STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.Punita Singh W/o Harvinder Pal Singh, S/o Harbhajan Singh, Resident of House No.98-A, Sarabha Nagar, Ludhiana.

2.Harvinder Pal Singh, S/o Harbhajan Singh, Resident of House No.98-A, Sarabha Nagar, Ludhiana.

……Complainants

V E R S U S

1. Emaar MGF Land Ltd., SCO No.120-122, First

2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through Managing Director Sh. Sarwan Gupta.

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

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

Argued by:Sh. Gaurav Bhardwaj, Advocate for the complainants.

                        Sh.Ashim Aggarwal, Advocate for the Opposite

PER .

                          The facts, in brief, are that the complainants were looking for a residential accommodation/ apartment. Accordingly, the complainants approached the Opposite Parties, and booked an apartment, having three  cheque no. 850445), as booking amount. Receipts Annexures C-1 and C-2, both dated 16.11.2007, in this regard, were issued by the Opposite Parties. It was stated that the application of the complainants was accepted, and, as such, they were allotted apartment No.K1-F04-404, Tower No.K, Type-3 Bed Room + 3 Toilets, measuring super area 1750 square feet, @Rs.2,950/- square feet of super area, alongwith car parking space @Rs.1,50,000/- per parking bay, plus (+) Preferential Location Charges (PLC) @ Rs.100/- per square feet, plus (+) External Development Charges @Rs.112.31/- per square feet, plus (+) 

2.           3.                (complainants), penalty/compensation, @Rs.5/- per square feet, per month, of the super area, for the period of delay, till actual possession was delivered.

4.                   It was further stated that, since 2011, the physical possession of apartment, in question, complete in all respects, was not even offered to the complainants. Thecomplainants made a number of telephone calls, to the Opposite Parties, and asked them to deliver the legal physical possession of apartment, in question, complete in all respects, but they lingered on the matter, on one pretext or the other, but, on the other hand, sent a demand letter of Rs.1,50,000/-, towards the part price of the same (apartment), which was paid by them, on 15.12.2011, vide receipt Annexure C-9 of the even date. Ultimately, after waiting for a long period of six years, when the complainants found that there was no development, in the Sector, where they were allotted the apartment, in question, and, as such, the question of handing over possession thereof, did not at all arise, they asked for the refund of amount, deposited by them, but the Opposite Parties refused to do so.

5.                  It was further stated that the huge amount of Rs.49,90,807/-, deposited by the complainants, towards the part price of apartment, in question, was utilized by the Opposite Parties, as a result whereof, they were caused financial loss. It was further stated that even the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the apartment, in question, complete in all respects, to them, alongwith payment of compensation, as per Clause 23.1 of the Agreement, referred to above, for the period of delay, or by not refunding the amount, deposited by them.

6.                  The Opposite Parties, in their joint written version, pleaded that since, the apartment, in question, was located at Mohali, in the State of Punjab, and all other transactions, in respect of the same also took place at Delhi, this Commission, has got no territorial Jurisdiction, to entertain and decide the complaint, as no cause of action accrued, in favour of the complainants, at Chandigarh. It was further pleaded thatthe present complaint was barred by limitation. It was, however, stated that it was well within the knowledge of the complainants that time was not the essence of contract and for any delays, stipulated penalty had been provided in the and the delivery of physical possession thereof, was likely to be given, in the near future, at the most by October-November 2014. 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.

7.                  The complainants, in support of their case, submitted their own separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

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10.           The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint or not. According to Section 17 (2) of the Act, a Consumer Complaint, could be filed, in the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants, or the Parties against which, the reliefs were sought, were working for gain or residing. The perusal of theApartment Buyer`s Agreement dated 27.02.2008, Annexure C-6, reveals that the same was executed at Chandigarh, between the complainants, and the Opposite Parties, dated 16.11.2007 (Annexures C-1 and C-2) and 28.12.2007 (Annexure C-5), that the same wereissued by the Opposite Parties, in favour of complainant No.1, from their office, located at 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 complainants, 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.

11.              The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, is within limitation or not. Admittedly, the apartment, in question, was allotted, in favour of the complainants.Apartment Buyer`s Agreement dated 27.02.2008, Annexure C-6, was executed between the parties. According to Clause 21.1 of theNeither possession of the apartment, in question, was delivered to the complainants, nor the refund of amount, deposited by them, with interest, was made, nor the compensation was paid to them. It was frankly admitted by the Opposite Parties, that the construction activity, in respect of the apartment, allotted, in favour of the complainants, was in full swing,and the delivery of physical possession thereof, was likely to be given, in the near future, at the most by October-November 2014. There was, thus, continuing cause of action, in favour of the complainants, to file the complaint.

12.              The next question, that falls for consideration, is, as to within which period, the delivery of possession of the residential apartment, was to be given, to the complainants. Annexure C-6 is theApartment Buyer`s Agreement dated 27.02.2008. According toClause 21.1 of thefrom the date of allotment, with grace period of 3 months, after the expiry of three months (total 6 months), referred to above i.e. by maximum 12.04.2011Rs.49,90,807/-i.e. more than 95%,it was frankly admitted by the Opposite Parties, in their joint written version, that the construction activity, in respect of the apartment, allotted, in favour of the complainants, was in full swing,and the delivery of physical possession thereof, was likely to be given, in the near future, at the most by October-November 2014.By not delivering the legal physical possession of the residential apartment, complete in all respects, to the complainants, by 12.04.2011, i.e. by the stipulated date, even after receipt of more than 95% of the price thereof, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

13.           Rs.49,90,807/-,deposited by them, towards the part price of apartment, in question, which is more than 95% of the entire price, without rendering them, any service. Since, the apartment, in question, had not been ready for delivery of possession thereof, to the complainants, even by the time, the complaint was filed, no alternative was left with them (complainants), than to ask for the refund of amount, deposited by them. In our considered opinion, the complainants are entitled to the refund of amount ofRs.49,90,807/-,deposited by them. By not refunding the amount, deposited by the complainants, with interest, the Opposite Parties were deficient, in rendering service.

14.           Rs.49,90,807/-,towards more than 95% of the price of apartment, in question, was deposited by the complainants, as is evident, from the receipts, referred to above. 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 apartment, complete in all respects, by 12.04.2011, but they failed to do so. The complainants were, thus, caused financial loss.Apartment Buyer`s Agreement dated 27.02.2008, Annexure C-6. Under these circumstances,

15.           Apartment Buyer`s Agreement dated 27.02.2008, Annexure C-6,as per Clause 23.1 of the same (Apartment Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential apartment, they (Opposite Parties), were only liable to make payment ofpenalty/compensation @Rs.5/- per square feet, per month, of the super area, for the period of delay, till actual possession was delivered. He further submitted that the Opposite Parties were ready to pay this amount, for the period of delay, in delivery of possession of the residential apartment. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainants, prayed for the delivery of physical possession of the residential apartment. In the instant case, as stated above, prayer for the refund of amount, was made by the complainants, as there was no progress in the construction of apartment, allotted in their favour. This Clause could be invoked, by the Opposite Parties only, in the event, the complainants had sought the relief of delivery of physical possession of the residential apartment. As stated above, the hard earned money of the complainants was used by the Opposite Parties, for investment, for a long time. They were neither given the physical possession of residential apartment, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 23.1 of the Agreement aforesaid, in the instant case, that would amount to enriching them, at the cost of the complainants. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 23.1 ofApartment Buyer`s Agreement dated 27.02.2008, Annexure C-6. Had the complainants prayed for possession of the residential apartment, in question, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount ofRs.49,90,807/-,alongwith interest @ 12 % P.A., from the respective dates of deposits. The submission of the Counsel for the Opposite Parties, to the effect that the complainants are only entitled to compensation, as per Clause 23.1 of the Agreement, referred to above, being devoid of merit, must fail, and the same stands rejected.

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17.        placed reliance onHon’ble Supreme Court^{The facts of Smt. Chand Rani`s and Ashok Khanna`s cases (supra), are distinguishable, from the facts of the instant case. related to the specific performance of contract. It was held that intention to make time as the essence of contract, must be expressed in unequivocal terms in the Agreement. Whereas, in the National Consumer Disputes Redressal Commission, New Delhi, held that at the time of delivery of possession, the respondent did not charge any additional price. Rs.57,000/- were paid by the petitioner without any protest. In the said case, the possession was taken on 15.12.1993, whereas, the complaint was filed in the later months of 1995, i.e., after a lapse of about 2 years, which showed that, at the time of delivery of possession, the petitioner was satisfied, but later on he changed his mind and filed the complaint, seeking interest on the deposited amount. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 21.1 of the}

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                      The Opposite Parties are directed to refund the amount of Rs.49,90,807/-, to the complainants, alongwith interest @ 12% per annum, from the respective  dates of deposits,  within 45 days, from  the    date of receipt of a certified copy of  this   order.

                      The Opposite Parties are further directed to pay compensation, in the sum of Rs.2,00,000/- (two lacs), for causing mental agony and physical harassment, to the complainants, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.

                   The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

                     In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12 % P.A., from the respective dates of deposits, till realization, and interest @ 12 % P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.

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Pronounced.

April 4, 2014

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/- 

 [DEV RAJ]

MEMBER

Sd/-

 (PADMA PANDEY)

Rg.