Chandigarh

StateCommission

CC/226/2017

Harpreet Singh Dardi - Complainant(s)

Versus

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

A S Walia, Adv.

30 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	226 of 2017
Date of Institution	:	17.03.2017
Date of Decision	:	30.08.2017

 

1. Harpreet Singh Dardi son of Sh. Jagjit Singh Dardi resident of House No.844, SST Nagar, Patiala.
2. Ashmeet Kaur Dardi wife of Harpreet Singh Dardi resident of House No.844, SST Nagar, Patiala.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, SCO No.120-122, Sector 17-C, Chandigarh.
2.  HDFC Ltd., SCF 6, First Floor, Leela Bhawan Market, Opposite State Bank of Patiala, Patiala.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

 

Sh. A.S.Walia, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for Opposite Party No.1.

Mrs. Rupali Shekhar Verma, Advocate for Opposite Party No.2.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainants were allotted plot No.99-EP-80-250 of 250 sq. yards in Sector 99 in the project of Opposite Party No.1 for a price of Rs.74,84,000/-. Copy of provisional allotment letter subvention payment plan, dated 13.05.2013 is Annexure C-1. The complainants entered into Buyer Seller Agreement dated 31.05.2013 (Annexure C-2). It was further stated that the complainants later opted plot No.109-AP-567-158 in Sector 109, Kharar Landran Road, Mohali for a total price of Rs.36,16,912/-. The amount paid by the complainants for the earlier plot was adjusted against the plot in Sector 109. Amendment Agreement was entered into between the complainants and Opposite Party No.1 on 19.09.2013 (Annexure C-3). The complainants also took loan from Opposite Party No.2 vide loan agreement (Annexure C-8). It was further stated that the complainants paid the total amount of Rs.32,84,270/-, which includes a loan from Opposite Party No.2 of Rs.22 lacs. As per Clause 8 of the Agreement, possession of the plot was to be delivered within a period of 18 months from the date of Agreement. It was further stated that Opposite Party No.1 sent letter of intimation of possession to the complainants vide letter dated 06.08.2016, stating that the plots were ready for delivery and the possession shall be handed over within 60 days of the letter of intimation of possession and also demanded an amount of Rs.8,41,086/- (Annexure C-9).  It was further stated that the complainants visited the site, after the receipt of the intimation of possession, and were surprised that there was no proper road, no street lights, no proper arrangements for the supply of electricity, no proper sewerage system functional and also no sewerage treatment plant was in operation. It was further stated that the area behind the plot did not have any boundary wall. It was further stated that the complainants came to know that Opposite Party No.1 did not have completion certificate. It was further stated that Opposite Party No.1 without carrying out the development work issued the letter of intimation of possession to take all the payments due from the complainants whereas lot of work is still pending and even the mandatory permissions and approvals have not been sought.   It was further stated that the complainants on 15.09.2016 (Annexure C-10) sent an email to the customer care of Opposite Party No.1 stating that the plot was not in habitable condition and there was delay of about 1 ½ year and Opposite Party No.1 still needed two months time to deliver possession. Therefore, the complainants sought refund of the entire amount paid alongwith interest instead of possession. 
 It was further stated that the aforesaid acts, on the part of Opposite Party No.1, 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.

2.           Opposite Party No.1 in its written version, has taken objection regarding arbitration clause in the Agreement, and also it 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 admitted that the complainants were provisionally allotted unit No.109-AP-567-158, Sector 109, Mohali and execution of the Agreement. It was further stated that the replying Opposite Party duly offered possession vide letter dated 06.08.2016 after completion of all the amenities and till the date of offer of possession, the complainants never raised any protest and accepted the delay. Thereafter, numerous demands and reminders were sent to the complainants to clear the amount due and to take possession but the complainants conveniently chose to ignore the same and did not remit the due installments. Further, the complainants have defaulted in making the payment of Rs.1,72,054/- is due and payable by them. It was further stated that the complainants are not a “consumer” as envisaged under the Consumer Protection Act, 1986 as they are resident of Patiala, Punjab and residing at their own house, as such, the said unit purchased in the project of Opposite Party No.1 solely for speculation purposes. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the Buyer Agreement was executed at Mohali and plot, in question, is also situated at Mohali. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was further stated that as per Clause 8(a) of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of signing the Agreement and the said period expired on 30.05.2015. The replying Opposite Party offered possession to the complainants on 06.08.2016 but they did not come forward to pay the due amounts and accept possession. It was further stated that Partial Completion Certificate for the project has already been obtained on 16.10.2015. It was further stated that the present complaint is beyond the period of limitation, as envisaged under Section 24 A of the Consumer Protection Act. It was further stated that both the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that in case of failure of the allottee to perform all obligations, as per the Agreement, the allottee has authorized the Company to forfeit the earned money as stipulated in Clause 2(f) of the Agreement. It was further stated that the complainants have opted for Subvention Linked Scheme and Opposite Party No.1 had paid the pre EMI installments interest on behalf of the complainants and a sum of Rs.2,72,610/-  liable to be adjusted from payments of Rs.33,96,424/- and in fact a sum of Rs.31,23,814/- only has been paid by the complainants. It was further stated that as per statement of accounts dated 30.09.2013, a sum of Rs.2,72,610/- was paid by the replying Opposite Party and shown in credit of the complainants. The said amount of Rs.2,72,610/- is liable to be refunded to the replying Opposite Parties alongwith interest from the date of payment till realization, in case of the complainants seeking refund of amount. It was admitted regarding initially allotted unit No.99-EP-80-250 and thereafter, on the request of the complainants, small plot in Sector 109 was allotted ; execution of amendment agreement and took a loan of Rs.22 lacs from HDFC. It was further stated that as per Clause 8 of the Agreement, the Company was to try and endeavor to hand over possession of the unit within 24 months from the date of execution of the Agreement i.e. 31.05.2015. In fact, the completion certificate has already been obtained for the project and possession has also been offered to the complainants on 06.08.2016 and delayed compensation of Rs.1,12,145/- has also been credited in account of complainants. It was further stated that the plot was ready and time of 60 days was granted to enable the complainants to make arrangement of funds. It was further stated that the possession was complete after completion of all the basic amenities. It was further stated that the issue of forest department has been resolved on 03.11.2016 and soon the main entry would also be opened. It was further stated   that   the    electrical    design     scheme    of    Sector 109    plots    stands  approved on 25.03.2011   and  even the permanent electricity connection  for   Sector   109,   Mohali     is   to be accorded    soon    as    formalities   are  completed   and                                                           

fees have been paid and only formal letter from authorities is required. It was further stated that the email of the complainants have been duly responded on 16.09.2014 and has been informed that refund would be governed by the terms and conditions of the Agreement and even copy of partial completion certificate was sent on mail also.  It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor they indulged into unfair trade practice.

3.           Opposite Party No.2 in its written statement admitted that the complainant took the loan from the replying Opposite Party vide loan agreement and tripartite agreement (Annexures R-2/1 & R-2/2). It was further stated that in case of cancellation of the unit or in the contingency of termination of Plot Buyer’s Agreement, HDFC Limited has the first charge/right to seek apportionment of its dues.

4.           The complainants filed rejoinder to the written statement of Opposite Party No.1, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Party No.1.

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

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

7.           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 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12.  At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

                We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an 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. Furthermore, under similar circumstances, the National Commission, 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, held as under:-

“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.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.”

 

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is 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 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, it is evident from the record, that Plot Buyer’s Agreement was executed between the allottee(s) and Opposite Party No.1 at Chandigarh on 31.05.2013 (Annexure C-2). Not only this, even the provisional allotment letter dated 13.05.2013 (Annexure C-1), receipt/acknowledgment-cum-receipts (Annexures C-4 to C-7) and letter of intimation of possession (Annexure C-9) were also sent by Opposite Party No.1 from its 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 complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by Opposite Party No.1, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.           Another objection taken by Opposite Party No.1, with regard to pecuniary jurisdiction, also deserves rejection.  This issue has already been decided by this Commission in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, which reads thus:-

“13.        Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.        In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

15.       It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

              In view of above, this objection taken by Opposite Party No.1 that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

10.         The objection taken by Opposite Party No.1, to the effect that the complainants did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, as they are resident of Patiala, Punjab and residing at their own house and, as such, the said unit purchased by the complainants in the project of Opposite Party No.1 is solely for speculation purposes. The complainants in their rejoinder admitted that they are residents of Patiala and vehemently denied that they booked the flat to earn a profit by selling the flat. The complainants further stated in para No.3 of their rejoinder that the flat had been booked by the petitioner to be used as his residence.  It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Party No.1 that the complainants, did not fall within the definition of a  consumer,   cannot   be    taken         into    consideration.   In    a    case    titled    as     Kavita Ahuja   Vs.   Shipra    Estate    Ltd.   and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  Opposite Party No.1, in its written reply, therefore, being devoid of merit, is rejected.  

11.         Another objection raised by Counsel for Opposite Party No.1 that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the unit within maximum period of 24 months, 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 unit will be delivered by Opposite Party No.1, within a maximum period of 24 months from the date of execution of the Agreement, subject to force majeure circumstances or reason beyond the control of Opposite Party No.1. In the instant case, Opposite Party No.1 did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by Opposite Party No.1 or any other valid and legal reason beyond its 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, Opposite Party No.1 was bound to deliver possession of the unit, within a maximum period of 24 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, Opposite Party No.1 cannot evade its liability, merely by saying that since the word tentative/ proposed/endeavour 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 Opposite Party No.1 in this regard also stands rejected.

12.         The next question, that falls for consideration, is, as to whether,  letter of intimation of possession made by Opposite Party No.1, to the complainants, vide letter dated 06.08.2016 (Annexure C-9), in respect of plot bearing No.109-AP-567-158 in Block AP situated at Sector 109,  Mohali Hills (Project), could be said to be genuine offer or not. It is, no doubt, true that initially Plot Buyer’s Agreement was executed between the parties in respect of plot No.99-EP-80-250 (Annexure C-2). Thereafter, on the request of the complainants, the unit was changed and in that respect, Amendment Agreement dated 19.09.2013 (Annexure C-3) was executed between the parties. The complainants stated that only the clauses mentioned in the Amended Agreement were changed and rest of the clauses of the Buyer’s Agreement was to apply to the substituted plot. As per the Buyer’s Agreement dated 31.05.2013, possession of the unit was to be delivered within a maximum period of 24 months i.e. latest by 30.05.2015 and as per the Amendment Agreement dated 19.09.2013, possession was to be handed over latest by 18.09.2015. The main allegation of Opposite Party No.1 is that possession was delivered to the complainants vide offer of possession letter (Annexure C-9) after completion of the amenities but they themselves did not accept the possession. On the other hand, Counsel for the complainants states that  despite receipt of the huge amount from them, actual physical possession thereof, was not offered to them, whereas, on the other hand, paper offer was made to them, vide letter of intimation of possession dated 06.08.2016 (Annexure C-9) because the complainants in their complaint has clearly stated that they visited the site, after the receipt of the intimation of possession, and surprised that there was no proper road, no street lights were there, no proper arrangements had been made for the supply of electricity, no proper sewerage system functional and also no sewerage treatment plant was in operation. It was further stated that the area behind the plot did not have any boundary wall. Moreover, the complainants in their rejoinder have stated that the possession has been offered after a delay of one and half year and the place is not habitable where the unit is situated and lot of work still needs to be done. The complainants further stated that completion certificate is yet to be issued and still there are various issues pending with authorities, which need to be resolved. The project as whole is still incomplete. The complainants further stated that the partial completion certificate has to be read with the conditions it contains, which have not been complied with so far. Not only this, the complainants have also placed on record email dated 15.09.2016 (Annexure C-10), which was sent to the customer care of Opposite Party No.1 stating that the plot was not in habitable condition and there was delay of about 1 ½ years. Moreover, 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 Opposite Party No.1, to prove that 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 Party No.1, 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. It is relevant to mention here that Opposite Party No.1 in its intimation of possession letter dated 06.08.2016 (Annexure C-9) informed the complainants that “process of handing over of the plots in Sector 109, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that Opposite Party No.1 only intimated the complainants regarding process of handing over of possession which shall start within 60 days of this letter.  In the present case, according to the Agreement, the possession was to be delivered to the complainants within a maximum period of 24 months from the date of execution of the Agreement and if we counted 24 months from the Amendment Agreement dated 19.09.2013, the possession was to be handed over to the complainants latest by 18.09.2015 and not more than that but in the present case, Opposite Party No.1 offered possession vide letter dated 06.08.2016 i.e. after a delay of about one year. Even at the time of arguments, Counsel for the complainants had drawn attention to this Commission regarding the entry points of the said Sector i.e. Sector 109, which were sealed/fenced by the Govt. of Punjab, Forest Department. It is pertinent to note that a similar question of offer of possession in Sector 109 came up for consideration before this Commission in the case titled as Veena Mujral & Ors. Vs. M/s Emaar MGF Land Private Limited & Anr., Complaint case No.691 of 2016, decided on 08.03.2017, in which, certain RTI’s have been placed on record regarding Sector 109 by the complainant(s), which reads thus :-

“12.          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 09.10.2014 (Annexure C-14), in respect of plot bearing No.109-MLU-116-300 in Block MLU situated at Sector 109,  Mohali Hills (Project), 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 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.

                However, the main grouse of the complainants is that, despite receipt of the huge amount from them, actual physical possession thereof, was not offered to them, whereas, on the other hand, paper offer was made to them, vide letter of intimation of possession dated 09.10.2014 (Annexure C-14). According to the complainants, vide the aforesaid letter, the Opposite Parties illegally demanded an amount of Rs.11,70,244/- under various heads. After receipt of the aforesaid letter of intimation of possession, the complainants visited the site and found no development was there at the site at the time of intimation of possession. The Opposite Parties in their intimation of possession letter dated 09.10.2014 (Annexure C-14) informed the complainants that “process of handing over of the plots in Sector 109, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainants regarding process of handing over of possession shall start within 60 days of this letter. The Opposite Parties have also placed on record  Partial Completion Certificate dated 16.10.2015 (Annexure R-4) to prove regarding the completion of the amenities at the site. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Annexure R-4)  clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Parties shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc.   It is the duty of the Opposite Parties to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. It is pertinent to note that a bare perusal of Partial Completion Certificate shows that the Opposite Party had applied for Partial Completion Certificate with the competent authority on 03.09.2015 and the said Partial Completion Certificate was issued by Greater Mohali Area Development Authority vide memo dated 16.10.2015. In the present case, according to the Agreement, the possession was to be delivered to the complainants within a maximum period of three years from the date of execution of the Agreement i.e. latest by 20.09.2010 but the Opposite Parties applied for Partial Completion Certificate on 03.09.2015 i.e. after the period of about five years stipulated. Even the complainants have drawn our attention to this Commission that the entry points of the said Sector i.e. Sector 109, in which, the plot is located, were sealed/fenced by the Govt. of Punjab, Forest Department, which fact was never disclosed to the complainants by the Opposite Parties. This fact is further fortified from the information obtained by similar located allottees under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, in the matter, vide letter dated 05.05.2015 (at page No.122 of the complainant’s documents), which reads thus :-

“1.    The entry points of the project M/s Emaar MGF Land Ltd. (Mohali Hills) for Sector 109, 108 and 105 have been closed by the Forest Department by thorny fencing wire and digging the trenches.

2.     The above mentioned paths has been closed due to the reason that user agency has not obtained the requisite permission from Government of India for the use of land of Forest Department under FCA 1980 for the paths.

3.     The paths will be opened only after obtaining the final approval from Government of India.

4.     The Case for the paths of Sector 109 is pending adjudication since 03.07.2012 before the Civil Court, Kharar x x x x x”

This fact is further fortified from a letter dated 15.04.2015 (Annexure C-17) sent by the Opposite Parties to the Chief Administrator, GMADA, PUDA to take up the matter of sealing of entries of the project, in question, with the Govt. of Punjab i.e. regarding “illegal access” to their projects. Under these circumstances, a similar question, in a similar project Mohali Hills, Sector 109 came up for consideration before this Commission in the case titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited, Complaint case No.43 of 2016, decided on 29.06.2016, this Commission held as under :-

“31.        However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, 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/opposite parties no.1 and 2. 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 opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, 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 no.1 and 2, 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. Opposite parties no.1 and 2 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.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

                It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed units with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016.

                Not only this, the complainants have placed on record the information under RTI dated 14.12.2016 (Annexure C-32) alongwith their rejoinder, which was obtained by the other allottee from Department of Forests & Wildlife Preservation, Punjab, which reads thus :-

“As per record of this office, there is no NOC/approval has been issued by MoEF, Government of India regarding approach road under Forest Conservation Act, 1980 to Emaar MGF, Sector 109.”

In view of the aforesaid information under RTI, it is clearly proved that till 14.12.2016 there was no approval/NOC issued by MoEF, Government of India regarding approach road under Forest Conservation Act, 1980 to Sector 109 of the Opposite Parties. So, in view of all the aforesaid RTI informations annexed by the complainants, it is clearly proved that the possession offered by the Opposite Parties vide letter dated 09.10.2014 is only a paper possession and not more than that.”

                In view of the afore-extracted paragraph, it is clear that the possession offered by Opposite Party No.1 to the complainants on 06.08.2016 (Annexure C-9) is only a paper possession and not more than that.

13.         The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them vide letter of intimation of possession dated 06.08.2016 (Annexure C-9), i.e. after a delay of about one year, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of Opposite Party No.1 that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. 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 the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   In view of the above, it is held that since there was a material violation on the part of Opposite Party No.1, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made after a long delay, and on the other hand, were right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

14.         It is to be further seen as to whether the complaint was within limitation or not. It may be stated here that it is very clear from the record that paper possession was offered to the complainants on 0608.2016 (Annexure C-9) and the complainants filed the instant complaint on 17.03.2017 i.e. within the stipulated date of two years. It is pertinent to note that the Opposite Parties failed to give physical possession complete in all respects to the complainants, despite receipt of the huge amount from them, so it is clearly proved that there is continuing cause of action, in their favour, 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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.32,84,270/-, as claimed by them. It is an admitted fact that the complainants deposited an amount of Rs.32,84,270/-, as is evident from statement of account (at page No.68 of the file) and after receipt of the aforesaid huge amount, Opposite Party No.1 failed to deliver  actual physical possession of the unit, complete in all respects, to the complainants, within the stipulated period, as mentioned in the Agreement. Opposite Party No.1 sent letter of intimation of possession vide letter dated 06.08.2016 (Annexure C-9), which was only a paper possession and not more than that. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. Opposite Party No.1, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, Opposite Party No.1 is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

16.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.32,84,270/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, for its own benefit. There is no dispute that for making delayed payments, Opposite Party No.1 was charging heavy rate of interest (compounded quarterly @24% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.32,84,270/- alongwith interest @12% p.a., from the respective dates of deposit, till realization. 

17.         As far as the plea taken by the Counsel for Opposite Party No.1, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party No.1) case, that it was ready with possession of the unit, complete in all respects, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of Opposite Party No.1 or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of Opposite Party No.1, that it was willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Party No.1, in this regard, has no legs to stand and is accordingly rejected.

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

19.         For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Party No.1 is directed, as under:-

1. To refund the amount of Rs.32,84,270/- to  the  complainants, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards. It is made clear that the complainants shall not be entitled to any interest for the period for which Opposite Party No.1 had paid pre-EMI interest to the financial institution under subvention scheme.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), 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 @15% p.a.,  instead of @12% p.a. from the respective dates of deposits onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

20.         Complaint qua Opposite Party No.2 stands dismissed.

21.         However, it is made clear that, if the complainants  have 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 the complainants.

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

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

Pronounced.

August 30^th, 2017.                                         Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

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 (PADMA PANDEY)

        MEMBER

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                           STATE COMMISSION

(Complaint Case No.226 of 2017)

[Harpreet Singh Dardi Vs.   Emaar MGF Land Ltd.  ]

 

Argued by:      

 

Sh. A.S.Walia, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for Opposite Party No.1.

Mrs. Rupali Shekhar Verma, Advocate for Opposite Party No.2.

 

Dated the 30^th day of August, 2017

 

ORDER

 

            Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs.

 

(DEV RAJ) MEMBER

(JUSTICE  JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

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