Chandigarh

StateCommission

CC/307/2015

Kuljinder Singh Lamba - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

18 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	307 of 2015
Date of Institution	:	17.12.2015
Date of Decision	:	18.04.2016

 

1. Kuljinder Singh Lamba s/o Late Sh.Jaswant Singh Lamba r/o H.No.2027/1, HIG Flats, Sector 47-C, Chandigarh.

 

2. Kulvinder Singh Lamba s/o Late Sh.Jaswant Singh Lamba, r/o H.No.235, First Floor, Pocket C-11, Sector 3, Rohini, New Delhi.

……Complainants

V e r s u s

1. Emaar MGF Land Limited, SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh, through its Managing Director/Authorised Signatory.  

 

2. Emaar MGF Land Limited, 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 complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainants, were willing to own a residential plot for their family and personal use, as such, they applied for a plot in Sector 108, Mohali Hills, SAS Nagar, Mohali in the project of the Opposite Parties, and paid the booking amount of Rs.5 lacs on 20.08.2012 vide receipt Annexure C-1. It was stated that the said unit was bought for a total sale price of Rs.46,39,591/-. Thereafter, the said unit/plot was provisionally allotted to the complainants vide provisional allotment letter dated 03.09.2012 (Annexure C-2). Subsequently, Plot Buyer’s Agreement was executed between the parties on 01.10.2012 (Annexure C-3). It was further stated that the complainants made the following payments to the Opposite   Parties   towards the consideration of the unit :-

S.No.	Date	Amount
1.	01.10.2012	Rs.3,26,140/-
2.	29.10.2012	Rs.6,19,606/-
3.	29.10.2012	Rs.2,54,446/-
4.	31.12.2012	Rs.8,74,050/-
5.	02.03.2013	Rs.6,19,605/-
6.	01.06.2013	Rs.6,19,605/-
7.	19.08.2013	Rs.6,19,604/-

 

It was further averred that the complainants had already made the payment of Rs.44,33,056/- towards the consideration of the unit vide receipts (Annexure C-4). It was averred that as per Clause 8 of the Agreement, the possession of the unit was to be delivered within a period of 12 months from the date of execution of the said Agreement i.e. by 01.10.2013 but despite repeated requests, the Opposite Parties failed to handover the physical possession of the unit, in question, to the complainants. It was further stated that the Opposite Parties delayed the possession by more than two years but still there is no development on the site. 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 joint written version, admitted that the Company provisionally allotted the unit to the complainants vide letter dated 03.09.2012 and Buyer’s Agreement was also executed between the parties on 01.10.2012. It was pleaded that as per Agreement, the Company had to deliver the possession of the plot within 12 months from the date of execution of the Agreement and in case the possession was delayed beyond 18 months, the Company was to pay delayed compensation as per the terms and conditions of the Agreement. It was further pleaded that the Company has already offered possession to a number of customers and work is being expedited in Sector 108, where the complainants unit is located, to handover possession at the earliest. It was further pleaded that as the amenities are not completed, so the possession has not been offered to the complainants, however, the Opposite Parties can offer alternate plot to them. It was further stated that in case of dispute between the parties, both the parties have agreed to settle the dispute through arbitration as per the binding terms and conditions of the Agreement and, as such, a separate application is being filed under Section 8 of the Arbitration and Conciliation Act for referring the matter to Arbitrator in terms of the agreed terms and conditions of the Agreement. It was further stated that the complainants have nowhere mentioned that they purchased the plot for their residence and hence, they are not consumers, as they have not made any averment and both of them have their own properties, wherein, they are residing and, as such, the complainants are speculators. 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.

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

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.           Admittedly, the complainants booked a plot in the project of the Opposite Parties, which was provisionally allotted bearing plot No. 108-PP-804-281 in Mohali Hills, Mohali, vide provisional allotment letter dated 03.09.2012 (Annexure C-2) and as per the Schedule of Payment – Installment Payment Plan, the total sale price of the unit was Rs.46,39,591/-, out of which, the complainants paid an amount of Rs.44,33,056/-. It is also an admitted fact that Plot Buyer’s Agreement was also executed between the parties at Chandigarh on 01.10.2012 and as per Clause 8 of the Agreement, possession of the said unit was to be delivered within a period of 12 months from the date of Agreement i.e. by 01.10.2013 but the Opposite Parties failed to deliver the physical possession of the unit, in question, to the complainants, even till the filing of the complaint.  

7.           The principal 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. It may be stated here that under similar circumstances, in the cases titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora & Anr. Vs. Emaar MGF Land Limited, Complaint case No.198 of 2015, decided on 04.04.2016 decided alongwith other connected cases, the issue regarding the arbitration has been dealt with in detail by this Commission and after giving detailed findings, the argument raised on behalf of the Builder that 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, the State Commission has no jurisdiction to entertain the consumer complaint, has been rejected. In view of the above, it is held that this Commission has jurisdiction to entertain this complaint. 

8.           To defeat the claim of the complainants, another objection was raised by Counsel for the Opposite Parties that the complainants have nowhere mentioned that they have purchased the plot for their residence and since the complainants have purchased the plot, in question, for earning profits i.e. for speculation, as such, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not.

              It may be stated here that the purpose of buying the said plot has been duly explained in the complaint. It is pertinent to note that there is nothing, on the record to show, that the complainants are property dealers, and are indulging in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainants, for speculation, with a view to earn profit, in future. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, therefore, being devoid of merit, is rejected.  

9.           The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the  complainants. According to Clause 8 of the Plot Buyer’s Agreement dated 01.10.2012 (Annexure C-3), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, in question, within a period of 12 (twelve) months, from the date of execution of the Agreement. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of  the complainants,  within the period of 12 months, from the date of execution of the Plot Buyer’s Agreement, i.e. latest by 01.10.2013. It is pertinent to note that physical possession of the unit, in question, was not delivered to the complainants, despite lapse of more than three years from the date of execution of Plot Buyer’s Agreement. On the other hand, the Opposite Parties have already received a sum of Rs.44,33,056/-, towards the said unit, as is evident from the receipts (Annexure C-4). By making a misleading statement, that possession of the unit, was to be delivered within a period of 12 months, from the  date of execution of the Plot Buyer’s Agreement, 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.

10.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.44,33,056/-, deposited by them, towards the part price of unit, in question. The complainants, in their complaint have sought refund of the amount, deposited by them, towards the same. Under these circumstances, the complainants are entitled to refund of the amount, deposited by them, towards the said unit.  By not refunding the amount to the complainants, the Opposite Parties were deficient, in rendering service.

11.          In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date.  In the present case, after the lapse of more than 3 years, the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainants. It is pertinent to mention here that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and nor given possession of the unit to the complainants. Moreover, in para No.5 of their written statement, the Opposite Parties themselves admitted that the amenities are not completed so the possession has not been offered to the complainants. So, it is clearly proved that there was no fault on the part of the complainants and the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount, as prayed by the complainants.  

12.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount of Rs.44,33,056/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.44,33,056/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the plot, in question, after the completion of 12 months i.e. by 01.10.2013, but they failed to do so. The complainants were, thus, put to financial loss.  Hard earned money, deposited by the complainants, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @24% per annum compounded quarterly from the complainants. Under these circumstances, in our considered opinion, if  interest  compounded quarterly @15%, on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.  

13.          The next question, that falls for consideration, is, as to whether, the  complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainants. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a number of years, as they failed to deliver the physical possession of unit, in question, to them, by the promised date i.e. 01.10.2013. The complainants purchased the unit, with the hope to have a roof over their head, by raising construction thereon, but their hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of about 3 years, from the promised date,   i.e. 01.10.2013, physical possession of the unit, has not yet been offered, to the complainants, by the Opposite Parties. The complainants, 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.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

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

15.          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.44,33,056/-, to  the complainants, alongwith interest compounded quarterly @ 15%, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
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 compounded quarterly @18%, instead of interest compounded quarterly @15%, from the respective dates of deposits, till realization, and interest compounded quarterly @15%, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

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

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

Pronounced.

April 18, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

rb