Chandigarh

StateCommission

CC/215/2017

Jatinder Chopra - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

30 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	215 of 2017
Date of Institution	:	15.03.2017
Date of Decision	:	30.08.2017

 

Jatinder Chopra S/o Sh. S.D.Chopra, r/o House No.2204/2, Sector 45-C, Chandigarh.

……Complainant

V e r s u s

1. Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director/Authorized Signatory.
2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001 through Managing Director/Authorized Signatory.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainant was willing to own a residential plot for his family and personal use and accordingly, bought plot No.147 in Augusta Park, Sector 109, Mohali Hills, Mohali, in resale from Sh.Jaswinder Singh and Sh.Rajinder Pal Singh. Copy of the Sale Agreement dated 17.04.2008 is Annexure C-1. The total sale consideration of the said plot was Rs.48,25,472/-. Subsequently, allotment letter dated 08.05.2007 and Plot Buyer’s Agreement (Annexures C-2 & C-3) were endorsed in favour of the complainant.  As per Clause 8 of the Agreement, possession was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years, failing which, the Company was also liable to pay a penalty of Rs.50/- per sq. yards per month for the period of delay beyond three years from the date of execution of the Agreement. The complainant paid the total amount of Rs.46,95,472/- vide payment receipts and account statement are Annexures C-4 colly & C-5 respectively. It was further stated that the complainant also qualified for the “pay on time” reward, whereby, he became eligible for the waiver of the last installment due towards the basic sale price of the said plot (Annexure C-6). It was further stated that possession of the said plot was to be handed over by 27.06.2010, as per the Agreement. It was further stated that the Opposite Parties sent a letter dated 06.08.2011 (Annexure C-7) updating the complainant regarding the status of the development work of the project.  After receipt of the aforesaid letter, the complainant visited the site and thereafter wrote an email to the Opposite Parties regarding the sealing of the entrance points of Sector 109 and further intimated the Opposite Parties regarding the incomplete development of the project. Copy of email dated 11.10.2011 is Annexure C-8. Thereafter, the Opposite Parties sent another letter dated 16.12.2011 (Annexure C-9) to the complainant, informing regarding the status of the development of the project, whereby, they again admitted that the lack of development o the site of the project. It was further stated that the complainant visited the office of the Opposite Parties and took receipt on the copy of email sent by the complainant in June, 2015, whereby, he had raised the issue of paper possession having been offered by the Opposite Parties in August, 2011 and also expressed that he had already refused the offer of possession sent in August, 2011 on the ground due to non development of the project and the Opposite Parties not having all the approvals from the competent authorities. Copy of the email dated 09.06.2015 is at Annexure C-10. Thereafter, the Opposite Parties again sent possession letter to the complainant vide email dated 22.08.2015 (Annexures C-11 & C-12). The Opposite Parties thereafter vide email dated 30.08.2015 (Annexure C-13) admitted having sent the possession letter to the complainant on 22.08.2015. It was further stated that despite having offered possession after a delay of more than 5 years, the Opposite Parties were not crediting delayed compensation. Moreover, even otherwise the said possession letter was a mere paper possession. Recently, on 07.03.2017 the Opposite Parties again sent possession reminder, whereby, the complainant was requested to clear the outstanding amounts (Annexure C-14). It was further stated that the Opposite Parties did not have necessary clearances for the said project from the competent authorities. It was further stated that despite lack of basic amenities such as roads/connecting roads, electricity, water, sewerage, storm water, drainage etc., the complainant was offered paper possession vide letters dated 06.08.2011, 22.08.2015 and 07.03.2017. Even as of today, major part of the project is as good as jungle.  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 complainant, 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 Parties in their joint written version, have stated that the Agreement was executed between the third party and the Opposite Parties but the complainant have not been added third party (i.e. original allottees), when the complaint was filed. It was admitted that Plot Buyer’s Agreement was executed with one Mr.Jaswinder Singh Gulati and Mr. Rajinder Pal Singh dated 28.06.2007 in respect of plot bearing No.147 located in Augusta Park. The sale consideration of the subject property in the Agreement was Rs.48,25,472/-. It was further stated that till the time of execution of the sale agreement, the original allottees had defrayed an amount of Rs.27,60,000/-. Thereafter, the complainant paid the amount of Rs.19,35,472/- to the Opposite Parties. It was further stated that the complainant admits that he had received a letter intimating offer of possession through letter dated 06.08.2011 (Annexure C-7) but resists the same purportedly on the ground that completion certificate in regard to the sector had not been issued by the competent authorities. It was further stated that only partial completion certificate dated 16.10.2015 (Annexure R/4) was granted to the Opposite Parties. However, the Opposite Parties have been granted exemption under Section 44 of the Punjab Apartment and Property Regulation Act, 1995 by the competent authorities. After offer of possession on 06.08.2011, the Opposite Parties reminded the complainant regarding offer of possession vide letter dated 09.06.2014 (Annexure R/2). Moreover, vide letter dated 09.06.2014, the complainant was apprised of amounts due under various heads amounting to Rs.10,37,063.33 but the latter failed to pay the same. Thereafter, the Opposite Parties reminded the complainant about the offer of possession of the subject property through letter dated 14.05.2015 (Annexure R/3), whereby, the complainant was asked to deposit a sum of Rs.10,81,448/- under various heads but he failed to defray the amounts due to the Opposite Parties. It was further stated that after offer of possession has been made in the year 2011, the complainant failed to take steps to avail the same and filed the complaint in 2017, which is not maintainable under Section 24-A of the Act. It was further stated that regarding sealing of entrance road to Sector 109 is concerned, there already existed an alternate approach road to the said sector and furthermore even the said matter has been resolved, as is evident from letter dated 28.11.2016 (Annexure R/5 colly.). It was further stated that the Opposite Parties duly discharged an amount of Rs.2,10,497/- as compensation to the complainant on 11.07.2014 in the form of credit memo. However, despite receipt of the above, the complainant owes to the Opposite Parties a sum of Rs.6,42,979/- as is evident from perusal of statement of accounts dated 27.04.2017. It was admitted that the subject property has been purchased by the complainant in resale from the original allottee. It was denied that the said property was transferred in the name of the complainant on 17.04.2008. It was denied that the Opposite Parties at any point of time admitted that the development work was incomplete. It was further stated that the complainant was called upon to execute and/or carry out certain formalities, as also payment of certain amounts of money, which was not done in the present case. It was denied that the Opposite Parties had admitted that they had offered possession to the complainant on 22.08.2015. It was further stated that the complainant did not fall within the definition of “Consumer” as envisaged in the Consumer Protection Act, 1986. It was further stated that the office of the Opposite Parties is situated in Sector 105 Mohali, Punjab, as such, the complaint under reply is found wanting on jurisdictional aspect. The Opposite Parties also moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

3.           The complainant filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.

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

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

6.           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.

7.           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 complainant, 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 original allottees and the Opposite Parties at Chandigarh on 28.06.2007 (Annexure C-3). Not only this, even the provisional allotment letter dated 08.05.2007 (Annexure C-2), receipts Annexure C-4 (Colly.), letters (Annexures C-6, C-7, C-9 & C-12) 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 complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

8.           The objection taken by the Opposite Parties, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, is concerned, the complainant in para No.1 of his complaint has clearly stated that the complainant was willing to own a residential plot for his family and personal use. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, 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 the Opposite Parties that the complainant, 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  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

9.           With regard to the objection taken by the Opposite Parties that the Agreement was executed between the third party and the Opposite Parties but the complainant failed to add third party, when the complaint was filed, is concerned, it is the admitted fact that Plot Buyer’s Agreement dated 28.06.2007 was executed between Mr.Jaswinder Singh Gulati & Mr. Rajinder Pal Singh and the Opposite Parties in respect of plot bearing No.147 located in Augusta Park. Thereafter, the complainant bought the aforesaid plot from the original allottees. The stamp affixed on the first page of the aforesaid Agreement (Annexure C-3) clearly shows that the same was endorsed in favour of the complainant on 17.04.2008. Even the complainant in his rejoinder has clearly stated that the necessary documents relating to the said plot was endorsed in the name of the complainant on 17.04.2008. It is clearly proved that the complainant stepped into the shoes of the original allottees. So, the complainant is fully authorized to file the present case against the Opposite Parties and we are of the view that there is no need to implead the third party i.e. Mr.Jaswinder Singh Gulati & Mr. Rajinder Pal Singh (original allottees) when the complaint was filed. So, the plea taken by the Opposite Parties in this regard is rejected.

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

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed/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 the Opposite Parties in this regard also stands rejected.

11.         The next question, that falls for consideration, is, as to whether,  possession letter dated 06.08.2011 (Annexure C-7) sent by the Opposite Parties to the complainant, in respect of plot bearing No.147, Augusta Park, Sector 109, SAS Nagar, Mohali, could be said to be genuine offer or not. It is, no doubt, true that Plot Buyer’s Agreement was executed between Sh. Jaswinder Singh Gulati & Sh. Rajinder Pal Singh (original allottees) and the Opposite Parties on 28.06.2007 (Annexure C-3). Thereafter, the aforesaid plot was bought by the complainant and the same was endorsed in favour of the complainant on 17.04.2008, as is evident from first page of Buyer’s Agreement (Annexure C-3). As per the Buyer’s 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 the plot was to be handed over to the complainant maximum within a period of three years from the date of execution of the Agreement i.e. latest by 27.06.2010 and not more than that. The main allegation of Opposite Parties is that possession was offered to the complainant vide letter dated 06.08.2011  (Annexure C-7) and thereafter, reminders were sent to the complainant vide letter dated 09.06.2014 & 14.05.2015 (Annexures R-2 & R-3) but he failed to get possession of the unit, despite repeated requests. On the other hand, Counsel for the complainant states that  the aforesaid possession letter dated 06.08.2011 sent by the Opposite Parties is only updating the complainant regarding the status of the development work of the project.  The complainant further stated that after receipt of the aforesaid letter, he visited the site and also  wrote an email to the Opposite Parties regarding the sealing of the entrance points of Sector 109 and intimation was given to the Opposite Parties regarding the incomplete development of the project. Copy of said email dated 11.10.2011 is Annexure C-8. The complainant further stated that the Opposite Parties again sent possession letter to the complainant vide email dated 22.08.2015 (Annexures C-11 & C-12). It was further stated by the complainant that the Opposite Parties vide email dated 30.08.2015 (Annexure C-13) admitted having sent the possession letter to the complainant on 22.08.2015 (in fact 8^th Aug, 2015). It was further stated that the Opposite Parties did not have necessary clearances for the said project from the competent authorities and despite lack of basic amenities such as roads/connecting roads, electricity, water, sewerage, storm water, drainage etc., the complainant was offered paper possession.

              The relevant portion of the possession letter dated 06.08.2011 (Annexure C-7) reads thus :-

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

A bare perusal of the aforesaid possession letter clearly reveals that it was only an updation letter, which was sent by the Opposite Parties to the complainant regarding the development work of the project, in question. Moreover, the Opposite Parties again sent possession letter through email dated 22.08.2015 (Annexure C-11) to the complainant. It is relevant to note that if the aforesaid letter dated 06.08.2011 received by the complainant then why the Opposite Parties sent the same possession letter to the complainant with the email dated 22.08.2015 i.e. after about four years. Moreover, the Opposite Parties also placed on record letters dated 09.06.2014 (Annexure R-2) and possession reminder dated 14.05.2015 (Annexure R-3). However, the Opposite Parties failed to prove that by which mode, the aforesaid letters were sent to the complainant because they neither filed any registered AD nor placed on record any courier receipt, from which, it proves that the same was received by the complainant. Not only this, the complainant has also placed on record email dated 30.08.2015, which was sent by the Opposite Parties to the complainant (Annexure C-13) to prove that the possession was offered on 8.8.2015. The relevant portion of the said email reads thus :-

“We would like to inform you that the possession was offered to you on Aug 8, 2015. Please find enclosed updated statement of account.”

From the afore-extracted email, which was sent by the Opposite Parties to the complainant, it is clearly admitted by the Opposite Parties that possession was offered to the complainant on 08.08.2015. Despite receipt of the huge amount of Rs.46,95,472/- from the complainant, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper possession offer was made to him because the complainant in his complaint has clearly stated that despite lack of basic amenities such as roads/connecting roads, electricity, water, sewerage, storm water, drainage etc., the complainant was offered paper possession. If for the sake of arguments, we believe that the possession was offered to the complainants vide letter dated 06.08.2011 (Annexure C-7) and partial completion certificate was obtained by the Opposite Parties from the competent authorities on 16.10.2015 i.e. after more than four years of offer of possession. 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 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 the 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. It is relevant to mention here that the Opposite Parties admitted that they offered possession on 08.08.2015, so it is clearly proved that the same was offered to the complainant after a delay of about 5 years. Even at the time of arguments, Counsel for the complainant 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 Parties to the complainant is only a paper possession and not more than that.

12.         The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him after a huge delay of about five years, 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 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.

 

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 the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was 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.

13.          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 complainant on 08.08.2015, as admitted by the Opposite Parties in Annexure C-13 and the complainant filed the instant complaint on 15.03.2017 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 complainant, despite receipt of the huge amount from him, so it is clearly proved that there is continuing cause of action, in his 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 the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

14.         The next question, that falls for consideration, is, as to whether, the complainant is entitled for refund of the amount of Rs.46,95,472/-, as claimed by him. It is an admitted fact that the complainant deposited an amount of Rs.46,95,472/- and after receipt of the aforesaid huge amount, the Opposite Parties failed to deliver  actual physical possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement. The Opposite Parties sent possession letter to the complainant after a huge delay of about five years, which was only a paper possession and not more than that. The complainant 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 complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. 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.

15.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.46,95,472/-, was paid by the complainant, 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 was 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  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.46,95,472/- alongwith interest @12% p.a., from the respective dates of deposit, till realization. 

16.         As far as the plea taken by the 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, complete in all respects, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is 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.

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

18.         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 of Rs.46,95,472/- to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  endorsement onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant.
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 date of default, 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.

19.         However, it is made clear that, if the complainant has 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 complainant.

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

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

Pronounced.

August  30^th,  2017.                                       Sd/-      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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                           STATE COMMISSION

(Complaint Case No.215 of 2017)

[Jatinder Chopra Vs.   Emaar MGF Land Ltd.  ]

 

Argued by:      

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

 

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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