Chandigarh

StateCommission

CC/115/2015

Ankit Saini - Complainant(s)

Versus

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

Gaurav Bhardwaj,Adv.

17 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	115 of 2015
Date of Institution	:	03.06.2015
Date of Decision	:	17.09.2015

 

1. Ankit Saini son of Balwant Singh Saini, permanent resident of House No.693, Sector 20-A, Chandigarh. At present resident of Flat No.E-5, 304, 3^rd Floor, 3BHK, Gh-79, AWHO, Sector 20, Panchkula.
2. Amarinder Saini, wife of Ankit Saini, permanent resident of House No.693, Sector 20-A, Chandigarh.  At present resident of Flat No.E-5, 304, 3^rd Floor, 3BHK, Gh-79, AWHO, Sector 20, Panchkula.

 

……Complainants

V e r s u s

 

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

              .... Opposite Parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. 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 JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                It is a case of failed promise made by the Opposite Parties, to the complainants. The complainants paid an amount of Rs.7 lacs, as booking amount on 16.07.2009, to purchase a residential unit, comprising of super area of 1750 square feet, in the project floated by the Opposite Parties, under the name and style “The Views”, Mohali Hills, Mohali, Punjab. The complainants were provisionally allotted unit No.TVM-H3-F02-202 (in short the unit). The total sale consideration of the said unit was fixed at Rs.55,98,293/-. Unit Buyer’s Agreement (in short the Agreement) was executed between the parties, on 13.08.2009.

2.       Thereafter, on various dates, in instalments, amount was paid, to the extent of Rs.47,86,436/-, upto 20.12.2010. On account of making payments in time, the complainants were held entitled to get 5% waiver on the basic sale price of the unit, in question.
3.       It is an admitted case that possession of the built-up unit was to be handed over to the buyers/complainants, within 36 months from the date of allotment. Stipulation made in that regard, in the Agreement reads thus:-

“21.1  Subject to Force Majeure conditions and reasons beyond the control of the Company, and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the Unit within a period of 36 months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.”

4.       The complainants contacted the Opposite Parties, many a times, to ensure delivery of possession of the unit, in time. Vide letter dated 18.07.2012 (Annexure C-15), the complainants were asked to deposit an amount of Rs.26,113.75Ps. (Principal amount of Rs.25,625.57Ps and service tax of Rs.488.18Ps.), on or before 06.08.2012. The said amount was deposited by the complainants, with a hope that possession of the unit will be delivered within the stipulated period of three years, as promised. In this manner, the total amount of Rs.48,15,459/- (actual amount paid Rs.48,14,959/-) was paid by the complainants.
5.       In response to the email dated 17.05.2013 sent by the complainants, the Opposite Parties, vide email Annexure C-21, informed them that possession of the unit, in question, is likely to be delivered in 3^rd quarter of 2016, after completion of construction work. 
6.       By stating as above, payment of compensation/penalty, as per Clause 23.1 of the Agreement, for delay in delivery of possession of the unit, in question, was claimed.
7.       It was stated that despite making payment of substantial amount of Rs.48,14,959/- possession of the unit, in question, was not even offered to the complainants, till the time this instant complaint was filed.
8.       It was stated that the unit, in question, was booked by the complainants, with a hope that they would get possession of the same by the stipulated date. Since, it has not happened, the complainants were forced to live in a rented accommodation, by paying rent @Rs.15,000/- per month. (Copy of the lease deed was placed on record).
9.       By alleging that there is a gross deficiency in rendering service on the part of the Opposite Parties, the following reliefs were claimed by the complainants, against them:-

“It is therefore respectfully prayed that the OPs be directed to refund the amount of Rs.48,15,459/- (actual amount paid Rs.48,14,959/-) along with interest @12% p.a., from the date of deposit till realization to the complainants. The OPs be further directed to pay Rs.10,00,000/- as compensation for deficiency in service, unfair trade practice and mental harassment suffered by the complainants. The OPs be further directed to pay Rs.5,00,000/- on account of the rent being paid and being paid by complainants due to fault of the OPs and also Rs.55,000/- as litigation expenses to the complainants in the interest of justice”.

10.       In response to a notice issued by this Commission, joint written reply was filed by the Opposite Parties, wherein various objections were taken, to defeat the claim raised by the complainants. It was stated that complainant No.1 had visited office of the Opposite Parties, on 27.02.2013. He was apprised of the status of construction of the project in question, where the unit, in question, is situated. It was stated that by not raising any objection, at that time, the complainants have condoned the delay and as such have acquiesced their right to file this complaint. It was alleged that as the complaint has been filed beyond the period of two years from 27.02.2013, the same is barred by time. It was alleged that as complainant No.1 is Non-Resident Indian (NRI); the complainants owned a house in Chandigarh; and also they are residing at Panchkula in the second house, as such, they will not fall under the definition of ‘consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act, 1986 (in short the Act). It was averred that the unit, in question, was purchased by the complainants to get benefit of escalation in prices, in future. It was claimed that entire price of the unit has not been paid by the complainants, as such they can't claim possession of the same or refund of the amount deposited. It was also stated that on account of Arbitration Clause contained in the Agreement, this Commission has no Jurisdiction to entertain and decide the complaint, and let the matter be placed before an Arbitrator for adjudication. Even the pecuniary and territorial Jurisdiction of this Commission to entertain the complaint was doubted. It was stated that time was not essence of the contract.
11.       On merits, it was contradicted that possession of the unit, in question, was not offered to the complainants, as alleged. It was rather said that possession of the unit could not be offered due to pending finishing work. Only structure of the tower, in question, has been completed and the final work is going on, which is likely to be completed by 3^rd quarter of 2016.
12.       In the rejoinder filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written reply of the Opposite Parties.
13.       Both the parties led evidence, in support of their case
14.       We have heard Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
15.       At the time of arguments, Counsel for the complainants very fairly stated that he confined his claim only qua refund of the amount paid alongwith interest, compensation for mental agony and physical harassment and cost of litigation.
16.       The Counsel for the Opposite Parties also conceded that construction of the unit is not complete till today, as such, possession could not be offered to the complainants.
17.       The facts in this case are not in dispute. As per terms and conditions of the Agreement executed between the parties, possession of the unit, in question, was to be delivered to the complainants, within 36 months (Clause 21.1 of the Agreement) from the date of allotment. However, it was not done. The amount of Rs.7 lacs as booking amount was paid and vide provisional allotment letter, the unit, in question, was allotted to the complainants. Thereafter, the complainants continued to make payment on different dates, with a hope that they will get possession of the unit, as promised. When despite request, nothing was done, the present complaint was filed on 03.06.2015.
18.       An attempt has been made to defeat claim raised by the complainants, by stating that they did not fall within the definition of ‘consumer’. It is stated that as per the documents, on record, the complainants owned two houses; one in Chandigarh and second in Panchkula, where they are residing. The complainant No.1 is Non-Resident Indian (NRI), as such, the unit, in question, was purchased only for speculation purposes.
19.       In the rejoinder filed, it has been specifically stated that the house in Chandigarh is owned by father-in-law of complainant No.2/father of complainant No.1. House in Panchkula, is on rent. It was stated that complainant No.1 had acquired the status of NRI because he was serving in Merchant Navy and as per schedule, he had stayed out of the Country for more than 180 days. His family is residing in Panchkula. It is specifically stated that the unit, in question, was purchased for their own residence.

We are of the considered opinion that the plea taken by the Opposite Parties, that the complainants are speculators, is devoid of merit, in view of the explanation given above, by the complainants. On the other hand, no material data has been placed, on record, by the Opposite Parties, to prove that the complainants have purchased other similar situated units, in or around the vicinity of the project, wherein the unit, in dispute, is located. There is also nothing, on record, to show that in the past, before booking the unit, in question, the complainants were indulged in sale and purchase of the property, on regular basis, to earn huge profits. Not only this, 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.  The principle of law, laid down, in Kavita Ahuja's case (supra) 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 booked by the complainants, by way of investment, with a view to earn huge profit, in future. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, being devoid of merit, stands rejected.

20.       It was next argued by Counsel for the complainants that the complaint filed by the complainants, was beyond the period of limitation. Complainant No.1 had visited the site, where the unit is situated, on 27.02.2013. He was apprised of the status of the construction and was told that possession will be delivered in the year 2016. It is averred that the complainants should have filed the present complaint, within 2 years from 27.02.2013.

The plea taken by the Opposite Parties, in this regard, needs rejection. It is not disputed that the unit, in question, is not complete for possession, even on the date when arguments were heard in this case on 16.09.2015. The visit of complainant No.1 to the site, as reflected in document dated 27.02.2013 (Annexure R-1) would not defeat rights of the complainants to claim refund of the amount paid. There is nothing on the document dated 27.02.2013 that complainant No.1 was told that possession of the unit, in question, will be delivered in the year 2016. In the document, only the name of complainant No.1; no. of unit allotted; his telephone no. and purpose of the visit is mentioned. It is not case of the Opposite Parties, that the request made by the complainants, for refund of the amount was accepted by them (Opposite Parties), but they (complainants) did not come forward to accept the same, within 2 years therefrom, as a result whereof, the complaint having been filed thereafter, is barred by time. Since, in the instant case, neither possession of the unit, in question, was delivered to the complainants, by the stipulated date, for want of completion of construction work, at the site; nor on the request made, the amount deposited by them was refunded, there was, thus, a continuing cause of action, in their favour, to file the complaint. 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. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of this case. Under these circumstances, it is held that the complaint was not at all barred by time. The plea of Counsel for the Opposite Parties, in this regard, being devoid of merit stands rejected.  

21.       It was next argued by Counsel for the Opposite Parties that the complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Agreement.

Section 3 of the Act, is worded in widest terms, and leaving no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law. The mere existence of arbitration Clause in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law was laid down in   National Seeds Corporation Limited Vs. M. Madhusudhan  Reddy  and  another, I (2012) CPJ 1 (SC),  C.C.I  Chambers  Co-op. Housing   Society Ltd. Vs   Development   Credit Bank Ltd. III (2003) CPJ 9 (SC), M/s Fair Air Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC), and DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No. 412 of 2011, decided on 13.05.2013 by the National Commission (NC). The plea of Counsel for the Opposite Parties, in this regard, being devoid of merit, stands rejected.

22.       An objection was also taken by Counsel for the Opposite Parties, by making a frivolous attempt to defeat the right of the complainants, by stating that since the unit, in question, is situated at Mohali, as such, only the State Consumer Disputes Redressal Commission, Punjab, has territorial Jurisdiction to entertain and decide the complaint.

According to Section 17 of the Act, a consumer complaint could be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them. In the instant case, the Agreement, in respect of the unit, in question, was executed, at Chandigarh, as is evident from page 26 of the file. Not only this, even the payment acknowledgment receipts Annexures C-4 to 17 reveals that the same were issued by Opposite Party No.1 at Chandigarh, as the same bore the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission.   This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for the Opposite Parties, also stands rejected.

23.       So far as the objection taken by Counsel for the Opposite Parties, regarding pecuniary Jurisdiction of this Commission is concerned, it may be stated here, that the complainants have sought  refund of the amount of Rs.48,14,959/- paid by them, alongwith interest @12% P.A., from the respective dates of deposits; compensation to the tune of Rs.10 lacs, for deficiency in service, unfair trade practice, mental agony and physical harassment; Rs.5 lacs, towards rent, being paid by them; and cost of litigation, to the tune of Rs.55,000/-, the aggregate value whereof, if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by Counsel for the Opposite Parties, in this regard also, deserves rejection.
24.       The objection raised by Counsel for the Opposite Parties, that time was not essence of the contract is also devoid of merit, in view of Clause 21.1 of the Agreement, according to which, possession of the unit was to be delivered in 36 months, from the date of allotment, failing which they were liable to pay compensation/penalty @ Rs.5/- per square feet per month of the super area. The time was, thus, unequivocally made the essence of contract. The plea of Counsel for the Opposite Parties, in this regard also stands rejected.
25.       No other point, was urged, by Counsel for the parties.
26.           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.48,14,959/- to  the complainants.
    2. To pay simple interest @ 12% per annum, to the complainants, from respective dates, on the amount aforesaid (total Rs.48,14,959/-), when deposited with them. 
    3. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices of the real estate.
    4. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants.
    5. To pay the entire ordered amount, in Clauses (i), (iii) and (iv), including simple interest @12% P.A., as mentioned in Clause (ii) above, within a period of three months, from the date of receipt of a certified copy of this order, failing which they shall be liable to pay to the complainants, penal interest @15% per annum (simple), qua the entire amount assessed, from the date of default till realization.

 

27.           Certified Copies of this order be sent to the parties, free of charge.
28.           The file be consigned to Record Room, after completion

Pronounced.

17.09.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg