Chandigarh

StateCommission

CC/280/2016

Ajay Bansal - Complainant(s)

Versus

Emaar MGF Land Ltd. - Opp.Party(s)

Savinder Singh Gill,Adv.

28 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	280 of 2016
Date of Institution	:	21.06.2016
Date of Decision	:	28.12.2016

 

Ajay Bansal s/o Late Sh. Madan Lal Bansal, r/o A-1/501, Printers Apartment, Plot – 18, Sector 13, Rohini, New Delhi-110085.

 

……Complainant

V e r s u s

1. Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through Managing Director/Authorized Signatory.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Savinder Singh Gill, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant was willing to own a residential plot for his daughter (who was minor in 2006) and accordingly applied for a plot measuring 400 sq. yards in Pinewood Park, Sector 108, Mohali Hills, SAS Nagar, Mohali and paid the booking amount of Rs.13,80,000/- on 23.09.2006 vide receipt (Annexure C-1). Accordingly, plot bearing No.30 was provisionally allotted to the complainant vide provisional allotment letter dated 05.05.2007 (Annexure C-1). It was stated that the total sale consideration of the unit, in question, was Rs.52,56,332/-. Thereafter, the complainant made another payment of Rs.2,30,000/- vide receipt on 15.06.2007. Subsequently, Plot Buyer’s Agreement was executed between the parties on 04.07.2007 (Annexure C-3). As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 3 years from the date of execution of the Agreement i.e. latest by 03.07.2010 and in case of failure to give possession, within the stipulated period, the Opposite Parties were to pay penalty @Rs.50/- per sq. yd. per month. It was further stated that the Opposite Parties floated a scheme, whereby, the allottees who had paid all their installments on or before due date were eligible for waiver of last 5% basic sale price payment. The said offer was extended to the complainant (Annexure C-5). It was further stated that the Opposite Parties sent an undated letter in April, 2012 updating the complainant about the progress on the site of the project (Annexure C-6). Thereafter, the complainant raised objection to the said letter and wrote a letter to the Opposite Parties, which was duly replied by them saying that the same was ready (Annexure C-7 colly.). It was further stated that the complainant had to take possession being illegally imposed on him by the Opposite Parties on 25.03.2013, without the completion of the project in all aspects. Thereafter, the complainant again got in touch with the Opposite Parties regarding a lot of problems with the plot. The complainant was assured before taking possession that forestation would be done around his plot so that the sound of the trains passing would not affect the privacy and tranquility, if he construct his house but the same was not done by them. It was further stated that the complainant requested for change of plot in July, 2014 and after a number of emails extended between the parties, he was offered an alternative plot (Annexure C-8 colly.). Further, plot No.52 in the same project was allotted to the complainant on 09.10.2014 (Annexure C-9) and Amended Agreement dated 10.10.2014 was also signed between the parties (Annexure C-10). It was further stated that the complainant received a letter dated 22.12.2015 from the Opposite Parties regarding offer of possession of the relocated plot (Annexure C-11). It was further stated that the Opposite Parties over telephonic conversation assured the complainant that he was entitled to compensation of Rs.13.13 lakhs, whereas, they refused to pay the same.  The complainant wrote a number of emails to the Opposite Parties but in vain (Annexure C-12 colly.).  It was further stated that regarding the main entrance of Sector 108, there is a matter pending before the Civil Court, Kharar under Sections 29, 33 and 63 of Indian Forest Act, 1927 and the Opposite Parties have violated the order passed by the Hon’ble Supreme Court dated 12.12.1996. Copy of intimation obtained in this regard by another allottee is Annexure C-13. It was further stated that the Opposite Parties firstly offered possession of the old plot, without the availability of the basic amenities on the site and subsequently by not fulfilling their duties, as per the Agreement regarding the relocated plot. It was further stated that the Opposite Parties have not got the completion certificate for the said project. 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 complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint because the refund claimed alongwith interest, compensation and litigation expenses exceeds the valuation of Rs.1 crore. It was further stated that possession of the plot was offered to the complainant in November, 2009 but he failed to take possession. The possession was taken by the complainant on 25.03.2013, without any protest. It was further stated that the complainant is seeking his claim on the basis of delayed possession, which is not applicable, as the possession of the plot was handed over to him, within agreed timelines, as stipulated in the Agreement. Later on, as per the request of the complainant, his plot was changed and possession of changed plot was handed over on 22.12.2015, after Amendment Agreement was executed between the parties on 10.10.2014 for change of plot. It was further stated that as per Amended Agreement, all the terms and conditions remained same, as per the original Agreement dated 04.07.2010 and as possession of the original plot was handed over to him, and even if the complainant had to accept the relocated plot with some delay, no compensation could be claimed by him. It was further stated that possession of the originally allotted plot was given to the complainant well within time and possession was also taken by him, without any protest, so the complainant is not entitled to any compensation for delay. It was denied that possession was notional/paper because the project of the Opposite Parties was exempted from the provisions of PAPRA and   they  were   not   to   seek   completion     certificate from    competent     authorities.  It  was further stated that the

complainant did not fall within the definition of “Consumer”, as prescribed under the Consumer Protection Act, as he admittedly purchased two plots with the Opposite Parties in his own name and, as such, he purchased the plot, in question, for commercial purposes/speculation. It was further stated that the complainant had written letter dated 03.05.2012 expressing some concerns and the same were duly replied by the Opposite Parties vide their letter dated 05.05.2012 and it was again mentioned that possession is ready and should be taken by him. Later, the complainant took over the possession of the plot on 25.03.2013. Copies of the letters dated 05.05.2012 & 25.03.2013 are Annexures R-4 & R-5 respectively. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the payments were made at Delhi and no cause of action had arisen in favour of the complainant at Chandigarh. It was denied the allegations regarding non  development and forestation. It was further stated that many of the customers have already started living in their houses, after constructing them. It was further stated that after taking possession of the plot, the complainant failed to make the due payments and the Opposite Parties were constrained to issue reminders and final notice (Annexure R-9 colly.). It was further stated that at the time of offer of possession in 2009, the completion certificate was not required, as project of the Opposite Parties was exempted and now partial completion certificate has been applied and obtained (Annexure R-10).  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.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

4.           The Parties led evidence, in support of their case.

5.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

6.           The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

7.            Another objection taken by the Opposite Parties in their written statement with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of the amount of Rs.50,27,105/- alongwith interest @18% p.a. from the date of respective deposits;  compensation to the tune of Rs.5 lacs, for mental agony & harassment; and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

8.            The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident from the record, that Plot Buyer’s Agreement (Annexure C-3) was executed between the parties at Chandigarh. Not only this, even the provisional allotment letter dated 05.05.2007 (Annexure C-1), receipts (Annexure C-4), letter dated 03.02.2009 (Annexure C-5), letter undated (Annexure C-6), letters dated 05.05.2012 (at page No.51 of the file), 09.10.2014 (Annexure C-9), Amended Agreement dated 10.10.2014 (Annexure C-10) and letter of intimation of possession dated 22.12.2015 (Annexure C-11),  were also sent by the Opposite Parties form their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.           The next question, that falls for consideration is, as to whether, the complainant falls within the definition of “Consumer” as prescribed under the Consumer Protection Act, 1986. The Counsel for the Opposite Parties submitted that the complainant did not fall within the definition of “Consumer” as he purchased two plots with the Opposite Parties in his own name, as such, he purchased the unit for commercial purposes/speculation and did not fall within the definition of ‘consumer’. After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Parties because the complainant has specifically stated in his complaint that he has purchased two plots in the project of the Opposite Parties, one in Sector 108, Mohali and another in Sector 109, Mohali and both the plots were purchased by him for his daughters (who were minor at the time of purchase) but for income tax purposes, the same were purchased by the complainant in his name. Even there is nothing, on the record, that the complainant is property dealer, and deals in the sale and purchase of property.          Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015.  Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, for commercial/ investment purpose. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Counsel for the Opposite Parties in this regard, being devoid of merit, is rejected.

10.          The next question that falls for consideration, is, as to what amount was deposited by the complainant in respect of the unit, in question. According to the complainant, he deposited an amount of Rs.50,27,105/- and attached photocopies of the receipts in this regard alongwith his complaint. On the other hand, the Opposite Parties stated that the complainant deposited the total amount of Rs.50,26,332/-, as is evident from statement of account (Annexure R-7). A bare perusal of the receipts attached by the complainant clearly shows that the total amount claimed by the complainant i.e. Rs.50,27,105/- is not matched with the receipts attached by him. So, it is clearly proved that the complainant deposited an amount of Rs.50,26,332/-, as per the statement of account, attached by the Opposite Parties.

11.          The next question that falls for consideration, is, as to whether the complainant is entitled for refund of the amount, deposited by him and if yes, from which date, he is entitled for interest on the deposited amount. It is, no doubt, true that the complainant applied for a plot in Sector 108, Mohali Hills and accordingly, plot bearing No.30 was provisionally allotted to him vide provisional allotment letter dated 05.05.2007 (Annexure C-1). Plot Buyer’s Agreement was executed between the parties on 04.07.2007 (Annexure C-3) and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years i.e. latest by 03.07.2010. According to the Opposite Parties, the possession of the said unit/plot was offered to the complainant on 28.11.2009 but the Opposite Parties have failed to place on record any possession letter/document, which could prove that they offered possession of the unit on 28.11.2009 to the complainant.  It is relevant to note that the Opposite Parties attached Possession Certificate dated 25.03.2013 (Annexure R-5) of Plot No.30, Pinewood Park, Sector 108, Mohali Hills, Mohali. A bare perusal of the said Certificate clearly reveals that the said Possession Certificate was duly signed by both the parties i.e. the complainant and the Opposite Parties. So, it is clearly proved that the Opposite Parties offered possession of the unit vide Possession Certificate dated 25.03.2013 i.e. after a delay of about three years and the same was accepted by the complainant. It is relevant to note that the complainant was not satisfied with the said plot offered to him on account of noise from the railway track, which was adjacent to the plot and, therefore, requested for change of plot in July, 2014. For the said purpose, a number of emails were written to the Opposite Parties and he was allotted an alternative plot i.e. bearing No.52 in the same project on 09.10.2014 (Annexure C-9). An Amended Agreement was also signed between the parties on 10.10.2014 (Annexure C-10). It is pertinent to mention here that possession of the earlier plot was offered by the Opposite Parties on 25.03.2013 to the complainant and after quite more than a year, he wanted to change the plot i.e. in July, 2014 and the Opposite Parties offered possession of the new allocated plot i.e. bearing No.52 to the complainant vide letter dated 22.12.2015 (Annexure C-11). Even the complainant was not bound to accept the possession offered by the Opposite Parties because they already offered possession of the earlier unit after a delay of about three years i.e not fair on their part. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, by way of filing the instant complaint.

12.          With regard to interest is concerned, the change of plot was on account of preference shown by the complainant and not due to any deficiency in their earlier allotted plot. Even the complainant signed on the Possession Certificate, which proves that he accepted the possession of the unit. Therefore, the  complainant is certainly entitled to get refund of the amount deposited by him alongwith interest @9% p.a. (simple), from the respective dates of deposits till the exact date of handing over possession of the earlier plot i.e. vide Possession Certificate dated 25.03.2013.

13.          With regard to compensation is concerned, it is relevant to note that on perusal of document furnished by the complainant vide an email dated 29.08.2014, which was sent by him to the Opposite Parties (at page No.53 of the file), it is clearly observed that “Sir, based on all the above I have already entered into a sale agreement for plot no.108-PP-52-400 and I have already taken a substantial advance from the buyer.” It may be stated here that when the complainant had approached the Opposite Parties for change of earlier plot to another plot in July, 2014 and immediately in August, 2014 he has informed the Opposite Parties that he has already entered into the sale agreement with the buyer and already taken substantial advance from the buyer, which clearly proves that the change of the plot requested by the complainant was only to enable him to dispose of the same. So, the complainant is also at fault and Consumer Foras are not present to enrich the consumers, therefore, he is not entitled for any compensation.

14.          No other point, was urged, by Counsel for the parties.

15.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed as under:-

1. To refund the amount Rs.50,26,332/-, to  the  complainant, alongwith interest @9% p.a. (simple),  from the respective  dates  of  deposits till the date of possession certificate dated 25.03.2013.
2. To pay cost of litigation, to the tune of Rs.30,000/- to the  complainant.
3. The payment of awarded amounts mentioned at sr.nos.(i) & (ii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @12% p.a. (simple), instead of @9% p.a. (simple), from the respective dates of deposits till 25.03.2013, and interest @9% p.a. (simple), on the amount mentioned at sr.nos.(ii), from the date of filing of this complaint, till realization.

16.          However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).

17.          Certified Copies of this order be sent to the parties, free of charge.

18.          The file be consigned to Record Room, after completion.

Pronounced.

December 28, 2016.                                Sd/-       

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb