Chandigarh

StateCommission

CC/841/2017

Nand Lal - Complainant(s)

Versus

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

Meena Bansal, Adv.

20 Sep 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Nand Lal S/o Sh.Mangat Rai R/o #230/1, Sector 1B, Vikas Nagar, Mandi Gobindgarh.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No. 120-122, Sector 17-C, Chandigarh - 160017, through its Managing Director.
2. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001 through its Director.
3. Emaar MGF Land Limited, The Views at Mohali Hills, Sector 105, 108 and 109, Mohali, Punjab through authorized representative.

                                                     .... Opposite Parties

Argued by:      

Ms. Meena Bansal, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

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Pawanjeet Singh son of Late S.Gurbachan Singh R/o #2/4, Hamelia Street, Vatika City, Sona Road, Sector 49, Gurgaon.

……Complainant

V e r s u s

1. Emaar MGF Land Pvt. Ltd., through its Managing Director, SCO No. 120-122, First Floor, Sector 17-C, Chandigarh.
2. The Regional Manager, Emaar MGF Land Pvt. Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh.

                                                    .... Opposite Parties

Argued by:      

Sh. Gaurav Bhardwaj, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

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1. Satwant Singh S/o Sh.Sampooran Singh, r/o H.No.721, Sector 11B, Chandigarh.
2. Dipinder Singh Locham S/o Sh.Satwant Singh r/o H.No.721, Sector 11B, Chandigarh.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Pvt. Ltd., through its Managing Director/Principal Officer, having registered office at MGF House, 17-B, Asaf Ali Road, New Delhi – 110002.
2. M/s Emaar MGF Land Pvt. Ltd., through its Branch Head/Manager/Authorised Signatory, SCO No. 120-122, Sector 17-C, Chandigarh.

                                                    .... Opposite Parties

Argued by:     

Sh. Devinder Kumar, Advocate, proxy for Sh.Rajesh Verma, Advocate for the complainants. 

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

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Shelja Sehgal wife of Mr.Kanav Sehgal resident of 19 Copymoor Close, Northampton (UK) through her General Power of Attorney Mrs. Pooja Punchhi W/o Ashu Mohan Punchhi resident of 160, Sector 8-A, Chandigarh.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, through its Managing Director, having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi.
2. M/s Emaar MGF Limited, through its Branch Head, Sh.Vikas Gupta, having its place of business at SCO No. 120-122, First Floor, Sector 17-C, Chandigarh.

                                                     .... Opposite Parties

Argued by:      

Ms. Parminder Kaur, Advocate for the complainant.

Sh. Shobit Phutela, Advocate for the Opposite Parties.

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Rajinder Kumar s/o Sh.Mangat Rai r/o #230/1, Sector 1B, Vikas Nagar, Mandi Gobindgarh.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No. 120-122, Sector 17-C, Chandigarh – 160017, through its Managing Director
2.     Emaar MGF Land Limited, ECE House, 28, Kasturba      Gandhi Marg, New Delhi 110001, through its Director.
3.     Emaar MGF Land Limited, The Views at Mohali Hills,     Sector 105, 108 and 109, Mohali, Punjab through        authorized representative.                                                                                                           .... Opposite Parties

Argued by:     

Ms. Meena Bansal, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

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Mangat Rai S/o Sh.Hari Ram r/o #230/1, Sector 1B, Vikas Nagar, Mandi Gobindgarh.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No. 120-122, Sector 17-C, Chandigarh – 160017, through its Managing Director
2.     Emaar MGF Land Limited, ECE House, 28, Kasturba      Gandhi Marg, New Delhi 110001, through its Director.
3.     Emaar MGF Land Limited, The Views at Mohali Hills,     Sector 105, 108 and 109, Mohali, Punjab, through       authorized representative.                                                                                                                   .... Opposite Parties

Argued by:     

Ms. Meena Bansal, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

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Padma Rani W/o Sh.Mangat Rai r/o #230/1, Sector 1B, Vikas Nagar, Mandi Gobindgarh.

……Complainant

V e r s u s

1. Emaar MGF Land Limited, SCO No. 120-122, Sector 17-C, Chandigarh – 160017, through its Managing Director
2.     Emaar MGF Land Limited, ECE House, 28, Kasturba      Gandhi Marg, New Delhi 110001, through its Director.
3.     Emaar MGF Land Limited, The Views at Mohali Hills,     Sector 105, 108 and 109, Mohali, Punjab, through       authorized representative.                                                                                                           .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

Argued by:     

Ms. Meena Bansal, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

              By this order, we propose to dispose of, following cases:-

2.             Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.             At the time of arguments, on 20.08.2018, it was agreed between the parties/their Counsel, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.             Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 841 of 2017, titled as “Nand Lal Vs.  Emaar MGF Land Ltd.”

5.            The facts, in brief, are that the complainant applied to the Opposite Parties vide application dated 30.03.2011 for allotment of a residential unit by paying a booking amount of Rs.7 lakhs vide receipt (Annexure C-1). Thereafter, the complainant was allotted residential unit bearing No. TVM K2-F03-303 measuring 144 Sq. Mts. (1550 sq. ft.) vide provisional allotment letter dated 29.04.2011 (Annexure C-2). The total sale price of the said plot was Rs.45,09,215.51. Buyer’s Agreement was executed between the parties on 17.05.2011 at Chandigarh. As per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment with a grace period of 90 days after the expiry of 3 months for applying and obtaining the occupation certificate in respect of Group Housing Complex. It was further stated that as per Clause 23.1 of the Agreement, if the Company was not able to hand over possession of the unit to the allottee within the stipulated time frame, then Company shall be liable to pay compensation for delay of Rs.5/- per sq. ft. per month of the super area to the allotee till the date of notice offering the possession. It was further stated that the complainant deposited an amount of Rs.43,68,867.43 vide receipts (Annexure C-5 colly.) in respect of the unit, in question. Further, the complainant was to pay an amount of Rs.2,58,716.12 including service tax, which the complainant had to pay only on intimation of possession. It was further stated that the complainant got sanctioned the loan amount of Rs.23,00,000/- from India Bulls Housing Finance Ltd. After the signing of the Agreement, the complainant did not receive any communication from the Opposite Parties about the progress of the project. The complainant personally visited the office of the Opposite Parties number of times to inquire about the details of the project. It was further stated that vide letter dated 27.01.2014 (Annexure C-7) the complainant again asked about the current possession status of the unit, in question.  Thereafter, the complainant sent an email dated 09.04.2016 (Annexure C-8) to know about the development of the unit. The Opposite Parties vide email dated 11.04.2016 (Annexure C-9) informed that final finishing work is in progress and is expected to be completed in second quarter of that year. The Opposite Parties further informed that they would apply for the occupation certificate and post receiving the same from concerned authority they would initiate the process of raising the next installment and subsequently sending the intimation of possession letter. Then, the complainant sought refund of the amount deposited from the Opposite Parties vide email dated 21.11.2017 (Annexure C-10). The Opposite Parties vide email dated 22.11.2017 (Annexure C-11) that they have prioritized the case of the complainant for possession and further said that intimation of possession would be informed at the earliest. It was further stated that the complainant, time and again requested for possession of the unit but despite repeated requests and reminders, the Opposite Parties failed to give possession of the unit, in question. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

6.             The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that the complainant did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986, as the complainant purchased as many as four properties in the name of his family members that too from the Opposite Parties, therefore, purchase of the subject property in this case is purely for speculative and/or investment purposes. It was further stated that in the event of delay in handing over of possession of the subject property to the complainant, as per Clause 21.1 of the Agreement, compensation of Rs.5/- per sq. ft. per month of the super area would be due and payable. It was further stated that the Opposite Parties obtained Partial Completion Certificate (Annexure R/5) from the competent authority in respect of Sector 105, Mohali Hills, The Views Tower K. It was further stated that the Opposite Parties are expediting the construction and possession of the apartment, in question, would be offered very soon to the complainant. It was admitted regarding booking of the unit, execution of the Agreement and receipt of the amount. It is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. The term “endeavour” duly indicated that there was no definitive commitment to hand over possession within 36 months alongwith grace period of 90 days, as time was not essence of the Agreement as far as possession is concerned. It was further stated that the complainant has not made a Banker as a party to the present lis and the present complaint is bad for non-joinder of necessary parties, as no refund could be made in favour of the complainant because there is tripartite agreement between the complainant, banker and the Opposite Parties. It was further stated that this Commission has no jurisdiction to entertain the complaint. It was further stated that the complaint is barred by limitation, as per Section 24-A of the Consumer Protection Act, 1986. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

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

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

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

10.           First, we will deal with an objection, raised by the Opposite Parties, that in the face of existence of provision 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 this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.

11.           The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Unit Buyer’s Agreement was executed between the parties at Chandigarh on 17.05.2011. Not only this, the complainant has also annexed receipt/acknowledgment cum receipt & provisional allotment letter (Annexures C-1, C-2 & C-5) was sent by the Opposite Parties from their Chandigarh Office, as the aforesaid documents bore the address as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

12.           The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The Opposite Parties in their written statement stated that the complainant purchased four properties in the name of his family members, as such, he purchased the said unit, in question, for investment/speculation purposes.  After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected.. The complainant has mentioned in his rejoinder that he purchased only one unit i.e. TVM K2-F03-303 for self living, whereas, the other properties mentioned in the written statement were purchased by the other family members for their self living. It is pertinent to mention here that the complainant is having a joint family and all the family members desires to have separate residence for their self living. Moreover, if we presume that all the family members living in one house, it does not mean that they have no right to purchase the separate property for their children or future prospectus. Even otherwise, the mere fact that it was a residential unit, 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. There is nothing, on the record, that the complainant is a property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion i.e. simply saying that the complainant purchased the property for speculation purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.

13.           The objection taken by the Opposite Parties qua non-joinder of the necessary party i.e. Banker is concerned, we do not agree with the said objection taken by the Opposite Parties because the said financial company i.e. India Bulls Housing Finance Limited sanctioned loan to the complainant for the purchase of the unit, in question, as and when sought by him and in the event of refund, it will be having the first charge on the amount to the extent of the outstanding loan amount. So, the objection taken by the Opposite Parties stands rejected.

14.           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 since it has been frankly admitted by the Opposite Parties, in their joint written statement that offer of possession of the unit, in question, could not be made till date and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, when request for the same was made by him vide email dated 21.11.2017 (Annexure C-10) and, as such, there is continuing cause of action, in his favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by the Opposite Parties that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, has no legs to stand and, is accordingly rejected. 

15.           Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company only proposes to deliver possession of the unit within maximum period of 36 months, from the date of allotment thereof and, as such, no definite assurance was given and, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a period of maximum 36 months, from the date of allotment, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months, from the date of allotment of the unit, as such, time was, unequivocally made the essence of contract.

                At the same time, the Opposite Parties, also cannot evade their liability, merely by saying that since the words “shall endeavor/try/propose etc.” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

16.           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 complainant. In this regard Clause 21.1 of the  Unit Buyer’s Agreement (Annexure C-3) reads thus :-

“21.1 Subject to Force Majeure conditions and reasons beyond the control of the Company and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the unit within a period of thirty-six (36) months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.”

In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainant within a maximum period of 36 months from the date of allotment. In the instant case, the allotment was made vide provisional allotment letter dated 29.04.2011 (Annexure C-2) and, as such, possession was to be delivered to the complainant latest by 28.04.2014 and not more than that.  However, the Opposite Parties failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame, as mentioned in the Agreement.

17.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is the admitted fact that the complainant deposited the total amount of Rs.43,68,867/- (Rs.43,68,867.43 as prayed by the complainant) in respect of the unit, in question, as is evident from statement of account (Annexure R/4). As per the Agreement, possession was to be delivered by the Opposite Parties within a period of 36 months from the date of allotment, which expired on 28.04.2014 but after receipt of the huge amount from the complainant, the Opposite Parties failed to deliver possession of the unit to the complainant within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed. So, the complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

18.           It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.43,68,867/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. The Opposite Parties were charging rate of interest @15% p.a. compounded, as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the  complainant is held entitled to get refund of the amount deposited by him, to the tune of Rs.43,68,867/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization. 

19.           As far as the plea taken by Counsel for the Opposite Parties at the time of arguments, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the unit, to be delivered to the complainant, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of Opposite Parties, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties, in this regard, have no legs to stand and are accordingly rejected.

20.           Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the Opposite Parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the Opposite Parties are allowed to invoke this Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainant. The defence taken is accordingly rejected.

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

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

1. To refund the amount Rs.43,68,867/-, to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.4 of 2018 titled as “Satwant Singh & Anr. Vs. M/s Emaar MGF Land Pvt. Ltd. & anr.”

23.           It is the admitted fact that Sh.Satwant Singh (complainant No.1)  and his wife Mrs. Pushpinder Kaur (second/joint applicant) vide provisional allotment letter dated 19.04.2007 were allotted unit No.H3-F02-204 in the project of the Opposite Parties i.e. “The Views” at Mohali Hills in Sector 105, SAS Nagar, Mohali for the total sale consideration of Rs.47,27,150/-. Thereafter, on the request of complainant No.1 and his wife, the name of Sh.Dipinder Singh Locham s/o Sh.Satwant Singh was added in the name of the allottees. It is also the admitted fact that after the demise of Mrs.Pushpinder Kaur, her name was deleted and the unit stood allotted in the name of both the complainants only. It is also the admitted fact that Apartment Buyer’s Agreement was executed between the parties on 25.02.2008. As per Clause 21 of the Agreement, possession was to be delivered to the complainant within a period of 36 months  from the date of allotment i.e. latest by 18.04.2010 and not more than that. It is also the admitted fact that the complainant paid the total amount of Rs.40,67,167/- (in fact Rs.40,67,168/- as mentioned in the statement of account Annexure R-4). It is also the admitted fact that number of letters/emails were exchanged between the parties regarding offer of possession (Annexues C-32 to C-38) but the Opposite Parties neither delivered possession of the unit to the complainant within the stipulated period, as mentioned in the Agreement nor at the time when the complaint was filed, which amounted to deficiency in service and indulgence into unfair trade practice.

                During the pendency of this complaint, the Opposite Parties filed two applications one under Section 8 of the Arbitration & Conciliation Act, 1996 for referring the matter to the arbitration and another under Section 13(4) of the Consumer Protection Act, 1986 read with Or. XI, Rule 12, read with Rule 16 and Section 151 of the Code of Civil Procedure, 1908, seeking directions that complainant should disclose documents etc. in his possession.

                The issue regarding arbitration is already decided in the main case, therefore, there is no need to reiterate it again.

                Another objection taken by the Opposite Parties that the complainant is not a consumer, as complainant No.1 (Satwant Singh) is owner of House No.721, Sector 11-B, Chandigarh and on the outer gate, name of complainant No.1 is permanently engraved/embedded in a stone name plate and, as such, the unit purchased by him in the project of the Opposite Parties is solely for investment/speculation purposes. Even the Opposite Parties separately moved an application seeking directions to the complainants to disclose the details of number of properties registered in their name throughout India, especially House No.721, Sector 11-B, Chandigarh.

                It is pertinent to note that at the time of arguments, replication was filed by the complainants, in which, Sh.Satwant Singh (complainant No.1) admitted that House No.721, Sector 11-B, Chandigarh stands in his name. The complainants further stated that they have booked the subject property, which was to be required for the residence of elderly couple i.e. complainant No.1 and his wife to move to a smaller apartment, which is easily manageable and secure. They further stated that the subject property was to be used by the family and not for further selling, as alleged by the Opposite Parties in their written statement. Even there is no bar to buy or own two residential properties. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  said unit purchased by the complainants only for investment/speculation purposes, as such, they did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016”, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected. 

                It is proved from the aforesaid paragraph that the complainants are consumers, so MA/168/2018 separately filed under Section 13(4) of the Consumer Protection Act, 1986 read with Or. XI, Rule 12, read with Rule 16 and Section 151 of the Code of Civil Procedure, 1908,  stands dismissed.

                With regard to relief claimed by the complainant in the prayer clause (b)  to  pay Rs.5/- per sq. yards of the super area is concerned, it may be stated here that since the complainants have been compensated by granting 12% interest for the delay period ; price of the unit, in question, and sufficient on account of mental agony and physical harassment suffered by the complainants would serve the ends of justice, therefore, we are of the opinion that no separate compensation in terms of Rs.5/- per sq. yards per month needs to be awarded.

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

1. To refund the amount Rs.40,67,167/-, to  the  complainants, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.15 of 2018 titled as “Shelja Sehgal Vs. Emaar MGF Land Ltd. & anr.”

24.           It is the admitted fact that the complainant booked a unit in the project of the Opposite Parties, namely, the Views, Mohali, Sector 105, SAS Nagar, Mohali. The Opposite Parties allotted flat/apartment No.A2-F02-203 in their project vide letter dated 14.03.2007 (Annexure C-4). Thereafter, Buyer’s Agreement was executed between the parties on 28.12.2007 (Annexure C-6). As per Clause 21 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment i.e. latest by 13.03.2010 and not more than that. The total sale consideration of the said unit was Rs.49,59,650/-, out of which, the complainant paid an amount of Rs.43,43,832/-, as is evident from the statement of account (Annexure C-12). Despite made several visits and receipt of legal notice dated 13.10.2017 (Annexure C-13), neither the Opposite Party offered possession of the unit nor refunded the amount alongwith interest as well as penalty to the complainant.

                The Opposite Parties in their written statement took objection regarding referring the matter to the arbitrator ; non-joinder of necessary party (Bank) ; territorial jurisdiction & the complaint is time barred. All the said questions are already decided in detail in the preceding paragraphs, so there is no need to reiterate it again.

                With regard to objection taken by the Opposite Parties in their written statement that this Commission has no pecuniary jurisdiction to try this complaint, as the amount claimed by the complainant exceeds Rs.1 crore is concerned, it is an admitted fact that the complainant deposited an amount of Rs.43,43,832/-. However, the Opposite Parties in their written statement mentioned the chart and calculated interest @24% p.a. from the amount deposited but the factual position is that at the time of issuance of notice on 09.02.2018, the complainant restricts her claim to the extent of 15% p.a. (simple) instead of 24% p.a. So, if we calculate the interest @15% p.a. (simple) on the deposited amount alongwith compensation, this Commission has pecuniary jurisdiction to try and entertain this complaint. Therefore, the objection taken by the Opposite Parties stands rejected.

                   As far as contention raised by the Opposite Parties, to the effect that since the complainant is a NRI, as such, in that event also, she would not fall within the definition of consumer, it may be stated here that, no law debars NRIs, with roots in India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                In view of above, plea raised by the Opposite Parties stands rejected.

                With regard to relief claimed by the complainant in the prayer clause (c) to pay Rs.5/- per sq. feet per month w.e.f. 28.12.2010 is concerned, it may be stated here that since the complainant has been compensated by granting 12% interest for the delay period ; price of the unit, in question, and compensation in the sum of Rs.2 lakhs on account of mental agony and physical harassment suffered by the complainant would serve the ends of justice, therefore, we are of the opinion that no separate compensation in terms of Rs.5/- per sq. feet. per month needs to be awarded.

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

5. To refund the amount Rs.43,43,832/-, to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
6. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
7. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
8. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.47 of 2018 titled as “Rajinder Kumar Vs. Emaar MGF Land Ltd. & ors.”

25.           It is the admitted fact the complainant booked a residential unit in Sector 105, SAS Nagar, Mohali, in which, unit bearing No.TVM K2-F02-204 was allotted to him vide provisional allotment letter dated 17.05.2011 (Annexure C-2). Buyer’s Agreement was also executed between the parties on 17.05.2011 at Chandigarh. As per Clause 21.1 of the Agreement, possession was to be delivered within a period of 36 months from the date of allotment i.e. latest by 16.05.2014 and not more than that. The total sale consideration of the unit was Rs.45,09,215.15, out of which, the complainant paid an amount of Rs.43,67,867.41 (say Rs.43,67,867/-), as is evident from statement of account (at page No.115 of the file). It is also the admitted fact that the Opposite Parties offered possession of the unit to the complainant vide letter dated 12.09.2017 (Annexure C-9). The complainants stated that the possession offered by the Opposite Parties is only a paper possession and not more than that.

                During the pendency of the complaint, the Opposite Parties filed an application under Section 8 of the Arbitration & Conciliation Act, 1996 for referring the matter to the arbitration.  

                The question qua referred the matter to the arbitrator has already decided in the main case, therefore, there is no need to reiterate it again.

                The only question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide intimation of possession letter dated 12.09.2017 (Annexure C-9), i.e. after a huge delay of about three years and four months and that too, in the absence of any force majeure circumstances. Since, in the instant case, the Agreement was executed between the parties on 17.05.2011 and the Opposite Parties were bound to give possession within a maximum period of 36 months from the date of allotment, which was expired on 16.05.2014.  The Opposite Parties offered intimation of possession only vide letter dated 12.09.2017  i.e. after a huge delay of about three years and four months. The Opposite Parties never placed on record Occupation Certificate in respect of the tower, where the subject property is situated. Not only this, the Opposite Parties vide email dated 21.11.2017 (Annexure C-13) communicated to the complainant that they have prioritized the case of the complainant for possession and further said that intimation of possession would be informed at the earliest. It means that offer of possession made by the Opposite Parties vide letter dated 12.09.2017 not actual possession but merely a paper possession.   It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, complete in all respects, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

              In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay. The complainant is thus, entitled to get refund of amount deposited by him alongwith interest and compensation.            For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.43,67,867/- (Rs.43,67,867.41 as prayed by the complainant), to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.48 of 2018 titled as “Mangat Rai Vs. Emaar MGF Land Ltd. & ors.”

26.           It is the admitted fact the complainant booked a residential unit in Sector 105, SAS Nagar, Mohali, in which, unit bearing No.TVM K2-F03-304 was allotted to him vide provisional allotment letter dated 17.05.2011 (Annexure C-2). Buyer’s Agreement was executed between the parties on 18.05.2011 at Chandigarh. As per Clause 21.1 of the Agreement, possession was to be delivered within a period of 36 months from the date of allotment i.e. latest by 16.05.2014 and not more than that. The total sale consideration of the unit was Rs.45,09,215.15, out of which, the complainant paid an amount of Rs.43,68,867/- (Rs.43,68,867.40 as prayed by the complainant), as is evident from statement of account (at page No.118 of the file). It is also the admitted fact that the Opposite Parties offered possession of the unit to the complainant vide letter dated 02.01.2018 (Annexure C-12). The complainant stated that the said offer of possession is only a mere paper possession.

                During the pendency of the complaint, the Opposite Parties filed application under Section 8 of the Arbitration &  Conciliation Act,1996 for referring to the arbitration.

                The question qua referred the matter to the arbitrator  and the complainant is not a consumer has already decided in the main case, therefore, there is no need to reiterate it again.                       The Opposite Parties admitted that possession was offered to the complainant vide letter dated 02.01.2018. Furthermore, the said offer was reiterated through letter dated 26.03.2018 (Annexure R-10). So, it is clear that possession was offered to the complainant vide letter dated 26.03.2018 i.e. after a huge delay of four years.

                The question whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide intimation of possession letter dated 26.03.2018 (Annexure C-12), i.e. after a huge delay of four years and that too, in the absence of any force majeure circumstances. The said question is already decided in detail in connected case bearing No.47 of 2018, so there is no need to reiterate it again. The complainant is thus, entitled to get refund of amount deposited by him alongwith interest and compensation.            

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

1. To refund the amount Rs.43,68,867/- (Rs.43,68,867.40 as prayed by the complainant), to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.60 of 2018 titled as “Padma Rani Vs. Emaar MGF Land Ltd. & ors.”

27.           It is the admitted fact the complainant booked a residential unit in Sector 105, SAS Nagar, Mohali, in which, unit bearing No.TVM K2-F04-404 was allotted to her vide provisional allotment letter dated 17.05.2011 (Annexure C-2). Buyer’s Agreement was executed between the parties on 18.05.2011 at Chandigarh. As per Clause 21.1 of the Agreement, possession was to be delivered within a period of 36 months from the date of allotment i.e. latest by 16.05.2014 and not more than that. The total sale consideration of the unit was Rs.45,09,215.51, out of which, the complainant paid an amount of Rs.43,68,867/-, as is evident from statement of account (Annexure R-6). It is also the admitted fact that the Opposite Parties offered possession of the unit to the complainant vide letter dated 02.01.2018 (Annexure C-12). Furthermore, the said offer was reiterated through letter dated 26.03.2018 (Annexure R-10 colly.). So, it is clear that possession was offered to the complainant vide letter dated 26.03.2018 i.e. after a huge delay of four years, which amounted to deficiency in service and indulgence into unfair trade practice.

                The Opposite Parties took similar objections as taken in CC/48/2018, so there is no need to reiterate it again.

                The complainant is thus, entitled to get refund of amount deposited by her alongwith interest and compensation.         For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.43,68,867/- (Rs.43,68,867.40 as prayed by the complainant), to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @13% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

In Consumer Complaint No.868 of 2017 titled as “Pawanjeet Singh Vs.  Emaar MGF Land Pvt. Ltd. & anr.”

28.           The complainant was allotted plot No.404, Pinewood Park, Sector 108, SAS Nagar, Mohali (Annexure R-5). Thereafter, the complainant was issued revised allotment letter dated 29.10.2007 (Annexure C-4), in which, plot No.369 in Sector 108, Mohali Hills was allotted. Agreement was executed between the parties on 04.07.2007 (Annexure C-1). The total consideration was fixed at Rs.34,50,000/-, out of which, the complainant paid the total amount of Rs.39,92,307/-, as is evident from the statement of account (Annexure C-5) in respect of the unit, in question. As per Clause 8 of the Agreement, possession was to be delivered within a maximum period of three years from the date of execution of the Agreement i.e. latest by 03.07.2010 and not more than that. The main point is that the Opposite Parties increased more than 50% of the area of the unit, in question, and the price of the unit was also increased, which was not acceptable to the complainant. In this regard, number of emails were exchanged between the parties. According to the complainant, the Opposite Parties delayed the possession by eight years and were forcing him to accept the allotment of plot measuring 480 sq. yds. against the agreed plot of 300 sq. yds., therefore, the complainant requested the Opposite Parties to refund the amount alongwith interest vide email dated 11.12.2017 (Annexure C-17) but to no avail.

                In their written statement, the Opposite Parties stated that they offered possession in the year 20.11.2011 and thereafter on 02.05.2014, the complainant was called upon for settlement of final dues and handing over of possession, after making balance payment (Annexures R-1 & R-2) but the complainant did not come forward to take possession. The Opposite Parties separately filed application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter for arbitration. The other objections taken by the Opposite Parties is that the complainant is not a consumer and this Commission has no pecuniary jurisdiction to try this complaint, as price of the plot has increased to Rs.72,62,266/- and if the amount claimed by the complainant alongwith interest and compensation is added together, this Commission has no pecuniary jurisdiction to try this complaint.

                With regard to the objection taken by the Opposite Parties regarding arbitration and the complainant is not a consumer, the said questions have already decided in the main case, so there is no need to reiterate it again.

                With regard to the objection taken by the Opposite Parties that this Commission has no pecuniary jurisdiction to try this complaint, it is the admitted fact that Buyer’s Agreement dated 04.07.2007 was executed between the parties at Chandigarh, in which, sale price of the said plot No.369 was mentioned as Rs.39,42,249/-. Thereafter, area of the said plot was increased from 300 sq. yds. to 480 sq. yds. and, therefore, the Opposite Parties demanded extra amount of Rs.35,75,976/-, which included additional charges, interest and other dues, as is evident from the email dated 11.07.2014 (Annexure C-9). However, the said plot was not acceptable to the complainant. With regard to this, the complainant wrote number of emails to the Opposite Parties but all in vain. Had this plot of revised area of 480 sq. yds. been accepted, the position would be different. In the present case, the Agreement was executed between the parties of 300 sq. yds. and not 480 sq. yds. plot. The complainant paid the huge amount of Rs.39,92,307/- to the Opposite Parties. So, if we calculate the amount claimed alongwith compensation, this Commission is certainly have pecuniary jurisdiction to try this complaint. The objection taken by the Opposite Parties has no legs to stand and, therefore, the same stands rejected.

                The next question that falls for consideration before us is whether the Opposite Parties offered actual possession of the unit to the complainant vide letter dated 21.11.2011 and thereafter settlement of final dues vide letter dated 02.05.2014. It is the admitted fact that Agreement was executed between the parties on 04.07.2007. As per Clause 8 of the Agreement, possession was to be delivered to the complainant within a maximum period of three years from the date of Agreement i.e. latest by 03.07.2010. The Opposite Parties offered possession of the said plot to the complainant vide letter dated 21.11.2011 i.e. after a delay of one year and four months approximately. The relevant portion of the said letter dated 21.11.2011 reads thus :-

“This has reference to the Plot allotted to you in the Project. We take this opportunity to update you on the status of the development work of the Project and in particular about the Plot situated in Pinewood Park, Sector 108 of the Project.

X x x x x x

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Pinewood Park, Sector 108, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.”

 A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding updation of the status of the development work of the project.  In the present case, according to the Agreement, possession was to be delivered to the complainant within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by -03.07.2010 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 21.11.2011 i.e. after a delay of about 1 year and 4 months that too was only a paper possession and not more than.  It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder.  The Opposite Parties only obtained Partial Completion Certificate only on 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainant vide letter dated 21.11.2011 (Annexure R-1) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about 4 years of offer of possession. So, it is clearly proved that when the possession letter was sent to the complainant, the project was not complete.  Thereafter, the Opposite Parties sent settlement of final dues letter dated 02.05.2014 i.e. after about 3 years from the intimation of offer of possession letter. The Opposite Parties revised more than 50% of the area i.e. from 300 sq. yds. to 480 sq. yds and the price of the said plot was also increased from Rs.39,42,249/- to approximately Rs.72,62,266/-, which was not acceptable to the complainant. The complainant sent number of emails/letters to the Opposite Parties for offering of other plot having the same specification, as was offered for the first time in the letter of allotment but it was not done. So, the Opposite Parties have no right to compel the complainant for relocation, as is stated by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018. Relevant part of the said order reads thus:-

“This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

The Opposite Parties, therefore, have no right, to retain the hard-earned money of the complainant. The complainant is thus, entitled to get refund of amount deposited by him alongwith interest and compensation.

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

1. To refund the amount Rs.39,92,307/-, to  the  complainant, alongwith interest @12% p.a. (as prayed for),  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

29.           However, it is made clear that, if the complainant in the aforesaid cases have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainant).

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

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

Pronounced.

September 20^th, 2018.                                   

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 (PADMA PANDEY)

        MEMBER

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