Chandigarh

StateCommission

CC/111/2016

Gagan Kapoor - Complainant(s)

Versus

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

Vipin Mahajan

12 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	111 of 2016
Date of Institution	:	21.03.2016
Date of Decision	:	12.09.2016

Gagan Kapoor son of Sh. S.S.Kapoor, resident of H.No.1690, Sector 34-D, Chandigarh.

Sabyasachi Chakraborty s/o D.K.Chakraborty, resident of H.No.257, Sector 12, Panchkula.

……Complainants

V e r s u s

Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17, Chandigarh, through its Managing Director.
Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

.... Opposite Parties

Argued by:

Sh. Vipin Mahajan, Advocate for the complainants.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

Complaint case No.	:	112 of 2016
Date of Institution	:	21.03.2016
Date of Decision	:	12.09.2016

Aditya Gupta son of Sh.Anand Prakash Gupta, resident of No.111, Kailash Hills, East of Kailash, New Delhi.

Meenakshi Gupta wife of Aditya Gupta, resident of No.111, Kailash Hills, East of Kailash, New Delhi.

……Complainants

V e r s u s

Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17, Chandigarh, through its Director.
Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi, through its Managing Director.

.... Opposite Parties

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Vipin Mahajan, Advocate for the complainants.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

By this order, we propose to dispose of, following cases:-

CC/111/2016	Gagan Kapoor & Anr.	Vs.	EMAAR MGF Land Ltd. & Anr.
CC/112/2016	Aditya Gupta & Anr.	Vs.	EMAAR MGF Land Ltd. & Anr.

2. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same.

3. At the time of arguments, on 02.08.2016, it was agreed between Counsel for the parties, that facts involved in both the complaints, by and large, are the same, and therefore, these two complaints can be disposed of, by passing a consolidated order.

4. Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 111 of 2016, titled as “Gagan Kapoor & Anr. Vs. EMAAR MGF Land Limited & Anr.”

5. The facts, in brief, are that the Opposite Parties issued an advertisement in the leading newspapers for development of the township at Sector 109, Augusta Park, Mohali and a very lucrative and rosy picture was presented by them to provide plots at a reasonable price with number of facilities. The complainants were lured by the marketing agents of the Opposite Parties and, as such, they applied for allotment of a plot vide application No.594 in the project of the Opposite Parties i.e. Augusta Park, Mohali at Sector 109 and deposited the booking amount of Rs.11,10,000/-. The Opposite Parties allotted plot No.312, measuring 300 sq. yds. in Augusta Park, Sector 109, Mohali. Thereafter, Plot Buyer’s Agreement was executed between the parties at Chandigarh on 04.07.2007 and as per the Agreement, the total sale price of the plot was fixed at Rs.41,50,354/- (In fact Rs.40,50,354/-) (Annexure C-1). It was further stated that as per Clause 8 of the Agreement, the Company shall make all endeavour to deliver possession of the plot to the complainants within two years from the date of execution of the Agreement but not later than three years and if they fail to deliver possession within the stipulated time frame, then the Company should be liable to pay damages/penalty of a sum of Rs.50/- per sq. yard per month for the period of delay beyond three years. It was further stated that the complainants paid an amount of Rs.48,96,099/- to the Opposite Parties including penalty, as is evident from the statement of account (Annexure C-2). Thereafter, the complainants came to notice that the land, for which, Agreement was executed, not owned by the Opposite Parties and has not been transferred officially in their name. It was further stated that the Opposite Parties never conveyed regarding the actual status of the site to the complainants. It was further stated that regarding the possession of the plot, the Opposite Parties informed that all infrastructure has been completed and the Company had already made offer of possession of the unit to the complainants in December, 2009 and regarding payment of penalty amount for late delivery of possession, the Company informed that it would be adjusted at the time of final possession. It was further stated that offer of possession of the plot to the complainants was just an eyewash because the Opposite Parties did not have any completion certificate. It was further stated that the complainants requested the Opposite Parties to provide copies of title documents of the land and also provide requisite permission and license etc. but they failed to provide the same. It was further stated that the Opposite Parties vide letter dated 26.12.2014 (Annexure C-3) called upon the complainants to pay additional sum of Rs.9,67,429/- towards delayed payment, electrification, registration and stamp duty etc. The complainants wrote back vide email dated 04.02.2015 to the Opposite Parties in respect of such demand raised by them, which was duly replied by the Opposite Parties vide email dated 05.02.2015 (Annexure C-4) and tried to justify the illegal demand raised by them. Thereafter, the complainants visited the site of the Opposite Parties and were shocked to see that there was no development activity i.e. no sewerage, no roads and electricity at the site and all tall claims made by them were a bundle of lies, as is evident from the photographs (Annexure C-5). Ultimately, the complainants served a legal notice dated 27.01.2016 (Annexure C-6) upon the Opposite Parties requesting for refund of the amount alongwith interest and the same was not replied by them. 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 (in short the ‘Act’ only), was filed.

6. The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and 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 the complaint is time barred, as it been filed more than 2 years after accrual of alleged cause of action, as the Opposite Parties offered possession of the unit to the complainants vide letter dated 05.03.2012 (Exhibit OP/2 colly.) but they have filed the complaint beyond two years of alleged cause of action. It was further stated that the complainants themselves failed to take possession for the reasons best known to them. It was further stated that the complainants have not led any evidence to prove that the area was not developed in 2012. It was denied that the complainants were persuaded to purchase the plot and stated that the complainants booked the unit out of their own free will after understanding all the terms and conditions. It was further stated that Plot Buyer’s Agreement was executed between the parties on 04.07.2007 and total sale consideration of the unit was mentioned as Rs.40,50,354/- and as per Clause 8 of the Agreement, the Company was to handover the unit within 3 years from the date of signing of the Agreement and in case of any delay, there was sufficient safeguards built in the Agreement to protect their interest in terms of compensation payable @Rs.50/- per sq. yard per month beyond 3 years. It was further stated that in case of immovable property, time is never the essence of the contract. It was further stated that the Opposite Parties already offered possession to the complainants vide letter dated 05.03.2012 and the Company has credited an amount of Rs.37,863/- as compensation in the accounts of the complainants. It was further stated that the Opposite Parties sent various reminders to the complainants to take over possession but they failed to come forward to take over the possession. The Opposite Parties finally sent letter dated 26.12.2014 (Annexure C-3) to the complainants to take over possession and execute and register the conveyance deed and it was also pointed out that holding charges would be levied in case of failure to take over possession. It was further stated that the Opposite Parties also obtained Partial Completion Certificate for the area where the plot of the complainants is located (Exhibit OP/3). 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.

7. The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.

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

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

10. Admittedly, Plot Buyer’s Agreement in respect of plot/unit bearing No.312, measuring 300 sq. yards in Augusta Park, Sector 109 was executed between the parties on 04.07.2007 (Annexure C-1). It is also the admitted fact that the complainants made the total payment of Rs.48,96,099/-, as stipulated from statement of account (Annexure C-2) in respect of the unit, in question.

11. 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 i n 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.

12. Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within a period of 2 years from the date of execution of the Agreement but not later than 3 years, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the plot will be delivered by the Opposite Parties, within a maximum period of 3 years, subject to force majeure circumstances and reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 3 years from the date of execution of the same and, as such, time was, unequivocally made the essence of contract.

Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit and, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon’ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Counsel for the Opposite Parties in this regard also stands rejected.

13. The next question, that falls for consideration, is, as to whether, offer of possession made by the Opposite Parties, to the complainants, vide letter dated 05.03.2012 (Annexure OP/2 Colly.), in respect of the plot/unit, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that when offer was made to the complainants, in respect of the unit, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. The Opposite Parties were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

14. However, the main grouse of the complainants is that, despite receipt of the huge amount from them, actual physical possession complete in all respects, was not offered to them (Annexure OP/2 Colly.). At the time of arguments, Counsel for the complainants has drawn our attention to the letter dated 05.03.2012, which was sent by the Opposite Parties to the complainants regarding possession. The relevant portion of the aforesaid letter dated 05.03.2012 reads thus :-

“This has reference to the Plot allotted to you in the Project. We take this opportunity to update you on the status of the development work of the Project and in particular about the Plot situated in Augusta Park, Sector 109 of the project.

X x x x xx x x

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are please to inform you that significant progress has been made with respect to development of basic infrastructure x x x xx x.

In view of the above development and our constant endeavour to enhance our customer’s satisfaction, we are prepared to hand over possession of the plot to you, x x x x x x.

15. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. The Counsel for the Opposite Parties stated that the complaint is time barred, having been filed beyond two years of alleged cause of action, which allegedly accrued to the complainants on 05.03.2012 when possession was offered and the complaint now being filed by the complainants is barred by limitation. After going through the record of the case, we are not impressed with the contention of the Counsel for the Opposite Parties. No doubt, the complaint filed by the complainants on 21.03.2016. The Counsel for the complainants has also drawn our attention to the case titled as “Mopar Builders and Developers Pvt. Ltd. Vs. Unity Co-op Housing Society Ltd.” 2011(1) CPJ 71, in which, the Hon'ble National Consumer Disputes Redressal Commission, New Delhi held in para No.6 of the order, which reads thus :-

“6. The RP/OP has also raised the plea that the complaint is time barred, on the ground that the possession had been handed over to the purchasers during 1993-95 period, while the complaint to the District Forum was made in 2007. This argument cannot be accepted as the completion certificates and occupancy certificates, as observed by the State Commission, have not been made available to the purchasers/occupants. In fact, the RP/OP himself states in his petition to this Commission that “conveyance of the said plot cannot be given at this time as the project approved on the said plot is not yet completed and work of the remaining buildings are under progress.” It is therefore a clear case of continuing cause of action.”

In view of the afore-extracted order, we are of the view that the aforesaid order passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi is fully applicable to the case in hand because in this case also the Opposite Parties have failed to place on record Completion Certificate and title documents. Even the complainants in their complaint alleged that the Opposite Parties did not have approvals from the competent authorities.

Not only this, since it has been held by this Commission, that the letter dated 05.03.2012 (Annexure OP/2 colly.) sent by the Opposite Parties, was nothing but information given to the complainants regarding updation of the status of the development work at the site, and till date the complainants are empty handed as neither actual physical possession of the plot was delivered, complete in all respects, as also the entry points had been sealed by the Forest Department and they failed to take requisite permissions/sanction from it nor amount deposited was refunded to them alongwith interest, as such, there is continuing cause of action, in favour of the complainants, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). 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. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.