Chandigarh

StateCommission

CC/210/2019

Uday Partap Singh - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Savinder Singh Gill, Hoshiar Chand Adv.

04 Jan 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	210 of 2019
Date of Institution	:	17.09.2019
Date of Decision	:	04.01.2021

 

1. Uday Partap Singh S/o Sh.Ram Partap Singh, R/o House No.91, Sector 6, Panchkula, Haryana.
2. Sonia Singh W/o Sh.Uday Partap Singh, R/o House No.91, Sector 6, Panchkula, Haryana.

……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. 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, having its office at: Mohali Hills, Office No. 40, Central Plaza, Sector-105, Mohali 160062.

Email Id:- feedback@emaarmgf.com

….Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:     

                      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.37,67,468/- paid by them towards purchase of plot no.320, measuring 300 square yards, in resale, on 11.06.2012, from Mr.Nawal Sood and Ms.Alka Sood (original allottees), in the project named “Augusta Greens”, Mohali Hills, Sector 109, SAS Nagar, Mohali, Punjab. On completing formalities of resale, the plot in question was endorsed in favour of the complainants vide endorsement dated 18.06.2012 and, as such, the complainants became sole owners of the said plot. It is the case of the complainants that vide letter dated 17.11.2015, Annexure C-7, possession of the plot in question was offered by the opposite parties, yet, before taking over actual physical possession of the said plot, they were shocked, when they received summons Annexure C-8, from the District Court, Chandigarh, in respect thereof (plot no.320) and came to know that it was under litigation, which fact was never disclosed by the opposite parties. As such, letter dated 24.11.2015, Annexure C-9, in that regard was written to the opposite parties, as a result whereof, the complainants were relocated to plot no.109-MLU-267-300. Under compelling circumstances, the said relocation was accepted by the complainants, vide letter dated 18.12.2015, Annexure C-10, and amended agreement, Annexure C-12, in respect of relocated plot was executed between the parties on 08.03.2016. Thereafter, despite the fact that 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, as the opposite parties violated the order dated 12.12.1996 passed by the Hon’ble Supreme Court of India, possession of relocated plot was offered to the complainants vide letter dated 29.09.2017, Annexure C-14. Even basic amenities such as water, permanent electricity, sewerage treatment plant etc. were also not available at the project site. It has been stated that legal possession of the relocated plot was not delivered by the opposite parties. Hence this complaint.  

2.           Their claim has been contested by the opposite parties on numerous grounds, inter alia, that the complainants have concealed material facts from this Commission; that since possession of the relocated plot has been taken over by the complainants on 27.11.2017, as such, they ceased to be consumers; that they did not fall within the definition of “consumer”; that this Commission did not vest with pecuniary and territorial jurisdiction; that the complaint filed is barred by time; that because the proceedings before this Commission are summary in nature, as such, the dispute be referred to an arbitrator as per terms and conditions of the agreement; that since the agreement contained a penalty clause for delay in offering possession of the plot, as such, time was not the essence of contract; and that this complaint is bad for mis-joinder of parties.
3.           On merits, the fact with regard to purchase of plot no.320 aforesaid by the complainants, in resale on 11.06.2012; receipt of Rs.37,67,468/- towards price of the said plot; non delivery of possession of the said plot by the stipulated date as mentioned in the agreement; relocation to plot no.109-MLU-267-300, is not disputed by the opposite parties. It has been stated that possession of plot no.320 was offered to the original allottees vide letter dated 31.08.2011, which was also endorsed in favour of the complainants, yet, they did not take over the same and made a request for relocation, which was done accordingly. However, excess amount towards decrease in price of relocated plot no.109-MLU-267-300  was refunded to the complainants. It has been averred that even an amount of Rs.10,06,521/-, towards delayed compensation for the period of delay in offering possession has also been credited to the account of the complainants, maintained by the opposite parties.
4.           It has been stated that as far as sealing of entry to the project is concerned, it was related to Sector 108 only and has no relation whatsoever with Sector 109; and that there was adequate access to the project in question; that because the Forest Department had served notice upon the company  that illegal access had been created through the Forest Strip, as such, the company vide letter dated 15.04.2015 had requested the Greater Mohali Area Development Authority (GMADA) to take up the matter with the Forest Department for grant of permission to access Kharar- Banur-Tepla road, in order to provide connectivity to the project of the opposite parties; that the Forest Department has given its ‘No Objection, vide letter dated 16.01.2018 and 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 simply stated that vide order dated 03.11.2016, the company stood discharged from the said case.
5.           As far as pending of civil suit in respect of plot no.320 aforesaid is concerned, it has been stated that initially, the said plot was allotted in favour of Mrs.Phool Kumari vide agreement dated 04.12.2007 but the same was cancelled by the opposite parties vide letter dated 19.07.2010, Annexure OP-6, due to non payment by her. After cancellation of the said plot, the same was allotted in favour of Mr.Nawal Sood and Mrs. Alka Sood, from whom the complainants purchased the same, in resale. Thus, the said civil suit has been filed by Mrs.Phool Kumari, challenging the said cancellation letter dated 19.07.2010. Since there was no stay or injunction granted in favour of Mrs.Phool Kumari, as such, there was no legal bar in re-allotting the said plot, on 18.06.2012 in favour of the complainants, especially, when civil suit had been filed on 15.02.2015. At the same time, Mrs. Phool Kumari had also filed consumer complaint bearing no.138 of 2014 before this Commission, which had been dismissed in limini vide order dated 20.10.2014, Annexure OP-7. It was only thereafter, that Mrs.Phool Kumari, opted to file civil suit aforesaid, which is pending and no injunction/stay has been granted in her favour. Prayer has been made to dismiss the complaint with cost.
6.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in the written reply filed by the opposite parties. 
7.           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 including written arguments.  
8.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether this Commission has pecuniary and territorial jurisdiction to entertain this complaint?
   2. Whether the complainants fall under the definition of consumer?
   3. Whether this complaint is maintainable before this Commission, in the face of existence of arbitration clause contained in the agreement or not?
   4. Whether the letter dated 31.08.2011 sent by the opposite parties to the original alltottees and endorsed in favour of the complainants, can be termed as offer of possession of the plot no.320?
   5. Whether actual physical possession of relocated plot no.109-MLU-267-300 purchased by the complainants, in resale, allegedly delivered vide letter dated 27.11.2017 or possession certificate of the even date could be said to be legal possession or not?
   6. Whether the complaint filed is within limitation?
   7. Whether time was essence of the contract?
   8. Whether this complaint is bad for misjoinder of parties?
   9. Whether the complainants are entitled to get refund of the amount deposited alongwith interest or not?

 

9.           The first question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the relocated plot in dispute i.e. Rs.36,92,100/- as is evident from amended agreement dated 08.03.2016, Annexure C-12; plus other reliefs claimed i.e. interest on the deposited amount and compensation for mental agony and harassment, 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. Thus, the objection taken in this regard, stands rejected.
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, agreement dated 18.06.2007, Annexure C-5, was executed at Chandigarh. Furthermore, perusal of payment receipts dated  18.09.2007 in the sum of Rs.6,32,472/-, 20.12.2007 in the sum of Rs.4,88,778/-, 15.03.2008 in the sum of Rs.3,45,000/-  19.06.2008 in the sum of Rs.3,45,000/- and 25.12.2008 in the sum of Rs.4,29,552/- reveal that the said amounts were received by the opposite parties at Chandigarh, as it bears round stamp of the Chandigarh Office. Furthermore, the address of the company, at bottom of the said payment receipts, has been mentioned as 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 thereat. 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 residing in a house at Panchkula or any other house, cannot be made a ground to shove them out of the purview of consumer. Objection taken in this regard is therefore rejected.
12.           Since the facts narrated by the complainants, with regard to purchase of plot no.320 aforesaid, in resale, in the manner explained above; relocation to plot no.109-MLU-267-300; execution of amended agreement, Annexure C-12, in respect of the same on 08.03.2016; and payments made by them are not in dispute, as such, the questions which need to be adjudicated is, as to whether, possession of plot no.320 which was purchased by the complainants, in resale, on 11.06.2012 was ever offered to her by the opposite parties  or not and/or possession of relocated plot no.109-MLU-267-300 handed over by the opposite parties to the complainants, on papers only i.e. vide possession and handing over certificate dated 27.11.2017 could be said to be actual legal possession?.

                   No doubt, the opposite parties in their written statement have stated that possession of plot no.320 had been offered to the original allottees, vide letter dated 31.08.2011, Annexure C-6, 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. 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 and held that it was just an update of development activities and cannot be termed as offer of possession. 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. It is therefore held that the said letter was not an offer of possession, but an update on the development works at the project site.

                   Admittedly, in the first instance, the complainants had purchased plot no.320 aforesaid, in resale, possession whereof was to be delivered  latest by 17.06.2010 to the original allottees or to them (complainants) thereafter with a short period from the date when the same was got endorsed in their favour on 11.06.2012, but, admittedly, the opposite parties have miserably failed to do so, despite the fact that substantial amount stood  collected by them and on the other hand, the complainants had been  relocated to plot no.109-MLU-267-300. This relocation was done by the opposite parties, only after receipt of letter dated 24.11.2015, Annexure C-9, whereby the complainants brought to their notice that they have received notice from the District Court, Chandigarh, in respect of plot no.320 as the same was pending litigation there. It was only thereafter that the opposite parties relocated the complainants to plot no.109-MLU-267-300, which was accepted by them, as there was no choice left with them. In the entire written reply filed by the opposite parties or during arguments, no plausible reason has been given by the opposite parties, as to why possession of plot no.320 was not delivered to the complainants. On the other hand, it is evident from the record that possession of plot no.320 could not have been offered to the complainants, as it was pending litigation in civil court, as mentioned above, which fact was concealed by the opposite parties from the complainants and it came to their knowledge only when they received notice from the said court. Thus, it was only under those circumstances, that the complainants were relocated by  the opposite parties, to plot no.109-MLU-267-300 on 23.02.2016 i.e. after a long delay of more than 3 ½ years from the date of purchase of plot no.320 in resale vide endorsement dated 11.06.2012. This act of the opposite parties, in itself amounts to deficiency in providing service, negligence and adoption of unfair trade practice.

13.           Now, the next question which falls for consideration is, as to whether, possession so handed over by the opposite parties to the complainants, of the relocated plot no.109-MLU-267-300 vide possession certificate dated 27.11.2017, Annexure OP-11, could be said to be legal possession or not? To say that the said possession was only a paper possession, it has been stated by the complainants in their complaint that neither basic amenities were provided at the project at the relevant time and also the entries of the said sector including of Sector 108 were sealed by the Forest Department, as the opposite parties failed to take necessary approvals, as a result whereof the matter is pending before the Civil Court, Kharar, under Sections 29, 33 and 63 of the Indian Forest Act, 1927. To prove that the entries of sector in question i.e. Sector 109 alongwith sectors 104, 106 and 108 were sealed by the Forest Department, the complainants have placed on record copy of order dated 14.09.2016, having been passed by the Hon’ble National Commission in First Appeal No.535 of 2016, wherein Mr.Aditya Narain, Counsel for Emaar MGF Land Limited, has candidly given a statement that the Forest Department has sealed main access road to said Sectors i.e. 104, 106, 108 and 109. Relevant part of the said order reads as under:-

 “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………………….”

14.           Furthermore, the above admission in First Appeal No. 535 of 2016 (Supra) also fortifies 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, as the said fact has been endorsed by the opposite parties in the present case also, by way of candid admission in para no. 4 (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, the opposite parties 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 para no.9 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 and delivering possession of the plots/units therein.
15.           The fact regarding sealing of entries of the said project is further corroborated from the letter dated 15.04.2015 (Annexure OP/4), placed on record by the opposite parties themselves, sent to the Chief Administrator, GMADA, requesting him to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by the opposite parties, in the said letter that “……. we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. Even in the written reply filed, in para no.4, the opposite parties has fairly admitted that letter dated 15.04.2015 was sent to GMADA for grant of permission to access the Kharar-Banur-Tepla road, in order to provide connectivity to the OP’s integrated township meaning thereby that the project was not connected to main  road even. It is also coming out from the record placed by the opposite parties themselves that vide letter dated 08.01.2018, they sought permission for access through the road in dispute, as a result whereof, it was only vide letter dated 16.01.2018, Annexure OP-5 that permission was ultimately granted to the opposite parties w.r.t. diversion of 0.010 ha. of forest land for construction of approach road to Sector 109. Thus, from the contents of letter dated 16.01.2018 aforesaid, it is proved that till January 2018, the opposite parties were not in possession of land, to have an approach road to the sector in dispute, and, as such, could not have offered and delivered possession of the units/plots in the said sector. The candid admission of the opposite parties themselves 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.

                   Furthermore, there is nothing on record that after January 2018 the opposite parties have obtained completion certificate from the competent authorities, in respect of the project in question. As per settled law, in the absence of completion certificate, the opposite parties cannot even offer possession of the plot what to speak of delivery thereof to the complainants. Under these circumstances, the possession so delivered by the opposite parties to the complainants, vide certificate dated 27.11.2017 is nothing but a paper possession, which is not sustainable in the eyes of law. In this view of the matter, objection taken to the effect that since possession has been delivered to the complainants, as such, they ceased to be consumers, being devoid of merit stands rejected. Even otherwise, such an objection does not merit acceptance, in view of observations made by the Hon’ble National Commission in First Appeal No. 115 of 2017, Pranav Mittal Vs. M/S. Dynamic Infradevelopers (P) Ltd. & 4 Ors., decided on 27 Feb 2017, wherein it was held as under:-

“10. ………….It is observed from the aforementioned letter dated 05.05.2014, that the possession would be given within 12 to 14 months from the date of the sale deed. Sale deeds were executed on 27.05.2014. It is the main case of the Complainants that the premises could not be occupied since the very basic amenities were not complete.  There is a specific pleading in para 10 of the Complaint that the Complainant was constrained to issue a legal notice, dated 28.02.2016, demanding completion of the works and handing over of the possession of the subject property within 30 days of receipt of the legal notice. The State Commission has not addressed itself to this aspect.  The finding of the State Commission that once the sale deed is executed and possession is offered, the purchaser ceases to be a “Consumer” is contrary to what has been laid down by this commission in Yash Pal Marwaha versus Pushpa Builders Ltd. &Anr., II (2006) CPJ 259(NC)…….”

A similar question as to whether a buyer ceases to be consumer after taking over possession or execution of sale deed in respect of the unit also fell for determination before the Hon’ble Supreme Court of India, in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors Versus DLF Southern Homes Pvt. Ltd. Civil Appeal No. 6239 of 2019, decided on 24.08.2020, which was answered in favour of the consumer/complainants, while holding as under:-

“35 ……The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.

36 It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of “supply of services” covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India21, this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of „service‟ within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

“8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes “service” within the meaning of the Act. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on “as is where is” basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration.

To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the  transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents.” The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats.

37 However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same…….”

16.           The complainants have purchased the plot as far as back in June 2012  and possession for the first time, of relocated plot no.109-MLU-267-300  was issued after a long delay on 27.11.2017, which too was not legal possession on account of the reasons explained above. 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 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. It is therefore held that the complainants are entitled to get refund of the amount paid alongwith interest, from the respective dates of deposits.
17.           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 delivered to the complainants, as explained above,  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 physical possession of the residential units/plots is not offered and delivered, there is a continuing cause of action in favour of the allottee/buyer. In view of this matter, objection taken to the effect that time was not the essence of contract also stands rejected.  Even otherwise, once a specific objection with regard to limitation has been taken by the opposite parties, as such, in the same breadth, contrary objection take to the effect that time was not the essence of contract is not sustainable in the eyes of law. The candid admission on the part of the opposite parties to the effect that Rs.10,06,521/- towards delayed compensation has been credited in the account of the complainants maintained by them (opposite parties) is sufficient to prove the case of the complainants that there has been an inordinate delay in the matter and therefore the complainants were right in seeking refund of amount paid alongwith interest etc. in view of settled principle of law laid down by the Hon’ble Supreme Court of India in Pioneer Urban Land & Infrastructure Ltd. and Fortune Infrastructure cases (supra).
18.           As far as objection taken by the opposite parties to the effect that in the face of existence of Arbitration clause in the agreement, jurisdiction of this Commission is barred, as the proceedings before it are summary in nature, 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 buyer 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. Even otherwise, it is a simple case of adoption of unfair trade practice, negligence and deficiency in providing service, on the part of the opposite parties, as they have allotted a plot, actual legal possession whereof was never delivered to the complainants, for the reasons explained in para nos.13, 14 and 15 above. As such, objection raised by the opposite parties in this regard stands rejected.
19.           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 complainants by way of placing on record signatory details (Annexure C-18) of the Company (wherein the CIN/LLPIN has been mentioned), have 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-18 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.10 of their complaint have specifically averred that these persons are managing the affairs of the Company. In our considered opinion, both 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. Objection taken in this regard, as such, stands rejected.
20.            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.37,67,468/- 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.37,67,468/- 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 harassment 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 @9% p.a. from the date of passing of this order, till realization.

21.           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 plot in dispute, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.
22.           Certified Copies of this order be sent to the parties, free of charge.
23.           The file be consigned to Record Room, after completion.

 

Pronounced

04.01.2021

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 Rg.