Chandigarh

StateCommission

CC/97/2015

Manavjit Singh Sandhu - Complainant(s)

Versus

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

Gaurav Bhardwaj,Adv.

14 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	97 of 2015
Date of Institution	:	19.05.2015
Date of Decision	:	14.08.2015

 

1. Manavjit Singh Sandhu S/o Gursohinder Pal Singh C/o Brig. J. S. Phoolka, House No.71, Sector -2, Chandigarh.
2. Hari Simran Singh Sandhu S/o Gursohinder Pal Singh C/o Brig. J. S. Phoolka, House No.71, Sector -2, Chandigarh.
3. Roopan Sandhu W/o Manavjit Singh Sandhu C/o Brig. J. S. Phoolka, House No.71, Sector -2, Chandigarh through her G.P.A Manavjit Singh Sandhu.

……Complainants.

Versus

1. Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Manager.
2. Emaar MGF Land Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through Managing Director Sh. Sarwan Gupta.

              ....Opposite Parties.

 

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

               

BEFORE:   SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh.  Gaurav Bhardwaj, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

              The facts, in brief, are that the complainants were willing to own a residential plot near Chandigarh, and near to some private medical college, for better future prospects pertaining to medical field, applied for a residential plot measuring 300 Sq. Yards in the project “Mohali Hills” with the Opposite Parties by paying the booking amount of Rs.10,35,000/- vide receipt No.1121 dated 23.09.2006 (Exhibit C-3). It was stated that the Opposite Parties offered a down payment rebate of Rs.1,50,000/- and, as such, the complainants deposited Rs.22,65,000/- on 9.1.2007 vide receipt (Annexure C-5) to complete the basic sale price of Rs.33,00,000/-. It was further stated that plot No.264 in Augusta Greens, Sector 109, Mohali was provisionally allotted to the complainants on 1.6.2007 vide allotment letter (Annexure C-6), according to which, the basic sale price of the plot was Rs.33,00,000/-, Preferential Location Charges (PLC) were Rs.4,12,500/- and External Development Charges (EDC) were Rs.1,69,104/-. It was further stated that the complainants further paid Rs.2,67,354/- vide receipt No.4449 dated 30.08.2007 and Rs.3,74,196/- as additional EDC. It was further stated that a No due Certificate was also issued by the Opposite Parties towards full and final settlement of all dues pertaining to allotment of the plot No.264 (Annexure C-8).

2.         It was further stated that in December 2010, the complainants came to know that the Punjab Government had relaxed the EDC and, as such, the complainants requested the Opposite Parties, a number of times vide emails (Annexure C-10 Colly.), to refund the extra EDC but the Opposite Parties failed to refund the same. It was further stated that the Opposite Parties informed the complainants that they could not refund the extra EDC prior to the execution of the Plot Buyer’s Agreement, which was entered into between the parties on 23.03.2011 (Annexure C-11 Colly.). It was further stated that as per Clause 8 of the said Agreement, possession of the plot, in question, was to be handed over to the complainants within a period of two years from the date of execution thereof but not later than three years. It was further stated that in the Agreement, the EDC amount was mentioned as Rs.1,69,104/- only. It was further stated that the time to offer possession of the plot, in question, expired on 23.03.2014 and the Opposite Parties failed to handover possession to the complainants.

3.         It was further stated that the complainants received a letter dated 26.03.2015 (Annexure C-12) from the Opposite Parties for settlement of final dues for enabling them to hand over possession. It was further stated that in the said letter, the Opposite Parties reversed the extra EDC charges to the tune of Rs.3,01,200/- and the total payable amount was shown as Rs.5,19,454/- for stamp duty, registration, electricity and maintenance charges including Rs.1,72,457/- as overdue amount, whereas nothing was overdue as the complainants had already paid the entire amount to the Opposite Parties. It was further stated that the Opposite Parties kept the money of extra EDC with them for five years and adjusted and reversed the principal amount only, whereas they were required to adjust the interest on the said amount also to give benefit to the complainants. It was further stated that had the interest been also adjusted, then the total amount payable by the complainants would have been much less. It was further stated that the Opposite Parties cleverly mentioned in their letter dated 26.03.2015 that the same was in furtherance of intimation of possession dated 29.11.2009, which was contradictory, as on that date, no clearance, development or completion was there, moreover the Agreement was executed on 23.03.2011 and the possession was to be delivered within three years. It was further stated that, therefore, the question of intimation of possession in 2009 did not arise. It was further stated that the complainants did not receive any intimation of possession in the year 2009 from the Opposite Parties.

4.         It was further stated that an email dated 4.5.2015 (Annexure C-13) was sent to the Opposite Parties, wherein the complainants sought clarification from the Opposite Parties regarding reversal of extra EDC without interest and also as regards completion certificate, approval of Forest Department for access for state highway to Sector 109, Operational STP, sanction of road access to the plot of the complainants and also demanded copy of sanctions of other related facilities and amenities. It was further stated that in reply to the aforesaid letter dated 4.5.2015, the Opposite Parties sent letter dated 14.5.2015 (Annexure C-17) titled as ‘Possession reminder’ and raised a demand of Rs.5,22,157/- from the complainants. It was further stated that in the said letter, Rs.1,72,457/- was shown as EDC/IDC, which was in contradiction to the earlier letter dated 26.3.2015, wherein overdue amount was shown as Rs.1,72,457/-. It was further stated that the Opposite Parties are now refusing to take any written request for refund. It was further stated that the complainants deposited a total amount of Rs.39,41,550/- with the Opposite Parties. It was further stated that the letters dated 26.03.2015 and 14.5.2015 of the Opposite Parties were nothing but a ploy to gain more time for handing over possession and save themselves from penal clauses. 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.

5.         When the grievance of the complainants, 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.39,41,550/- alongwith interest @18% per annum from the respective dates of deposit till realization; pay Rs.10,00,000/- as compensation for deficiency in service, unfair trade practice & mental harassment, and Rs.55,000/- as costs of litigation.

6.         The Opposite Parties, were served and put in appearance on 25.06.2015. They filed their joint written statement on 03.08.2015. In the written statement, the Opposite Parties, took-up certain preliminary objections, to the effect, that the present complaint was time barred, as the cause of action for seeking refund had arisen to the complainants on 29.11.2009 when possession of the plot, in question, was offered by the Opposite Parties to the complainants; that this Commission did not have the jurisdiction to entertain the complaint in view of existence of Arbitration Clause 39 in  Plot Buyer’s Agreement dated 23.03.2011; and that the complainants were not consumers because as per the GPA executed by complainant No.3 in favour of complainant No.1, they are the owners of another flat No.B-5/54, Azad Apartments, Aurobindo Marg, New Delhi, and apart from House No.220, Sector 9-C, Chandigarh and that the said GPA was executed even before the complainants purchased the plot, in question, from the Opposite Parties and was valid only till 05.07.1995.

7.         On merits, it was admitted that the complainants paid Rs.39,41,550/- towards the price of the plot till date. It was further stated that the Opposite Parties vide offer of possession letter dated November 2009 asked the complainants to pay Rs.3,74,196/- as additional EDC, which the complainants duly paid on 18.02.2010 vide receipt (Annexure R-2). It was further stated that payment of exact amount of Rs.3,74,196/- by the complainants itself proved that offer of possession letter was received by them. It was further stated that earlier the complainants were informed vide email dated 16.7.2007 that Rs.2,67,354/- was due as on date and further a sum of Rs.1,72,500/- was payable on intimation of possession, to which the complainants agreed and made payment of Rs.2,67,354/-. It was further stated that the complainants themselves admitted at Page 33 of the complaint that they received letter asking for additional EDC, which they also paid. It was further stated that after receipt of letter of November 2009, the complainants deposited the additional EDC vide cheque dated 15.2.2010 as demanded in the said letter. It was further stated that by depositing the additional EDC, the complainants acknowledged the receipt of letter dated November 2009.

8.         It was further stated that since any increase or decrease in the government levy was to be borne by the allottee/customer as per the Agreement, it was earlier demanded and subsequently due to revision in the rate of EDC, the same was shown as excess received and, therefore, adjusted in the settlement of final dues letter dated 26.3.2015.  It was denied that Opposite Parties informed the complainants that they could not refund EDC before signing of Buyer Agreement. It was further stated that possession was offered after completion of amenities as per the Buyer Agreement, which the complainants were intentionally denying. It was further stated that the complainants were communicated that the EDC was being revised and once a confirmation was received for final rates, the Opposite Parties would be taking up their case. It was further stated that the State Government revised EDC from time to time vide Notifications dated 12.7.2006, 17.8.2007, 19.9.2007, 11.1.2008, 22.6.2010 and lastly on 06.05.2013. It was further stated that the complainants had availed the down payment rebate and as per letter dated 28.11.2008, no two incentive schemes could be clubbed together. It was further stated that that as there was reduction in the EDC after 2009-2010, the same was calculated @Rs.807/- per sq. yard and vide letter dated 26.3.2015, excess EDC was reversed and credited in the account of the complainants. It was further stated that the complainants never came forward to accept possession and neither they wanted to raise any construction.

9.         It was further reiterated that Govt. of Punjab had granted exemption to the Opposite Parties from the provisions of Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as PAPRA 1995) vide Notification No.18/41/2006-5HG-II/12790 dated 22.12.2006. It was further stated that as per reply on behalf of Chief Administrator, PUDA, bearing No.PUDA-STP/2013/4848 dated 10.06.2013 sent to the Opposite Parties, they (Opposite Parties) had been granted exemption under PAPRA 1995. 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.

10.       The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

11.       The complainants, in support of their case, submitted the affidavit of Sh. Manavjit Singh Sandhu (complainant No.1), by way of evidence, alongwith which, a number of documents were attached.

12.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 

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

14.       The first objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.39 in the Plot Buyer’s Agreement dated 23.03.2011 (Annexure C-11). With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is 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.”

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 an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

15.       As regards objection of the Opposite    Parties that Deed of General Power of Attorney (Annexure R-5A) was executed even before the complainants purchased the plot, in question, from the Opposite Parties and was valid only till 05.07.1995, it may be stated here that when the Opposite Parties at the time of allotment/execution of Plot Buyer’s Agreement did not raise any objection about the validity of the General Power of Attorney (Annexure R-5A), they cannot be heard to say that the said document is not valid. Not only this, the proceedings before the Consumer Fora are summary proceedings and the Consumer Protection Act, 1986 is a beneficial legislation and the claim of the complainants, in our opinion, cannot be denied on sheer technicalities. Therefore, this objection of the Opposite Parties, being devoid of any substance, is rejected.

16.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that the Plot Buyer’s Agreement dated 23.3.2011 (Annexure C-11), in respect of plot No.264 admeasuring 300 sq. yards in Augusta Park, Sector 109, Mohali, Punjab, was executed between the parties, possession whereof as per Clause 8 of the Agreement was to be delivered within a period of three years from the date of execution thereof i.e. by 22.03.2014. As per the Opposite Parties, possession of the plot, in question, was offered by them (Opposite Parties) to the complainants on 29.11.2009 and, as such, cause of action accrued to the complainants on 29.11.2009, when possession was offered to them. The Counsel for the complainants submitted that offer of possession (Annexure R-1) is undated and has been created by the Opposite Parties to cover up their deficiency, whereas possession for the first time, was offered vide letter dated 26.03.2015 (Ann. R-5). It was further submitted that the Opposite Parties have not adduced any evidence viz. postal receipt etc. with regard to the mode by which the alleged offer of possession on 29.11.2009 was sent. He categorically asserted that when the Agreement was executed on 23.03.2011, the question of offering possession during November 2009 did not arise. The Counsel further submitted that no doubt payment in the sum of Rs.3,74,196/- was made by the complainants on 18.02.2010 on account of customers instalment, but it did not mean that the same was deposited on receipt of alleged offer of possession. On the other hand, the Counsel for the Opposite Parties stated that possession was offered in November 2009 and the execution of Agreement got delayed as the complainants did not send the Plot Buyer’s Agreement despite letters/reminders sent to them on 31.08.2007, 08.09.2008, 15.06.2009, 20.08.2008, 14.01.2010, 27.01.2010 and 16.11.2010 (Annexure R-8 Colly.).  The Counsel for the complainants submitted that the documents allegedly sent were never received by the complainants and the Plot Buyer’s Agreement was executed on 23.03.2011. There seems to be weight in the argument advanced by the Counsel for the complainants. A perusal of provisional allotment letter dated 01.06.2007 (Annexure C-6), interalia, reveals as under:-

“We shall allot the plot to you after completion and execution of all documentations mentioned herein, including the Plot Buyer’s Agreement.”

When the plot was to be allotted after completion and execution of all documents including the Plot Buyer’s Agreement, the argument of the Opposite Parties that the complainants did not come forward to execute the same does not hold good, more-so when the complainants have been making payments of all the instalments and there has been no default on this account. The factum of receipt of sum of Rs39,41,550/- by the Opposite Parties from the complainants is clearly admitted in letter dated 06.10.2010 (Annexure C-8) issued under the signatures of the authorised signatory of the Opposite Parties. A person who has made payment in the sum of Rs.39,41,550/- will not shy away to execute Plot Buyer’s Agreement. In view of the aforesaid discussion, we are of the considered opinion that the Opposite Parties have failed to establish by way of any cogent documentary evidence that execution of Plot Buyer’s Agreement was delayed by the complainants and that offer of possession was sent to the complainants in November 2009. Even in the letter dated 16.12.2011 (Annexure R-3), receipt of which was also denied by the complainants, there is no mention, as to when the offer of possession was sent to the complainants. No evidence regarding the mode by which these communications were sent to the complainants has been adduced by the Opposite Parties. Therefore, the objection that the cause of action accrued to the complainants in November 2009 and the complaint having been filed on 19.05.2015 is barred by limitation, is not sustainable and the same is rejected.

17.       The next question, which falls for consideration, is, as to whether the complainants are consumers or not. The Opposite Parties have raised a specific objection that apart from the plot, in question, allotted in their favour, complainants, as per the aforesaid General Power of Attornies (Annexure R-5A) are owners of House No.220, Sector 9-C, Chandigarh and complainants No.1 and 3 are owners of Flat No.B-5/54, Azad Apartments, Aurobindo Marg, New Delhi respectively. The   Opposite Parties, in order to establish the factum of owning of other properties by complainants did not bring in evidence any cogent and convincing documentary evidence to prove the same. Mere placing on record, photocopies of such General Power of Attorney (Annexure R-5A) is not sufficient to hold that complainants were the actual owners of the said house and flat. The complainants have clarified in Para 5 of their rejoinder/duly sworn affidavit,  that House No.220, Sector 9 was inherited by the complainants from their father and the same is in the name of mother of complainant No.1 & Complainant No.2 and complainants No.1 & 2 jointly. Regarding Flat No.B-5/54, Azad Apartments, New Delhi, they (complainants) have clarified in the affidavit that the same (flat) is solely in the name of mother of complainants Mrs. Sukhwant Kaur. Since the complainants have only share and that too in the ancestral property, the objection of the Opposite Parties, being unsustainable, stands rejected.

18.       The next question, that falls for consideration, is, as to whether, there was any deficiency or unfair trade practice on the part of the Opposite Parties, in offering possession of the plot, in question, to the complainants. It may be stated here, that, in the instant case, as stated above, as per Clause 8 of the Plot Buyer’s Agreement dated 23.03.2011, Annexure C-11, the Opposite Parties were to hand over physical possession of the said plot, in favour of the complainants, within a period of 36 months, from the date of execution of the said Agreement. It was further mentioned in the aforesaid clause 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, to the complainants, @Rs.50/- (Rupees Fifty only), per square yard per month, for such period of delay. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainants, latest by 22.03.2014. As already discussed above, the Opposite Parties failed to establish by way of any cogent documentary evidence that offer of possession was sent to the complainants in November 2009. The possession was offered firstly vide letter dated 26.03.2015 (Annexure R-5) and subsequently vide letter dated 14.05.2015 (Annexure R-4) i.e. after a delay of one year. The time was, thus, unequivocally made the essence of contract. By making a misleading statement, that the possession of the plot, in question, would be delivered within three years, from the date of the execution of Plot Buyer’s Agreement (Annexure C-11), 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.

19.       The next question, which falls for consideration, is, as to whether, the Opposite Parties were exempted from the provisions of PAPRA 1995. The Opposite Parties have placed on record copy of letter bearing No.PUDA-STP/2013/4848 dated 10.06.2013 (Annexure R-14 Colly.) which states that EMAAR MGF had been granted exemption under Section 44(2) of the PAPRA including exemption from Section 14 of the PAPRA, 1995. It is clearly evident from this letter that the Opposite Parties were granted exemption vide Notifications No.18/41/2006-5HG-II/12790 dated 22.12.2006 for 390.71 Acres; No.CTP (Pb) MPR.2/594 dated 22.01.2008 for 145.38 Acres and No.18/41/2006-5HG-II/7397 dated 11.8.2006 and the same included exemption from Section 14 of PAPRA, 1995. The Opposite Parties have also placed, on record, copy of Notification No.18/41/2006-5HG-II/12790 dated 22.12.2006 as Annexure R-14 (Colly.), vide which, by exercising the powers vested under Section 44(2) of the PAPRA, 1995, the Opposite Parties (M/s EMAAR MGF Land Private Limited) have been exempted from all provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995) for its Housing Project in an area of 390.71 Acres at Sectors 108 & 109, SAS Nagar, except Section 32, subject to the terms and conditions specified in the said Notification. In view of the exemption aforesaid, the Opposite Parties were not required to obtain completion certificate. Thus, the contention of the complainants that the Opposite Parties did not obtain completion certificate does not hold good.

20.       The next question, which falls for consideration, is, as to whether possession of the plot, in question, offered by the Opposite Parties vide letters dated 26.03.2015 and 14.05.2015 (Annexures R-5 and R-4) was valid and legal. The complainants have contended that the entry to the plot, in question, allotted to them in Sector 109, Mohali has been closed by the Forest Department by fixing wire and by digging trenches as the user agency did not get the required approval regarding the above said road from the Forest Department under F.C.A 1980. To establish this fact, the complainants placed, on record, information obtained under Right to Information Act, 2005, from the Forest Range Officer, S.A.S. Nagar vide Annexure C-19 dated 17.04.2015, which is extracted hereunder:-

“1. It is correct that entry points in front of projects of Sector 109-108-105 of M/s Emaar MGF Land Ltd. has been closed by the forest department by fixing barbed wire and by digging trenches.

2.   That the reason for closing the above mentioned roads is due to the fact that the user agency has not got the required approval regarding above said roads from the Forest Department under F.C.A 1980.

3.   The above mentioned roads shall be allowed to open for use after the required approvals are taken.

4.   That a case regarding the roads of sector 109 of the project is pending since 3.7.12 in civil court kharar under IFA 1927 U/S 29, 33 and 63 and violation of the judgment dated 12.12.1996 of Hon’ble Supreme court. In this regard a photocopy of the case is being attached and report is being sent to you for further necessary action.”

The complainants also placed, on record, photographs showing the closed gates of the Opposite Parties project and trenches digged in front of them. Though the Opposite Parties on the basis of Annexure R-11 (Layout Plan) submitted that there was access to the plot of the complainants but the same (Annexure R-11) being undated and signed, in our opinion, is not sufficient to controvert contents of Annexure C-19. Had the complainants produced some cogent evidence/document from the Forest Department, the position would have been different. It is also borne out from the letter dated 16.07.2015 (Annexure C-23) written by Assistant Executive Engineer, Operation Sub Division, PSPCL, Sohana to complainant No.1 that the permanent connection of electricity in Sector 109 is still pending for not furnishing Bank Guarantee to the tune of Rs.7 Crores. Para 2 of the aforesaid letter, being relevant, is extracted hereunder:-

“2. Permanent connection has been provided to M/s Emaar MGF in Sectors 105 & 108 as per approval granted. The connection in Sector 109 is pending for the reason of want of Bank Guarantee Amt. to the tune of 7 Crores.”

It has also come in evidence vide letter dated 27.06.2013 (Annexure C-27) sent by Punjab Pollution Control Board, Zonal Office-I, Patiala to the Opposite Parties that the consent to operate an outlet u/s 25/26 of Water (Prevention & Control of Pollution) Act, 1974 for discharge of effluent was valid for the period from 27.06.2013 to 31.03.2014 and that too subject to the final decision of CWP No.18632 of 2005 titled as Dharam Singh & others Versus State of Punjab by the Hon’ble Punjab and Haryana High Court. The Opposite Parties, on 10.08.2015, placed on record letters dated 17.07.2014 as Annexures R-10 and R-11, by way of additional evidence, to show that the validity of consent, which had expired on 31.03.2014, was further extended up to 31.03.2017. The complainants did not file any rebuttal evidence to this additional evidence. Though, the extension in validity of consent granted under the provisions of the Air (Prevention & Control of Pollution) Act, 1981 was granted to the Opposite Parties yet, the extension, so granted, was subject to the following conditions:-

“1. The project proponent shall obtain the varied consent, in case, there is additional occupancy in the residential project.

2.   The project proponent shall also obtain the extension in validity of the environmental clearances under the EIA notification dated 14.09.2006 as the same had already expired.

3.   The project proponent shall convert the collection tank of STP as septic tank, till there is sufficient generation of wastewater required for operation of STP.

4.   The project proponent shall utlize the treated wastewater on to land for irrigation of green belt/area developed inside the premises of the project, till the sewer connection is made available.

5.   The project proponent shall develop additional land within 3 months i.e. before rainy season so that there should not be any kind of stagnation of wastewater during rainy season for the occupancy for which the consent has been granted under the Water Act, 1974.”

Nothing has been placed, on record, by the Opposite Parties, wherefrom it can be said that the aforesaid conditions were fulfilled.  Thus, it is established from the documents, discussed above, that firstly, the Opposite Parties, indulged into unfair trade practices by not disclosing the factum of pending litigation with regard to the roads of Sector 109 to the complainants. Further, the entry points in front of the projects of Sector 109-108 and 105 of the Opposite Parties have been closed by the Forest Department by fixing barbed wire and by digging trenches because of the litigation aforesaid and the reasons as detailed in Annexure C-19. It is also proved, on record, by way of letter dated 16.07.2015 (Annexure C-23) that the permanent connection of electricity in Sector 109 is still pending for want of Bank Guarantee to the tune of Rs.7 Crores. Further, the possession certificates (Annexure R-13 colly.), placed on record, by the Opposite Parties, to contend that possession had already been handed over to  similarly situated persons in Sector 109, are of no help, as none of those persons, has come forward to file his/her affidavit. Thus, the possession of the plot, in question, offered by the Opposite Parties, to the complainants is not legal and complete and rather only a paper possession.  

21.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.39,41,550/-, deposited by them. The Opposite Parties, in Para 5 of their written statement, admitted the receipt of the aforesaid amount of Rs.39,41,550/- from the complainants towards the price of the plot till date. As already discussed above, the Opposite Parties failed to offer possession of the plot, in question, to the complainants, within the stipulated period of 36 months from the date of execution of the Plot Buyer’s Agreement dated 23.3.2011 (Annexure C-11), which was offered to them by the Opposite Parties vide letters dated 26.03.2015 and 14.05.2015 (Annexures R-5 and R-4). As already discussed in the preceding para, the possession, so offered, vide the aforesaid letters was not complete and legal and rather only a paper possession. One can imagine the plight of the persons, who have invested their hard earned money and despite promise/stipulation in the Plot Buyer’s Agreement (Exhibit C-11) that the possession would be delivered within 36 months from the date of execution thereof, there was no sign of offering the same, complete in all respects, even after lapse of four years. The complainants were, thus, definitely entitled to the refund of amount, deposited by them, towards the price of the apartment, in question. 

22.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.39,41,550/-, towards the price of apartment, in question, was deposited by the complainants. The complainants were deprived of their hard earned money, on the basis of misleading information, given by the Opposite Parties, that they would be handed over the legal physical possession of the residential plot within a period of 36 months from the date of execution of Plot Buyer’s Agreement on 23.03.2011 (Exhibit C-11) i.e. by 22.03.2014, but they failed to do so. The complainants were, thus, caused financial loss.  The hard earned money of the complainants was utilized by the Opposite Parties, for a sufficient long period. Had this amount been deposited by the complainants, in some bank, they would have earned handsome returns thereon. In case of delay, in deposit of any charges within the specified time, the Opposite Parties were charging interest @15% per annum, as is evident from Clause 24 of the Plot Buyer’s Agreement dated 23.03.2011 (Exhibit C-11). Under these circumstances, in  our  considered  opinion, if   interest @12% per annum, on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.

23.       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 and injury caused to them, by not delivering physical legal possession of the apartment, to them or by not refunding the amount deposited. The complainants 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.1,50,000/-, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-, as indicated above.

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

25.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-

(i)   To refund the amount of Rs.39,41,550/-, to  the complainants,  alongwith interest @12% per annum, from the respective  dates of deposits onwards,  within two months, from  the    date of receipt of a certified copy of  this   order.

(ii)  To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) for causing mental agony and physical harassment, to the complainants, within two months, from the date of receipt of a certified copy of this order.

(iii) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

(iv)  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% per annum, instead of 12% per annum, from the respective dates of deposits, till realization, and interest @12% per annum, 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/-.

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

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

Pronounced.

August 14, 2015.

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

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STATE COMMISSION

(Complaint Case No.97 of 2015)

[Manavjit Singh Sandhu and others.

Vs.

Emaar MGF Land Limited & Anr.]

 

 

Argued by:

 

Sh.  Gaurav Bhardwaj, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

Dated the 14^th day of August, 2015

 

ORDER

 

            On 10.08.2015, the Opposite Parties filed an application for placing on record additional documents as Annexures R-10 and R-11, to contend that the extension in validity of consent dated 27.06.2013, granted under the provisions of the Air (Prevention & Control of Pollution) Act, 1981, which had expired on 31.03.2014, was further extended up-to 31.03.2017.

2.         On 10.08.2015 itself, the Counsel for the complainants stated that the complainants do not want to file any reply to the application aforesaid.

3.         Arguments, on the application aforesaid, were heard.

4.         We are of the considered view that the document sought to be placed, on record, by the Opposite Partiesby way of additional evidence i.e. Annexures R-10 and R-11 are necessary for the just and proper decision of the case. The same is, accordingly, allowed and the document aforesaid, sought to be placed, on record, are taken on record.      

5.         Arguments, in the main appeal, already heard.

6.         Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs, as per the directions given in the main order.

7.         Certified copies of the order be sent to the parties free of charge.

 

Sd/- (DEV RAJ) MEMBER

Sd/- (PADMA PANDEY) MEMBER

 

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