Chandigarh

DF-II

CC/177/2020

Mrs. Rama Gupta - Complainant(s)

Versus

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

Shivam Grover, Ivan Singh Khosa and Matisha Bansal

03 Nov 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	177 of 2020
Date  of  Institution	:	12.03.2020
Date   of   Decision	:	03.11.2021

 

 

 

 

 

1]  Rama Gupta w/o Dr.Madam Mohan Gupta,

2]  Dr.Madan Mohan Gupta s/o Late Sh.Muni Lal Gupta,Both resident of H.No.1412-B, Sector 61, Chandigarh.

             …..Complainant

 

Versus

 

1]  Emaar MGF Land Limited, Corporate Office: SCO 186-187, IInd Floor, Sector 8-C, Chandigarh 160018

2]  Emaar MGF Land Limited, 306-308, Square One, C-2, District Centre, Saket, New Delhi 110017

    ….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                            PRESIDENT

                SMT.PRITI MALHOTRA                     MEMBER

                SH.B.M.SHARMA                              MEMBER

 

 

For Complainant :    Sh.Shivam Grover, Advocate

For OP (s)      :    Sh.Rana Gurtej, Advocate

 

 

PER PRITI MALHOTRA,  MEMBER

         Concisely put, the complainants on 19.2.2019 booked a plot with the OPs in their project ‘Mohali Hills” Mohali by paying booking amount of Rs.2 lacs filling application form (Ann.C-1 & C-2). Accordingly, the OPs vide email dated 28.2.2019 (Ann.C-3) sent confirmation of booking amount  stating that they will be provided with Welcome Letter, Buyer’s Agreement and Allotment Letter and Payment Plan.  It is stated that banker of the complainant i.e. Canara Bank from whom they sought loan, had required the complainants to obtain certain documents from the OPs such as 13 Years jamabandi, Nil Encumbrance Certificate, Approved Map, Certified copy of last 15 years registry/sale deed and Permission to Mortgage. It is stated that the Ops instead of providing the demanded documents send Payment Schedule and Buyer’s Agreement draft vide mail dated 14.3.2019 (Annexure C-9).  It is submitted that the complainants asked the OPs for revised Buyer’s Agreement, but the OPs failed to supply the revised Buyer’s Agreement nor supplied the documents required by them for availing loan from bank.  It is pleaded that tired of waiting for a period of almost 5 months to sign the Buyer’s Agreement and countless unanswered communication, the complainants wrote an email dated 9.7.2019 reminding the OPs of its commitment to handover the plot within a period of 3-4 months and also sought the reason for the delay and reasons for not complying with their demands (Ann.C-23).  It is submitted that the OPs instead of responding to the emails or the legal notice dated 4.6.2019, cancelled the allotment of the plot vide letter dated 27.8.2019 and returned the booking amount to the complainants (Ann.C-29). It is also submitted that the complainants lodged their protest before encashment of the refund cheques and again showed their willingness to remain with the project of the OPs (Ann.C-32), but no action taken.  It is stated that due to said deficient act & conduct of the OPs, the complainant suffered loss and harassment. Hence, this complaint.

 

2]       The Opposite Parties in their written reply took preliminary objections with regard to pecuniary jurisdiction of this Forum; arbitration clause in the application/allotment and that the complainants are not consumer as they have sought to buy the housing unit in question for commercial, speculative and investment purposes. On merits, while admitting the factual matrix of the case, stated that no Buyer’s Agreement was executed  with the complainants.  It is stated that after getting the booking amount and booking application, the Welcome Letter, Draft Buyers Agreement and Allotment letter with payment schedule were sent to the complainants.  It has also been stated that Buyer’s Agreement was never signed between the parties, so there arose no question of loan facility on the unit.  It is submitted that the OPs took a calculated and responsible decision and therefore instead of failing to deliver the unit in time in future, the booking of the complainants was cancelled and the booking amount along with interest i.e. Rs.2,07,747/- was refunded/provided to the complainants.  It is also submitted that the grievance of the complainants, if any, regarding loss of income/compensation stand addressed as the OPs have refunded the booking amount with interest to the complainants. All other allegations have been denied and a prayer for dismissal of the complaint has been made.

 

3]       Rejoinder has also been filed by complainant controverting the assertions made by OPs in their reply.

4]       The parties have led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the parties and have also perused the entire record thoroughly.

6]       The objection raised by the ld.Counsel for Opposite Parties that this Forum having no pecuniary jurisdiction to decide the present complaint as the value of the plot was Rs.61,05,466/- is not sustainable.  It is apt to mention that the amount of Rs.2 lacs so paid by the complainants as booking amount for the unit in question, is well covered within the pecuniary jurisdiction of this Commission.  Therefore, this objection of OPs is rejected being untenable.

7]       The another objection of the OPs is about the existence of Arbitration clause in the Terms of the Application for Allotment, so the complaint is non-maintainable.

         It is opined that per Section 100 of The Consumer Protection Act, 2019 “ 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.”

         The provisions contained in the act are in addition to and not in derogation of any other law for the time being in force.  Reliance has been placed  on =  Hon’ble Supreme Court of India in Civil Appeal No.8104 of 2013 – Rosedale Developers Private Limited Vs. Aghor Bhattacharya and Others, decided on 6.9.2013  & Hon’ble National Commission, New Delhi in R.P. No.2030-31 of 2016 – Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Tata Motors Limited, decided on 20.3.2017.

         Therefore, the objection of the OPs about arbitration clause, is also rejected being untenable.

8]       The OPs also raised objection that the complainants are not ‘consumer’ as they have sought to buy the housing unit in question for commercial, speculative and investment purposes and not for residential purpose.  The OPs have failed to establish such allegation by placing on record any documentary evidence, hence the objection of OPs being bereft of any merit is hereby rejected.  

9]       On merits, it is not disputed that the complainants booked plot by paying an amount of Rs.2 lakh to the OPs in their project “Mohali Hills” at Mohali.  In response to the booking, the OPs duly sent welcome form, application form governing the purchase and provisional allotment of the unit as well as buyer’s agreement.  It is undisputed that the complainants did not execute the Buyer’s Agreement despite several reminders.  It is gathered from the record that the complainants sent various emails on variant dates to OPs asking them for certain documents to be provided by them in order to avail loan facility from Canara Bank, as alleged.  It also transpires from the record that the complainants were putting up their own terms against settled Buyer’s Agreement sent by the OPs, which never was approved by the OPs.  It is also clear from record that no Buyer’s Agreement had ever been executed between the parties besides reminders sent by the OPs and the OPs ultimately refunded the entire booking amount with interest to the complainants after cancelation of booking & allotment of complainants. 

10]      It is further gathered from the record that even after the refund of booking amount and cancellation of provisional allotment in question on 27.8.2019, the complainants again agitated the matter vide their email dated 21.9.2019 (Ann.C-30).  The complainants showed their willingness to enter into Buyer’s Agreement with certain conditions  and intimated them that they are encashing the cheque under protest only and they reserve their right to seek possession vide mail Ann.C-32.   

11]      Having gone through the terms & conditions of Application for Booking of Plot duly singed by both the complainants (Ann.C-1) vide which the complainants booked the plot in question, we reproduce the relevant clauses thereof for the sake of convenience:-

(vii)   The Applicant understands that this Application does not constitute any offer or definitive allotment or any agreement to sell and the Applicant does not become entitled to the provisional and/or final allotment of the Plot, notwithstanding the fact, that the Company may have issued a receipt(s) in acknowledgement of the money tendered with this Application.

(viii) The Applicant understands that this Application merely expresses the intent of the Company to allot the Plot to the Applicant and in no way shall be construed as a final allotment. The Applicant agrees that this Application shall become definitive only after the execution of the Agreement by an authorized signatory of the Company.

(ix) In the event of the Company accepting this Application, the Applicant agrees to pay all further installments and all monies/ dues as stipulated in the Payment Plan.

(x) The Applicant (successful allottee) agrees to execute all the documents (drafts of which have been seen by the Applicant) as and when necessary for the allotment of the Plot and undertakes to strictly adhere to all the terms and conditions stipulated by the Company from time to time.

(xi)    The Applicant agrees that the Application and subsequent allotment of the Plot is at the sole discretion of the Company and in case the Plot is not allotted to the Applicant for any reason whatsoever, the Applicant shall not raise any objection or claim damages or challenge the same in a court of law and the Earnest Money herein shall be refundable to the Applicant without any interest within 45 (forty five) days from the date of notice regarding rejection of this Application,

(xii) The Applicant undertakes, that upon allotment of Plot by the Company, the Applicant shall sign and return the Agreement. along with all the annexures, draft maintenance agreement and remit the amounts due and payable as set forth in the Payment Plan within a period of 30 (Thirty) days of the dispatch of the Agreement by the Company. If the Applicant fails to, execute the Agreement and other aforementioned documents and deliver the same to the Company within the aforesaid stipulated time period or does not remit the amounts due and payable in terms of the Payment Plan then the Company shall be entitled to cancel the Application of the Applicant, without any further notice at the opt on of the Company and the Earnest Money along with the Delay Payment Charges (as defined below) shall be forfeited and balance amount if any, shall be refunded to the Applicant.

(xiii) The Applicant has read and understood the terms and conditions mentioned hereinabove and enclosed along with this Application including those relating to the payment of Total Consideration (defined hereunder) and forfeiture of Earnest Money and Delay Payment Charges as laid down herein.

            From the above clauses, duly signed by the complainants, it is clear that the complainants were not having a definite right to get plot mere on paying the booking amount and it would have become definite only after execution of the Agreement, which complainants failed to execute/sign. Since the complainants not agreed to the terms of Buyer’s Agreement sent by the OPs, then as per the above terms & conditions of the Application for Booking, refunded the booking amount to the complainants with interest. There is no consideration amount of complainant lying deposited with OPs, so the complainants are no more ‘consumers’ qua OPs.

 

12]      Taking into consideration the above facts & circumstances of the case, we are of the opinion that no case of deficiency in service is made out against the OPs. Therefore, the complaint being devoid of any merit is hereby dismissed. No order as to costs.

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

3rd November, 2021                                                                                                                                                             sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

 (B.M.SHARMA)

MEMBER