Chandigarh

StateCommission

CC/80/2015

Pankaj Garg & anr. - Complainant(s)

Versus

Emaar MGF land Ltd. anr. - Opp.Party(s)

Ramandeep Singh Pandher

29 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	80 of 2015
Date of Institution	:	01.05.2015
Date of Decision	:	29.07.2015

 

1. Pankaj Garg son of Som Prakash Garg, resident of House No.578, Sector 7, Panchkula, Haryana, presently at 1094, Sobha Chrysanthemum, Thanisandra, Main Road, Bangalore.
2. Ritu Garg wife of Pankaj Garg, resident of House No.578, Sector 7, Panchkula, Haryana, presently at 1094, Sobha Chrysanthemum, Thanisandra, Main Road, Bangalore.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, SCO No.120-121, First   Floor, Sector 17-C, Chandigarh, through its Chairman/Manager.
2. Emaar MGF Land Ltd., Head Office ECE House, 28, K.G. Marg, New Delhi-110001, through its Managing Director.

              ....Opposite Parties

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

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

 

Argued by:  Sh. Ramandeep Singh Pandher, Advocate for the complainants.

                      Sh. Sanjeev Sharma, Advocate for the Opposite   Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.   

           

            The facts, in brief, are that complainant No.1, applied to the Opposite Parties, vide application No.879 dated 08.06.2007, for the allotment of a residential plot, measuring 300 square yards, in their proposed township, launched by them, under the name and style of “Pinewood Parks”, Sector 108, Mohali, Punjab. As such, vide allotment letter dated 05.05.2007, Annexure C-1, complainant No.1 was allotted  plot No.266, measuring 300 square yards, in Pinewood Park, Sector 108, Mohali Hills, Mohali, @ Rs.11,500/-per square yard. The basic price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, complainant No.1 was also required to pay a sum of Rs.1,47,249/-, towards External Development Charges. Thus, the total sale consideration, in the sum of Rs.35,97,249/-, was required to be paid by  complainant No.1, towards the said plot. Plot Buyer's Agreement dated 30.06.2007, in respect of the said plot was executed between complainant No.1 and the Opposite Parties.

2.       It was stated that, thereafter, on the request having been made by complainant No.1, the name of complainant No.2 was also added as co-owner of the said plot, by the Opposite Parties, confirmation whereof, was given  by  them, vide letter dated 20.11.2007 Annexure C-4.
3.       It was further stated that, thereafter, as per the installment payment plan, the complainants paid Rs.34,24,749/-, to the Opposite Parties, in respect of the plot, in question. They, thus, qualified for waiver of 5%  of the BSP i.e. Rs.1,72,500/-. It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 30.06.2007 Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainants, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they were liable to pay penalty/compensation, to the complainants @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of the residential plot, to the complainants, latest by 29.06.2010. It was further stated that even by 29.06.2010, there was no development at the site, where the plot, in question, was located.
4.       It was further stated that, to the utter surprise of the complainants, the Opposite Parties, even in the absence of basic amenities and development at the site, vide letter dated 30.01.2010 Annexure C-6, issued offer of possession of the plot, in question, wherein illegal demands of certain amounts were made by them. It was also intimated by the Opposite Parties, vide the said letter, to provide them (Opposite Parties), a duly signed duplicate copy of the same (said letter), as acceptance by 12.02.2010.
5.       It was further stated that, on receipt of letter dated 30.01.2010 Annexure C-6, father of the complainants visited the site, and found that there was no development at the site. It was further stated that even basic amenities like water, sewer, roads, electricity, etc. etc. were not available at the site. It was further stated that, as such, the complainants vide letter dated 08.02.2010 Annexure C-7, sought clarification on certain issues, with regard to the letter dated 30.01.2010 Annexure C-6, but to no avail. It was further stated that, thereafter a lot of correspondence was exchanged between the parties, in the matter, but to no avail. It was further stated that the Opposite Parties vide letter dated 08.02.2012 Annexure C-10, admitted that they were trying to expedite the construction work and completion of infrastructure and subsequent to that the process of registration of sale deed would be started. It was further stated that even various approvals/sanctions had not been taken by the Opposite Parties, from the Competent Authorities, in respect of the project, in question. It was further stated that, the complainants kept on approaching the Opposite Parties, to redress their grievance, but they kept on lingering the matter, on one pretext or the other.
6.       It was further stated that, finally, the Opposite Parties, sent letter dated 23.01.2015 Annexure C-11, towards settlement of final dues, wherein a demand of Rs.8,70,080.30 Ps., under various heads was made, as also intimation was given for execution of conveyance deed and registration of the sale deed, in respect of the plot, in question.
7.       It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 30.06.2007, but they did not abide by their commitment, and, on the other hand, offered paper possession, vide letter dated 30.01.2010. It was further stated that, as such, the amount deposited by the complainants, towards the sale price of plot, was utilized by the Opposite Parties, as a result whereof, they (complainants) were caused huge financial loss.
8.            It was further stated that, thus, the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to them, and also suffered further financial loss, on account of non-payment of compensation.
9.            It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to hand over physical possession of the unit, in question, and execute sale deed thereof; pay interest @15% P.A., on the amount paid by them, till delivery of possession of the plot, in question; compensation to the tune of Rs.3 lacs, on account of mental agony and physical harassment; and  cost of litigation.
10.       The Opposite Parties, were served and put in appearance on 11.06.2015. In the joint written version, filed on 13.07.2015, the Opposite Parties pleaded that the complainants did not fall within the definition of consumers, as defined by Section 2 (1) (d) (ii) of the Act, as they  being speculators, purchased the plot, in question, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices. It was further pleaded that since possession, in respect of the plot, in question, vide letter dated 30.01.2010 Annexure C-6, was offered to the complainants, and they admittedly received the same, cause of action, in the first instance, accrued to them, on that date, and they could file the consumer complaint, for seeking various reliefs, within two years, from 30.01.2010, and, as such, the complaint, having been filed on 01.05.2015, was palpably barred by time, and liable to be dismissed. It was further pleaded that this Commission has got no pecuniary and territorial Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed in the Plot Buyer's Agreement dated 30.06.2007 Annexure C-2, and, in case of any dispute, the matter was to be referred to the Arbitration. It was not disputed that the name of complainant No.2 was later on added, as co-owner of the said plot, vide letter dated 20.11.2007, by the Opposite Parties. It was admitted that the complainants had paid an amount of Rs.34,24,749/-, towards the said plot. It was also admitted that the complainants were given rebate @5% of the BSP. It was also admitted that the Plot Buyer's Agreement was executed, between complainant No.1 and the Opposite Parties. It was stated that since possession of the plot, in question, was offered to the complainants,  vide letter dated 30.01.2010 Annexure C-6, but they refused to accept the same, now at this stage, they could not raise such a plea. It was further stated that all the amenities, as specified in Clause 23 of the Plot Buyer's Agreement dated 30.06.2007 Annexure C-2, had been completed and internal roads, water, sewerage and electrical lines had been laid, in the area, where the plot, in question, was located. It was further stated that since the complainants were defaulters, in not taking over possession of the said plot, despite the fact, that the same had been offered to them, vide letter dated 30.01.2010 Annexure C-6, as such, they were liable to pay holding charges of Rs.10,96,274/-, in terms of Clause 9 of the Plot Buyer's Agreement dated 30.06.2007 Annexure C-2. It was further stated that the complainants were defaulters in making payments, demanded vide letter dated 30.01.2010, as a result whereof, the Opposite Parties had to send numerous letters/reminders, for the same including the final notice dated 23.01.2015 Annexure C-11. It was denied that any arbitrary demand of amount, was made by the Opposite Parties, from the complainants. It was further stated that the Opposite Parties were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of delivery of possession of the plot. It was further stated that the amount demanded from the complainants, was legally due against them, towards final settlement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11.       In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
12.       The complainants, submitted their separate affidavits, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
13.       The Opposite Parties, in support of their case, submitted the affidavit of Mr. Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 
14.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
15.       The core question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was barred by limitation or not. Admittedly, vide letter dated 30.01.2010 Annexure C-6, possession of the plot, in question, was offered to the complainants, subject to making payment of the amounts mentioned therein.  Undoubtedly, this letter was received by the complainants, as admitted by them, in the consumer complaint. Thus, it is evident, from the record, that firstly the cause of action accrued to the complainants, on 30.01.2010, when they were called upon, to complete the prescribed formalities towards possession of the said residential plot. The complaint was filed on 01.05.2015. As stated above, vide letter dated 30.01.2010 Annexure C-6, which was admittedly received by the complainants, they were offered possession of the plot, in question, on completion of the prescribed formalities and payment of the amount mentioned therein. The complainants did not accept the offer of possession, on the ground that the development was incomplete. It may be stated here, that if the infrastructure had not been developed, at the site, or there were deficiencies and drawbacks, in the development of the area, where the plot, in question, is situated, for two years, from 30.01.2010, the complainants could exchange correspondence, with the Opposite Parties, for completion of the same, and, thereafter, immediately, before the expiry of that period (two years), from the said date (30.01.2010), they (complainants) were required to file the consumer complaint. Once, the cause of action, accrued to the complainants, on 30.01.2010, as stated above, no further notice or document could extend the period of limitation. Section 24A of the Act, deals with the situation, which reads as under:-

“24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

16.       The above provision is clearly peremptory, in nature, requiring the Consumer Foras to see, at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years, from the date of cause of action or not. 
17.       The Hon'ble Supreme Court of India, in Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in a case titled as State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-

“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held; 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, hall not admit a complaint occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

18.       Not only this, in Alka R. Singh Vs. Shalimar Estates (Pvt.) Ltd., First Appeal No.699 of 2012, decided on 29.05.2014, by the National Consumer Disputes Redressal Commission, New Delhi,  somewhat similar question, arose for decision. In that case also, the complainant, in paragraph No.13 of the complaint, relating to the cause of action, stated as under:-

“That the cause of action has arisen in favour of the complainant and against the respondents, firstly, when the respondent failed to handover the possession of the aforesaid commercial showroom within two years i.e. by the year 2009 and secondly, on 5.3.2012 when the respondent point blankly refused to refund the earnest money of the Rs.23,67,587/- to the complainant in-spite of the best effort by the complainant in this regard”

19.       The afore-extracted paragraph 13 clearly revealed that cause of action firstly arose to the complainant, in 2009, and secondly on 05.03.2012, when it finally refused to return the amount of Rs.23,67,587/-, to the complainant, inspite of best efforts, made by her, in that regard. Keeping in view the averments, contained in paragraph number 13 of the complaint, in Alka R. Singh's case, it was held by the National Commission that since cause of action accrued to the complainant, in 2009, as such, she could file a complaint upto 2011, but the same having been filed in 2012, was barred by time. In Vijaykant Motilal Kothari Vs. Safire Hotel Private Ltd., II (2013) CPJ 696 (NC), the petitioner was put in possession of the shop on 10.07.2001, whereas, he filed the consumer complaint, in the year, 2005, claiming certain reliefs, in respect of that shop. In those circumstances, it was held by the National Commission that the complaint was barred by time.
20.       In S.C. Jain Vs. Haryana Urban Development Authority, Revision-Petition No.789 of 2012, decided on 21.11.2012, by the National Consumer Disputes Redressal Commission, New Delhi, the facts of the case were that the complainants, who were reallottees, were offered possession of the plot, in question, on 06.09.2000. They filed the consumer complaint, before the District Forum, on 01.02.2005, alleging that they were offered possession of the plot, in the absence of development works. As such, they sought interest on the deposited amount with effect from 03.04.2000, till the actual physical possession of the plot, after making development and after providing the basic amenities was delivered. The said complaint was allowed by the District Forum. Feeling aggrieved, against the order of the District Forum, the appellant i.e. Haryana Urban Development Authority, filed appeal before the State Commission, which was accepted by it, being barred by limitation. Thereafter, the revisionist/complainant filed Revision-Petition, before the National Commission, which was dismissed by it, vide order dated 21.11.2012. Still feeling aggrieved, the appellant/complainant filed Special Leave to Appeal (Civil) CC 21917-21918/2013, against the order dated 21.11.2012, passed in the Revision-Petition, by the National Commission, in the Supreme Court of India, which was also dismissed vide order dated 03.01.2014.
21.       Not only this, in Umesh Saini Vs. Estate Officer, Haryana Urban Development Authority Office, Revision-Petition No.3004 of 2010, decided on 20.01.2011, by the National Consumer Disputes Redressal Commission, New Delhi, the mother of the complainant, who was allottee of the plot, was offered possession of the same, by HUDA, Panchkula, vide letter dated 07.02.2001. She deposited the full price, but did not take possession, on the ground that the said plot was too close to the adjoining drain (Choe). In 2003, the plot was reallotted in the name of the complainant. In 2005, however, without taking possession of the plot, the complainant filed a consumer complaint, before the District Consumer Disputes Redressal Forum, Panchkula, seeking damages of Rs.16.42 lacs and allotment of an alternative plot. The District Forum came to the conclusion that since the possession was offered on 07.02.2001, the complaint having been filed in 2005, was barred by limitation. Appeal filed against the order of the District Forum was dismissed by the State Consumer Disputes Redressal Commission, Haryana. Feeling aggrieved, Revision-Petition aforesaid was filed by the complainant/Revision-Petitioner. The National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion that since possession of the plot was offered on 07.02.2001, the consumer complaint could be filed within a period of two years, and, as such, the complaint having been filed in 2005 was barred by time.
22.       Similarly, in the instant case, as stated above, once the cause of action, arose to the complainants, on 30.01.2010, when possession of the plot was offered to them, and they refused the said offer, for whatever the reason may be, it was required of them (complainants) to file the complaint by 30.01.2012, if their grievance had not been redressed, claiming therein any number of reliefs, including the execution of sale deed, but they failed to do so. By no stretch of imagination, it could be said that there was a continuing cause of action, in favour of the complainants. Had the possession been not offered to the complainants, vide letter dated 30.01.2010, Annexure C-6, received by them (complainants), the matter would have been different. In those circumstances, it might have been said that since neither possession was offered nor delivered, nor the sale deed was executed nor the refund was made, and hence the cause of action being continuing, the complaint having been filed on 01.05.2015 was within time. In view of the principle of law, laid down, in the aforesaid cases, it is held that the complaint filed by the complainants, on 01.05.2015, was palpably barred by time.
23.       The next question, that arises for consideration, is, as to whether, this Commission can decide the complaint, on merits, especially, when it has come to the conclusion, that the complaint filed by the complainants was palpably barred by limitation. The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries's case (supra). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;

“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

“24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

24.        The principle of law, laid down, by the Apex Court in  State Bank of India’s case (supra), is fully applicable to the facts of the present case. In case, this Commission, decides the complaint, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case (supra).
25.           For the reasons, recorded above, the complaint is dismissed, being barred by time, with no order as to costs.
26.           Certified copies of this order, be sent to the parties, free of charge.
27.        The file be consigned to Record Room, after completion.

Pronounced.

July 29, 2015_

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

 

Rg.