of the aforesaid huge amount, the Opposite Parties failed to deliver  possession of the unit, in question. It is pertinent to note that the Opposite Parties in para No.6 of their written statement, on merits, clearly stated that structure work of Tower L has been completed and Opposite Parties are expediting internal finishing and committed to hand over possession after completion. It was further stated that possession of the said flat is expected to be handed over by August, 2017. So, it is clear that Opposite Parties failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame or by the time when the complaint was filed. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

16.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.54,66,811/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right, implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.54,66,811/- alongwith interest compounded @15% p.a., from the respective dates of deposit, till realization. 

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

18.          Since we are granting the entire deposited amount to the complainant alongwith interest, compensation and litigation expenses, the complainant is not entitled to any other relief, as claimed by him.

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

20.          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.54,66,811/- to  the  complainant, alongwith interest compounded @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- (as prayed) to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest compounded @18% p.a.,  instead of @15% p.a. compounded from the respective dates of deposits onwards, and interest compounded @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

               

Complaint Case No.443 of 2016 titled ‘Malikat Singh Vs. Emaar MGF Land Pvt. Limited’

 

21.          Initially, plot No.230 was allotted to the complainant vide provisional allotment letter dated 09.05.2007 in Augusta Park, Sector 109, Mohali Hills, SAS Nagar for the total consideration of Rs.67,50,590/-. On the request of the complainant, the Opposite Parties allotted plot No.265 in same sector i.e. Sector 109. Plot Buyer’s Agreement was executed between the parties on 04.07.2007 and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 03.07.2010. However, the Opposite Parties failed to deliver possession of the unit to the complainant, despite receipt of the huge amount of Rs.48,68,749/- from him. According to the complainant, he visited the spot and found that there was no development in that area and, as such, Opposite Parties offered relocated unit in Sector 105, meaning thereby, they were not in a position to deliver the unit to the complainant. The complainant sent email dated 23.07.2014 and 31.07.2014 (Annexures C-5 & C-6) for allotment of the unit but the Opposite Parties did not pay any heed, despite receipt of legal notice dated 05.05.2016 (Annexure C-8), which amounted to deficiency in service and indulgence into unfair trade practice.   

22.          On the other hand, the Opposite Parties admitted regarding relocation of unit No.109-AP-265-500 on the request of the complainant dated 09.09.2007. It was admitted that the complainant paid the total amount of Rs.47,43,749/- in respect of the unit, in question and Rs.1,25,000/- as service charges. It was further stated that the Company offered relocation of the unit, where possession could be handed over immediately, subject to payment of outstanding amount of Rs.20,06,842/- and further to consider his request for waiver of delayed interest . It was further stated that possession could not be offered since the amenities/services have not been completed for the unit.

23.          It is the admitted fact that initially, the complainant booked the unit in Sector 109, Mohali and thereafter, on the request of the complainant, plot No.265 was relocated in the same sector i.e. Sector 109. It was admitted by the Opposite Parties in their written statement that the complainant paid the amount of Rs.47,43,749/- towards the price of the plot and Rs.1,25,000/- as service charges i.e. totaling Rs.48,68,749/-, as claimed by the complainant in the prayer clause. Even the Opposite Parties offered relocation to another unit, where they could immediately offered possession of the unit, subject to payment of some amount. As per the Agreement, possession was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 03.07.2010 but the Opposite Parties neither delivered possession of the unit to the complainant, complete in all respects nor by the time when the complaint was filed. It is pertinent to note that the Opposite Parties in para No.8 of their written statement clearly stated that possession could not be offered since the amenities/services have not been completed for the unit.  So, it is clear that the Opposite Parties were not in a position to hand over possession of the unit to the complainant because if they were ready for the possession, then why they offered to relocate the unit to the complainant. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by this Commission regarding the issue of sealing of project by Forest Department and other issues in Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

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

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

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

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

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

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

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

“x x x x xx

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

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

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed flats with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the Opposite Parties were not in a position to deliver possession of the unit to the complainant or by the time when the complaint filed, which clearly amounted to deficiency in service and indulgence into unfair trade practice on their part and the complainant is certainly entitled to refund the deposited amount of Rs.47,43,749/- and Rs.1,25,000/- as service charges because no services were provided by the Opposite Parties to the complainant, despite receipt of huge amount from him. So, the complainant is certainly entitled the total amount of Rs.48,68,749/- alongwith interest, compensation and litigation expenses.

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.48,68,749/- to  the  complainant, alongwith interest compounded @15% p.a., as per Clause 3 of the Agreement,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest compounded @18% p.a.,  instead of @15% p.a. from the respective dates of deposits onwards, and interest compounded @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Complaint Case No.446 of 2016 titled ‘Ranjan Narula & Anr. Vs. Emaar MGF Land Limited’

 

26.          In the present complaint, the complainants booked the unit in the project of the Opposite Parties and unit No.F3/GF-01 in Tower F was allotted to them for a total sale consideration of Rs.42,71,550/-, out of which, they paid the total amount of Rs.37,32,282/-. Apartment Buyer’s Agreement was executed between the parties on 27.03.2008 (Annexure C-2) and as per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment but they neither offered/delivered the unit, complete in all respects, to the complainants, despite repeated requests. This act of the Opposite Parties amounted to deficiency in service and indulgence into unfair trade practice.

27.          On the other hand, the Opposite Parties admitted regarding booking of the unit, allotment of the unit vide provisional allotment letter dated 13.03.2007, execution of the Agreement and receipt of the amount of Rs.37,32,282/- vide statement of account (Annexure C-4). It is also admitted by the Opposite Parties in para No.6 of their written statement that possession of the unit would be handed over to the complainant in December, 2017.   

28.          In view of the aforesaid admission of the Opposite Parties regarding handing over of possession by December, 2017 is clearly proved that the Opposite Parties neither in a position to deliver possession of the unit complete in all respects to the complainants, within the stipulated period, as mentioned in the Agreement, nor by the time when the complaint was filed, which amounted to deficiency in service and unfair trade practice.

29.          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.37,32,282/- to  the  complainants, alongwith interest compounded @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- (as prayed) to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest compounded @18% p.a.,  instead of @15% p.a. from the respective dates of deposits onwards, and interest compounded @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

Complaint Case No.679 of 2016 titled ‘Diljott Kaurr & Anr. Vs. Emaar MGF Land Limited & Ors’

 

30.          In the present complaint, the complainants booked the unit in the project of the Opposite Parties vide application dated 07.01.2011. The Opposite Parties allotted unit No.TVM H3-F06-601 in “The Views”, Mohali and issued provisional allotment letter dated 25.01.2011 (Annexure C-4).  Thereafter, Buyer’s Agreement was executed between the parties on 25.02.2011. The total sale consideration of the unit was fixed at Rs.49,52,768/-, out of which, the complainants paid the total amount of Rs.45,61,610.20 (Annexure C-3). As per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment i.e. latest by 24.01.2014 but they neither delivered possession of the unit, complete in all respects, to the complainants nor refund the amount to them, despite receipt of legal notice dated 04.06.2016, which amounted to deficiency in service and unfair trade practice.

31.          On the other hand, the Opposite Parties admitted regarding booking of the unit, allotment of the unit, execution of the Agreement. Opposite Parties admitted in para No.6 of their written statement regarding receipt of the amount of Rs.45,61,610/- . It is also admitted by the Opposite Parties in para No.10 of their written statement that the Company has already offered possession in two of the towers in the project and work is being expedited to hand over the balance towers at the earliest. The works upto external plaster on Tower H3 have already been completed and flooring work is under progress and possession to the complainants will be given soon.

32.          In view of the aforesaid admission of the Opposite Parties that flooring work is under progress and possession would be given soon, it is clear that they are unable to deliver possession to the complainants, complete in all respects, within the stipulated period nor by the time when the complaint was filed, which amounted to deficiency in service and unfair trade practice.

33.          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 of Rs.45,61,610/-, as is evident from statement of account, attached alongwith the written statement of the Opposite Parties, instead of Rs.45,61,610.20P (as demanded by the complainants), to  the  complainants, alongwith interest compounded @15% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2.00 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest compounded @18% p.a.,  instead of @15% p.a. from the respective dates of deposits onwards, and interest compounded @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

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

35.          Certified copy of this order be placed in Consumer Complaint Nos.443 of 2016, 446 of 2016 and 679 of 2016.

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

 

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

Pronounced.

February  21, 2017.                                       Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

Sd/-

 

 (PADMA PANDEY)

        MEMBER

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