Chandigarh

DF-I

CC/574/2014

Ram Niwas Bansal - Complainant(s)

Versus

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

Gaurav Bhardwaj

01 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/574/2014
Date of Institution	:	27/08/2014
Date of Decision	:	01/07/2015

 

Ram Niwas Bansal s/o Jagdish Rai Bansal, resident of H.No.32 N.A.C. Mani Majra, Chandigarh.

…..Complainant

V E R S U S

1.      Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh through its Manager.

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

……Opposite Parties

 

QUORUM:	P.L.AHUJA	PRESIDENT
	SURESH KUMAR SARDANA	MEMBER

                                               

                                               

                       

ARGUED BY	:	Sh. Gaurav Bhardwaj, Counsel for complainant
		Sh. Sanjeev Sharma, Counsel for OPs.

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Ram Niwas Bansal, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Emaar MGF Land Ltd. and another, Opposite Parties (hereinafter called the OPs), alleging that he was willing to own a residential plot near Chandigarh and applied for a residential plot of 300 sq. yards in Augusta Park, Sector 109, in the project “Mohali Hills” with the OPs by depositing the booking amount of Rs.10,35,000/-. The application (Annexure C-2) was accepted and plot No.470 in Sector 109 was provisionally allotted to the complainant. As per the allotment letter (Annexure C-3), the tentative price of the plot was Rs.11,500/- per sq. yard and total consideration was Rs.34,50,000/-.  On 4.7.2007, plot buyer’s agreement was duly executed between the parties in which the plot number was changed to 412. The complainant thereafter paid the installments to the OPs as per the plan till 26.2.2009. Subsequently, the plot of the complainant was changed from plot No.412 to 346. According to the complainant, he waited patiently for his plot as the possession of the same was to be delivered within two to three years. The complainant received a letter dated 16.12.2011 (Annexure C-14) from the OPs vide which he was informed to get the building plans sanctioned from GMADA. Thereafter, the complainant wrote letter (Annexure C-15) to the OPs intimating that the possession was a mere paper possession and without registration no authority would provide any kind of sanction. In reply, the OPs vide letter dated 16.12.2011 (Annexure C-16) admitted that they had initiated the developmental works and upon completion of the same and receipt of completion certificate from GMADA, they would commence the process of execution and registration of sale deed.  The OPs sent a letter dated 5.1.2012 (Annexure C-17) demanding the delayed payment interest and further enhanced EDC charges and informed that the possession will be delivered to the complainant after completion of formalities.  It has been contended by the complainant that the OPs vide letter dated 8.7.2014 (Annexure C-21) demanded Rs.11,47,652.88 from him under various heads. According to the complainant, he had deposited the money as per schedule but the OPs failed to deliver possession to him and still there is no likelihood of possession. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 
2.         In their joint written statement, OPs have taken a number of preliminary objections including that the complaint is not maintainable before this Forum and is liable to be dismissed on the ground of pecuniary jurisdiction; that the complainant is not a consumer and that he had bought the house for speculative purposes; that the complaint is time barred.  The factual matrix of the case has not been disputed by the OPs. It has been averred that the possession was required to be handed over within 3 years from the date of execution of the agreement. It has been further stated that the complainant defaulted and delayed the payments as per due dates communicated to him in the payment schedule and also the demand letters sent to him, hence, there were delayed payment charges levied against his account.  It has been averred that in case of delay in giving possession, the Company was committed to pay penalty @ Rs.50/- per sq. yard per month for the entire period of such delay beyond 03 years.  It has been pleaded that the said plot was offered for possession on 5.1.2012 after completion of amenities, but the complainant failed to take the possession of the same. It has been contended that the completion certificate was not required by the OPs and the complainant is making false assertions without any basis. It has been averred that the complainant delayed the payments but the OPs had taken an exceptional approval for his case and it was communicated to him through letter dated 23.02.2009 that 5% rebate had been offered to him and he was told to sign an indemnity at the time of intimation of possession and the complainant is bound to sign indemnity as per the format provided.  It has been further stated that that instead of taking possession and making payment of charges, the complainant has questioned the collector rates.  It has been averred that club charges are optional but the complainant is required to sign an indemnity for not later on claiming usage of same/club. It has been further stated that the complainant has not paid the EDC charges and IFMS and is raising a dispute without any reason.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint.  
3.         In his rejoinder, the complainant has controverted the stand of the OPs and reiterated his own. It has been averred that the OPs are themselves at fault as they failed to hand over possession to the complainant within the stipulated time and only made offer of possession without any amenities and approval from the Government just to avoid the liability of paying compensation on account of delay.
4.         The parties led evidence in support of their contentions.
5.         We have appraised the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the learned Counsel for the parties.
6.         It is the admitted case of the parties that the complainant applied for a residential plot  unit of 300 sq. yards in Augusta Park, Sector 109 in the project “Mohali Hills” with the OPs by depositing the booking amount of Rs.10,35,000/-. Plot No.470 in Sector 109 was provisionally allotted to the complainant vide allotment letter, copy of which is Annexure C-3. A plot buyer’s agreement was duly executed between the parties on 4.7.2007 (Annexure C-4). The complainant was relocated to plot No.412 in the said project. The complainant paid the installments as per plan to the OPs till 26.2.2009. As per statement of accounts (Annexure C-20) issued by the OPs with their letter dated 7.2.2012 (Annexure C-19), the amount was paid in nine installments and the last installment was paid on 15.6.2009.  In total, an amount of Rs.34,46,604/- was paid. The complainant was qualified for 5% waiver to the tune of Rs.1,72,500/-. DLI to the tune of Rs.91,037/- was also waived and in this way, the total outstanding was nil as on 6.2.2012. According to clause 8 of the plot buyer’s agreement, the company had to deliver the possession of the plot to the allottee within a period of two years from the date of execution of agreement, but not later than three years, subject to force majeure conditions and reasons beyond the control of the company.  In case the company failed to deliver possession of the plot within a maximum period of three years from the date of execution of the agreement, it was liable to pay to the allottee a penalty of a sum of Rs.50/- per sq. yard per month for such period of delay beyond three years from the date of execution of the agreement.  The OPs sent a letter dated 5.1.2012 (Annexure C-17) to the complainant that they were ready to hand over possession of the plot allotted to him subject to certain conditions regarding payment of the delayed interest and additional external development charges.  The possession of the plot has not been taken by the complainant on the ground that the OPs have not completed the development works like roads, parks, electrical lighting, setting up of sewerage treatment plant (STP), rain harvesting and electrical sub stations. Vide letter dated 8.7.2014 (Annexure C-21) an amount of Rs.11,47,652.88 was demanded from the complainant to enable the OPs to hand over the possession of the plot to him. According to the complainant, he is only bound to pay Rs.72,996/-  for EDC and the stamp duty and that too applicable on the rate of Rs.11,500/- per sq. yard.  It has also been contended that the club charges were optional and the complainant cannot be forced to pay the same. Furthermore, the OPs are only offering paper possession to avoid their liability.
7.         At the outset, the learned counsel for the OPs has contended that this complaint is not maintainable before this Forum because the complainant is seeking possession of the plot apart from an amount of Rs.5,00,000/- towards compensation for deficiency in service and Rs.50/- per sq. yard penalty for delay in possession w.e.f. 4.7.2010 till possession and Rs.55,000/- as litigation costs. He has submitted that the cost of the plot in question is Rs.36,19,104/- and in this way, the total relief claimed in the present complaint exceeds Rs.20,00,000/-. The learned counsel for the OPs has cited M/s Omaxe Ltd. Vs. Iqbal Begum & Anr., First Appeal No.887 of 2013 decided by the Hon'ble National Commission on 16.5.2014 and has vehemently argued that this Forum has no pecuniary jurisdiction to try this complaint. 
8.         We have carefully considered the above arguments of the learned counsel for the OPs, but, we are not impressed with the same.  A perusal of the complaint itself shows that the complainant has nowhere asked for a direction to the OPs to hand over the possession of the plot in question. The complainant has simply prayed that the OPs be directed to pay Rs.15,000/- per month as compensation/penalty for delayed possession from 4.7.2010 till the possession is physically handed over to him and further be directed to pay Rs.5,00,000/- as compensation for deficiency in service etc. and Rs.55,000/- as litigation expenses. Hence, the relief claimed by the complainant is well within the amount of Rs.20,00,000/- which is within the pecuniary jurisdiction of this Forum. The ruling cited by the learned counsel for the OPs is not applicable to the facts of the present case. 
9.         The learned counsel for the OPs has further urged that offer of possession of the plot was given to the complainant on 5.1.2012 and after 5.1.2012, he has not come forward to take possession of the offered plot.  He has submitted that the cause of action arose to the complainant on 5.1.2012 and the complaint filed on 27.8.2014 is beyond the period of limitation.  The learned counsel for the OPs has vehemently argued that the complaint is barred by limitation. 
10.         We have given our thoughtful consideration to the above arguments, but, we feel that the same are devoid of any force.  No doubt, an offer for possession of the plot was made to the complainant vide letter dated 5.1.2012 (Annexure C-17), yet, another letter dated 7.2.2012 (Annexure C-19) shows that the OPs had already initiated works with regard to Sewage Treatment Plant (STP), rain water harvesting and electrical sub stations and they expected to complete the same in 6-8 months’ time. This fact itself goes to show that the offer of possession was merely paper possession and actual possession could not be delivered to the complainant. Apart from that, OPs themselves sent a letter dated 8.7.2014 (Annexure C-21) whereby the complainant was asked to make the payments of the amounts mentioned in the letter to enable them to hand over the possession of the plot on the mentioned date.  Otherwise also, the cause of action is continuing as the possession has not yet been handed over to the complainant.  Hence, we are of the view that the complaint is well within the period of limitation.
11.         It has also been contended by the learned counsel for the OPs that the complainant already owns a house at Chandigarh, therefore, he is not a “consumer” as defined under the Consumer Protection Act.  He has argued that the complainant has bought this plot for speculative purpose. However, it is pertinent that the complainant in his rejoinder by way of affidavit has specifically mentioned that the said plot has not been purchased for commercial purposes, but, it has been purchased for his own use by the complainant.  If the complainant is living at Chandigarh in a house, it does not mean that he cannot purchase any other plot at Mohali on account of the family circumstances considering the needs of the family members. There is no reason to disbelieve the averments in the affidavit by way of rejoinder of the complainant that he has purchased the plot for his own use. There is no such evidence on record that the complainant has been indulging in purchase of plots for speculative purposes. The complainant has admittedly paid an amount of Rs.34,46,604/- to the OPs as sale consideration of the plot. Thus, the complainant is very well covered under the definition of ‘consumer’ as defined under Section 2 (1)(d) of the Consumer Protection Act. 
12.         The next question for determination is whether the offer of possession vide letter dated 5.1.2012 (Annexure
    C-17) is legally valid or the same is just a paper transaction on the part of the OPs to avoid their liability? After scrutinizing the entire evidence, we feel that the offer of possession of the plot by the OPs is just to avoid their liability because the amenities as mentioned in clause 23 of the plot buyer’s agreement have not yet been provided. As we have already mentioned, as per statement of accounts (Annexure C-20) sent by the OPs to the complainant on 7.2.2012, the total outstanding towards the complainant was zero.  Though it has been contended by the OPs that the complainant is a habitual defaulter and always defaulted in making his due payment as per his payment plan, yet, a perusal of the letter dated 23.2.2009 (Annexure C-11) shows that the OPs congratulated the complainant on qualifying for the “pay on time” reward because all his installments were received on or before due date and he had become eligible for last installment 5% basic price waived off. The complainant was intimated that the principal amount payable towards installment due had been cleared by him.  The complainant was intimated even vide letter dated 5.10.2010 Annexure C-13 (Colly.) that the total outstanding against him was zero as on 13.11.2010. As per terms and conditions of the plot buyer’s agreement, the complainant was entitled to get possession of the plot in dispute on or before 4.7.2010, but, the letter of offer of possession with certain conditions was sent by the OPs to the complainant only on 5.1.2012 i.e. much beyond the period of three years of execution of the agreement. Strangely enough, prior to that the complainant was intimated on 16.12.2011 (Annexure C-14) that he may apply to the Estate Officer, GMADA for the sanction of building plans to initiate construction on the said plot.  The complainant intimated the OPs vide letter dated 27.12.2011 (Annexure C-15) that till date he was not offered any possession. Though the OPs in para 8 of the written statement have pleaded that the said letter was wrongly addressed to the complainant, as at that relevant time possession was not offered to the complainant, so there was no question of asking for submission of building plans, yet it is pertinent that the letter dated 16.12.2011 (Annexure C-14) was not withdrawn by the OPs. 
13.         As per clause 23 of the plot buyer’s agreement, the company is responsible to provide the internal services within the project which inter alia includes laying of the roads, water lines, sewer lines, electrical lines etc. It is worth noting that the OPs themselves in their letter dated 5.1.2012 (Annexure C-16) intimated the complainant that they had initiated works with regard to Sewage Treatment Plant (STP), rain water harvesting and electrical sub stations and they expected to complete the same in 6-8 months’ time and subsequent to the completion of these amenities, they would start the process of registration.  The complainant specifically sent a letter (Annexure C-18) wherein he intimated the OPs that it was not clear whether the Govt. or competent authority will supply water and electricity to him. He also enquired about the basic infrastructure like STP, electricity sub-station and rain harvesting as well as the completion certificate.  Even vide letter dated 6.12.2012 (Annexure C-28) the complainant was intimated by the OPs that for the registration process, it was important that the work for the entire sector to be completed, post which the company would apply for the completion certificate. The complainant was further intimated that the OPs were expediting the development activity in the concerned area. All these facts show that the development work was not completed even till 6.12.2012.  It is true that as per notification (Annexure OP/3), the Governor of Punjab was pleased to exempt the Housing Project of M/s  Emaar MGF Land Pvt. Limited from all provisions of the Punjab Apartment & Property Regulation Act, 1995 except Section 32 and as per letter dated 30.5.2013 (OP/4) the OPs were exempted from Section 14 of PAPRA to obtain completion certificate from the Competent Authority, yet, it does not mean that the OPs were not required to provide the amenities mentioned in clause 23 of the plot buyer’s agreement.  We may also mention that as per notification (Annexure OP/3), the development works shall be carried out in accordance with the lay out plan sanctioned by the Chief Town Planner, Punjab in keeping with such general guidelines as the Department of Housing and Urban Development may issue in respect of such housing projects from time to time. The OPs have not produced any documentary evidence to this effect that the development work in the said project has been carried out in accordance with the lay out plan sanctioned by the Chief Town Planner, Punjab. The OPs have also not produced any such documentary evidence that the internal services including laying of roads, water lines, sewer lines, electrical lines have been provided in the colony where the plot of the complainant is existing.  In this view of the matter, we are of the opinion that the offer of possession vide letter dated 5.1.2012 (Annexure C-17) by the OPs is not genuine and valid and it is only a paper transaction and the complainant rightly refused to take the possession.  Consequently, as per the terms and conditions of the plot buyers agreement, the OPs are certainly liable to pay penalty on delayed possession @ Rs.15,000/- per month to the complainant for the period of  delay.
14.         The next material question that arises for determination is whether the complainant is entitled to demand the amounts mentioned in the letter dated 8.7.2014 (Annexure C-21) from the complainant. In the said letter the OPs demanded an amount of Rs.1,72,500/- towards the over dues and Rs.2,21,800.24 towards delayed payment charges. However, we feel that when the OPs themselves informed the complainant vide letter dated 7.2.2012 (Annexure C-19) that the total outstanding was zero against him, there was no question of raising any demand of over dues and delayed payment charges. When the delayed payment charges have been waived by the OPs, there was no question of demanding any indemnity bond cum undertaking from the complainant.
15.         So far as the question of payment of an amount of Rs.72,996/- towards the EDC is concerned, the complainant has admitted in para 13 of the complaint that he is only bound to pay Rs.72,996/- towards EDC.  As far as the question of payment of club membership charges to the tune of Rs.1,00,000/- is concerned, since the club charges are optional, the OPs cannot force the complainant to pay the same. In regard to payment of interest free maintenance security, monthly maintenance charges, water charges and electricity connection charges, the complainant shall be liable to pay the same when he starts using the same at the time of commencement of construction.  In this context, attention can be had to the judgment dated 23.9.2014 passed by the Hon’ble State Commission, UT, Chandigarh in Consumer Complaint No.69 of 2014 titled as Sh. Vivek Malik Vs. M/s Emaar MGF Land Pvt. Ltd. wherein, in the similar circumstances, it was held that the question of payment of club membership charges, interest free maintenance security, electricity connection charges and water charges did not arise. However, as held in the above cited judgment, the complainant is bound to pay the stamp duty charges and registration charges as per law.
16.         For the reasons recorded above, we find that the act of the OPs in not handing over the legal and valid possession of the plot to the complainant (without providing the internal services) amounts to unfair trade practice as well as deficiency in service.  Furthermore, the demand in respect of club membership charges, water charges, monthly maintenance charges, electricity connection charges is also illegal and the OPs cannot pressurize the complainant to pay the said amounts and to furnish the indemnity bonds.  Accordingly, we find merit in the complaint and the same is partly allowed.  The OPs are directed :-

i)      To pay to the complainant Rs.15,000/- per month as penalty for delayed possession from 4.7.2010 till the filing of the complaint.

ii)     To also pay the penalty for the delayed possession @ Rs.15,000/- per month from the date of filing of the complaint till the possession of the plot is physically handed over to the complainant after providing the internal services. The amount so accrued shall be paid/adjusted to the outstanding amount, if any, at the time of handing over of the possession/registration of the sale deed.

iii)    To also pay an amount of Rs.1,00,000/- to the complainant as compensation for deficiency in service and unfair trade practice and mental harassment suffered by him.

iv)    To pay Rs.15,000/- as costs of litigation to the complainant.

17.         This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (iii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(ii)&(iv) above.
18.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-		Sd/-
01/07/2015	[Suresh Kumar Sardana]		[P. L. Ahuja]
hg	Member		President