Chandigarh

StateCommission

CC/442/2016

Vivek Malhotra - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

24 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	442 of 2016
Date of Institution	:	09.08.2016
Date of Decision	:	24.03.2017

 

1. Vivek Malhotra s/o Sh. S.C.Malhotra, r/o H.No.383, Sector 38-A, Chandigarh, currently residing in 2334 Picasso Way, EI Dorado Hills, CA 95762, United States of America.
2. Anjali Malhotra w/o Sh. Vivek Malhotra, r/o H.No.383, Sector 38-A, Chandigarh, currently residing in 2334 Picasso Way, EI Dorado Hills, CA 95762, United States of America.

……Complainants

V e r s u s

1. Emaar MGF Land Ltd., SCO No. 120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/ Authorized Signatory.  
2. 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

 

               The facts, in brief, are that the complainants were willing to own a residential plot for their family and personal use, with an intention for staying rooted to their motherland and accordingly, bought plot No.87, measuring 400 sq. yds. in Pinewood Greens in Sector 108, SAS Nagar, Mohali in resale from the original allottee Sh. Amit Malhotra and the same was transferred in their name on 21.01.2010. Plot Buyer’s Agreement was executed between the parties on 07.07.2007 (Annexure C-2). According to Clause 8 of the Agreement, possession of the said plot was to be delivered within a period of 2 years from the date of execution of Agreement but not later than 3 years i.e. latest by 07.07.2010. It was stated that the complainants already made the payment of Rs.59,94,400/- towards the consideration of the said plot. It was further stated that the Punjab Government slashed the EDC from Rs.1811/- per sq. yd. to Rs.807/- per sq. yd. but the Opposite Parties took the EDC as per the old rates and holding the same for almost six years and even after lot of correspondence, the said amount has not been refunded to them (Annexure C-3). It was further stated that the Opposite Parties vide letter dated 02.05.2014 offered possession to the complainants (Annexure C-4) but it was only a paper possession and that too after almost 4 years of delay as per the Agreement. It was further stated that the complainants being NRI were never given the status of the exact ground realities existing at the project and were always given a rosy picture. It was further stated that regarding the main entrance of Sector 109, there is a matter pending before the Civil Court, Kharar under Sections 29, 33 and 63 of Indian Forest Act, 1927 and the Opposite Parties have violated the order passed by the Hon’ble Supreme Court dated 12.12.1996. Moreover, the deadline given by PUDA to complete the said project in all aspects already over by 30.06.2015. Copies of the RTI are Annexures C-5 & C-6.  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 complainants, 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.

2.           The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complaint is not maintainable at Chandigarh because the Agreement was signed/executed at Delhi and payments were made at Mohali. It was further stated that as per Clause 8 of the Agreement, in case of any delay in handing over of possession beyond the expected period set out, the Company should be liable to pay to the allottee penalty, as per the terms of the Agreement, however, as the possession was duly offered in November, 2009 i.e. within agreed timeline, so no compensation is payable to the complainants. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was further stated that both the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that in case of failure of the allottee to perform all obligations as set out in the Agreement, the allottee has authorized the Company to forfeit the earnest money as stipulated in Clause 2(f) of the Agreement alongwith interest paid, due or payable, any amount of non refundable nature. It was further stated that this complaint is liable to the dismissed because the complainants have concealed the material points from this Commission. It was further stated that the complaint is not maintainable as the complaint has been filed on the premise that possession of the plot has not been handed over on time, whereas, the possession of the plot was offered  to the complainants in November, 2009 to the earlier allottee duly endorsed on January, 2010 itself and letter of settlement of dues/intimation for handing over of possession and execution of conveyance deed was sent on 02.05.2014, which was also admitted by the complainants. It was further stated that this complaint is barred by limitation, as the cause of action, if any, to file the consumer complaint accrued firstly in November, 2009/January, 2010 and lastly in May, 2014 when the said letter for handing over of possession was sent on 02.05.2014 and the present complaint filed by the complainants in August, 2016 is beyond the period of limitation. It was further stated that no delayed penalty/compensation is payable to the complainants  as the possession has already been offered and in fact, the complainants are also liable to pay holding charges for not taking possession.  It was admitted regarding booking of the plot by the original allottee Sh.Amit Malhotra, which was, thereafter, endorsed in favour of the complainants (Annexure R-2) and also admitted regarding execution of the Agreement with the original allottee. It was further stated that EDC has been demanded, as per the Government notifications and the EDC has been held back and are to be adjusted with stamp duty and registration and other applicable charges. The EDC charges have been reversed in the IOP letter dated 02.05.2014 sent to the complainants. The Opposite Parties has given waiver for Rs.3,01,591/- for delayed payment charges to the complainants as a service gesture. It was further stated that the Company issued letter for settlement of dues/intimation for handing over possession and execution of conveyance deed on 02.05.2014 and the complainants were asked to complete the documentation and remit the amounts so that possession and registration of the conveyance deed could be facilitated. It was further stated that the plot of the complainants is situated in Sector 108, Mohali and the main entrance of Sector 108 is clear in all respects, as each sector has its own separate entrance and there is no matter pending in any Court and even a perusal of RTI annexed as complainants shows that it pertained to Sector 105 and the pending case is regarding Sector 109. It was further stated that the complainants are speculators and not a consumer as they are residing abroad and they have no intention to return and reside in India and have purchased the plot solely for purposes of speculation only. It was further stated that possession has been offered after completion of all the amenities and the allegation of paper possession are baseless.  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.

3.           The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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

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

6.           The only sole question that falls for consideration is, as to whether, the complainants concealed the material fact regarding possession with this Commission or not. It is, no doubt, true that initially, the plot bearing No.87 in Pinewood Greens, Sector 108, Mohali was booked by Sh.Amit Malhotra. Plot Buyer’s Agreement was also executed between the initial allottee and the Opposite Parties on 07.07.2007. As per Clause 8 of the Agreement, possession of the plot was to be delivered within a period of two years from the date of execution of the Agreement but not later than three years. So, it is clearly proved that possession of the plot/unit was to be delivered within a maximum period of three years from the date of execution of the Agreement i.e. latest by 06.07.2010 and not more than that. It is also true that the complainants purchased the said plot from the initial allottee and the same was endorsed in favour of the complainants in January, 2010. The complainants in their complaint have stated that possession was offered by the Opposite Parties vide letter dated 02.05.2014 (Annexure C-4) but it was only a paper possession and that too after almost four years of delay, as per the Agreement. On the other hand, the Counsel for the Opposite Parties, at the time of arguments, argued that the possession of the plot has already been offered, within the stipulated timeframe, as mentioned in the Agreement, to the initial allottee (Sh.Amit Malhotra) in April, 2010 and this fact has been concealed by the complainants, at the time of filing the complaint and the said fact was within their knowledge because they purchased the plot from the initial allottee and the receipts/documents alongwith offer of possession letter were also endorsed in favour of the complainants on 21.01.2010. To prove this fact, the Opposite Parties have also placed on record possession letter (Annexure R-3), which clearly proves that possession of plot No.87, Pinewood Greens in the project being developed under the name and style of Emaar MGF Mohali Hills, Sector 108, SAS Nagar, Mohali was offered to Mr.Amit Malhotra (initial allottee). It is also proved from the statement of account, annexed by the Opposite Parties, that the complainants deposited the total amount of Rs.58,99,400/- in respect of the unit, in question. At the time of arguments, Counsel for the Opposite Parties also brought to the knowledge of this Commission the email (at page No.57 of the complainant’s documents), which was sent by the complainants to the Opposite Parties, in which, it has been clearly proved that possession was offered in the year 2010 and the said fact was within the knowledge of the complainants. The relevant portion of the said email (at page No.57 of the complainant’s documents) reads thus :-

“I am holding a plot of size 400 sqyds name Mr.Vivek Malhotra and we already received the possession of said plot No.87 PG-108 Mohali in April, 2010.

Now I need some clarifications

1. When the registration will start.
2. Can we construct the property now or we need registration first.
3. What are the process if we would like to construct immediately.
4. Three years of construction time will be start from the date of possession or from the date of registry ? Even though you had given us possession in April, I was told to wait for Construction.”

A bare perusal of the afore-extracted email, which was sent by the complainants to the Opposite Parties, clearly reveals that the complainants already received possession of the plot in April, 2010. Not only this, during the pendency of the complaint, the Opposite Parties filed Miscellaneous Application No.599 of 2016 for placing on record additional evidences i.e. Possession Certificate dated 06.03.2010 alongwith indemnity dated 18.03.2010 and list of this Commission, showing another complaint was filed by Sh.Vivek Malhotra (one of the complainants) against M/s Omaxe Chandigarh. The said application was allowed by this Commission vide order dated 21.12.2016 and the said documents (Annexures R-8 colly. & R-9) are taken on record. A bare perusal of the said Possession Certificate dated 06.03.2010 alongwith indemnity dated 18.03.2010, annexed by the Opposite Parties, clearly reveal that possession has already been handed over to the complainants because the possession certificate has been duly signed by the complainants and this fact has been concealed by the complainants from this Commission because not even a single word has  been written in their complaint that possession has already been offered by the Opposite Parties in the year 2010. The letter dated 02.05.2014 (Annexure C-4) sent to the complainants is only settlement of final dues letter, in which, the Opposite Parties informed regarding commencing of the process of execution and registration of conveyance deed shortly. So, it is clearly proved that this is a clear case of concealment of the material fact from this Commission. The Hon'ble National Consumer Disputes Redressal Commission, New Delhi also observed in Atlanta Arcade Premises Co.op. Society Ltd., 2012 (1) CCC 138, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless petitions in different foras. Time and again courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Note was taken of the observations of the Hon’ble Apex Court in Ravindra Kaur Vs. Ashok Kumar, AIR 2004 SC 904 to the effect that:

“Courts of law should be careful enough to see through such diabolical plans of the judgement debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system Note was also taken of the observations of the Apex Court in Ramrameshwari Devi and Ors. v/s. Nirmala Devi and Ors. to the effect that:

It is also a matter of common experience that to achieve, clandestine objects false pleas are often taken and forged documents are filed indiscriminatively in our Courts because they have hardly any apprehension of being prosecuted for perjury by the Courts or even pay heavy costs. In Swaran Singh vs. State of Punjab (2000) 5 SCC 668 this Court was constrained to observe that perjury has become a way of life in our Courts Note was also taken of para 50 where a common mans general impression was articulated:

Make any false averments, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation , and in any case, delay the matters endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.

Eventually the revision petition was dismissed by the National Commission with costs of Rs. 2,00,000/-. Rs. 1,00,000/- was ordered to be deposited in consumer legal aid account.”

The principle of law is fully applicable to the present case. We are of the view that it is settled law that if any, concealment of material fact is found on the part of any party, then such party cannot be granted any discretionary relief under the provisions of Consumer Protection Act, 1986.

7.           In view of above, this complaint stands dismissed, with no order as to costs.

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

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

Pronounced.

March 24, 2017.                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb