Chandigarh

StateCommission

CC/55/2020

Rabinder Pal Singh - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

19 Nov 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	55 of 2020
Date of Institution	:	24.02.2020
Date of Decision	:	19.11.2020

 

Rabinder Pal Singh S/o Sh.Satwant Singh Bhatia R/o House No.486, Sector 63, S.A.S. Nagar, Mohali.

……Complainant

V e r s u s

1. Emaar MGF Land Ltd, Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali through its Managing Director, Sh. Hadi Mohd Taher Badri and Chief Executive Officer, Sh. Prashant Gupta.
2. Hadi Mohd Taher Badri, Managing Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.
3. Prashant Gupta, Chief Executive Officer of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali 160062.
4. Shivani Bhasin, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.
5. Mohamed Ali Rashed Alabbar, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali- 160062.
6. Haroon Saeed Siddiqui, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.
7. Sudip Mullick, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.
8. Jason Ashok Kothari, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.
9. Jamal Majed Khalfan Bin Theniyah, Director of Emaar MGF Land Limited, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali-160062.

….Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

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

Sh.Anil Mehta, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted by the complainant seeking directions to the opposite parties, to refund the amount of Rs.40,82,251/- paid by him towards purchase of plot no.281, measuring 300 square yards, in the project named “Central Greens”, Mohali Hills, Sector 105, SAS Nagar, Mohali. Total sale consideration of the plot was fixed at Rs.40,82,394/-. It is the case of the complainant that despite the fact that on demands made by the opposite parties, from time to time, he paid total amount of Rs. 40,82,251/-, for the period between 31.08.2006 to 16.04.2010, yet, actual physical possession of the said plot was not delivered by 10.07.2010 i.e. within a period of three years, as envisaged under Clause 8 of the agreement dated 11.07.2007 (Annexure C-4), for dearth of development activities at the project site and also necessary approvals from the competent Authorities. On the other hand, the opposite parties sent letter dated 22.07.2015, Annexure C-6, wherein it was intimated to the complainant that possession of the plot in question will be handed over within a period of 60 days therefrom. It  has been stated that the said letter was nothing but a paper possession. A demand of Rs.9,30,556/- was also made by the opposite parties through the said letter, whereas, on the other hand, already an excess amount of Rs.5,16,875/- stood collected by the opposite parties, which fact is also evident from the statement of account date 28.01.2020, Annexure C-7. .

                   It has been averred that even the main entrance to the project in question was not accessible in view of pending litigation before the Civil Court Kharar,  under Sections 29, 33 and 63 of the Indian Forest Act, 1927 and that the opposite parties violated the order dated 12.12.1996 passed by the Hon’ble Supreme Court of India.            

                   By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainant has filed the present case seeking refund of amount paid alongwith interest and litigation expenses.

2.           His claim has been contested by the opposite parties on numerous grounds, inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain this consumer complaint; that the allotment of plot in question made to the complainant was tentative; that the complainant did not fall within the definition of “consumer” because he has also purchased another plot in Sector 108 with the opposite parties, as such, he is a speculator; that this Commission did not vest with pecuniary and territorial jurisdiction; that the complaint filed is barred by time; that the complainant was defaulter in making payment towards price of the said plot; and that opposite parties no.2 and 9 have been wrongly impleaded as parties to this complaint, in their personal capacity.
3.           On merits, the facts that the complainant agreed to purchase the plot in question, in the aforesaid project; payments made by him as mentioned in the complaint; execution of agreement in respect of the plot in question are not in dispute. It has been stated that though it was not mandatory for the company to obtain completion certificate in respect of the project in Sector 105 aforesaid, as it was exempted from the provisions of PAPR Act, yet, partial completion certificate dated 16.10.2015 was obtained in view of Notification dated 02.09.2014, having been issued by the Government concerned; that possession of the plot in question was offered to the complainant vide letter dated 22.07.2015, Annexure C-6,  followed by reminder dated 20.04.2017, Annexure OP/3 but he failed to come forward to make remaining payment and take over possession; and that for delay in offering possession of the plot in question, delayed compensation to the tune of Rs.9,06,411/- has already been credited in the account of the complainant, maintained by the company
4.           In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in the written reply filed by the opposite parties.
5.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
6.           We have heard the contesting parties and have gone through record of the case, including the written arguments submitted by the parties concerned, very carefully.
7.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether the arbitration clause in the agreement bars the jurisdiction of this Commission?
   2. Whether this Commission has pecuniary and territorial jurisdiction to entertain this complaint?
   3. Whether the complainant falls under the definition of consumer?
   4. Whether actual physical possession of plot purchased by the complainant was ever offered to him by the opposite parties?
   5. Whether the complaint filed is within limitation?
   6. Whether this complaint is bad for misjoinder of necessary parties or not?
   7. Whether the complainant is entitled to get refund of the amount deposited and if yes, at what rate of interest?

 

8.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the agreement is concerned, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard stands rejected.
9.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the plot purchased by the complainant; plus other reliefs claimed in the complaint are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint, in view of the provisions of CPA 1986 under which this complaint had been filed i.e. before 20.07.2020, the date when CPA 2019 came into force with prospective effect.
10.           Now coming to the objection raised with regard to territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, perusal of payment receipt dated 18.03.2008 (at page 18 of the paper book) reveal that an amount of Rs.3,45,000/- towards part price of the plot in question was received by the opposite parties at their Corporate Office at Chandigarh i.e. SCO No.120-122,  First Floor, Sector 17-C, Chandigarh, as it bears round stamp of the said Chandigarh Office. Furthermore, on almost all the documents placed on record, pertaining to the plot in question, the said address of the company i.e. SCO No.120-122, First Floor, Sector 17-C, Chandigarh, is found mentioned as its first address. Not only as above, even the partial completion certificate dated 16.10.2015 (Annexure OP/5) and also Exemption Certificate dated  10.06.2013 (at page 58 of the paper book), reliance whereupon has been placed by the opposite parties themselves, shows that the said documents were sent by the competent Authorities to the company at SCO No.120-122,  First Floor, Sector 17-C, Chandigarh, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on their business, from their  Corporate office at Chandigarh and personally work for gain hereat. As such, objection taken in this regard is rejected. 
11.           As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the plot in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainant is a consumer as defined under the Act. Mere fact that the complainant is living in a house at Mohali or that he owns another property in the project of the opposite parties, cannot be made a ground to shove him out of the definition of a consumer. Objection taken in this regard is rejected.
12.           It is not in dispute that the complainant has paid an amount of Rs.40,82,251/- for the period between 31.08.2006 to 16.04.2010, towards purchase of the plot in question, in the aforesaid project of the opposite parties, total sale consideration whereof was fixed at Rs.40,82,394/-. It is evident from Clause 8 of the agreement dated 11.07.2007 (Annexure C-4) that the opposite parties committed to deliver possession of the said plot latest by 10.07.2010 i.e. within a maximum period of three years (2 years + 1 year).
13.           Counsel for the complainant contended with vehemence that despite receiving more than 99% of the total sale consideration, the opposite parties failed to offer possession of the plot in question by the stipulated date or even thereafter for dearth of development activities at the project site; necessary approvals from the competent Authorities; and that even main entrance to the project in question was not accessible, as the same was sealed by the Forest Department, because the opposite parties failed to obtain necessary approvals from the Govt. of India in that regard; and that the land underneath the project was pending litigation under the Indian Forest Act, 1927.         

                   On the other hand, Counsel for the opposite parties while reiterating the objections taken in the written reply further contended that possession of the plot in question was offered to the complainant vide letter dated 22.07.2015, Annexure C-6, followed by reminder dated 20.04.2017, Annexure OP/3 but he failed to come forward to make remaining payment and take over the same and has now filed this complaint seeking refund of the amount paid alongwith interest etc.

14.           Under above circumstances, now the moot question which arises for consideration is, as to whether, the opposite parties could wriggle out of the situation by terming letter dated 22.07.2015, Annexure C-6, as offer of possession or not? It may be stated here that when we go through the contents of the said letter, it is found that it was just an intimation to the complainant that the Company is going to commence the process of handing over possession of plots in Sector 105, within 60 days i.e. by 21.09.2015. It further reveals from the said letter, that only temporary electricity and water connections had been got sanctioned for the project, in question. Vide the said letter, an amount of Rs.9,30,556/- was demanded by the opposite parties from the complainant, which was shown due under various heads. However, there is nothing on record to prove that possession of the plot was delivered to the complainant by 21.09.2015 or even thereafter. The complainant has challenged the said letter dated 22.07.2015, Annexure C-6, by way of sending email dated 05.08.2015, Annexure C-8, whereby he clearly intimated the opposite parties to withdraw the said letter, as the project was not habitable. Various other issues with regard to demand of club membership charges, EDC, stamp duty charges etc. were also raised by the complainant, which stood unresolved by the opposite parties.  
15.           At the time of arguments, when confronted with the situation, as to why possession of the plot was not delivered to the complainant within 60 days of issuance of letter dated 22.07.2015 i.e. latest by 21.09.2015, Counsel for the opposite parties, while candidly admitting the fact that there was delay on the part of the company in offering possession of the plot for want of development activities, contended with vehemence that though the development work at the project site was complete in all respects by July 2015, yet, since  the complainant failed to pay the remaining amount, as demanded from him vide letter dated 22.07.2015, as such, possession could not be delivered to him by 21.09.2015.  It is very significant to mention here that contention raised by the opposite parties did not merit acceptance, for the reasons to be recorded hereinafter.

                   The only stand which has been taken by Counsel for the opposite parties to wriggle out of the question, as to why possession of the plot was not delivered to the complainant within 60 days from the issuance of letter dated 22.07.2015, Annexure C-6 i.e. latest by 21.09.2015, was that the complainant failed to pay the remaining amount, as demanded from him vide the said letter (dt. 22.07.2015). However, when we go through the contents of statement of accounts dated 28.01.2020, Annexure C-7, issued by the opposite parties themselves, it reveals that by 22.08.2015 (30 days before 21.09.2015), not even a single penny was shown due towards the complainant, whereas, on the other hand, it has been shown that by 22.08.2015, an excess amount of Rs.3,69,845/- has accumulated in the account of the complainant. Against the column “Balance”  as  on  22.08.2015   it   has   been   mentioned   as -369845. The contents of the said document further reveals that thereafter on 15.09.2016, another amount of Rs.2,60,153/- stood collected in the account of the complainant and as such by 25.01.2020, excess amount of Rs.5,16,876/- has accumulated in the account of the complainant. Against the column “Net Amount Excess Collected (A) + (B), it has been written as Rs.-5,16,875/-. At the time of arguments, Counsel for the opposite parties failed to convince this Commission, as to why, possession of the plot in question was not delivered to the complainant, if presuming the letter dated 22.07.2015, Annexure C-6 to be a genuine offer, despite the fact that not even a single penny was due to be paid by the complainant, at the relevant time, as explained above. However, to wriggle out of the situation, in the first instance, Counsel for the opposite parties tried his luck by saying that the amount shown in negative means that the said amount was due to be paid by the complainant to the company, however, when confronted with the contents of the entire statement of account, showing the demanded amount and collected amount, which did not leave any doubt to the effect that the said amount shown in negative, was towards the excess amount accumulated in the account of the complainant maintained by the opposite parties in respect of the plot in question, he (Counsel for the opposite parties) was having no answer to it. However, he took a somersault and then stated that since the amount of Rs.9,06,411/- towards delayed compensation for the period of delay in offering possession of the plot, was credited to the account of the complainant, therefore, the amount due to be paid by him was adjusted therein. In other words, Counsel for the opposite parties accepted that by 22.08.2015, not even a single penny was due to be paid by the complainant to the company. If that was so, then it has not been clarified by the opposite parties, as to why, when possession was allegedly offered to the complainant vide letter dated 22.07.2015, they why the same was not delivered to him within 60 days therefrom as committed therein. Not even a single document has been placed on record to prove that after sending letter dated 22.07.2015, the complainant was ever asked to come forward to take possession of the plot in question.

                   It appears that letter dated 22.07.2015, Annexure C-6, was sent by the opposite parties just with a view to extract more money from the complainant.  This Commission is not timid to hold that in no way the letter dated 22.07.2015 could be termed as offer of possession of the plot in question, especially, in the face of contents of email dated 18.04.2017 (at page 55 of the paper book) sent by the opposite parties to the complainant intimating that the company is in the process of sending offer of possession of the plot within 2 to 3 days. Relevant part of the said email is reproduced hereunder:-

“Dear. Mr. Singh,

Greetings of the day.

This is with reference to your e-mail dated 8th April 2017 for Unit Number 105-CG-281-300 we would like to inform you that we are in process of sending Offer of Possession within 2-3 days post which you can proceed for possession after completion of required formalities.

In order to facilitate the possession/hand-over of your plot/unit, below mentioned documentation is required to be completed on or before taking physical possession……….” .

 

                   The afore-extracted relevant contents of email of the opposite parties leave no doubt that by 18.04.2017, possession of the plot in question had not been offered to the complainant, whereas, on the other hand, it was to be offered within 2-3 days  from 18.04.2017. However, there is nothing on record that even thereafter also, possession of the plot was ever offered to the complainant.  At the same time, during arguments, when confronted with the contents of email dated 18.04.2017, Counsel for the opposite parties kept silent and failed to convince this Commission in that regard. Thus, in the face of contents of email dated 18.04.2017, referred to above, it can safely be said that possession of the plot was never offered to the complainant vide letter  dated 22.07.2015, but, on the other hand, it was just a tool to extract more money from the complainant, despite the fact that excess amount had already been collected by the opposite parties, in respect of the plot in question. Thus, by April 2017 there has already been an inordinate delay of about 7 years in offering possession of the plot in question, which continued thereafter also, as there is nothing on record to prove that even thereafter, possession  of the plot in question was ever offered or delivered to the complainant.

16.           During arguments, when Counsel for the opposite parties indefatigably kept on pressing that though there was delay in delivery of possession of the plot in question, yet, when development work was complete at the project, possession thereafter was offered to the complainant in 2015, this Commission asked him to prove his contention by showing any document in the regard like completion certificate etc. He tried to wriggle out of the situation by stating that since the project in question (Sector 105) was exempted from the provisions of PAPR Act 1995, as such, the company was not required to obtain completion certificate, yet, partial completion certificate was obtained vide letter dated 16.10.2015, which in itself is sufficient to prove that the development activities were completed at the project site. To buttress his  contention, he placed heavy reliance on  notification dated 22.12.2006, Annexure OP-4 to say that the project in question (Sector 105, Central Greens, Mohali) was exempted from the provisions of PAPR Act. We do not agree with the contention raised, for the reasons to be recorded hereinafter.

                   We have gone through the contents of notification dated 22.12.2006 and bare perusal thereof reveal that the said exemption pertains to Sectors 108 and 109 only and not for the sector in dispute i.e. Sector 105. Relevant contents of the said notification  reads as under:-

“2. And whereas M/s EMAAR MGF Land Private Limited  with its Registered Office at ECE House, 1^st Floor, 28 KG Marg, New Delhi, have already been granted approval by the Punjab Government, Department of Housing and Urban Development for setting up of Housing Project in an area of 390.71 Acres at Sector 108 & 109, SAS Nagar.

3………..

4…………

5. Now, therefore in exercise of the powers vested  in him under Section 44 (2)  of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995) and all other powers enabling him to act in this behalf, the Governor of Punjab is pleased to exempt the aforesaid Housing Project of M/s EMAAR MGF land Limited from all provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except section 32, subject to the following terms and conditions that:-……….”

 

Bare perusal of the said notification reveals that the Government of Punjab has granted exemption to the company, under PAPR Act, in respect of Housing Project for an area measuring 390.71 Acres at Sectors 108 & 109, SAS Nagar only, which sectors are not the subject matter of the present complaint. At this juncture, we are not dealing with the issue with regard to legality or illegality of the said exemption granted in respect of Housing Project for the said area at Sectors 108 & 109, SAS Nagar, which is not the subject matter of this complaint and the same is left open for adjudication, in respect of the cases related thereto.

                   However, it is crystal clear from the contents of the said notification dated 22.12.2006 that the said exemption was not granted in respect of the housing project in question i.e. for Sector 105, Central Greens, Mohali.  As such, reliance placed by Counsel for the opposite parties on the said notification to say that the company was not required to obtain completion certificate for Sector 105, Central Greens, Mohali, is misplaced. It is very significant to add here that there is another concrete reason with this Commission to hold that it was mandatory for the  opposite parties to obtain completion certificate from the competent authorities, in respect of the project in question (Sector 105, Central Greens, Mohali), wherein the plot in question is located and only thereafter possession thereof could have been offered to the complainant. Ours view finds support from the candid admission made by the opposite parties themselves, in their emails dated 19.11.2012, 03.11.2012 and 04.09.2013 (at pages 51 to 53 of the paper book), sent to the  complainant, wherein they have repeatedly informed  him that  it was mandatory for the company to obtain completion certificate  after completing the development works, before offering possession of the plot in question. Relevant contents of the said emails are reproduced hereunder:-

“Contents of email dated 19.11.2012 sent by the opposite parties  to the complainant:-

 

“….As communicated earlier, we would like to reiterate that we are working on the completion of overall infrastructure works of the sector and all efforts are being put in to complete the same. We are also in process of completing the over all amenities of the sector parallelly, which are mandatory for us to obtain the Completion Certificate. We will initiate the process of registration after receipt of Occupation Certificate which is expected within 60-90 days from the date of obtaining Completion. We will keep you updated on the status on the regular intervals.”

 

Contents of email dated 03.11.2012 sent by the opposite parties  to the complainant:-

“……Further, please be informed we are in process of completing the over all amenities of the sector required to obtain the Completion Certificate. Subsequently, we shall start with the registration process. We will however keep you updated on the status of development at regular intervals……”

 

Contents of email dated 04.09.2013 sent by the opposite parties  to the complainant:-

 

“…..We would also like to inform that presently work is being carried out for the completion of infrastructure amenities within the sectors, to obtain the Completion Certificate, which shall complete by end of this year. Subsequently, we shall initiate the process of registration and shall send you a communication in this regard accordingly…”

 

In the face of candid admission by the opposite parties vide the emails, relevant part whereof has been extracted above, to the effect that they were required to obtain completion certificate upon completion of the amenities and only then they could have offered possession of the plot in question, now they cannot wriggle out of the same, while stating that they were exempted from obtaining completion certificate, in 2006 itself vide the notification aforesaid, which infact was issued in respect of Sectors 108 and 109 only. As such, it is held that the opposite parties were bound to obtain completion certificate before offering possession of the plot in question, in the project in dispute.

17.           Furthermore, the complainant by way of placing on record RTI information dated 30.06.2015, Annexure C-11, having been issued by the Forest Department, SAS Nagar, Mohali, Punjab,  has proved the fact that since the opposite parties failed to obtain permission from the Government of India, to use the land underneath the project which belong to the Forest Department under FCA 1980, as such, the entry points of the project in question was sealed by putting barbed wire and digging trenches. The opposite parties failed to place on record any document to rebut the said fact. As such, this fact also, in itself, is sufficient to further hold that since necessary approvals were not obtained by the opposite parties from the Government of  India  to use the land underneath the project which belongs to the Forest Department under FCA 1980, as such, they were not competent to even launch the project in question, what to speak of  selling the plots/units therein and offering possession of the plots/units therein. It is very strange and also not understood that when no permission/NOC had been obtained by the Company from the  Govt. of India, then how the GMADA has issued partial completion certificate to the opposite parties is a mystery. Silence of the opposite parties on this count and on the other hand, simple denial of the said fact in their written reply, without any document in rebuttal to the RTI information with regard to sealing of entry points of the project in question by the Forest Department is sufficient to prove the case of the complainant.
18.           As far as partial completion certificate dated 16.10.2015 is concerned, it may be stated here that perusal of contents thereof reveal that the same was granted in favour of the opposite parties, subject to fulfillment of various conditions contained therein, failing which it was to be treated as cancelled. Relevant contents of the said partial completion certificate are reproduced hereunder:-

1.  “That the Promoter shall abide by the provisions of Punjab Regional and Town Planning and Development Act, 1995 and amendments made therein from time to time as well as and Rules framed there-under.
2. This permission shall not provide any immunity from any other Act/Rules/Regulations applicable to the land in question.
3. That the Promoter shall comply with the conditions of approval /NOC from State Level Environment Impact Assessment Authority, Punjab issued dated 18-06-2008.
4. That the Promoter shall comply with the conditions of the approved NOC from PPCB issued vide letter no. 2766624 dated 04-06-2015 and shall be liable to comply with the provisions under the Water (Prevention and control of Pollution) Act, 1974, Municipal Solid Waste Management and Handling Rules, 2000 and any other act/rule, if applicable.
5. That the Promoter shall abide by the conditions imposed by office of Engineer-in-Chief /Commercial, PSPCL, Patiala vide letter no. 2228 dated 05-12-2014, letter no. 2225 dated 14-07-2015 and letter no. 148 dated 13-02-2013.
6. That the Promoter shall obtain any other permission required under any other act/ rule at its own level. 
7. That the Promoter shall also maintain the internal services to the satisfaction of the Competent Authority. 
8. That the Promoter shall be fully responsible for supply of water as per norms, till such time the site is handed over to the concerned authority after final completion.
9. That the Promoter shall make its own suitable provisions for disposal of sewage & solid waste management.
10. That the Promoter shall be solely responsible for disposal of storm/ rain water of its site till such time these services are made available by concerned Authority and shall not obstruct the flow of rain/storm water of the surrounding area.
11. That each part of project shall be used as per provisions of approved Layout Plan. Zoning Plan, Sanctioned Building Plans as well as this Partial Completion Plans.
12. That the Promoter shall construct or sale or transfer to GMADA the sites of School, Hospital etc. and construct the site of Community Centre before seeking the final Completion Certificate of the project.
13. In case of any legal/ technical discrepancies in handing over the EWS, the promoter shall be liable to provide the equal area of EWS site and shall get the Layout Plan and Partial Completion Plan of the project amended accordingly.
14. That the Promoter shall be liable to pay arears, if any, and any other taxes/charges imposed by the Govt./Competent Authority.
15. That the promoter shall get the Revised Agreement done between the company and Punjab Government before seeking the final Completion Certificate of the project.
16. That out of above, if any, condition is not fulfilled, then this Partial Completion Certificate will be cancelled.”

 

19.           Perusal of contents of the said partial completion certificate reveals that  it was a condition precedent that the opposite parties shall obtain any other permission required under any other act/rule at its own level, failing which, the said certificate was to be cancelled, yet, it is coming out from the information under RTI, referred to above, that the opposite parties failed to obtain permission from the Govt. of  India, to use the land underneath the project which belong to the Forest Department, under FCA 1980, as a result whereof the entry of the project in question was sealed and it was candidly informed by the Forest Department vide RTI information that it will be opened only after the said permission is obtained. There is nothing on record to prove that any such permission has been taken by the opposite parties, from the Govt. of India or Forest Department. Even final completion certificate has also not been obtained by the opposite parties, which  was mandatory to be obtained as per clause (xv) of the said partial completion certificate. Thus, non fulfillment of conditions by the opposite parties have attracted cancellation of the said partial completion certificate in the eyes of law, and as such, no help can be drawn by the opposite parties therefrom.
20.           Be that as it may, admittedly possession of the plot in question was not delivered to the complainant by the stipulated date. Record reveals that even by 18.04.2017 (email referred above), the opposite parties were saying to the complainant that possession of the plot in  question will be offered soon (2-3 days from 18.04.2017) but there is nothing on record which could prove that  thereafter possession of the plot was offered and delivered to the complainant. The complainant has booked the plot as far as back in 2006 and now it is November 2020, and still he is empty handed despite the fact that substantial amount of Rs.40,82,251/- against total sale consideration of Rs.40,82,394/- stood paid to the opposite parties. There has been an inordinate delay in the matter.

                   Furthermore, it is also held that once the opposite parties have already received almost the entire sale consideration from the complainant, now they cannot wriggle out of the situation by simply taking a stand that since the allotment was tentative, as such, time was not the essence of contract, especially in the face clause 8 of the agreement, vide which it has been candidly assured by the opposite parties that possession of the plot in question will be delivered within a period of two years from the date of execution of the said agreement but not later than three years. As such, reliance placed by the opposite parties on Banglore Development Authority Vs. Syndicate Bank is misplaced.    

21.           It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or within a reasonable period, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Under these circumstances, we are of the considered opinion that, in the present case also, we cannot make the complainant to wait for an indefinite period, in the matter and as such, he is well within his right to seek refund of the amount paid, in view of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442, wherein it was held that in case of delay in delivering possession of the residential units/plots by the project proponent, the buyer cannot be compelled to take possession at later stage and, on the other hand, he/she is entitled to refund of the amount paid alongwith interest. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. that will meet the ends of justice
22.           Now coming to the objection raised by the opposite parties, to the effect that this complaint  is time barred, it may be stated here that since the rights under the agreement in question had not been given up and the opposite parties were constantly under an obligation to provide a plot to the complainant and deliver possession thereof to him, which they failed to do so, as such, the "cause of action" has to be treated as a "continuing cause of action" in his favour to file this complaint, in view of principle of law down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units/plots is not offered/delivered, there is a continuing cause of action, in favour of the allottee/buyer.
23.           As far as plea taken to the effect that the complainant was defaulter in making payment towards the plot in question, it may be stated here that it is settled law that the allottees of flats/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site.  Our this view finds support from the judgment of the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Thus, since in the present case also, the opposite parties have admitted in a very candid manner that development works at the project site was not completed by the stipulated date; that there was delay in offering possession of the plot in question; and  also at the same time even the photographs placed on record of the project site, by the opposite parties still reveal that even road (at page 92 of the paper book) has not been fully developed in front of the plots, even by 17.06.2020 and under those circumstances, if the complainant has stopped making payment for a short period, then in no way, he can be termed as defaulter. Objection taken in this regard, stands rejected.
24.           As far as objection taken to the effect that opposite parties no.2 to 9 have been wrongly impleaded as necessary parties to this complaint, it may be stated here that the complainant by way of placing on record signatory details (Annexure C-12) of the Company (wherein the CIN/LLPIN has been mentioned), has proved that opposite parties no.2 to 9 remained active in the capacity of Directors/Company Secretary/CEO/CFO of the Company for the period from 2005 to 2020 respectively. Document-Annexure C-12 has gone unrebutted by the opposite parties, as nothing contrary to it has been placed on record. At the same time, the complainant in para no.11 of  his complaint has specifically averred that these persons are managing the affairs of the Company. In our considered opinion, all these persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017.
25.           For the reasons recorded above, this complaint is accepted with costs and the opposite parties no.01 to 9, jointly and severally, are directed as under:-

1. To refund the amount of Rs.40,82,251/- to the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.40,82,251/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

 

2. To pay cost of litigation to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

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

Pronounced

19.11.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.