Chandigarh

DF-I

CC/109/2015

Rajwinder Singh - Complainant(s)

Versus

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

Gaurav Bhardwaj

28 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No	:	CC/109/2015
Date  of  Institution	:	18/02/2015
Date   of   Decision	:	28/09/2015

 

 

 

 

 

Rajwinder Singh son of S.Indermohan Singh, resident of House No. 1435-B, Sector 61, Mohali, through his father and GPA S.Indermohan Singh.

….....................Complainant.

 

Vs

 

 

Emaar MGF Land Limited, SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Manager.

 

….............. Opposite Party

 

BEFORE:   SH.P.L. AHUJA               PRESIDENT

MRS.SURJEET KAUR             MEMBER

SH.SURESH KUMAR SARDANA      MEMBER

 

For Complainant	:	Sh.Gaurav Bhardwaj, Advocate.
For Opposite Parties	:	Sh.Ashim Aggarwal, Advocate.

 

PER P.L. AHUJA, PRESIDENT

 

 

          Sh. Rajwinder Singh, Complainant, has filed this Consumer Complaint under Section 12 of the Consumer Protection Act, 1986, against Emaar MGF Land Limited (hereinafter called the Opposite Party), through his father and GPA S.Indermohan Singh, alleging that he purchased a Plot bearing No.188 (300 Sq. yds.) in Augusta Greens, Sector 109, Mohali Hills, S.A.S. Nagar Mohali, from its previous owner Ms. Shubra Jain. The said plot was transferred in his name vide letter dated 03.05.2008 (Annexure C-2) and the Buyer’s Agreement was also endorsed in his favour on 01.05.2008 (Annexure C-5 colly). It has been averred that the Complainant paid the installments, as per plan, whereupon he was informed by the Opposite Party vide letter dated 17.07.2009 (Annexure C-6) that he had qualified for 5% incentive for timely payments and his last installment was waived off (Receipts Annexure C-6 to C-15). Thereafter, the Complainant received a letter dated 28.12.2009 (Annexure C-16) from the Opposite Party regarding making payment of External Development Charges (for brevity EDC) of Rs.3,74,196/-, thereby intimating that he had Rs.0/- outstanding amount and Rs.0/- as delayed interest and on payment of EDC the possession would be handed over to him. The said amount was paid by the Complainant on 30.03.2010 and finally, he was handed over the paper possession on 28.10.2010 by the Opposite Party (Possession Certificate Annexure C-19A). There were no basic amenities at the site at that time. The Complainant thereafter sent a number of e-mails regarding the EDC and possession to the Opposite Party (Annexure C-20 colly), but it (OP) dilly dallied the matter on one pretext or the other. It has been alleged that the Complainant was supposed to give EDC of Rs.72,996/- but the Opposite Party charged Rs.3,74,196/- from him. Further, the Opposite Party demanded delayed payment charges of Rs.1,04,096.57P, club membership of Rs.1,12,360/-, stamp duty charges of Rs.4,86,000/- and other charges vide letter dated 30.06.2014. The EDC charges of Rs.3,01,200/- were also reversed (Annexure C-21 & C-22). The Opposite Party was therefore bound to refund the same along with interest @18% p.a. from the date of deposit till actual payment. The Complainant then sent e-mails to the Opposite Party submitting that the stamp duty charges would be paid directly to the Government and the delayed payment charges and club membership charges are not payable (Annexure C-23 colly). It has been further averred that the Complainant has also paid PLC charges to the tune of Rs.4,31,250/- on account of the fact that the plot was preferentially located in front of 200 ft. wide road; whereas, the said 200 ft. wide road is not in existence, and there is only wild grass on the land. Furthermore, there is no approach road even to the Plot of the Complainant. Alleging the aforesaid act & conduct of the Opposite Parties as deficiency in service and indulgence into unfair trade practice, the Complainant has preferred the present Complaint.           

 

2.      Notice of the complaint was sent to Opposite Party seeking its version of the case.

 

3.      Opposite Party in its written statement, while admitting the factual matrix of the case, has pleaded that the Complainant is not a ‘Consumer’; Complaint is time barred and the Complainant be relegated to the alternative remedy of Arbitration as provided for in Clause 39 of the Agreement. It has been further averred that detailed and voluminous evidence would be required to be appreciated in the present Complaint which cannot be done in a summary proceeding before this Forum. It has been asserted that the Opposite Party had offered possession to the Complainant within time period mentioned in the agreement, vide letter dated 28.12.2009 (Annexure C-16) and possession was duly taken over on 28.12.2010 (Annexure C-19A), without any protest. Some of the allottees, who were offered possession, along with the Complainant, had even constructed their units, and are staying therein (Possession Certificates Ex.OP/2 colly). It has been pleaded that at the time of allotment/ execution of Buyer’s Agreement, EDC was demanded on the basis of EDC charges calculated @ Rs.563.68/- per sq. yd. The State Government revised the EDC from time to time and the demands of the EDC were made accordingly. It has been submitted that thereafter since there was a reduction in the EDC, the EDC was calculated @ Rs.807/- per sq. yd. and the amount of Rs.3,01,200/- has been reversed/credited in the account of the Complainant as per letter dated 30.06.2014 (Annexure C-22). The answering Opposite Party demanded the stamp duty and registration charges since the same is being facilitated by it. The amount towards club charges is optional subject to the allottee submitting indemnity. The delayed payment charges are towards interest charges by the Opposite Party on amounts which were remitted late by the Complainant. The same has nothing to do with the waiver of 5% confirmed vide letter dated 17.7.2009 (Annexure C-6) which was given as an exception. The plot of the Complainant is facing major road to be developed by the Government authorities and hence carries preferential charges. It has been further pleaded that the Opposite Party did not charge any excess EDC. Due to decrease in EDC charges, due credit of excess amount was given to the Complainant. The demand raised vide letter dated 30.6.2014 is totally valid and all mandatory amounts are payable by all allottees. Denying all other allegations and stating that there is no deficiency in service on its part, Opposite Party has prayed for dismissal of the complaint. 

        

4.      Rejoinder has been filed by the complainant, wherein he has reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties. It has been averred that there is still no development at the site and there is no approach road to the plot of the Complainant. The 200 ft. wide road has also not yet been constructed though a PLC for the same has already been paid by the Complainant, it is still an open piece of land (Photographs Annexure C-25 colly). It has been further averred that the Club is not in existence and only a board has been put on a piece of land by the Opposite Party, so the club charges are not payable (Photograph Annexure C-29)

 

5.      Parties were permitted to place their respective evidence on record in support of their contentions.

 

6.      We have appraised the entire evidence and written submissions of both the sides and heard the arguments addressed by the learned Counsel for the parties.

 

7.      The first material question for determination in this case is whether the Complainant falls within the definition of ‘Consumer’ as defined in Section 2(d) of the Consumer Protection Act, 1986, or not? It has been urged on behalf of the Opposite Party that the Complainant is already having a house at Mohali and is not residing in India. The Learned counsel for the Opposite Party has further contended that there is no averment in the Complaint that the Complainant does not own any other Plot in his name or that he intends to settle down and construct on the said plot. The Learned counsel for the Opposite Party has vehemently argued that the purchase of the Plot was for investment/speculative purposes, therefore, the Complainant is not a ‘Consumer’ within the meaning of Consumer Protection Act, 1986.

 

8.      We have carefully considered the above arguments of the Learned counsel for the Opposite Party, but we are not impressed with the same. It is pertinent that the Complainant has mentioned in the Complaint that presently he is posted at Gurgaon and his Complaint is being filed through his father and G.P.A. S.Indermohan Singh who is well acquainted with the facts and circumstances of the case. If the Complainant in his address mentioned the title of the Complaint has indicated the address of his father at Mohali, it does not infer that the Complainant himself is having a house at Mohali. The Opposite Party has not produced any such evidence which could show that the Complainant is a Property Dealer and he is/has been investing amount in the purchase of the property. Significantly, the Complainant has specifically pleaded in his rejoinder by way of affidavit that he is having no other Plot in his name either in India or abroad. Hence, we are not impressed with this contention that the Complainant who was willing to own a residential plot near Chandigarh and purchased the Plot No.188 in Augusta Greens, Sector 109, Mohali Hills, S.A.S. Nagar, Mohali from the previous owner i.e. Ms. Shubhra Jain, purchased the said plot for investment/speculative purposes. We are of the opinion that the Complainant is covered under the definition of ‘Consumer’ as defined under Section 2(d) of the Consumer Protection Act, 1986.    

 

9.      The next question for determination is whether the Complaint filed by the Complainant has been filed within the period of limitation as prescribed under Section 24-A of the Consumer Protection Act, 1986, or not? It has been contended by the Learned counsel for the Opposite Party that the present Complaint is time barred, because the Complainant took over the possession of the Plot in question on 28.12.2010 and filed the present Complaint on 18.02.2015. He has further submitted that the Preferential Location Charges (for brevity ‘PLC’) were levied and paid in 2008, without any protest. Therefore, the Complaint is liable to be dismissed being barred by limitation. In support of his arguments, the Learned counsel for the Opposite Party has cited “Rajul Kothari Vs. Emaar MGF”, CC/88/2014, decided on 16.10.2014 by the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh and “Phool Kumari Ahuja Vs. Emaar MGF”, CC/138/2014, decided on 20.10.2014 by the by the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh.

 

10.      We have given our thoughtful consideration to the above arguments. It is true that the Possession Certificate (Annexure C-19A) shows that the Complainant obtained the possession of the Plot No. 188, Augusta Greens, Sector 109, Mohali Hills, Mohali, from the Opposite Party on 28.12.2010. However, in the present case, the Complainant in the relief clause has not claimed the possession of the Plot. He has made a prayer for withdrawl of the illegal demand of Rs.5,43,252/- made vide letter dated 30.06.2014 (Annexure C-22) and further, for refund of Rs.4,31,250/- in respect of PLC along with interest. It is important to note that the Complainant had paid the amount of PLC because of the fact that the Plot was located adjacent to the 200 ft. wide road. But, that 200 ft. wide road is not in existence and there is only wild grass on that land. Thus, the amount paid for PLC is refundable and we feel that in the absence of 200 ft. wide road adjacent to the plot of the Complainant, the Complainant has a recurrent cause of action and his Complaint is within the period of limitation. The rulings Rajul Kothari Vs. Emaar MGF (supra) and Phool Kumari Ahuja Vs. Emaar MGF (supra) cited by the Learned counsel for the Opposite Party are not applicable to the facts of the present case, because in those cases the Complaints were held to be time barred having regard to the facts and circumstances of those cases.

 

11.      The Learned counsel for the Opposite Party has further argued that as per Clause No.39 of the Agreement (Annexure C-5 colly), all the disputes between the parties are to be referred to an Arbitrator, to be appointed as per the provisions of the Arbitration and Conciliation Act, 1996. He has further argued that the Complainant has alleged that amenities as per Clause 23 have not been provided and this would require detailed and voluminous evidence to be appreciated which cannot be done in summary proceedings, therefore, this Complaint is not maintainable. However, we regret our inability to accept the above arguments. Since the remedy provided to the consumers under the Consumer Protection Act, 1986, is an additional remedy under Section 3 of the Act, therefore, it is immaterial if the Complainant instead of getting the dispute referred to the Arbitrator has filed the present Complaint. Furthermore, after scanning the entire evidence, we find that no detailed and voluminous evidence is required for decision of this case. Though the Complainant has mentioned that certain amenities were not provided at the time of handing over of the possession, yet in the relief clause, he has not claimed any relief for provision of amenities. Thus, we do not feel that the Complainant should be relegated to the alternative remedy of arbitration or the civil suit.

 

12.      The next material question for determination is whether the Opposite Party had charged the excess EDC amount and it is bound to refund the extra amount charged along with interest to the Complainant? Pertinently, the Complainant received a letter dated 28.12.2009 (Annexure C-16) from the Opposite Party regarding making the payment of the EDC of Rs.3,74,196/-. The Complainant duly paid the said amount vide receipts dated 30.03.2010 (Annexure C-18 and C-19). The Opposite Party has contended that initially the EDC was demanded @ Rs.563.68 per sq. yd. as per the Allotment Letter, as well as the Buyers Agreement. The State Government revised the EDC from time to time and the demands of the EDC were made accordingly. It has been submitted that thereafter since there was a reduction in the EDC, the EDC was calculated @ Rs.807/- per sq. yd. and the amount of Rs.3,01,200/- has been reversed/credited in the account of the Complainant as per letter dated 30.06.2014 (Annexure C-22). It is important to note that the Complainant had paid the EDC in the year 2010 and the entry of reversal of the amount of Rs.3,01,200/- was made only on 30.06.2014. The Opposite Party has not led any evidence to this effect as to when the amount of EDC was actually paid to the Government. Since the extra amount of EDC in the account of the Complainant has been reversed on 30.06.2014, therefore, the Complainant is certainly entitled to interest on the amount of Rs.3,01,200/- from the date of payment, till the refund.

 

13.      The next point for determination is whether the demand of Rs.1,04,096.57P towards delayed payment charges vide letter dated 30.06.2014 (Annexure C-22) by the Opposite Party is justified or not? It is noteworthy that the Opposite Party had not informed the Complainant about any liability of delayed payment by the previous allottee. The Opposite Party charged Rs.75,000/- as Transfer Fee and transferred the Plot, without any objection in the name of the Complainant, vide endorsement dated 01.05.2008 (Annexure C-5 colly). It is also worth noting that the Opposite Party vide letter dated 17.07.2009 (Annexure C-6) informed the Complainant that he had qualified for 5% incentive under ‘On Time Payment Incentive Program’, therefore, the last installment of Rs.1,72,500/- stood waived off. The copies of the receipts (Annexure C-7 to C-15) also show that the Complainant had been making timely payment of the installments. The letter dated 28.12.2009 (Annexure C-16) sent by the Opposite Party to the Complainant shows that the outstanding amount towards the Plot was ‘zero’ as per the payment plan agreed by him and the delayed interest thereon was also ‘zero’ on account of delay in making payment of installments. The e-mail message dated 27.09.2014 sent by the Opposite Party to the Complainant shows that in response to the grievance of the charges relating to delayed payment, it was informed that the delayed payment charges levied in his account were for the period prior to transfer of the said unit in his favour. At the same time, it was also informed by the Opposite Party that since the said waiver had been granted for Unit No.109-AG-188-300 which was presently allotted to him, it would not be possible for them (Opposite Party) to incorporate the waiver amount in his account without the indemnity. Thus, it is the admitted case of the Opposite Party that waiver had been granted in respect of the Plot of the Complainant, but he was to give indemnity for the same. We fail to understand when the Opposite Party had itself intimated the Complainant through letter dated 28.12.2009 (Annexure C-16) that the delayed interest was amounting to ‘zero’ and vide letter dated 17.07.2009 (Annexure C-6) had waived of the last installment of Rs.1,72,500/- on account of incentive under ‘On Time Payment Incentive Program’, how the question of recovery of Rs.1,04,096.97P arose. We are of the opinion that in view of the definite documentary evidence on record, the demand of Rs.1,04,096.97P towards delayed payment charges is absolutely illegal.

 

14.      The next question for determination is whether the Opposite Party is justified in demanding an amount of Rs.1,12,360/- towards Club Membership Charges, as per Annexure C-22, from the Complainant? Admittedly, the Club Charges demanded by the Opposite Party are optional. To cap it all, the photograph placed on record with the rejoinder shows that no Club is in existence in the project where the plot of the Complainant is situated. Only a vacant site with wild growth, with a signboard of ‘Site for Club House’ is existing. The Opposite Party is admitting that the amount towards Club Charges is optional, but subject to the allottee submitting indemnity. This demand of indemnity bond is also unwarranted. When the Club Charges are optional, there cannot be any question of furnishing of any indemnity bond by the Complainant. The Opposite Party is not at all entitled to demand the amount of Rs.1,12,360/- towards Club Membership Charges.

 

15.      The next material point for determination is whether the demand of Rs.4,86,000/- towards Stamp Duty Charges and Rs.54,000/- towards Registration Charges vide letter (Annexure C-22) from the Complainant is justified at this stage or not? It has been contended by the Opposite Party that the earlier Stamp Duty Charges and Registration Charges were calculated on the then applicable circle rate of Rs.16,000/- per sq. yd. However, there has been a change in the circle rates and as on date, the applicable Stamp Duty amounts to Rs.3,51,000/- and Registration Charges amount to Rs.39,000/-. In addition, the Complainant is also liable to pay Rs.26,000/- towards incidental expenses including legal charges, translation charges, red cross building fund and computer fee for execution of Conveyance Deed. Besides, vide notification dated 24.06.2015, there has been additional charges of 1% levied by the State Government towards “Infra Development Fund”, which is additionally payable by the Complainant for registration of the Unit. It is noteworthy that the Complainant is ready to pay the Stamp Duty and Registration Charges to the Government directly. We are of the opinion that since the Complainant is ready to pay the Stamp Duty Charges, Registration Charges and other incidental charges to the Government, directly, the demand made in the letter dated 30.06.2014 (Annexure C-22) in respect of Stamp Duty Charges and Registration Charges cannot be forced upon the Complainant.    

 

16.      So far as the demands in respect of electricity connection charges, electrification charges, monthly maintenance charges and water charges made in letter Annexure C-22 are concerned, it is pertinent to note that the Opposite Party has provided no electricity connection to the Complainant. According to the Complainant, he would deposit the amount as and when he requires the electricity connection. According to the Complainant, no electricity connection in the said area has been provided by the PSPCL. We find that the Opposite Party has not produced any such documentary proof that any permanent electricity connection has been provided to any consumer in the said project. The question of payment of monthly maintenance charges, water charges and maintenance security also does not arise at this stage, because the Complainant has not raised the construction on the plot. Accordingly, we feel that the demand of electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges is illegal, at this stage, and the Complainant cannot be forced to make the payment of the above said charges.

 

17.      The next point for determination is whether the Complainant is entitled to refund of the PLC charges of Rs.4,31,250/- or not? It is worth noting that the PLC was paid by the Complainant to the Opposite Party for the reason that the Plot of the Complainant is located adjacent to 200 ft. wide road. But, the photographs produced by the Complainant, along with the rejoinder, show that 200 ft. wide road is not in existence and there is only wild grass on the land. The plot is not preferentially located at this stage. We feel considerable force in the contention of the Complainant that he cannot be charged the PLC until the 200 ft. wide road is laid at the site. Accordingly, we are of the view that the Complainant is entitled to the refund of Rs.4,31,250/- in respect of the PLC, along with interest from the date of deposit, till actual payment. It is also noteworthy that the earlier map approved had no temporary road, but in the present map, a temporary road is being shown. In this context, the Complainant has produced the copies of maps Annexures C-30 and   C-31 respectively.

 

18.      The copy of information taken by the Complainant under the RTI Act, 2005, from the Forest Department (Annexure C-26) (English translation Annexure C-27) show that the entry points in front of the Projects of Sector 109, 108 and 105 of the Opposite Party have been closed by the Forest Department by fixed barbed wire and by digging trenches because the user agency has not got the required approval regarding the above said roads from the Forest Department under F.C.A. 1980. Thus, the handing over of the possession of the plot to the Complainant without proper road connectivity is also an unfair trade practice. We are of the view that the Complainant has been harassed by the Opposite Party on account of the aforesaid acts and he is also entitled to be compensated for deficiency in service. 

 

19.      For the reasons recorded above, we find merit in the Complaint and the same is partly allowed. The Opposite Party is directed as under:-

 

i.   To withdraw the illegal demand of Rs.5,43,252/- made vide letter dated 30.06.2014. However, it is made clear that the Complainant shall be liable to pay the Stamp Duty, Registration and other incidental charges at the time of registration of the Conveyance Deed                   and electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges at the time of raising construction on the plot. 

 

ii.  To refund Rs.4,31,250/- i.e. PLC, along with interest @ 9% per annum from the date of deposit, till actual payment;  

 

iii. To refund the interest on the extra EDC amount of Rs.3,01,200/- along with interest @ 9% per annum from the date of deposit, till actual payment;

 

iv.  To make payment of Rs.1,00,000/- as compensation to the Complainant on account of unfair trade practice and deficiency in service; 

 

v.   To pay Rs.11,000/- as litigation expenses;

 

 

20.      This order shall be complied with by Opposite Party within one month from the date of receipt of its certified copy; thereafter Opposite Party shall pay the amount mentioned at Sr.No.(ii) and (iii) above with interest @ 12% per annum instead of 9% per annum from the respective dates of deposit, till actual payment; and the amount mentioned at Sr.No.(iv) above with interest @ 12% per annum from the date of filing of the present complaint, till realization by the complainant, besides complying with the directions mentioned at Sr.No.(i) and (v) above.

 

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

 

Announced

28^th September, 2015                                   

Sd/-    

(P.L. AHUJA)

PRESIDENT

 

Sd/-

 (SURJEET KAUR)

MEMBER

 

Sd/-

(SURESH KUMAR SARDANA)

MEMBER