Chandigarh

StateCommission

CC/5/2015

Aman Aggarwal & anr. - Complainant(s)

Versus

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

Gaurav Bhardwaj

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	05 of 2015
Date of Institution	:	13.01.2015
Date of Decision	:	01.04.2015

 

1. Aman Aggarwal S/o Sh. N. N. Aggarwal, resident of H.No.1006, Sector 14, Faridabad.
2. Shweta Aggarwal w/o Aman Aggarwal, resident of H.No.1006, Sector 14, Faridabad.

……Complainants.

Versus

1. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Manager.
2. Emaar MGF Land Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through Managing Director Sh. Shravan Gupta.

              ....Opposite Parties.

 

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

               

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

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh.  Gaurav Bhardwaj, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

              The facts, in brief, are that the complainants being husband and wife were desirous of owning a residential apartment near Chandigarh, so they applied for a residential unit of 2 bedrooms + 2 toilets having super Area of 1350 sq. feet in the project “THE VIEWS” AT Mohali Hills, Sector 105, SAS Nagar, Distt. Mohali to the Opposite Parties by paying the registration/booking amount of Rs.7,00,000/- vide receipt dated 14.08.2006 (Exhibit C-1). It was stated that the application of the complainants was accepted and Apartment No.F2/1002 on 10^th Floor was provisionally allotted to them. The total consideration was fixed at Rs.40,01,550/-, which  was informed to the complainants through letter dated 13.10.2006 (Exhibit C-2) by the Opposite Parties. It was further stated that the payments were to be made as per the construction linked plan.

2.         It was further stated that pursuant to the provisional allotment, the complainants made the following payments as per payment plan vide receipts (Exhibit C-3 colly.):-

Date	Amount (Rs.)
19.10.2006	42,500.00
26.04.2007	25,110.00
26.04.2007	3,83,805.00

     

It was further stated that thereafter an Apartment Buyer’s Agreement (Exhibit C-4) was duly executed between the parties at Chandigarh on 30.01.2008, wherein the total sale consideration was shown as Rs.40,01,550/-. It was further stated that, as per Clause 21.1 of the Agreement, the flat was to be delivered within 36 months, from the date of allotment.  It was further stated that the complainants were to get possession of the flat by 13.09.2009. However till date neither the possession was offered nor the Opposite Parties, refunded the amount despite repeated requests made by the complainants.

3.         It was further stated that even though the possession was to be handed over in 2009, no notice of even start of construction was sent by the Opposite Parties till that date and on repeated requests for information in relation to the project, they (Opposite Parties) assured the complainants that possession would be handed over shortly. It was further stated that on 27.10.2011, the complainants received a letter of demand from the Opposite Parties dated 27.10.2011 (Exhibit C-5), intimating “start of construction”. It was further stated that vide this letter, an amount of Rs.3,83,805/- was demanded as per Schedule of Payments (Annexure II) to the Agreement dated 30.1.2008.  It was further stated that believing the Opposite Parties claim of having started construction and being assured of possession, the complainants duly made payment of the above amount of Rs.3,83,805/- vide two cheques of Rs.1,20,000/- and Rs.2,63,805/- and receipts dated 24.11.2011 (Exhibit C-6 colly) were issued.

4.         It was further stated that vide letter dated 20.07.2012 (Exhibit C-7), the complainants were asked to remit an amount of Rs.9,559.69 towards service tax which was deposited by  the complainants vide receipt dated 21.08.2012 (Exhibit C-8). It was further stated that while the demand was towards service tax, the receipt was issued towards “instalment amount”, which implied that the Opposite Parties diverted the amounts to instalment account rather than depositing service tax as demanded from the complainants. It was further stated that in 2011, complainant No.1 visited the site to see the progress of his apartment and was shocked to find that no construction had started in respect of the Tower allotted i.e. Tower F. It was further stated that there was absolutely no development and the Opposite Parties illegally raised the demand towards “start of construction” in 2011.

5.         It was further stated that as per the payment schedule, the Opposite Parties were to raise the next demand on completion of lower basement roof. However, till date, no payment had been demanded, meaning that no construction was going on and the Opposite Parties illegally demanded and retained the money for more than 8 years from date of registration/booking. It was further stated that the complainants vide letter dated 9.2.2011 (Exhibit C-9) demanded cancellation of allotment and refund of money alongwith interest. It was further stated that the Opposite Parties again assured the complainants that they were expediting construction and, in case, the complainants cancelled the allotment, 10% of sale price would be deducted and no interest would be paid to them. It was further stated that being faced with such threat, the complainants had no choice but to await possession.

6.         It was further stated that on 5.2.2013, the complainants received an email from the Opposite Parties, offering relocation to another tower (Tower J). It was further stated that vide email dated 1.6.2013, (Exhibit C-10), the Opposite Parties again offered relocation as it was admitted by them that progress in Tower F-2 was slow. It was further stated that the complainants were not interested in relocation at that stage as they had initially been allotted the apartment in Tower F and its location was preferred by them. It was further stated that the Opposite Parties were giving increased area and were not willing to give any compensation/interest on amounts already deposited. It was further stated that, as such, vide emails dated 18.10.2013 and 18.11.2013 (Exhibit C-11 colly.), the complainants demanded possession of the originally allotted apartment together with compensation for delayed penalty as per the Agreement. It was further stated that the complainants vide email dated 28.10.2013 enquired as to whether relocation was possible in Tower J and the Opposite Parties vide email dated 5.12.2013 offered to relocate the complainants to Tower J. However there was cost difference of more than Rs.9 Lacs, due to increased area, and the Opposite Parties were not willing to give any interest/compensation for the period of delay in handing over possession of apartment originally allotted (Exhibit C-12).

7.         It was further stated that the above offer was not only unfair, but there was no firm offer of immediate possession even in Tower J and the complainants did not give consent to such relocation.  It was further stated that despite the same, vide letter dated 6.1.2014 (Exhibit C-13), the Opposite Parties unilaterally allotted unit No.TVM J1-GF-GF04 to the complainants, which was illegal and contrary to the terms of Agreement dated 30.01.2008 as complainants never agreed to such re-allotment nor was there any clause whereby the Opposite Parties could unilaterally relocate the allottee. It was further stated that the Opposite Parties vide email dated 14.3.2014 shared the construction update, which showed Tower F works “in progress” and no major milestones had been achieved. It was further stated that the position was contradictory to the development photographs sent on 6.1.2014 and showed the contradictory position/claims made by the Opposite Parties on various points of time.  It was further stated that vide email dated 3.5.2014 (Exhibit C-14), the Opposite Parties stated that the option which was shared with the complainants i.e. unit number: TVM J1-GF-GF04 stood released. It was further stated that hence the Opposite Parties unilaterally allotted the unit and in the same manner revoked the same without any act on the part of the complainants reflecting the adhoc manner of their functioning.

8.         It was further stated that more than 5 years had passed since the possession was to be handed over to the complainants, yet, the Opposite Parties failed to start construction or refund the money to them (complainants). It was further stated that the Opposite Parties illegally took money for start of construction even though construction had not commenced and false projections and photographs had been shared with the complainants, which was indicative of unfair trade practices and deficient services on the part of the Opposite Parties.

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 refund the amount of Rs.15,44,779/- alongwith interest @18% per annum from the respective dates of deposit till realization; pay Rs.5,00,000/- as compensation for deficiency in service, unfair trade practice & mental harassment, and Rs.55,000/- as costs of litigation.

10.       The Opposite Parties, were served and put in appearance on 18.02.2015. They filed their joint written statement on 19.03.2015. In the written statement, the Opposite Parties, took-up certain preliminary objections, to the effect, that since the complainants admitted in Para 13 of the complaint that they asked for refund after cancellation of allotment on 09.02.2011, the cause of action arose on 09.02.2011 and, as such, the complaint having been filed on 13.01.2015 was time barred; that the complainants were not the consumers, as they are resident of Faridabad and also have their own house at Faridabad and that the flat, in question, was purchased merely for speculation.

11.       On merits, it was admitted that payment of Rs.7 Lacs towards registration amount was acknowledged at the time of provisional allotment of flat vide letter dated 13.10.2006 (Annexure C-2). It was stated that the complainants accepted the allotment by signing and agreeing to the terms and conditions of provisional allotment letter and never objected to the same. It was further stated that the total cost of the apartment as per the schedule of payment was Rs.40,01,550/-, which was exclusive of any Government taxes/levied EDC applicable at the relevant time. It was further stated that the complainants made the payments as per the payment schedule and as per the records of the Opposite Parties, they (complainants) paid only a sum of Rs.15,44,780/- till date, as per the statement of account dated 7.3.2015 (Annexure R-1).

12.       It was further stated that Apartment Buyer’s Agreement dated 30.01.2008 was executed between the parties. It was further stated that it was unequivocal that the Opposite parties had proposed to handover possession of the unit within 36 months from the date of allotment. It was further stated that in cases of sale of immovable property and construction, time was never regarded as the essence of contract. It was further stated that the term “proposes” duly indicated that there was no definite commitment to handover possession within 03 years and the complainants had voluntarily agreed/accepted the alleged delay as their interest was well safeguarded by the compensation clause in the Agreement. It was further stated that the Opposite Parties had committed to bear the penalty for delayed possession. It was further stated that when the construction commenced, the Opposite Parties raised a demand as per the payment plan agreed to between the parties. It was further stated that demand of Rs.3,83,805/- was as per the payment plan, which was paid by the complainants. It was further stated that it was evident from the statement of account that Rs.9,560/- were levied towards the service tax (ST) demanded. It was further stated that since the ST forms part of the installment amount, the receipt was issued accordingly.

13.       It was denied that complainant No.1 visited the site in 2011. It was further stated that the construction in Tower F was ongoing when the demand was raised. It was further stated that on start of construction, demand was raised for all units in Tower F (i.e. F1, F2 and F3). It was further stated that on account of revision in the layout, the construction in Tower F2 stalled and the construction was stopped so no new/fresh demand was raised from the complainants for Tower F2. It was further stated that the complainants never raised any grievance with the Opposite Parties with regard to delay and never sought refund of amount till 09.02.2011. It was further stated that the Opposite Parties are ready and willing to offer relocation to the complainants even now. It was further stated that the Opposite Parties offered relocation to Tower H vide email dated 22.05.2013 and the complainants were requested to explore the option. It was further stated that subsequently, the complainants were offered to consider relocation sent to them vide email dated 01.06.2013. It was further stated that the Opposite Parties on various occasions, offered relocation to a unit (Annexure R-2) wherein the possession could be expedited, but the complainants were not keen to take possession.  It was reiterated that the complainants were offered relocation, in case, they wanted early possession but they failed to opt for relocation and wanted to wait for flat allotted and as even now Tower F2 is not complete so possession of the same could not be given at this stage.

14.       It was denied that no firm offer of immediate possession was ever given. It was further stated that letter dated 6.1.2014 was sent to the customers intimating that they were being reallotted unit No.TVM J1-GF-GF04, option regarding which was sent to them earlier as per their requirement, since construction was progressing at a fast pace in Tower J. It was further stated that Tower J is complete and possession was offered to the customers in 2014 itself, however, the complainants were not ready to accept relocation in Tower J even and wanted to get possession in Tower F only. 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.

15.       The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

16.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

17.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 

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

19.       The Counsel for the complainants submitted that complainant No.1 applied for cancellation of the unit vide letter dated 9.2.2011 (Annexure C-9). He has further submitted that thereafter, the Opposite Parties vide letter dated 27.10.2011 (Annexure C-5) intimated that construction would commence w.e.f. 15.11.2011 and demanded a sum of Rs.3,83,805/-, in response to which, the complainants deposited the sum of Rs.3,83,805/- vide Instrument No.228168 and 228169  dated 23.11.2011, which was acknowledged by the Opposite Parties vide their acknowledgement-cum-receipt dated 24/25.11.2011 (Annexure C-6 colly.). He further submitted that vide email dated 01.06.2013 (Annexure C-10), the Opposite Parties admitted that the pace of development in Tower F2 where the unit of the complainants was located was slow and informed about sharing of option of relocation to another tower where considerable construction of milestones had been achieved. He further submitted that with the raising of demand vide letter dated 27.10.2011 (Annexure C-5) and offering option for relocation to another tower vide email dated 01.06.2013 (Annexure C-10), there was continuing cause of action. He further submitted that complainant No.1 vide email dated 18.11.2013 (Annexure C-11) informed the Opposite Parties that he made payment of Rs.7 Lacs in the year 2006 and further payments in the years 2008 and 2011 were made and requested for immediate possession and compensation for delay. He further submitted that the complainants never accepted relocation offered by the Opposite Parties vide their email dated 01.06.2013 (Annexure C-10). He further submitted that the Opposite Parties were deficient in rendering service and also indulged into unfair trade practices.

20.       The Counsel for the Opposite Parties admitted receipt of Rs.15,44,780/- and also admitted that the tower where the flat, in question, was allotted to the complainants, was not under construction. He further submitted that the complainants requested for refund in February 2011 and they could file the complaint within a period of two years and complaint having been filed on 13.01.2015 was barred by limitation. He further submitted that the Opposite Parties offered relocation of flat but the complainants did not accept the same. He further submitted that the complainants invested in the flat for speculation purposes.

21.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that Apartment Buyer’s Agreement dated 30.01.2008, Exhibit C-4, in respect of apartment No.F2/1002, measuring 1350 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was executed between the parties at Chandigarh. The possession of the said apartment was to be delivered by 13.10.2009. The possession was not offered to the complainants, by 13.10.2009, on account of non-existence of the said apartment, as there was revision in the lay-out plans, in respect of the Tower, in question, where the same (apartment) was allotted to them (complainants). No doubt the complainants sought refund in February 2011 (Exhibit C-9) but their request was never considered by the Opposite Parties and when the Opposite Parties raised demand vide letter dated 27.10.2011 informing the complainants that the construction would start on 15.11.2011, they (complainants) made payment of Rs.3,83,805/-. It is also evident, on record, that the Opposite Parties, gave an option to the complainants for relocation of the apartment, which was not accepted by them. It means that, in the absence of acceptance of relocation of the apartment, no final contract came into being between the parties, in relation to the same. No possession of the originally allotted apartment No.F2/1002, measuring 1350 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was offered to the complainants, either on the stipulated date i.e. 13.10.2009, or till date. Thus, there was a continuing cause of action, firstly, in the year 2011 when another installment was demanded and in the year 2013 when the Opposite Parties admitted that construction in the tower where apartment, in question, allotted to the complainants was situated, was at a slow pace and offered relocation. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon’ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. Therefore, the submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

22.       The next question, that falls for consideration, is, as to whether, time was the essence of contract or not.  It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of Apartment Buyer’s Agreement dated 30.01.2008, Annexure C-4, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of allotment. It was further mentioned in Clause 23.1 of Apartment Buyer’s Agreement, aforesaid, that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty/compensation, to the complainants, @Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainants, latest by 13.10.2009. Even, after the expiry of almost 5½ years, from the stipulated date, the possession thereof, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.

23.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the apartment, in question, was to be given to the complainants. As stated above, according to Clause 21.1 of the Apartment Buyer’s Agreement dated 30.01.2008, Exhibit C-4, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of allotment, failing which, as per Clause 23.1 of the same (Apartment Buyer’s Agreement), they (Opposite Parties), were liable to pay penalty/compensation, to them (complainants) @Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Admittedly, possession of the apartment, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, the Opposite Parties frankly admitted that possession of the apartment, in question, could not be offered to the complainants, on account of non-existence of the same, as there was revision in the lay-out plans, in respect of the Tower, in question, where the same (apartment) was allotted to them. On the other hand, the option for relocation of the apartment, was not accepted by the complainants. Admittedly, the part sale consideration of the apartment, in question, to the tune of Rs.15,44,780/-, had already been paid, by the time of filing the complaint, but possession of the apartment, was not even offered to the complainants. By making a misleading statement, that the possession of apartment No.F2/1002, measuring 1350 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, would be delivered within three years, from the  date of  allotment, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

24.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.15,44,779/-, deposited by them. As per statement of account as on 07.03.2015, (Exhibit R-1), placed on record, by the Opposite Parties, admittedly, the complainants had paid the amount of Rs.15,44,780/-  (i.e. Rs.7 Lacs vide receipt dated 14.08.2006 (Exhibit C-1); Rs.67,610/- on 28.09.2006; two installments of Rs.3,83,805/- each on 12.11.2006 & 15.11.2011 respectively and Rs.9,560/- as sales tax applicable.) Despite lapse of more than 08 years, when a sum of Rs.7 Lac was deposited, as admitted by the Opposite Parties, there has been no progress in the construction of the tower, wherein the apartment, in question, was allotted to the complainants. The Opposite Parties neither responded to the request of the complainants for refund of the amount nor there were any communications from the side of Opposite Parties. One can imagine the plight of the persons, who have invested their hard earned money and despite promise/stipulation in the Apartment Buyer’s Agreement (Exhibit C-4) that the possession would be delivered within 36 months from allotment, there was no sign of offering the same even after lapse of eight years. The complainants were, thus, definitely entitled to the refund of amount, deposited by them, towards the price of the apartment, in question. 

25.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.15,44,779/-, towards the price of apartment, in question, was deposited by the complainants. The complainants were deprived of their hard earned money, on the basis of misleading information, given by the Opposite Parties, that they would be handed over the legal physical possession of the residential apartment within a period of 36 months of allotment on 13.10.2006 (Exhibit C-2) i.e. by 13.10.2009, but they failed to do so. As stated above, it has been frankly admitted by the Opposite Parties, in their written version, that possession of the apartment, could not be offered to the complainants, on account of the reasons, referred to above. The complainants were, thus, caused financial loss.  The hard earned money of the complainants was utilized by the Opposite Parties, for a sufficient long period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties were charging interest @15% per annum (compounded quarterly), as is evident from Clause 4.1 of the Apartment Buyer’s Agreement dated 30.01.2008 (Exhibit C-4). Under these circumstances, in  our  considered  opinion, if   interest @12% per annum, on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.

26.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to them, for a long number of years, by not delivering physical possession of the apartment, to them or by not refunding the amount deposited. The complainants underwent a lot of mental agony  and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation,  to the tune of Rs.50,000/-, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.50,000/-, as indicated above.

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

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

(i)   To refund the amount of Rs.15,44,779/-, to  the complainants,  alongwith interest @12% per annum, from the respective  dates of deposits onwards,  within two months, from  the    date of receipt of a certified copy of  this   order.

(ii)  To pay compensation, in the sum of Rs.50,000/-for causing mental agony and physical harassment, to the complainants, within two months, from the date of receipt of a certified copy of this order.

(iii) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

(iv)  In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15% per annum, instead of 12% per annum, from the respective dates of deposits, till realization, and interest @12% per annum, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.

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

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

Pronounced.

1^st April, 2015.

 

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

 [DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

MEMBER

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