Chandigarh

StateCommission

CC/152/2014

Kamla Devi - Complainant(s)

Versus

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

Tribhawan Singla, Gurpreet Singh & Rajwinder Singh

02 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	152 of 2014
Date of Institution	:	07.11.2014
Date of Decision	:	02/02/2015

 

Kamla Devi wife of Sh. Lajpat Rai Jindal, resident of Kothi No.1, Maan Colony, College Road, Sangrur, Tehsil and District Sangrur (Punjab).

……Complainant

V e r s u s

1. The Managing Director, Emaar MGF Land Limited, Corporate Office, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001.
2. The Manager/Incharge Director, Emaar MGF Land Limited, S.C.O. No.120-122, Sector 17-C, Chandigarh.

              ....  Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh.Tribhawan Singla, Advocate for the complainant.

                   Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that, in the year 2006, the Opposite Parties, floated a scheme, for the allotment of residential apartments, in their upcoming project, under the name and style of “The Views”, Sector 105, S.A.S. Nagar, Mohali, District Mohali, Punjab. In response to the advertisements, in the leading newspapers, as also the assurances, given by the Opposite Parties, with regard to the salient features of the project aforesaid, the complainant applied to them, vide application dated 31.08.2006, for the allotment of an apartment, measuring 1550 square feet. Alongwith the said application, the complainant also deposited an amount of Rs.7 lacs, as part of earnest money, vide cheque No.180517 dated 28.08.2006. It was stated that another amount of Rs.1,81,330/-, was paid by the complainant towards part price of the said apartment. As such, the complainant was allotted apartment No.TVMC3-GF03, measuring 1550 square feet, in their Project, namely “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, alongwith one car parking space. The total cost of the said apartment was to the tune of Rs.45,72,150/-, which included Rs.1,50,000/- per parking bay, External Development Charges (EDC) @Rs.93/- per square feet and Interest Free Maintenance Charges (IFMS) @Rs.10/- per square feet. Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, in respect of the said apartment, was executed between the parties, at Chandigarh. The payment plan opted by the complainant was construction linked. As such, she was required to pay 30% of the total sale consideration.

2.       It was further stated that according to Clause 21.1 of the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of execution of the same (Apartment Buyer's Agreement). It was further stated that it was also mentioned in Clause 23.1 of the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty/compensation, to the complainant, @ Rs.5 (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 19.02.2011.
3.       It was further stated that the complainant visited the site, a number of times, but was surprised to see that there was no construction of the apartments. It was further stated that the complainant contacted the Opposite Parties, to apprise her, with regard to delivery of possession of the apartment, in question, to  her, but to no avail.
4.       It was further stated that when the complainant saw that there was no development, at the site, she wrote letter dated 30.05.2012 Annexure C-9, to the Opposite Parties. In response to the said letter Annexure C-9, the Opposite Parties vide letter dated 06.06.2012, intimated the complainant that the construction in respect of the apartments, in their project, in Towers K, G, H and J, was in full swing. However, it was admitted by the Opposite Parties, in the said letter, that construction of tower C, in which the apartment, in question, was allotted to the complainant, had not yet started, due to some reasons. As such, the complainant was offered relocation of the apartment, in some other tower, in the same project.
5.       It was further stated that, thereafter, another letter dated 04.12.2013, was sent by the Opposite Parties, to the complainant, intimating her that she had been offered relocation of the apartment. The complainant, however, refused to accept relocation, vide letter dated 07.04.2014. Vide the said letter, she specifically made a request to the Opposite Parties, to deliver possession of the apartment, which was allotted to her originally. It was further stated that, thereafter, the Opposite Parties vide letter dated 04.04.2014, received on 24.04.2014, intimated the complainant that she had been relocated to Tower L-3, in the said project, wherein she had been allotted apartment No.TVM L3-GF-GF03. Alongwith the letter dated 04.04.2014, revised payment plan, in respect of the relocated apartment, was also sent by the Opposite Parties. It was further stated that, thereafter, a lot of correspondence was exchanged between the parties, wherein, every time the complainant did not agree to the relocation of any other apartment. It was further stated that, in the meanwhile, the complainant visited the site, a number of times, and saw that construction of the apartment, allotted to her, was not even started, what to speak of delivery of possession thereof. It was further stated that since construction of the apartment, which was allotted to the complainant, was not even started, she finally vide legal notice dated 22.08.2014, sought refund of the amount of Rs.13,21,995/-, alongwith interest, but the Opposite Parties failed to do so.
6.       It was further stated that the Opposite Parties collected the amount of Rs.13,21,995/-, towards the part price of apartment, in question, by making a false promise, that physical possession thereof, shall be handed over within a period of 36 months, from the date of execution of Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainant, towards the part price of apartment, was utilized by the Opposite Parties, as a result whereof, she was caused huge financial loss. It was further stated that, as such, the complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission, on the part of the Opposite Parties.
7.       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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.13,21,995/-, alongwith annual compound interest @18% P.A. , from the respective dates of deposits, till realization; compensation to the tune of Rs.10 lacs, on account of mental agony and physical harassment; and  cost of litigation, to the tune of Rs.33,000/-
8.       The Opposite Parties, put in appearance, on 15.12.2014, and filed their joint written version, on 20.01.2015. In the joint written version, it was pleaded by the Opposite Parties, that since the payment, in respect of the said apartment, was made by Sangrur Industrial Corporation Limited and Sangrur Finvest Limited, i.e. Limited Companies, the complaint was not maintainable by the complainant. It was further pleaded that the complainant did not fall within the definition of a consumer, as she purchased the apartment, with an intention, to earn profits, after selling the same, as and when there was escalation in prices of the real estate. It was further pleaded that since on 06.06.2012 itself, it was specifically told to the complainant that the possession of apartment No.TVMC3-GF03, measuring 1550 square feet, in their Project, namely “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, originally allotted to her, could not be delivered to her, on account of revision in the lay-out plans, she was required to file the consumer complaint within a period of 2 years, i.e. latest by 06.06.2014, and, as such, the present complaint having been filed on 07.11.2014, was barred by limitation. It was further pleaded that this Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint.  It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that time was not the essence of contract. The factum of  allotment of apartment No.TVMC3-GF03, measuring 1550 square feet, in their Project, namely “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, in favour of the complainant, was admitted. It was also admitted that the Opposite Parties had received the amount of Rs.13,21,995/-, towards part price of the apartment, in question, as mentioned in the complaint, from the complainant. Execution of the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, between the parties was also admitted. It was also admitted that possession of the apartment, in question, could not be delivered, to the complainant, till the date of filing the consumer complaint, or even till date. It was stated that the possession of apartment No.TVMC3-GF03, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab could not be offered to the complainant, on account of the reason that there was revision in the layout plans. It was further stated that the Opposite Parties, by way of relocation were ready to give some other apartment, to the complainant, in the same project in Tower-L, possession whereof, could be delivered to her, at the earliest, as the construction thereof was at advanced stage, but she refused to accept the same. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty had been provided, in the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, which safeguarded her rights. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9.       In the rejoinder, filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
10.       The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
11.       The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
12.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
13.       The first question, that falls for consideration, is, as to whether, the consumer complaint was maintainable, or not. No doubt, an objection was taken by the Opposite Parties, that since the payment, in respect of the said apartment, was made by Sangrur Industrial Corporation Limited and Sangrur Finvest Limited, i.e. through Limited Companies, by the complainant the consumer complaint was not maintainable. The objection taken by the Opposite Parties, in this regard, does not carry any weight and the same is liable to be rejected. It may be stated here, that in the rejoinder filed by the complainant, it was clearly averred by her, that all the payments were made by her, either from her personal account or were given to her, by the Company, being a Director of the same. Not only this, it was clarified by the complainant, in the rejoinder, that the said unit was purchased by her, for her own residence to settle near Chandigarh. On the other hand, the receipts Annexure C-3, in the sum of Rs.7 lacs, vide cheque dated 28.08.2006, towards earnest money and Annexure C-4, in the sum of Rs.1,81,330/-towards part price of the apartment, in question, clearly proved that the same were issued by the Opposite Parties, in the name of the complainant only. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.   
14.       The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The objection taken by the Opposite Parties, in this regard, does not appear to be correct. It may be stated here, that the complainant, in para No.9 of the complaint, supported by her evidence, by way of affidavit, clearly averred that she purchased the apartment, for the purpose of her residence. Otherwise, also, the mere fact that it was a residential apartment, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. On the other hand, there is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the apartment, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential apartment, in question, with a view to reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.
15.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here, that Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, in respect of apartment No.TVMC3-GF03, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was executed between the parties, possession whereof was to be delivered by 19.02.2011. Possession was not offered to the complainant, by 19.02.2011, on account of non-existence of the said apartment, as there was revision in the lay-out plans, in respect of the Tower in question, whereas the same (apartment) was allotted to her. No doubt, later on, the Opposite Parties, gave an option for relocation of the apartment, which was not accepted by the complainant. It means that in the absence of acceptance of relocation of the apartment no final contract came into being, in relation to the same. No possession of the originally allotted apartment No.TVMC3-GF03, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was offered to the complainant, either on the stipulated date i.e. 19.02.2011, or till date, and, as such, there was a continuing cause of action. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
16.       The  next question, that falls for consideration,  is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint could 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 her. In the instant case, the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7,  in respect of the apartment, in question, was executed, between the parties, at Chandigarh, as is evident from page 43 of the file. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
17.       The next question, that falls for consideration, is, as to whether, this Commission has got the pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the apartment, in question,  was  Rs.45,72,150/-. The complainant has sought refund of the amount of Rs.13,21,995/-, paid by her, towards part price of the apartment,  in question, alongwith compound interest @18% P.A., from the respective dates of deposits, till realization; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.33,000/-. The aggregate value of the services/goods or refund sought, plus (+) compensation, and cost, claimed by the complainant, in the complaint, [excluding the compound interest claimed @18% P.A. on Rs.13,21,995/-], came to be around Rs.23,54,995/-, and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
18.       The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under;

“3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

19.       Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.   
20.       The next question, that falls for consideration, is, as to whether, time was the essence of contract or not.  It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of execution of the same (Apartment Buyer's Agreement). It was further mentioned in Clause 23.1 of Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty/compensation, to the complainant, @ Rs.5 (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 19.02.2011. Even, after the expiry of more than about 07 years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
21.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the apartment, in question, was to be given to the complainant. According to Clause 21.1 of Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of execution of the same (Apartment Buyer's Agreement), failing which, as per Clause 23.1 of the same (Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7), they (Opposite Parties), were liable to pay penalty/compensation, to her (complainant) @Rs.5 (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Admittedly, possession of the apartment, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, the Opposite Parties frankly admitted that possession of the apartment, in question, could not be offered to the complainant, on account of non-existence of the same, as there was  revision in the lay-out plans, in respect of the Tower in question, whereas the same (apartment) was allotted to her. On the other hand, the option for relocation of the apartment, was not accepted by the complainant. Admittedly, the part sale consideration of the apartment, in question, to the tune of Rs.13,21,995/-, had already been paid, by the time of filing the complaint, but possession of the apartment, was not even offered to the complainant. By making a misleading statement, that the possession of apartment No.TVMC3-GF03, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab would to be delivered within three years, from the  date of  execution of the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
22.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.13,21,995/-, deposited by her. Since, the Opposite Parties are unable to deliver possession of apartment No.TVMC3-GF03, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, to the complainant, she is entitled to the refund of amount, deposited by her, towards the price of the apartment, in question.  
23.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, if so, at what rate. Admittedly, the amount of Rs.13,21,995/-, towards the price of apartment, in question, was deposited by the complainant. The complainant was deprived of her hard earned money, on the basis of misleading information, given by the Opposite Parties, that she would be handed over the legal physical possession of the residential apartment, by 19.02.2011, but they failed to do so. As stated above, it has been frankly admitted by the Opposite Parties, in their written version, that possession of the apartment, could not be offered to the complainant, on account of the reasons, referred to above. The complainant was, thus, caused financial loss.  The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Parties were charging interest @15% P.A. (compounded), as is evident from Clause 4.1 of the Apartment Buyer's Agreement dated 20.02.2008, Annexure C-7. Under these circumstances, in  our  considered  opinion, if   interest @12% P.A., on the amount deposited by her, from the respective dates of deposits, is granted, that will serve the ends of justice.
24.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to her, for a long number of years, by not delivering physical possession of the apartment, to her or by not refunding the amount deposited. The complainant, thus,  underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation,  to the tune of Rs.50,000/-, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.50,000/-, as indicated above.
25.       No other point, was urged, by the Counsel for the parties.
26.       For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
    1. The Opposite Parties are directed to  refund the amount of  Rs.13,21,995/-, to  the complainant, alongwith interest @ 12% per annum, from the respective  dates of deposits onwards,  within 2 months, from  the    date of receipt of a certified copy of  this   order.
    2. The Opposite Parties are further directed to pay compensation, in the sum of Rs.50,000/-for causing mental agony and physical harassment, to the complainant, within 2 months, from the date of receipt of a certified copy of this order.
    3. The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.
27.       Certified Copies of this order be sent to the parties, free of charge.
28.       The file be consigned to Record Room, after completion

Pronounced.

February 2, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

Rg.