Chandigarh

StateCommission

CC/162/2019

Sanjiv Malik - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

28 Feb 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	162 of 2019
Date of Institution	:	22.07.2019
Date of Decision	:	28.02.2020

 

1. Sanjiv Malik S/o Late Sh.S.P. Malik, R/o 1701-A, Beverly Park-II, DLF City, Phase-II, Gurgaon, Haryana-122002.
2. Vandana Malilk W/o Sh.Sanjiv Malik, R/o 1701-A, Beverly Park-II, DLF City, Phase-II, Gurgaon, Haryana-122002.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, 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. Sh. 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. Sh.Prashant Gupta, Chief Executive Officer of Emaar MGF Land Limited, R/o G-1, Fine Home Plots, Mayur Vihar, Phase-1, Delhi-110092.

….Opposite Parties

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

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

Present:        Sh.Savinder Singh Gill, Advocate for the complainants.

Sh.Sanjeev Sharma, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.42,36,417.50ps. paid by the complainants towards purchase of a plot, measuring 300 square yards, in their project named “Mohali Hills”,  Augusta Greens, Sector 109, SAS Nagar, Mohali. Total sale consideration of the plot was fixed at Rs.40,50,354/- It is the case of the complainants that on making payment of booking amount to the tune of Rs.10,35,000/- on 23.09.2006, they were allotted plot no.513, measuring 300 square in the said project, vide provisional allotment letter dated 14.04.2007 (Annexure C-1). Plot Buyer’s Agreement dated 30.06.2007 (Annexure C-3) was also executed between the parties, as per Clause 8 whereof, the opposite parties committed to deliver possession of plot no.513, within a maximum period of three years i.e. on or before 29.06.2010. Since plot no.513 referred to above was located near railway track, as such, they were relocated to plot no.314, in Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab, for which addendum agreement dated 17.12.2008 (Annexure C-4) was executed between the parties. It has been stated that despite the fact that on demands raised by the opposite parties from time to time they paid total amount of Rs.42,36,417.50ps., for the period between 23.09.2006 to 05.05.2018, yet, actual physical possession of the relocated plot no.314 was not delivered by the promised dated i.e. 29.06.2010. However, thereafter, vide letter dated 26.05.2011 (Annexure C-5), the complainants were updated regarding development at the project site, wherein, it was informed that development work is still being carried out. 

                   It has been pleaded that on receipt of letter dated 26.05.2011, the complainants visited the project site and found that the relocated plot no.314, was not even demarcated and the land was in occupation of some local residents/farmers. The complainants sent number of emails to the opposite parties to apprise them as to whether the relocated plot no.314 is located on the land with clear title or not but they miserably failed to provide necessary information in the matter.  On the other hand, vide letter dated 21.01.2016 (Annexure C-7), the complainants were again relocated to plot no.249 from plot no.314, in Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab. It has been averred that thereafter, it came to the knowledge of the complainants that entry points of the said sector have been sealed by the Forest Department for want of permissions and also basic amenities such as water, electricity etc. were not in existence there, which fact is also evident from RTI information dated 29.04.2014 (Annexure C-11). It has been pleaded that, as such, in the absence of basic amenities, development works and also the fact that entry points of the project were sealed by the Forest Department, the complainants were not obliged to take incomplete possession of relocated plot no.249. Number of requests made by the complainants with the opposite parties, to redress their grievance did not yield any result.

                   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 complainants have filed the present case seeking refund of amount paid alongwith interest, compensation etc.

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” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction; that the complaint filed is beyond limitation; that the plot in question being an immovable property and also because the opposite parties only proposed to deliver possession by the period mentioned in the agreement, as such, time was not to be considered as essence of the contract; that the complaint filed is time barred; that the complainants were defaulters in making payment; that the complaint is bad for mis-joinder of opposite parties no.2 and 3 as parties in the complaint; that for any delays, stipulated penalty has been provided in the agreement, which safeguarded the interest of the complainants; that if the complainants want refund of the deposited amount, forfeiture clause contained in the agreement will be applicable.
3.           On merits, the facts that the complainants agreed to purchase plot in the aforesaid project; payments made by them; allotment of plot no.513-AG-109-300 in the first instance and thereafter relocation to plot no.314-AP-109-300 and thereafter to plot no.249-AP-109-300 are not in dispute. It has been pleaded that, after relocation to plot no.314-AP-109-300, the complainants were offered possession thereof (plot no.314-AP-109-300), vide letter dated 26.05.2011 (Annexure C-5), but instead of taking over the same, they again requested for relocation to some other plot, as a result whereof, they were relocated to plot no. 249-AP-109-300,  which was accepted by them vide letter dated 09.11.2015. However, they did not take possession of relocated plot no. 249-AP-109-300 nor signed the addendum agreement and kept on disputing the demands raised with regard to stamp duty, club charges, holding charges, preferential location charges etc. Vide email dated 29.03.2018, the complainants informed that they are unable to take possession on account of personal commitments, yet, thereafter made payment of Rs.4,75,000/- on 03.05.2018. It has been pleaded that delay, if any took place, as the complainants kept on lingering the matter on one pretext or the other and engaged the opposite parties in exchanging emails/letters for quite a long time. It has been averred that the complainants can come forward to take possession of relocated plot no.249-AP-109-300 at any time. Burden to prove that the project is not habitable lies on the complainants. It has been stated in the reply that exemption to the project was granted by the State Government to the Company from applicability of the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short the PAPR Act) in 2006; and that though not required even then partial completion certificate has been obtained from the Competent Authorities vide letter dated 16.10.2015.
4.           It has been stated that though the Forest Department had sealed certain entry points of the project in question, yet, there was adequate access thereto; that the Forest Department vide letter dated 16.01.2018 (Annexure R-13) has given no objection to the company; that as far as pending case in Kharar Court is concerned, the opposite parties stood discharged therefrom, vide order dated 03.11.2016 (Annexure R-12) and as such, now no sealing issue of the entries of project is pending. It has been averred that the RTI placed on record, obtained by a third party, cannot be made applicable to the present case. Prayer has made to dismiss the complaint.
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 and also produced numerous documents.
6.           We have heard the contesting parties and have carefully gone through record of the case.
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 contained 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 time was essence of the contract?
   5. Whether the complaint filed is within limitation?
   6. Whether the complaint is bad for misjoinder of parties?
   7. Whether the complainants are entitled to get refund of the amount deposited and if yes, at what rate of interest?

 

8.           First, we would like to deal with the objection raised by the opposite parties to the effect that in the face of existence of provision in the agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with by the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, wherein it was 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 agreed to be 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. Objection taken in this regard stands rejected.
10.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that in the instant case, perusal of provisional allotment letter dated 14.04.2007 (Annexure C-1), payment receipts (Annexure C-2 colly.), addendum agreement dated 17.12.2008 (Annexure C-4),  letter dated 26.05.2011 (Annexure C-5), amended agreement dated 21.01.2016 (Annexure C-7), letter dated 21.01.2016  (at page 125 of the file) reveal that the same have been issued by the opposite parties from their Chandigarh Office i.e. SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh-160017, 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. Thus, this Commission at Chandigarh has territorial jurisdiction to entertain and decide this complaint. 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 Section 2(1)(d) of the Act. Mere fact that the complainants are living in a house at Gurgaon 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.           Now the moot question which falls for consideration is, as to whether, the opposite parties were in a position to offer and deliver actual physical possession of plot (any plot i.e. 513-AG-109-300, 314-AP-109-300 or 249-AP-109-300) to the complainants or not?

                   During the course of arguments, Counsel for the complainants contended that the complainants were located twice to plot nos. 314-AP-109-300 and then to 249-AP-109-300. However, on relocation to plot no. 314-AP-109-300, the complainants sent number of emails to the opposite parties, requesting them to provide requisite documents, showing clear title of the land where the said plot was located but they miserably failed to provide necessary information in the matter and on the other hand, vide letter dated 21.01.2016 (Annexure C-7), they were again relocated to plot no.249-AP-109-300, yet, none of the sites were habitable, as it was found that the project was not complete; basic amenities were not in existence; and that the entry points thereof were sealed by the Forest Department and as such, under these circumstances, the complainants are not obliged to take possession of the relocated plot no. 249-AP-109-300 even.

                   On the other hand, Counsel for the opposite parties contended that after relocation to plot no.314-AP-109-300, the complainants were offered possession thereof (plot no.314-AP-109-300), vide letter dated 26.05.2011 (Annexure C-5), but instead of taking over the same, the complainants  again requested for relocation to some other plot, as a result whereof, they were relocated to plot no.249-AP-109-300, which was accepted by them vide letter dated 09.11.2015, yet, they did not take over possession thereof and on the other hand, kept on raising disputes with regard to various demands relating to stamp duty, club charges, holding charges, preferential location charges etc. It was further contended that as far as sealing of entries of the project by the Forest Department is concerned, the said  Department vide letter dated 16.01.2018 (Annexure R-13) has given no objection to the company; Kharar Court has also discharged the Company from pending case, vide order dated 03.11.2016 (Annexure R-12); and as such, now no sealing issue of the entries of project is pending.

13.           From bare perusal of record, it transpires that, in the first instance, vide letter dated 14.04.2007 (Annexure C-1), the complainants were provisionally allotted plot no.513-AG-109-300, by the opposite parties, against, which agreement dated 30.06.2007 (Annexure C-3) was also executed and as per Clause 8 thereof, the opposite parties committed to handover possession within a maximum period of 3 years i.e. latest by 29.06.2010. However, it is also coming out from the record, that after a period of about one and a half years from the date of allotment, the complainants were relocated to plot no.314-AP-109-300 and addendum agreement dated 17.12.2008 (Annexure C-4) was executed between the parties in that regard, as the earlier plot was located near railway track.
14.           Now we will deal with the issue, as to whether actual physical possession of relocated plot no.314-AP-109-300 was ever offered to the complainants or not? No doubt, the opposite parties are claiming that possession of relocated plot no. 314-AP-109-300 was offered vide letter dated 26.05.2011 (Annexure C-5), yet, when we go through the contents of the said letter, 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. Under these circumstances, we are of the considered opinion that, in no way, the letter dated 26.05.2011 can be termed as offer of possession of the relocated plot no. 314-AP-109-300, as it was only an update of development works at the project site.  
15.           There is another reason with this Commission to believe that the opposite parties were not in a position to offer possession of the plots or flats in Sector 109 referred to above, as  Counsel for the opposite parties namely Sh. Aditya Narain, Advocate, has given a candid statement before the Hon’ble National Commission, in a case titled as  Emaar MGF Land Ltd. Vs. Mandeep Saini, First Appeal No. 709 of 2016, decided on 14 Sep 2016, to the effect that the delay in delivery of possession of the units 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. Relevant part of the said order is reproduced hereunder:-

“We have heard learned counsel for the Appellant and the Complainants on the question of interim stay. 

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…………”.

The fact that access to the project in question was sealed by the Forest Department during the aforesaid period, has also been admitted by the opposite parties in their written reply filed in the present case and it has also been stated therein that no objection has been given by the said Department only on 16.01.2018. Thus, under above circumstances, it is not known that when no objection was issued by the Forest Department only on 16.01.2018, then how the GMADA had issued partial completion certificate dated 16.10.2015 (Annexure R-7) to the opposite parties, in respect of the project in question. In the face of candid admission of Counsel for the opposite parties in Emaar MGF Land Ltd. Vs. Mandeep Saini’s case (supra), the authenticity of partial completion certificate dated 16.10.2015 is doubtful and as such no help can be drawn by the opposite parties therefrom, to say that by the said date, development works at the project site were complete. As such, it is held that the opposite parties were not in a position to deliver possession of any of the plots, referred to above, to the complainants till 16.01.2018. The act of the opposite parties in not delivering actual physical possession of the relocated plot no.314-AP-109-300 in the said project and on the other hand, placing reliance on letter dated 26.05.2011, terming it as offer of possession, the date when they were not in a position to offer possession, also amounts to adoption of unfair trade practice on their part.

16.           Furthermore, it is also coming out from the record that thereafter number of meetings were held between the parties and, ultimately, the complainants vide letter dated 16.04.2015 (age page 64 of the paper book), and email of the even date (at page 61 of the paper book) had informed the opposite parties that when they visited the project site for taking over possession of relocated plot no.314-AP-109-300, it was found that the same was not demarcated and also that some local residents/farmers were carrying out farming activities at the back side thereof and when confronted with the situation, Mr.Dharminder and Mr.Mohit Kaura, (representatives of the Company) informed the complainants that there are some outstanding issues w.r.t. land acquisition and therefore landmark stones could not be laid near the said plot. As such, vide letter/email dated 16.04.2015 aforesaid, the complainants had requested the opposite parties to provide the title documents/approvals in respect of the said project/plot, yet, there is nothing on record, which could reveal that copy of the said documents were ever provided by the opposite parties to the complainants. There is nothing on record to show that the opposite parties rebutted the aforesaid issues raised by the complainants vide letter dated 16.04.2015  with regard to meeting to the said Officers and also the aforesaid outstanding issues with regard to relocated plot no. 314-AP-109-300, stating the same to be false.

                   It is also coming out from the record that confronted with the situation, the opposite parties offered relocation to the complainants, from plot no.314-AP-109-300 to plot no.109-AP-725-300 which was not accepted by them (complainants) as two school lanes were passing through the same and ultimately they were offered relocation to plot no. 249-AP-109-300 vide email dated 19.10.2015 (at page 91 of the paper book), which was accepted vide email dated 09.11.2015. However, thereafter, it seems that dispute arose between the parties with regard to some preferential location charges, discount, holding maintenance charges in the absence of offer of possession etc., in respect of relocated plot no.249-AP-109-300, for which number of emails were exchanged between the parties. It is further coming out from the record that thereafter without redressing the grievance of the complainants, the opposite parties offered possession of relocated plot no. 249-AP-109-300 on 20.08.2016. Thereafter, the complainants paid an amount of Rs.4,75,000/- to the opposite parties towards relocated plot no. 249-AP-109-300, yet, when they could not take possession thereof, for want of basic amenities and also the entries of the project in question were found sealed by the Forest Department for want of necessary permission, they filed this complaint seeking refund of amount paid alongwith interest, compensation etc.  

17.           Sequence of events narrated above clearly goes to show that despite the fact that necessary approvals/sanctions were not obtained by the opposite parties, especially from the Forest Department, even then the project had been launched by them in the year 2007 and plots were sold to the general public including the complainants, which is a material violation on their part. It is settled law that before launching the project and selling units/plots therein, the project proponent is duty bound to obtain necessary permissions/ approvals from the competent Authorities. Thus, the fact remains that despite the fact that plot was booked as far as back in 2007, yet, the complainants were empty handed till August 2016 and even thereafter when possession of relocated plot no. 249-AP-109-300 was offered, the entries of project was found sealed, as the opposite parties failed to take necessary approvals/clearances. If the opposite parties were exempted from the provisions of PAPR Act, it doesn’t mean that they were given blanket immunity to launch the project on a part of land of the Forest Department or that they could sell the units/plots in a project which is under litigation. The opposite parties have failed to place on record even a single document, to convince this Commission that they were given blanket immunity under the garb of exemption from PAPR Act, to launch the project and sell units/plots therein, without getting necessary approvals/sanctions or in a project which is under litigation. Had they been given immunity to that effect, the Forest Department would not have sealed the entries of the project in question and on the other hand,  the opposite parties could have initiated legal proceedings against the Forest Department but it is not so. It is therefore held that by launching the project in question and selling units/plots therein, without obtaining necessary approvals from the competent authorities and also being the project under litigation before the Kharar Court, the opposite parties are guilty of providing deficient services and also adoption of unfair trade practice, which needs to be deprecated.
18.           Furthermore, despite the fact that possession of the plot was to be delivered by 29.06.2010, the opposite parties kept on relocating the complainants and, ultimately, possession of relocated plot no.249-AP-109-300 was offered on 20.08.2016 i.e. after more than 9 years from the date when provisional allotment was made in favour of the complainants and more than 6 years from the committed date, which is an inordinate delay. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date, 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. A similar question as to whether an allottee is obliged to take possession, in case there is a delay in offering the same, fell for determination before the Hon’ble National Commission in Govindan Raghavan Vs. Pioneer Urban Land And Infrastructure Ltd., Consumer Case No. 239 of 2017, decided on 23 Oct 2018, wherein while negating the plea taken by the builder, refund of the amount paid was ordered, by holding as under:-

“16.    The learned counsel for the OP submits that in CC No.239 of 2017, not only the construction of the apartment has already been completed, even the requisite Occupancy Certificate has been obtained on 23.07.2018 and therefore, the complainant should now take possession of the allotted flat instead of insisting upon the refund of the amount paid by him towards the cost of the flat.  The learned counsel for the said complainant  states on instructions that the complainant is no more interested in taking possession of the allotted flat and wants refund of the amount paid by him alongwith appropriate compensation.  Considering that the last date for completion of the construction expired about three years before the Occupancy Certificate was obtained, and in fact, it had expired more than one year before this complaint was instituted, the complainant, in my opinion, cannot be compelled to accept possession of the flat at this belated stage.”

 

Feeling aggrieved, against the order dated 23.10.2018, the builder went in  Civil Appeal No.12238 of 2018,  before the Hon’ble Supreme Court, which was dismissed by it vide order dated 02.04.2019, while holding as under:-

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired…….”

19.           Because in the present case also, there is an inordinate delay of more than six years from the committed date i.e. 29.06.2010 (three years from 30.06.2007), in offering possession of the plot, as such, in view of settled law that non-delivery of possession of plots/units in a developed project by the promised date, 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, as such, if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. The complainants are therefore held entitled to get refund of the amount actually paid by them alongwith interest @12% p.a. from the respective dates of deposits till realization, in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a.

                   At the same time, the opposite parties are also held liable to compensate the complainants for deficiency in providing service, negligence and adoption of unfair trade practice and also causing them mental agony and harassment.

20.           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 admittedly an amount of Rs.4,75,000/- had been received by the opposite parties on 03.05.2018 in respect of relocated plot no. 249-AP-109-300, as such, if the period of two years are counted from 03.05.2018, then this complaint having been filed on 22.07.2019 is well within limitation. Objection raised in this regard, as such, is rejected.
21.           The next question under our consideration is as to whether, time for handing over possession of the plot to the complainants, was essence of the contract or not? It may be stated here that a specific period of three years from the date  of execution of the agreement dated 30.06.2007, for delivering possession of the plot to the complainants has been mentioned in Clause 8 thereof.  Other than this Clause contained in the agreement, there is no Clause, which speaks about the period/date for delivery of possession of the plot to complainants. The opposite parties have not placed on record an iota of evidence to convince this Commission that they actually encountered any force majeure circumstances, as a result whereof, they are legally entitled for extension of time for delivering possession of the plot to the allottees, including the complainants. The opposite parties cannot wriggle out of the commitments made vide Clause 8 of the agreement with regard to time period for delivery of possession. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of the opposite parties to the effect that time was not essence of the contract or that no definite period was given to offer possession of the plot in question, being devoid of merit stands rejected.
22.           As far as plea taken to the effect that the complainants were defaulters in making payment towards the plot, 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.  It was so said by the Hon’ble National Commission in Rakesh Anand & Anr. Vs M/S. Royal Empires (Royal Minaar), First Appeal No. 1378 of 2016, decided on 09 Apr 2018. Furthermore, 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, held that if the builder is at fault in not delivering possession of the residential units/plots 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. In the present case also, it is an admitted fact that the dispute with regard to making payments if any arose, was only at the time when the complainants were relocated twice, whereupon they raised various issues with regard to the difference in sale consideration and other charges, referred to above, towards the relocated plots. Not even a single document has been placed on record, which could reveal that there was any fault on the part of the complainants in making payment towards purchase of initial plot i.e. plot no.513-AG-109-300. Thereafter, dispute, if any arose, relating to adjustment of the amount already paid and also the differential amount which arose out of various charges in relation to the relocated plots only. Thus, in no way, the complainants can be termed as defaulters. As such, forfeiture clause cannot be made applicable in the present case. Objection taken in this regard, stands rejected.  
23.           As far as objection taken to the effect that opposite parties no.2 and 3 have been wrongly impleaded as parties to this complaint, it may be stated here that the complainants 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 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-12 has gone unrebutted by the opposite parties, as nothing contrary to it has been placed on record. 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. In this view of the matter, objection taken stands rejected.
24.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.42,36,417.50ps. to the complainants, alongwith interest @12% p.a. from the respective dates of deposit onwards, 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.42,36,417.50ps. 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 compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, 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 @12% p.a. from the date of passing of this order, till realization.

25.           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.
26.           We may mention here that the above said amount awarded to the complainants in the shape of interest is compensation, therefore, the opposite parties shall not deduct tax at source (T.D.S.) under the Income Tax Act 1961.
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

28.02.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 Rg.