Chandigarh

StateCommission

CC/66/2017

Sukhvinder - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

12 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	66 of 2017
Date of Institution	:	20.01.2017
Date of Decision	:	12.09.2017

Sukhvinder s/o Sh. Om Parkash r/o House No.2773, 2^nd Floor, Sector 21, Panchkula.

……Complainant

V e r s u s

Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.
Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through Managing Director/Authorized Signatory.

.... Opposite Parties

Argued by:

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

Complaint case No.	:	67 of 2017
Date of Institution	:	20.01.2017
Date of Decision	:	12.09.2017

Rajender Kumar Mehta s/o Sh. Roop Chand Mehta r/o House No.376, First Floor, Sector 17, Panchkula.

Bindu Arya w/o Sh. Rajender Kumar Mehta r/o House No.376, First Floor, Sector 17, Panchkula.

……Complainants

V e r s u s

Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.
Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through Managing Director/Authorized Signatory.

.... Opposite Parties

Argued by:

Sh. Savinder Singh Gill, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

Complaint case No.	:	70 of 2017
Date of Institution	:	20.01.2017
Date of Decision	:	12.09.2017

Ankit Satija s/o Sh. Mahinder Kumar Satija, r/o Flat No.32, Sfs Flats, Pocket – 10, Sector 11, Rohini, New Delhi.

Mahinder Kumar Satija s/o Sh. Jhangi Ram Satija r/o Flat No.32, Sfs Flats, Pocket – 10, Sector 11, Rohini, New Delhi.

……Complainants

V e r s u s

Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.
Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through Managing Director/Authorized Signatory.

.... Opposite Parties

Argued by:

Sh. Savinder Singh Gill, Advocate for the complainant.

Sh. Ajiteshwar Singh, Advocate for the Opposite Parties.

Complaint case No.	:	97 of 2017
Date of Institution	:	31.01.2017
Date of Decision	:	12.09.2017

Devi Lal Banga S/o Sh. Atma Ram Banga r/o #1332/2, Sector 44-B, Chandigarh.

Kiran Kumari Banga W/o Sh. Devi Lal Banga, r/o #1332/2, Sector 44-B, Chandigarh.

……Complainants

V e r s u s

Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.
Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through Managing Director/Authorized Signatory.

.... Opposite Parties

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Savinder Singh Gill, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

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

1.	CC/66/2017	Sukhvinder	Vs.	Emaar MGF Land Limited.
2.	CC/67/2017	Rajender Kumar Mehta & Anr.	Vs.	Emaar MGF Land Ltd.
3.	CC/70/2017	Ankit Satija & Anr.	Vs.	Emaar MGF Land Ltd.
4.	CC/97/2017	Devi Lal Banga & Anr.	Vs.	Emaar MGF Land Ltd.

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 31.07.2017, it was agreed between Counsel for the parties, 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. 66 of 2017, titled as “Sukhvinder Vs. Emaar MGF Land Limited & Anr.”.

5. The facts, in brief, are that the complainant was willing to own a residential plot for family and personal use and accordingly he applied for a plot measuring 159.17 sq. yds. with his brother Sh.Virender Singh in the project of the Opposite Parties i.e. “Augusta Park”, Sector 109, SAS Nagar, Mohali by paying the booking amount of Rs.2 lacs on 29.05.2013 (Annexure C-1). It was further stated that the name of bother of the complainant was got deleted and the same was acknowledged by the Opposite Parties vide email dated 22.03.2016 (Annexure C-2). Accordingly, plot No.564 was provisionally allotted to the complainant. Thereafter, Plot Buyer’s Agreement was executed between the parties on 24.07.2013 (Annexure C-3). The total sale price of the plot was Rs.36,30,826.78, out of which, the complainant paid the total amount of Rs.31,37,097.19 vide payment receipts and statement of accounts (Annexures C-4 colly & C-5). As per Clause 8 of the Agreement, possession of the plot was to be delivered within 18 months from the date of execution of the Agreement i.e. by 23.01.2015. It was further stated that the complainant also availed loan from HDFC Ltd., for which, tripartite agreement was executed between the parties on 27.07.2013 (Annexure C-6). It was further stated that the Opposite Parties sent intimation of possession letter dated 09.08.2016 to the complainant, in which, it has been stated that possession of the plot would be handed over within 60 days of the said letter and further raised a demand of Rs.8,76,703/- (Annexure C-7). The complainant visited the site after the issuance of possession letter and found that the development on the site was incomplete. Thereafter, the complainant wrote number of emails regarding incomplete development on the site. It was further stated that the said plot is not habitable, as it is adjoining to the village where the Opposite Parties failed to acquire the land. It was further stated that the road, which was segregating the said plot from the village adjoining has not been constructed till date, due to which, the plot still falls in the village and there are serious safety issues regarding habitation on the said plot. Copies of the emails are Annexure C-8 (Colly.). It was further stated that there was delay in handing over possession of the said plot and possession has been offered without the Opposite Parties having the completion certificate from the competent authorities. It was further stated that regarding the main entrance of Sector 109, there is a matter pending before the Ld. Civil Court, Kharar and the Opposite Parties have violated the order passed by the Hon’ble Supreme Court dated 12.12.1996. Copy of the intimation obtained in this regard by another allottee is at Annexure C-9. It was further stated that only paper possession has been offered by the Opposite Parties to the complainant. 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 further stated that present complaint is not maintainable, as Arbitrator has been appointed, who also sent notice of appearance to both the parties, to appear before them. Copies of the letters are Annexures R-9 & R-10. It was further stated that the complainant is not a consumer, as envisaged under the Consumer Protection Act, 1986, as he is a resident of Panchkula and residing in his own house at Panchkula, he purchased the said property solely for speculation purposes only. It was further stated that the Opposite Parties had “proposed” to hand over possession of the unit within 24 months. 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. The term “proposes” duly indicates that there was no definitive commitment to hand over possession. It was further stated that the complainant had voluntarily agreed the alleged delay, as their interest was safeguarded by compensation clause in the Agreement and the Opposite Parties had committed to bear the penalty for delayed possession, if any, beyond the time frame stipulated under the Agreement, at the time of registration of the plot. It was further stated that the complainant is bound by the terms and conditions of the Agreement and in case of seeking of refund, forfeiture clause would come into play. It was further stated that possession of the plot has been offered to the complainant on 09.08.2016, after completion of all the amenities and for the delay in offering of possession, a sum of Rs.89,888/- has already been credited in the account of the complainant. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the property is located at Mohali. It was admitted regarding purchase of unit No.109-AP-564-159 ; provisionally allotment of the plot ; execution of the Agreement and receipt of the amount of Rs.31,37,097/-. It was further stated that Rs.89,888/- has been credited as compensation in his account. Copy of statement of accounts is Annexure R-5. As per Clause 8 of the Agreement, the Company was supposed to hand over possession of the plot within 24 months from the date of execution of the Agreement i.e. 23.07.2015. Compensation is payable @Rs.50/- for delay in possession and the same shall be payable at the time of intimation of possession. It was further stated that the complainant has availed loan for Rs.26.74 lacs from HDFC Bank. Tripartite Agreement and Permission to Mortgage was issued on 27.07.2013. It was further stated that possession of the plot has been duly offered after completion of amenities and vague allegations as to parks not developed, village in vicinity are being made just to seek refund of amount on flimsy grounds. It was further stated that the project of the replying Opposite Parties was a mega project and the Govt. of Punjab had exempted the project from provisions of PAPRA. It was further stated that when the Government came up with circular to apply and seek completion or partial completion certificate, the Opposite Parties were granted partial completion certificate (Annexure R-6). Further, the matter regarding forest area has been resolved. It was further stated that the complainant himself had not come forward to take possession and pay the balance amount. 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.

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. At the time of arguments, it was also argued by Counsel for the Opposite Parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication. It is further argued by Counsel for the Opposite Parties that the Arbitrator has been appointed, who also sent notice to both the parties for appearance.

We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, 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, 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. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel. In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors. (Supra) still holds good, no fault can be found with the view taken by the State Commission.

Consequently, the Appeal fails and is dismissed accordingly.”

Moreover, it is clearly proved that Mr.Atul Lakhanpal, Senior Advocate was appointed as Arbitrator on 12.02.2017, as is evident from Annexure R-E, annexed with the application of the Opposite Parties. The present complaint filed by the complainant is on 20.01.2017 i.e. prior to appointment of Arbitrator and it is relevant to note that no final decision has been given by the Arbitrator.

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.

In view of the above, argument raised by Counsel for 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 Plot Buyer’s Agreement was executed between the parties on 24.07.2013 at Chandigarh. Not only this, acknowledgment-cum-receipts (at page Nos.43 to 46) and letter of intimation of possession (Annexure C-7) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company 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 objection taken by Counsel for the Opposite Parties, to the effect that the complainant did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act because the complainant is resident of Panchkula and is residing in his own house at Panchkula, he purchased the unit in the project of the Opposite Parties solely for speculation purposes. Even the complainant in para No.1 of his rejoinder has clearly stated that “the complainant is staying on rent at the present address and the allegation of the OPs is false and baseless.” Moreover, the complainant in para No.1 of his complaint has clearly stated that he was willing to own a residential plot for family and personal use. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of speculation, 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 Counsel for the Opposite Parties, mere bald assertion that the complainant 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. 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. Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within maximum period of 24 months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the plot will be delivered by the Opposite Parties, within a maximum period of 24 months from the execution of the Agreement, 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/plot , to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement dated 24.07.2013, the Opposite Parties were bound to deliver possession of the unit/plot, within a maximum period of 24 months from the date of execution of the same i.e. latest by 23.07.2015, as such, time was, unequivocally made the essence of contract.

Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word endeavour/tentative/ proposed 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. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, 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 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.

“31. However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. 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/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till 29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”,permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission.

In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

It is pertinent to note that the Opposite Parties (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time. He thus prays that ex parte ad interim stay may to be continued.

Prima facie, we are not convinced with the submission. Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today. On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals. Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but took cognizance to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed units with proper access, to the complainants i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the intimation of possession letter dated 09.08.2016 sent by the Opposite Parties is only a paper possession and not more than that.

15. The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit/plot, in question, when the same was offered to him vide letter dated 09.08.2016 (Annexure C-7) and that too, after a huge delay of about one year, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainant within a maximum period of 24 months from the date of execution of the Agreement i.e. latest by 23.07.2015. However, the Opposite Parties sent letter of offer of possession of different unit only vide letter dated 09.08.2016 to the complainant, after a huge delay of about one year and that was only a paper possession, without completion of formalities, as per terms and conditions of the Agreement. It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, by the stipulated date, 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, even 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 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.

Further, 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 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, within the stipulated date, as mentioned in the Agreement, the complainants was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

16. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.31,37,097.19, as claimed by him. The Opposite Parties in para No.3 of their written statement clearly admitted that the complainant paid the total amount of Rs.31,37,097/- and an amount of Rs.89,888/- was credited as compensation to the complainant, as is evident from statement of accounts (Annexure R-5). It is also an admitted fact that the Opposite Parties are unable to deliver possession of the unit, in question, complete in all respects, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by him. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. 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.

17. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is no doubt true that an amount of Rs.31,37,097/-, 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. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded quarterly @24% p.a.) as per Clause 3 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. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.31,37,097/-alongwith interest @12% p.a., from the respective dates of deposits till realization.

18. As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money 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 plot, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by the Opposite Parties or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the 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 the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

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

To refund the amount Rs.31,37,097/-, to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,50,000/-,for causing mental agony and physical harassment, to the complainant.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
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) shall carry penal interest @15% p.a., instead of @12% p.a., from the respective dates of deposits onwards, 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.

Consumer complaint bearing no. 67 of 2017 titled as Rajender Kumar Mehta & Anr. Vs. Emaar MGF Land Ltd. :-

21. In the present case, the complainants were allotted plot No.563 in Sector 109 vide provisional allotment letter dated 24.06.2013 (Annexure C-2). Plot Buyer’s Agreement was executed between the parties on 24.07.2013 (Annexure C-3). As per Clause 8 of the Agreement, possession of the plot was to be delivered within a maximum period of 24 months from the date of execution of the Agreement i.e. latest by 23.07.2015. It is the admitted fact that the complainants paid the total amount of Rs.30,96,630/- in respect of the plot, in question. The Opposite Parties sent intimation of possession letter dated 09.08.2016 (Annexure C-7) to the complainants i.e. after a delay of about one year, which amounted to deficiency in service and indulgence into unfair trade practice.

On the other hand, the Opposite Parties took similar objections, as taken in CC/67/2017, so there is no need to reiterate it again.

The Opposite Parties are jointly and severally directed as under:-

To refund the amount of Rs.30,96,630/-, to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,50,000/-,for causing mental agony and physical harassment, to the complainants.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
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) shall carry penal interest @15% p.a., instead of @12% p.a., from the respective dates of deposits onwards, 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.

Consumer complaint bearing no. 97 of 2017 titled as Devi Lal Banga & Anr. Vs. Emaar MGF Land Ltd. :-

22. In the present case, the complainants purchased the plot in resale from the original allottee Ms. Neena Batra on 30.06.2015. Initially, the original allottee applied for a plot in Sector 108 and plot No.404 in the project “Pinewood Park” in Sector 108 was allotted to her vide allotment letter dated 17.12.2007 (Annexure C-1). Thereafter, Plot Buyer’s Agreement was executed between the Opposite Parties and the original allottee on 15.07.2007 (Annexure C-2). As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 3 years from the date of execution of the Agreement i.e. latest by 14.07.2010. It was further stated that the Opposite Parties were unable to hand over possession of the said plot, therefore, the original allottee vide email dated 25.05.2012 requested the Opposite Parties to change the plot and the said request was accepted by the Company vide letter dated 05.07.2012 and plot No.7 in Sector 109, Mohali was allotted to the original allottee. In that regard, original allottee entered into an Amendment Agreement (Annexure C-4). The complainants paid the total amount of Rs.40,52,061/- in respect of the unit, in question. The Opposite Parties sent intimation of possession dated 21.08.2015 (Annexure C-6) i.e. after the stipulated period of about six years, which amounted to deficiency in service and indulgence into unfair trade practice.

On the other hand, the Opposite Parties almost took similar objections, as taken in CC/67/2017, which does not require to be reiterated. The Opposite Parties only took separate objection that they received only an amount of Rs.40,49,992/- from the complainants instead of Rs.40,52,061/- i.e. about a difference of Rs.3000/-. The Opposite Parties took objection that complainant No.1 is a broker/channel partner of the Opposite Parties as he is running his business under the name and style of “HEXAGON” and purchased the plot only for speculation purposes.

To rebut this point, the complainants during the pendency of the complaint, filed an application bearing No.585/2017 for placing on record relieving letter of complainant No.1 alongwith his additional affidavit.

Notice of the aforesaid application was accepted by Sh.Sanjeev Sharma, Advocate, Counsel for the non-applicants/Opposite Parties on 12.06.2017 in Court and sought time to file reply to the application, aforesaid but no reply was filed by him.

In view of reasons mentioned, we are of the view that the documents aforesaid is necessary for the just decision of the case. As such, the aforesaid application is allowed and the documents aforesaid are taken on record.

The aforesaid certificate annexed by the complainants alongwith the application (Annexure C-11) clearly proved that complainant No.1 is not the owner of the Company, as he is merely an employee of Hexagon Company. As such, the complainants fall within the definition of “Consumer” as envisaged in the Consumer Protection Act, 1986.

With regard to the receipt of the amount is concerned, it is clearly proved from statement of account (Annexure R-6) that the Opposite Parties received an amount of Rs.40,52,061/- in respect of the unit, in question.,

The Opposite Parties are jointly and severally directed as under:-

To refund the amount Rs.40,52,061/-, to the complainants, alongwith interest @12% p.a., from the date of endorsement of the unit onwards.
To pay compensation, in the sum of Rs.1,50,000/-,for causing mental agony and physical harassment, to the complainants.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
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) shall carry penal interest @15% 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.

Consumer complaint bearing No. 70 of 2017 titled as Ankit Satija & Anr. Vs. Emaar MGF Land Ltd. :-

23. In the present complaint, the complainants were allotted plot No.569 vide provisional allotment letter dated 29.05.2013 (Annexure C-2). Thereafter, Plot Buyer’s Agreement was executed between the parties on 09.07.2013 (Annexure C-3). As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 08.07.2015. The complainants paid the total amount of Rs.30,70,867/- in respect of the plot, in question. The Opposite Parties sent intimation of possession letter dated 09.08.2016 (Annexure C-7) to the complainants i.e. after a delay of about one year, which amounted to deficiency in service and indulgence into unfair trade practice.

On the other hand, Counsel for the Opposite Parties at the time of arguments, took objection that the complainants have failed to disclose to this Commission that the issues sought to be raised in the present complaint are directly and substantially similar to the issues already pending adjudication in conciliation under the provisions of Arbitration & Conciliation Act, 1996 and that too prior to lodging of this complaint and accordingly continuation of the present proceedings would be prejudicial to the rights and interest of the Opposite Parties. Counsel for the Opposite Parties further mentioned that they have preferred an application under Section 13(4) of the 1986 Act read alongwith analogous provisions of Section 10 of the Code of Civil Procedure, 1908 (CPC), as also, Section 77 & 8 of the 1996 Act.

On perusal of Section 10 of the CPC, it is observed that fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as resjudicata in the subsequent suit. Section 10 applies only in case where the whole of the subject-matter in both the suits is identical. Then the object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. This is to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute.

In the present case, the arbitration proceedings have not attained finality, so as to arrive at a conclusion that the same suit cannot be tried in Consumer Fora. It is stated that the present complaint was filed in this Commission on 20.01.2017 and notice of this complaint was issued to the Opposite Parties on 24.01.2017. The Opposite Parties vide letter dated 06.12.2016 (Annexure R-2) invited the complainants for mutual discussion of dispute in terms of Section 42 of Plot Buyer Agreement dated 09.07.2013 with respect to booked unit No.109-AP-564-158 by them. Further, vide communication dated 15.12.2016 (Annexure R-3), the Opposite Parties informed the complainants regarding the minutes of meeting of mutual discussion held on 10.12.2016 at Emaar MGF Land Limited, Sales Office, Mohali that the said mutual discussion has been conducted within the provisions of Arbitration & Conciliation Act, 1996. Further, it informed the complainants that the parties would give time to each other for consideration of proposal shared and meeting would again be held on 24.12.2016. Vide communication dated 12.02.2017 (Annexure R-4), the Sole Arbitrator appointed in this case gave his consent to the Opposite Parties to handle the arbitration and conciliation proceedings between the complainants and the Opposite Parties. It could be observed from the documents that the complainants have filed complaint on 20.01.2017 and the Opposite Parties had got the confirmation from sole Arbitrator on 12.02.2017. The first notice for appearance in the initial proceedings was issued by the sole Arbitrator to the complainants on 23.03.2017 inviting the complainants and the Opposite Parties to appear them on 06.04.2017. It is observed from the above that the arbitration proceedings had just then started. In fact, the first notice was given to both the parties on 23.03.2017, whereas, by then the complainants had instituted a complaint in the State Consumer Commission, UT, Chandigarh on 20.01.2017 and notice was issued to the Opposite Parties on 24.01.2017. It is very evident that no finality of arbitration proceedings had been arrived at in order to defer this complaint for filing a suit in the Consumer Fora. Thus, we are of the view that Section 10 of CPC is not applicable in the present case. Therefore, the plea taken by the Opposite Parties in their written statement that Section 10 of the CPC to be applied in the present case does not hold any merit and the same stands rejected.

Moreover, the complainants did not bring this fact that the Opposite Parties had issued them a notice to join in the arbitration proceedings in their complaint, to the knowledge of this Commission, which in a way it could be treated as suppression of the material fact but since no finality has been arrived in the arbitration proceedings, we may in the interest of justice condone the same. Therefore, the complainants are entitled for lesser interest & compensation.

The Opposite Parties are jointly and severally directed as under:-

To refund the amount Rs.30,70,867/-, to the complainants, alongwith interest @10% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,00,000/-,for causing mental agony and physical harassment, to the complainants.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
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) shall carry penal interest @13% p.a., instead of @10% p.a., from the respective dates of deposits onwards, and interest @10% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

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

25. Certified copy of this order be placed in Consumer Complaints Nos.67/2017, 70/2017 & 97/2017.

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

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

Pronounced.

September 12, 2017. Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/66/2017

Sukhvinder - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

12 Sep 2017

ORDER

V e r s u s

V e r s u s

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