Chandigarh

StateCommission

CC/95/2020

Sanjay Walia - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

16 Nov 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	95 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	16.11.2020

 

1. Sanjay Walia S/o Sh.Devender Kumar Valia, R/o 3796, David Street, Daryaganj, New Delhi-110002.
2. Shakti Walia W/o Sh.Sanjay Walia, R/o 3796, David Street, Daryaganj, New Delhi-110002.

……Complainants

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 complainants.

Sh.Ashim Aggarwal, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted by the complainants seeking directions to the opposite parties, to refund the amount of Rs.40,11,251/- paid by them towards purchase of plot no.79, measuring 300 square yards, in the project named “Pinewood Park”, Mohali Hills, Sector 108, SAS Nagar, Mohali. Total sale consideration of the plot was fixed at Rs.40,28,499/-. It is the case of the complainants that despite the fact that on demands made by the opposite parties, from time to time, they paid total amount of Rs.40,11,251/-, for the period between 24.08.2006 to 01.04.2011, yet, possession of the said plot was not delivered by 29.06.2010 i.e. within a period of three years, as envisaged under Clause 8 of the agreement dated 30.06.2007 (Annexure C-2), for dearth of development activities at the project site and also necessary approvals from the competent Authorities. 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, the complainants have filed the present case seeking refund of amount paid alongwith interest and litigation expenses.

2.           Their 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 complainants did not fall within the definition of “consumer”; that this Commission did not vest with pecuniary and territorial jurisdiction; that the complaint filed is beyond limitation; that the complainants were defaulter in making payment towards price of the said plot; that disputed question of fact and law are involved in this complaint, as such, only the Civil Court has jurisdiction to entertain this complaint; that time was not the essence of contract; and that opposite parties no.2 and 3 have been wrongly impleaded as parties to this complaint.
3.           On merits, the facts that the complainants agreed to purchase plot in question, in the aforesaid project; payments made by them; 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 partial completion certificate, as it was exempted from the provisions of PAPR Act, yet, as an abundant caution, partial completion certificate 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 complainants in the year 2009,  but they failed to come forward to make remaining payment and take over possession, despite reminders having been sent to them; that final statement of account was also sent to the complainants vide letter dated 21.04.2014 (Annexure OP/3), followed by reminders dated 01.03.2019, 14.06.2019 and 01.10.2019, but they did not turn up; and that though for any delay in offering possession, stipulated penalty has been provided in the agreement, which safeguards the interest of the complainants yet in the present case possession had been offered within the stipulated period.
4.           While admitting the fact that the entry points of project in question were sealed by the Forest Department, it has been stated that there was adequate access to the project in question; that the company vide letter dated 15.04.2015 had requested the Greater Mohali Area Development Authority (GMADA) to take up the matter with Forest Department for grant of permission to access Kharar- Banur-Tepla road; that the Forest Department has released ‘No Objection Certificate’, vide letter dated 16.01.2018 and now no land of the project in question, remains with the Forest Department.  As regards court case in Civil Court Kharar is concerned, it has been stated that vide order dated 03.11.2016, the company stood discharged from the said case. It has been pleaded that under these circumstances,  since the company stood discharged from the said court case and also NOC has been given by the Forest Department, as such, approvals  will relate back when the project was launched by the opposite parties. It has been further pleaded that because there was breach of terms and conditions on the part of the complainants in making timely payments and at the same time,  now they are rescinding the contract, as such, the opposite parties are entitled to forfeit the earnest money, as per clause 2 (f) of the agreement. Prayer has been made to dismiss the complaint with cost.
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 carefully gone through record of the case, 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 complainants fall under the definition of consumer?
   4. Whether this complaint is maintainable before this Commission?
   5. Whether letter sent in the year 2009 by the opposite parties to the complainants, can be termed as offer of possession of the plot?
   6. Whether actual physical possession of plot purchased by the complainants was ever offered to them by the opposite parties?
   7. Whether the complaint filed is within limitation?
   8. Whether time was essence of the contract?
   9. Whether the complainants are 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 complainants; 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, as per CPA 1986, under which this complaint has been filed.

                   An objection has also been taken by the opposite parties that as per CPA 2019, since the value of the consideration paid by the complainants towards the plot in question fell below Rs.1 crore, as such, in those circumstances this Commission is not vested with pecuniary jurisdiction. We do not agree with the objection raised. It may be stated here that since the Parliament has not expressly indicated that CPA 2019 would operate retrospectively, as such, in our considered opinion, the CPA 2019 Act will have a prospective application alone.  In case the provisions of CPA 2019 are applied retrospectively, it would not only be repugnant but also retrograde interpretation of the objects and principles underlying the Act. If the plea now raised on behalf of the opposite parties is accepted, it would put the clock back, resulting in unwarranted delay, thereby defeating the very purpose of the Act. Therefore, the objection raised by the opposite parties to the effect that this Commission lacks pecuniary jurisdiction on this count, is unsustainable, especially, keeping in view the fact that this complaint was instituted much prior to coming into force of CPA 2019 i.e. under CPA 1986 and dismissing it now would defeat the very purpose of the Act. The Hon’ble National Commission vide notice dated 20.07.2020, has clarified that since the CPA 2019 has been enforced w.e.f. 20.07.2020, as such, only fresh consumer complaints will be entertained, in future, where the value of goods or services paid as consideration exceeding Rs.10 crore, meaning thereby that the provision of CPA 2019 was to be taken into consideration prospectively and not retrospectively.

10.           Now coming to the objection raised with regard to territorial jurisdiction of this Commission, it may be stated here that perusal of payment receipt dated  08.04.2008 (at page 36 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 Chandigarh, as it bears round stamp of the said Chandigarh Office. Furthermore, the address of the company, at bottom of the said payment receipt, has been mentioned as SCO No.120-122,  First Floor, Sector 17-C, Chandigarh. This address is also found mentioned on almost all the documents issued by the opposite parties in respect of the plot in question, which have been placed on record by the complainants, alongwith this complaint. Not only as above, even the partial completion certificate dated 16.10.2015 (Annexure OP/7) reliance whereupon has been placed by the opposite parties themselves, shows that the said certificate was sent by GMADA 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  branch 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 complainants 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 complainants have 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 complainants are consumers as defined under the Act. Mere fact that the complainants are living in a house at New Delhi or anywhere else, cannot be made a ground to shove them out of the definition of a consumer. Objection taken in this regard is rejected.
12.           It is not in dispute that the complainants have paid an amount of Rs.40,11,251/- for the period between 24.08.2006 to 01.04.2011, towards purchase of the plot in question, in the aforesaid project of the opposite parties, total sale consideration whereof was fixed at Rs.40,28,499/-. It is evident from Clause 8 of the agreement dated 30.06.2007 (Annexure C-2) that the opposite parties committed to deliver  possession of the said plot latest by 29.06.2010 i.e. within a maximum period of three years (2 years + 1 year).
13.           Counsel for the complainants contended with vehemence that despite receiving more than 98% of the total sale consideration, the opposite parties failed to deliver possession of the plot in question by the stipulated date or even thereafter for dearth of development activities at the project site and also necessary approvals from the competent Authorities. He further contended with vehemence that even main entrance to the project in question was not accessible; that the said entrance was sealed by the Forest Department and that the land underneath the same 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 complainants in the year 2009,  but they failed to come forward to make remaining payment and take over the same, as a result whereof final statement of account was also sent to them vide letter dated 21.04.2014 (Annexure OP/3), followed by reminders dated 01.03.2019, 14.06.2019 and 01.10.2019, but even then they did not turn up and have now filed this complaint seeking refund of the amount paid alongwith interest etc. However, the fact of sealing of main entrance of the project by the Forest Department and that the matter was under litigation in Civil Court at Kharar was not disputed. 

14.           Under above circumstances, now the moot question which arises for consideration is, as to whether, actual physical possession of the plot in question was ever offered to the complainants or not? It may be stated here that when we go through the contents of the said letter sent by the opposite parties in 2009, it is found that it was just an update on the status of development work at the project site. It has been in a very candid manner, stated in the said letter that development activities in Sectors 105, 108 and 109 are being carried out in full swing. It further reveals from the said letter, that only temporary electricity and water connections had been got sanctioned for the project, in question. Earlier also, a similar question, in respect of a very similar alleged offer of possession letter, as to whether it can be presumed that it was an offer of possession or not, fell for determination before this Commission in Dr.Manuj Chhabra Vs. M/s Emaar MGF Land Limited and anr., consumer complaint no.140 of 2015, decided on 05.11.2015. This Commission negated the plea taken by the Emaar MGF while observing as under:-

“…..The next question, that falls for consideration, is, as to whether, possession of fully developed residential plot was offered to the complainant, vide letter dated 17.08.2012 or not. The relevant portion of the said letter, reads as under:-

“The development activities in all three sectors of Mohali Hills i.e. Sector 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Park Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.

In view of the above development and our constant endeavor to enhance our customer's satisfaction, we are prepared to hand over possession of the Plot to you, subject to your making payments mentioned below.

On the basis of ground demarcation, the area for your plot has been increased/decreased and as a consequence the revised area is 501 sq.yards, and in view thereof the total consideration has been revised. The details of which is mentioned hereunder;

1. Outstanding amount (if any) towards the Plot amounting to Rs.13,501/- as per payment plan agreed by you.

2. Delayed interest thereon (if any) @15%  amounting to Rs.53,311/- on account of delay in making payment of installment as agreed by you.

3. Payment of additional External Development Charges levied by Government of Punjab as and when communicated by the company.

On our complying with the aforementioned conditions, the possession of the Plot shall be handed over to you. You may note that all payments, with respect to the consumption of electricity and water shall be made by you, at actuals, to the Company.

Pursuant to taking possession, you may apply to the appropriate authority for sanction of building plans to initiate construction on the Plot.  

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

In case you are agreeable to take possession of the Plot, on the terms and conditions mentioned hereinabove, you are requested to give your consent to the foregoing by signing and returning the duplicate copy of this communication as token of your acceptance”.

It may be stated here, that perusal of contents of the afore-extracted letter, reveal that the complainant was only intimated that significant progress had been made, with respect to the development of basic infrastructure, like water pipelines, sewer pipelines,  development of roads, parks etc. It is also evident, from the afore-extracted portion of the said letter that only temporary electricity and water connection had been sanctioned for the Project. It was also informed vide the said letter that area of the plot had been revised to 501 square yards, as a result whereof, the total sale consideration stood revised. It was further made clear, in the said letter that, on completion of the infrastructure for the entire project, sale deed shall be executed, in favour of the complainant, in respect of the plot, in question, on making payment of stamp duty and registration charges. On receipt of the said letter dated 17.08.2012, the father of the complainant visited the site and found that there were no basic amenities available such as roads, sewerage, electricity, water  etc. etc. The matter was reported to the Opposite Parties, vide email dated 20.08.2012, as a result whereof, an email dated 23.08.2012, was received from them, wherein the complainant was informed by the Opposite Parties that they are in process of obtaining completion certificate, for the project in question, and also that the development work with regard to sewerage treatment plant, water tanks, rain water harvesting system and installation of transformers across all sectors, is in progress, which will be completed within 6 to 8 months. The complainant was assured that he would be kept informed, on status of development. However, when nothing was done, feeling aggrieved, the complainant served legal notice dated 06.09.2012, upon the Opposite Parties but to no avail. From the contents of letter aforesaid only, it was proved that basic amenities had not been provided in the area, where the plot, in question, is situated. As such, it could very well be said that vide letter dated 17.08.2012, only an information regarding significant progress of development work, at the project, in question, as also information regarding increase in area of the plot, was given to the complainant, and, in no manner, it could be termed as offer of possession, in respect of the same (plot, in question). Even otherwise,  in case, all these development activities, had been undertaken, and completed at the site, by 17.08.2012, then it was for the Opposite Parties, 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. As stated above, the entire price of the plot, in question, had already been paid by the complainants, and nothing remained due, against him. Since the entire amount had been paid by the complainant, had all the development activities been completed, at the site, as mentioned in the letter, in question, no prudent person, much less them (complainant), who had deposited the huge amount, would have refused  to take over possession of the plot, in question. It is therefore held that possession of fully developed residential plot was never offered to the complainant, vide letter dated 17.08.2012, whereas, as stated above, only intimation regarding significant progress of development work at the site; increase in area of plot; as also the amount to be paid, in respect thereof, including the delayed payment interest, was given through the same. The submission of Counsel for the Opposite Parties, that possession of the plot, in question, was offered to the complainant, complete in all respects, vide letter dated 17.08.2012, therefore being devoid of merit, must fail and the same stands rejected…..”

 

                   Feeling aggrieved against order dated 05.11.2015, the opposite parties had filed appeal bearing no.1028 of 2015 before the Hon’ble National Commission, wherein also, the observations made by this Commission to the effect that in no way the said letter could be termed as offer of possession of the plot, were upheld and the EMAAR was directed to refund amount alongwith interest @12% p.a..

15.           Furthermore, had the above said alleged letter been offer of possession issued by the opposite parties after completing the development works, then it has not been clarified by them, as to why, they had again sent letter dated 16.12.2011 (at page 24 of the paper book), whereby it was informed to the complainants that they “have already initiated community development works  like parks, golf course, roads, electrical lighting and setting up of STP (Sewerage Treatment Plant), rain water harvesting system and the electrical sub stations”.  In the said letter, it has been in a very candid manner stated by the opposite parties that upon completion of the above and receipt of completion certificate from GMADA, the company shall commence the process of execution and registration of sale deed. The contents of letter dated 16.12.2011 make it very clear that by the said date (16.12.2011), still lot of development works with regard to parks, golf course, roads, electrical lighting and setting up of STP, rain water harvesting system and electrical sub stations at the project site were to be done and after completing the same, completion certificate was to be obtained by the  opposite parties from the GMADA and then only further process could have been initiated. It is significant to mention here that earlier also, a very similar controversy with regard to letter dated 16.12.2011, containing almost similar contents, fell for determination before this Commission in Krishan Chander Chandna Vs.  Emaar MGF Land Pvt. Ltd., in C.C. No.50/2013, decided on 24.10.2013,  wherein the plea taken by the builder was negated by this Commission, holding as under:-

 

 ^“Admittedly, the possession was offered by the Opposite Parties, to the complainant after one year of the stipulated date i.e. on 01.07.2011 vide Annexure C-5. The possession, so offered, after delay of one year from the stipulated date, was a mere paper possession as the development in the area has not been completed. This fact is fortified from the contents of letter dated 16.12.2011 (Annexure RW/D), which was written by the Opposite Parties to the complainant after five months of offering the possession, wherein it was mentioned that upon completion of works, mentioned in the aforesaid letter, and receipt of completion certificate from GMADA, the Opposite Parties shall commence the process of execution and registration of sale deed. This letter (Annexure RW/D) also indicates that adequate facilities of electricity and other basic amenities were not available at the site, where the plot was allotted to the complainant. The relevant paras from Annexure RW/D, being relevant are extracted hereunder:-

“We would be delighted to assist you in your endeavour to get the building plans approved. Further, once the sanctioned building plans are received, should you decide to construct, prior to the company receiving the Completion Certificate from GMADA, we would be happy to facilitate you with temporary electricity and water connection at applicable rates.

We have already initiated community development works like parks, Golf Course, roads, electrical lighting and setting up of STP (Sewage Treatment Plant), Rain Water harvesting system, and the electrical sub stations.

Upon completion of the above and receipt of Completion Certificate from GMADA, we shall commence the process of the execution and registration of sale deeds and shall keep you updated on further developments in relation.”

13.            The Counsel for the complainant vehemently argued that the area, even as on date, is still not developed and the physical possession of plot has not been delivered to him. The onus to prove that the project had been completed and the area/site, in question, where the plot of the complainant is located, had been fully developed having all the basic amenities, was on the Opposite Parties but they failed to prove the same by leading any cogent and convincing evidence. A mere mention of completion of development works at the site, in the offer letter, did not in itself prove that the development, at the site, had actually been completed. In the absence of any cogent and convincing evidence to the effect that the development work at the site had been completed, the possession, so offered, by the Opposite Parties, was only a paper possession. One could really imagine the plight of a person, who had deposited his hard earned money to the tune of Rs.64,63,090/-, for the purchase of a plot, but later on came to know that there were no development at the site, in question, and only a portion of jungle was standing there. The facts of the case Smt. Satwant Kaur and another Vs. The EMAAR MGF Land Private Limited (supra), relied upon by the Counsel for the Opposite Parties, are somewhat distinguishable, from the facts involved in the instant case, and, therefore, it is of no help to the Opposite Parties. In Paramvir Singh Vs  P. H. Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011  decided by the National Consumer Disputes Redressal Commission, New Delhi, in similar circumstances, when possession of the plot was not given by the builder to the complainant for a long period, refund of the amount deposited by him with interest and compensation were granted. The principle of law, laid down in Paramvir Singh’s case (supra) is fully applicable to the facts of the instant case. The complainant, thus, has suffered immense physical harassment and mental agony, at the hands of the Opposite Parties, for which, he is entitled to refund of the entire amount deposited by him with the Opposite Parties alongwith interest, as well as compensation simultaneously”.

 

Feeling aggrieved against the order dated  24.10.2013 passed by this Commission, the opposite parties filed First Appeal No.873 of 2013, before the Hon’ble National Commission, wherein, the findings given by this Commission were upheld and the  appeal was dismissed with punitive damages of Rs.5,00,000/-.

16.           Furthermore, one more fact has emerged out of this letter dated 16.12.2011 i.e. the opposite parties were required to obtain completion certificate from the competent authorities, in respect of the project in question, where the plot in question was located and only thereafter possession thereof could have been offered to the complainants. Therefore, in this view of the matter also, the opposite parties were not in a position to offer and deliver possession of the plot in question to the complainants in the year 2009.  In the face of candid admission by the opposite parties in the letter dated 16.12.2011 to the effect that they were required to obtain completion certificate upon completion of the amenities, now they cannot wriggle out of the same, while stating that they were exempted from obtaining completion certificate.  
17.           Apart from above, it has also not been clarified by the opposite parties that if they have allegedly offered possession of the plot in question to the complainants vide letter Annexure OP/1,  in the year 2009, then why they had again sent letter dated 21.04.2014 (Annexure OP/3) i.e. after about five years, to the complainants stating therein to make remaining payment towards miscellaneous charges i.e. maintenance, electricity, IFMS, registration and stamp duty etc., within 30 days,  to enable them to hand over possession of the plot.
18.           There is another valid reason with this Commission to disbelieve that letter dated Nil, Annexure OP/1 was not an offer of possession because it is clearly evident from the contents of letter dated 21.04.2014 that monthly maintenance charges and water charges have been shown to be levied, starting from 01.07.2014. It has not been clarified by the opposite parties that if possession of the plot in dispute was allegedly offered to the complainants in 2009, then why they demanded maintenance and water charges from the complainants starting from July 2014 and not before that. Why no holding charges were levied on the complainants starting from 2009 has also not been clarified by the opposite parties, in case possession had already been offered.
19.            There is another reason with this Commission to believe that the opposite parties were not in a position to offer possession of the plot or flat in “Pinewood Park” at Sector 108, Mohali, even by the year 2017, as  Counsel for the opposite parties namely Sh.Rajeev Agarwal, Advocate, on 19.04.2017 has given a candid statement before the Hon’ble National Commission in a case titled as Emaar MGF Land Ltd. & Anr. Vs. Sunita Kaul & Anr., First Appeal No. 578 of 2017, to the effect that the Company is not in a position to deliver possession of plots to the allottees in the project  “Pinewood Park” at Sector 108, Mohali, for want of completion certificate. Relevant part of the said order reads as under:-

“Issue notice on admission to the Respondents returnable on 03.08.2017.

               The Appellants shall remit directly to Respondent no.1 a sum of ₹10,000/- towards travel and allied expenses within two weeks from today.

               We have heard learned Counsel for the Appellants on the question of ad interim relief.  Learned Counsel has very fairly stated before us that since the Appellants have not yet received a complete Completion Certificate in respect of the project styled as “Pinewood Park” at Sector 108, Mohali, they are not in a position to offer the possession of a fully developed plot to the Complainants.  He submits that the Appellants are willing to refund to the Complainants the amount deposited by them with reasonable rate of interest………..”

 

20.           Thus, mere obtaining of partial completion certificate dated 16.10.2015 (Annexure OP/7) and that too with imposition of various conditions therein upon the opposite parties, is of no help to them. Furthermore, it has been very clearly mentioned in clause xv) of the said partial completion certificate that the opposite parties were required to obtain final completion certificate, which has not been obtained by them, as is evident from the statement given by one of their counsels in Emaar MGF Land Ltd. & Anr. Vs. Sunita Kaul & Anr.’s case (supra), even by 2017 or by the date this complaint has been filed because they have not placed on the same on record alongwith reply or otherwise.
21.           Furthermore, the contention raised by the complainants to the effect that the entry points of the project in question were sealed by the Forest Department for want of permissions/sanctions, has been endorsed by opposite parties no.1 to 9 only, by way of candid admission in para no.5 (para-wise reply) of their written reply stating that “…..the Forest Department served notice on the OP Company alleging that illegal access had been created through the Forest Strip….”. It has further been stated in the said para that vide letter dated 16.01.2018, the Forest Department has issued “No Objection” to the Company, as no land remains with it (Forest Department), meaning thereby that till 16.01.2018, opposite parties no.1 to 9 were not in possession of the land even and also permission from the Forest Department to develop the said project. Even the fact with regard to a case in Civil Court, Kharar, in respect of the project in question has also been admitted by the opposite parties in their written reply, however, they have tried to wriggle out of the same, by simply stating in the same para aforesaid that “as on date, no case is pending in Kharar court. Vide order dated 03.11.2016, the Court discharged the company and case stands closed….”. This admission in itself is sufficient to further hold that till 03.11.2016, the project in question was under litigation and under those circumstances, the opposite parties were not competent to even launch the project, what to speak of 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 Forest Department and also the project in question was under litigation, then how the GMADA has issued partial completion certificate to the opposite parties is a mystery. The candid admission of opposite parties no.1 to 9 leaves no doubt, to believe that they had launched the project in question without obtaining necessary permissions and sanctions from the competent authorities especially from the Forest Department and also the same (project) was under litigation.
22.           Under above circumstances, it is held that the opposite parties were not in a position to deliver possession of the plot in question to the complainants even by January 2018, on account of the reasons explained above. The plea taken by the opposite parties, to the contrary, is nothing but a tool to escape from their liability, which is not sustainable in the eyes of law. The aforesaid act of the opposite parties amounts to deficiency in providing service, negligence and adoption of unfair trade practice.
23.           The complainants have booked the plot as far as back in 2007 and now it is November 2020, and still they are empty handed despite the fact that substantial amount of Rs.40,11,251/- against total sale consideration of Rs.40,28,499/- stood paid to the opposite parties. Under these circumstances, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter and as such, they are well within their 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 the 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
24.           As far as objection taken by the opposite parties to the effect that this Commission has no jurisdiction to entertain this complaint allegedly containing complicated questions of fact and law and that the matter needs to be relegated to the civil court, it may be stated here that it is a simple case of non-delivery of actual physical possession of the plot to the complainants by the opposite parties by the promised date or even thereafter, for the reasons explained above, thereby causing financial loss, mental agony and harassment to the complainants. The acts, omissions and commissions on the part of the opposite parties, referred to above, amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, this complaint involves the consumer dispute and the same is maintainable before this Commission. Objection taken in this regard is rejected.
25.           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 because, as has been held above that actual physical possession of the plot in question has not been offered to the complainants, for want of development and basic amenities and also at the same time, the letter dated Nil upon which reliance has been placed by the opposite parties saying it as possession letter, has not been considered by this Commission to be genuine offer of possession, and on the other hand it was just an update of status of development work, as such, there was a continuing cause of action in favour of the complainants 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 is not offered, there is a continuing cause of action, in favour of the allottee/buyer.
26.           As far as plea taken to the effect that the complainants were 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. Under these circumstances, in no way, the complainants can be termed as defaulters. Objection taken in this regard, stands rejected.

                   Furthermore, for their own fault, in launching the project without obtaining necessary approvals from the Forest Department; pending litigation  with Civil Court, Kharar; and also not completing the development works at the project site, the opposite parties cannot seek benefit of forfeiture clause contained in the agreement.

27.           As far as objection taken to the effect that opposite parties no.2 and 3 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-8) of the Company (wherein the CIN/LLPIN has been mentioned), has proved that opposite parties no.2 and 3 remained active in the capacity of Director and CEO of the Company for the period from 10.05.2018 to 02.04.2020 and 19.06.2018 to 14.09.2020 respectively. Document-Annexure C-8 has gone unrebutted by the opposite parties, as nothing contrary to it has been placed on record. At the same time, the complainants in para no.6 of their complaint has specifically averred that these persons alongwith others at sr.nos.4 to 9 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.
28.           For the reasons recorded above, this complaint is accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.40,11,251/- to the complainants, 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.40,11,251/- 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 complainants, 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.

29.           However, it is made clear that if the complainants have 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 complainants.
30.           Certified Copies of this order be sent to the parties, free of charge.
31.           The file be consigned to Record Room, after completion.

 

Pronounced

16.11.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.