Chandigarh

StateCommission

CC/603/2016

Jashinder Bir Singh - Complainant(s)

Versus

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

Paras Money Goyal, Adv.

16 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	603 of 2016
Date of Institution	:	19.09.2016
Date of Decision	:	16.01.2017

 

1. Jashinder Bir Singh son of Sh. Tarlochan Singh, r/o # 1592, Sector 69, Mohali.
2. Rajesh Singhal son of Sh. Dev Raj Singhal, r/o # 2058, Sector 69, Mohali.

 

……Complainants

V e r s u s

1. Emaar MGF Land Ltd., through its H.E. Mohamed Ali Alabbar (Chairman) SCO No.120-122, Sector 17-C, Chandigarh.
2. Mr. Shravan Gupta (Managing Director) Emaar MGF Land Ltd.,  SCO No.120-122, First Floor, Sector 17-C, Chandigarh.
3. Emaar MGF Land Ltd., through its General Manager, SCO No.120-122, First Floor, Sector 17-C, Chandigarh.

 

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Gaurav Bhardwaj, Advocate for the complainants.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants fell prey to the tall claims made by the Opposite Parties and agreed to purchase a residential plot in Sector 109, SAS Nagar, Mohali. As such, the Opposite Parties arranged a plot bearing No.436, Augusta Park, Sector 109, SAS Nagar, Mohali. The total consideration of the said plot was Rs.34,50,000/- besides EDC. It was stated that the complainants paid the first installment of Rs.10,35,000/- to the Opposite Parties on 04.07.2007 in respect of the plot, in question (Annexure C-2). Thereafter, Plot Buyer’s Agreement was executed between the parties on 04.07.2007 (Annexure C-3). It was further stated that the complainants made the complete payment to the Opposite Parties vide receipts (Annexure C-4 colly.). It was further stated that the Opposite Parties assured to deliver possession of the plot within two years from the date of endorsing the Agreement i.e. 04.07.2007 in the name of the complainants. The complainants visited the office of the Opposite Parties for possession of the said plot but they lingered the matter on one pretext or the other and did not offered possession of the said plot. It was further stated that the complainants made several requests to the Opposite Parties and their representative either to refund the money alongwith interest or allot the plot but they assured to refund the money and asked them to wait for 6 months, so that the formalities for refunding the money could be completed. Thereafter, the complainants again visited the office of the Opposite Parties after the expiry of 6 months but to no effect. Ultimately, the complainants served a legal notice to the Opposite Parties through their Counsel on 07.06.2011 (Annexure C-5) but to no avail. It was further stated that the complainants sent email dated 01.12.2011 (Annexure C-6) to the Opposite Parties, vide which, they enquired about the status of possession, which was duly replied by the Opposite Parties vide email dated 02.12.2011 (Annexure C-7), wherein, the Opposite Parties assured the complainants to hand over possession within a period of six months. Thereafter, the Opposite Parties wrote a letter dated 05.05.2012 (Annexure C-8) to the complainant but no specific date was given for offer of possession. It was further stated that the Opposite Parties issued letter dated 16.04.2014, in which, revised EDC was asked for and beside the other charges i.e. club membership, registration charges, stamp duty etc. were being asked for. It was further stated that the said letter was issued only to extort money from the complainants. Lastly, another letter dated 13.07.2015 (Annexure C-9) was issued by the Opposite Parties. It was further stated that the complainants made the payment of Rs.36,19,104/- as is evident from statement of account (Annexure C-10). It was further stated that the Opposite Parties failed to hand over the possession of the plot to the complainants, as assured 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.

2.           The Opposite Parties, in their 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 stated that the complaint is not maintainable being barred by time because after receipt of the letter of possession dated 05.05.2012 (Annexure C-8), the complainants never approached the Opposite Parties claiming refund in respect of the subject property and the period of 2 years, as per Section 24-A of the Consumer Protection Act got lapsed by 04.05.2014. So, the complainant filed the present case only in September, 2016 i.e. two years after the expiry of period of limitation. It was further stated that the complainants have failed to disclose the fact that they purchased the subject property in resale from one Mrs. Gulshan Sodhi of their own free volition and, as such, no element of allurement and/or enticement could be attributed on the part of the Opposite Parties. It was further stated that the complainants through their letter dated 13.08.2007 requested the Opposite Parties to change the location of the property allotted to them and desired a corner plot. Thereafter, the complainants through subsequent letter dated 27.09.2007 requested not to act upon/consider the earlier request of 13.08.2007. Copies of both the letters are Annexure R-2. It was further stated that the complainants again requested the Opposite Parties to keep them informed in case any other plot was available at a later stage. As such, the changing stance of the complainants resulted in unwarranted delay. It was further stated that the complainants even failed to defray the amounts due to the Opposite Parties and they also placed on record reminders (Annexure R-3). It was further stated that the Opposite Parties through a letter dated 27.08.2015 (Annexure R-5) sought the pending amounts but the complainants failed to abide with the schedule of payment. It was denied that as per the Agreement, the property was to be handed over within a period of two years because as per relevant clause of the Agreement, the property would be handed over not later than three years from the date of execution of the Agreement. It was denied that the complainant visited the office of the Opposite Parties and also denied for any assurance that was given by them in regard to refund of the amounts, as paid by them. It was further stated that the office of the Opposite Parties is situated in Mohali i.e. Punjab and the subject property is also located in Punjab, as such, it was denied that the complaint has been lodged at the correct Commission. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

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

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

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

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

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

6.           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 the Agreement was executed between the parties at Chandigarh. Not only this, even the installment payment plan, receipts (Annexure C-4) and letters dated 05.05.2012 and 13.07.2015 (Annexures C-8 & C-9) were also sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

7.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since the Opposite Parties failed to give the specific date of offer of possession to the complainants and when the complainant sent legal notice dated 07.06.2011 (Annexure C-5) to the Company, they never bothered to file reply to the legal notice. Not only this, the complainant sent an email dated 01.12.2011 to the Opposite Parties regarding giving the exact date of possession, which was duly replied by the Opposite Parties vide email dated 02.12.2011, in which, it has been stated that the unit is not ready for possession and assured to handover the possession within 5-6 months. Thereafter, the Opposite Parties vide letter dated 05.05.2012 (Annexure C-8) sent updation letter regarding the status of the unit. According to the complainants, they time and again visited the office of the Opposite Parties either to ask for refund of the amount alongwith interest or to obtain possession of the unit but the Opposite Parties lingered on the matter on one pretext or the other. In the present case, actual physical possession has not been handed over to the complainant till date. Therefore, 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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

8.           The next question that falls for consideration, is, as to within which period possession of the unit was handed over to the complainants. Plot Buyer’s Agreement was executed between the parties on 04.07.2007 (Annexure C-3) and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years. So, it is clearly proved that possession of the unit was to be delivered within a maximum period of three years from the date of execution of the Agreement i.e. latest by 03.07.2010. Even the Opposite Parties alleged that offer of possession was given to the complainants vide letter dated 05.05.2012 (Annexure C-8). If, for the sake of arguments, we believe the averments of the Opposite Parties, that possession was offered to the complainants after a delay of two years, which itself is beyond the specified time frame, as per the Agreement.

9.             The next question, that falls for consideration, is, as to whether the Opposite Parties rightly offered possession of the unit/plot, in question, to the complainants, complete in all respects within the stipulated period, as mentioned in the Agreement, and if yes, then the complainants are at fault not to accept the possession of the unit. As per Clause 8 of the Agreement, possession of the unit was to be delivered to the complainants within a period of 2 years from the date of execution of the Agreement but not later than 3 years. So, the period of 3 years from the date of execution of the Agreement dated 04.07.2007 has expired on 03.07.2010. According to the Opposite Parties, they sent offer of possession to the complainants vide letter dated 05.05.2012 (Annexure C-8) but the complainants did not come forward to take the possession for the reasons best known to them. A bare perusal of the said letter clearly reveals that the same was only updation on the status of the development work of the project and not the offer of possession, as alleged by the Opposite Parties because in the said letter, it is clearly stated that “The development activitities 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 like water pipelines, sewer pipelines and development of roads, parks in these sectors.x x x x x”. It is pertinent to note that the Opposite Parties annexed email dated 31.12.2014 (Annexure R-6 colly.) which was sent by them to the complainants. The relevant portion of the aforesaid email reads thus :-

“We would like to inform that the work has been expedited in the area where your unit is located and we expect to complete all amenities for the unit allotted in your favour within 3-4 months time. An offer of possession shall be sent to you subsequently. We do understand your apprehension but be rest assured that the Company is taking all possible steps to expedite the delivery of your unit.

Also, please be informed that penalty for delays in offering possession, if any, beyond the time frame mentioned in Buyer’s Agreement, would be applicable as per terms and conditions mentioned therein and would be taken up for consideration at the time of final handover/registration.

X x x x x x x”

A bare perusal of the aforesaid email clearly reveals that the Opposite Parties were not in a position to hand over possession of the unit, as claimed by them in the year 2012 because in December, 2014, the Opposite Parties expected to complete all amenities for the unit within 3-4 months time and further stated that offer of possession should be sent to the complainants subsequently. So, it is clear that the Opposite Parties failed to give possession of the unit to the complainants. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by this Commission regarding the issue of Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

“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.

10.          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 flats with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the Opposite Parties failed to give offer of possession to the complainants.

11.          If we believe for the sake of arguments that the Opposite Parties sent offer of possession letter dated 05.05.2012 (Annexure C-8) to the complainants then the complainants were not bound to accept the said offer because as per the Agreement, possession of the unit was to be delivered within a maximum period of three years i.e. latest by 03.07.2010 and not more than that. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, 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.

 

Moreover, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided 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 the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, within 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, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

12.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.36,19,104/-, deposited by them. Admittedly, the complainants deposited the amount of Rs.36,19,104/- in respect of the unit, in question, as is evident from statement of account, annexed by the Opposite Parties (Annexure R-4). It is also an admitted fact that the  Opposite Parties were unable to deliver  possession of the unit, in question, within the stipulated period, as mentioned in the Agreement and firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, 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, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

13.          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.36,19,104/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded @15% 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.36,19,104/-alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization.

14.           As far as the plea taken by Counsel for the Opposite Parties 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 their (Opposite Parties) case, that it was ready with possession of the unit, 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 or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, 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 the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

16.          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.36,19,104/-, to  the  complainants, alongwith interest @15% p.a. compounded,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- 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 @18% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits onwards, and interest @15%  p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

17.          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 them (complainants).

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

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

Pronounced.

January 16, 2017.                                         Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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