Chandigarh

StateCommission

CC/675/2017

Makhan Singh - Complainant(s)

Versus

Emaar MGF Land Ltd - Opp.Party(s)

Savinder Singh Gill Adv. & Hoshiar Chand Adv.

02 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	675 of 2017
Date of Institution	:	07.09.2017
Date of Decision	:	02.05.2018

 

1. Makhan Singh son of Sh.Gurdial Singh r/o village Chunni Khurd, P.O. Chunni Kalan, Tehsil Bassi Pathana, Fatehgarh Sahib.

 

2. Kuldeep Kaur W/o Makhan Singh r/o Village Chunni Khurd, P.O. Chunni Kalan, Tehsil Bassi Pathana, Fatehgarh Sahib.

 

……Complainants

V e r s u s

1. Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director Sh.Shravan Gupta.
2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001 through its CEO Sh.Sanjay Malhotra.
3. Sh. Shravan Gupta, Director of Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.
4. Sh. Sanjay Malhotra, CEO of Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali.

                                              .... Opposite Parties

Argued by:       

 

Sh. Savinder Singh Gill, Advocate for the complainants.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

Complaint case No.	:	676 of 2017
Date of Institution	:	07.09.2017
Date of Decision	:	02.05.2018

 

Mamta Bhardwaj, W/o Sh.Siddharth Bhardwaj, r/o H.No.5747, Nicholson Road, Ambala Cantt. Haryana.

……Complainant

V e r s u s

1.      Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, through its Managing Director Sh.Shravan Gupta.

Also at : Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001through its CEO Sh.Sanjay Malhotra.

 

2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001 through its CEO Sh.Sanjay Malhotra.
3. Sh. Shravan Gupta, Director of Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.
4. Sh. Sanjay Malhotra, CEO of Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali.

                                              .... 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 complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

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

1.	CC/675/2017	Makhan Singh & anr.	Vs.	Emaar MGF Land Limited.
2.	CC/676/2017	Mamta Bhardwaj	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 21.03.2018, 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. 675 of 2017, titled as “Makan Singh & Anr. Vs. Emaar MGF Land Limited & Ors.”.

5.           The facts, in brief, are that the complainants were willing to own a residential plot for family and personal use and accordingly they bought plot bearing No.243 in Sector 109, Mohali Hills, SAS Nagar, Mohali. The total sale consideration of the said plot was Rs.50,43,300/-. The complainants were allotted the said plot vide provisional allotment letter dated 01.11.2010 (Annexure C-1). Subsequently, Plot Buyer’s Agreement was signed between the parties on 28.04.2011 (Annexure C-2). As per Clause 8 of the Agreement, possession of the unit/plot was to be delivered within a period of 12 months from the date of execution of the Agreement. According to the same clause, the Company was also liable to pay a penalty of Rs.50/- per sq. yds. per month for the period of delay beyond 18 months from the date of execution of the Agreement. It was further stated that possession of the said plot was to be handed over by 27.04.2012. The complainants made the total payment of Rs.60,55,800/- in respect of the plot, in question, as per account statement (Annexure C-4).  Thereafter, on 23.04.2013, the Opposite Parties sent a letter (Annexure C-5) updating the complainants regarding status of the development work of the project. After receipt of the said letter, the complainants made the payment of Rs.9,31,250/- towards the remaining sale price but after visiting the site of the project, the complainants came to know that the entry points of the said sector had been sealed by the Forest Department and even the project lacked basic amenities. It was further stated that aforesaid letter dated 23.04.2013 was only a construction update. It was further stated that the Opposite Parties did not have the completion certificate and entry points sealed by the Forest Department, therefore, the possession offered by the Opposite Parties merely a paper possession and not more than that. It was further stated that the deadline given by PUDA to complete the said project in all aspects is already over by 30.06.2015 and copy of the information received under RTI annexed as Annexure C-7.  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.

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 the complainants have failed to place on record the reminder possession letter dated 09.05.2014, wherein, delayed payment charges were waived and the complainants undertook not to raise any claim against the Company. Further, the complainants have not highlighted that they were habitual defaulters and their allotment was cancelled. It was further stated that the complainants have also concealed the fact that letter dated 19.04.2017 was sent requesting them to take over possession else holding charges would be imposed. It was further stated that the complainants did not fall within the definition of “Consumer” as per the Consumer Protection Act, 1986 because they are presently residing at Bassi Pathana and despite possession having been repeatedly offered since 2013, the complainants have failed to take over the same, which makes it clear that they are speculators. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint. It was further stated that the complaint was time barred, as it has been filed more than two years after accrual of alleged cause of action, which allegedly accrued to the complainants in 2013 when possession was offered for the first time but same was not taken on extraneous grounds. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the property is located at Mohali, registered office of the Opposite Parties are at New Delhi and as per settled law, a company can be sued only at the place its registered cover is located. It was admitted regarding booking of the unit ; execution of the Agreement and payment of the total consideration of Rs.60,55,800/-. It was further stated that as per Clause 8 of the Agreement, possession was endeavoured to be handed over within a period of 18 months from the date of execution of the Agreement else there was a stipulated penalty, which adequately safeguarded the interest of the allottee. It is settled law that in cases of sale of immovable property, time is never regarded as the essence of the contract and period of 18 months was not a definitive date of possession. It was further stated that the Opposite Parties were liable to pay compensation for delay, as per the Agreement and the same is payable at the time of Intimation of Possession. It was further stated that possession was offered vide letter dated 23.04.2013 (Annexure C-5) but they failed to take the possession for the reasons best known to them, even after many telephonic reminders and reminder letters dated 09.05.2014 and 19.04.2017 having been sent to them.   It was denied that the letter dated 23.04.2013 was a mere intimation regarding status of the development work of the project. It was further stated that vide letter dated 11.02.2010, GMADA granted permission to the Opposite Parties for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of the Opposite Parties and relevant fee was deposited by them.  It was further stated that vide letter dated 15.04.2015 the Chief Administrator, GMADA was requested by the Opposite Parties to take up issue with Forest Department to provide connectivity. It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainants i.e. through a motorable road and stand of the complainants that all entry points are sealed is malafide and without any basis. It was further stated that there is no sealing and no issue relating to alleged sealing is pending. It was admitted that the complainants made the payment of Rs.9,31,250/- on 28.03.2014 after his alleged visit in 2013, which implies that the complainants were well aware of the fact that there was adequate access and condoned the alleged delay in handing over of possession. It was further stated that vide letter dated 20.02.2014 the plot was cancelled and forfeiture effected due to non-payment of dues (Exhibit OP/15). Thereafter, the complainants made payments and the Opposite Parties also waived delayed payment charges of more than Rs.6 lacs as a goodwill gesture. 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 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. 

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.          The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12.  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.

                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.”

                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.”

             

            Against the order passed by the larger Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, M/s Emaar MGF Land Limited filed Civil Appeal No.(s) 23512-23513 of 2017 in Hon’ble Supreme Court of India, which was also dismissed.

              In view of the above, the objection raised by Counsel for the Opposite Parties, 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 complainants, 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 at Chandigarh (Annexure C-2). Not only this, letters – Annexures C-1 & C-5 and receipts/acknowledgment cum receipts – Annexure C-3 (Colly.) 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 complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

12.          Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. In the present case, even if the interest component is added to the amount claimed/price of the unit, the case is well within the pecuniary jurisdiction of this Commission. In view of above, this objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

13.          The next question, that falls for consideration, is, as to whether, the complainants fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The plea taken by the Opposite Parties in their written statement that the complainants are residing at Bassi Pathana and despite possession having been repeatedly offered since 2013, the complainants have failed to take over the same, which proves that they are speculators. After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected. It has been mentioned by the complainants, in para no.1 of his complaint that they were willing to own a residential plot for their family and personal use. Moreover, the complainants stated in their complaint the possession offered by the Opposite Parties is just a mere paper possession and the legal physical possession of the said plot has been delayed by the Opposite Parties by more than five years.  Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers. Thus, in the absence of any cogent evidence, in support of the objection raised by the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainants purchased the property for speculation purposes, as such, they did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall 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.  

14.          Another objection raised by Counsel for the Opposite Parties at the time of arguments that since it was mentioned in the Agreement that the Company shall “endeavour” to deliver possession of the unit within maximum period of 18 months from the date of execution of the Agreement, 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 unit will be delivered by the Opposite Parties, within a maximum period of 18 months from the date of 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, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 18 months from the date of execution of the Agreement, 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.

15.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the  complainants. According to Clause 8 of the Plot Buyer’s Agreement dated 28.04.2011 (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the plot, in question, within a period of 12 months, from the date of execution of the Agreement, but not later than 18 months. It is, thus, evident, from Clause 8 of the Agreement, that the Opposite Parties were required to deliver possession of the plot, in question, in favour of  the complainants,  within the maximum period of 18 months, from the date of execution of the  Agreement dated 18.04.2011, i.e. latest by 17.10.2012 and not more than that.

16.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainants, complete in all respects or not. As per Clause 8 of the Agreement, possession of the unit was to be delivered to the complainants within a period of 12 months from the date of execution of the Agreement but not later than 18 months. So, the period of 18 months from the date of execution of the Agreement dated 28.04.2011 has expired on 27.10.2012. However, the Opposite Parties sent letter of intimation of possession to the complainants vide letter dated 23.04.2013 (Annexure    C-5) i.e. after a delay of about 6 months. According to the Counsel for the Opposite Parties, possession of the said plot was offered to the complainants vide intimation of possession letter dated 23.04.2013 (Annexure C-5) and, thereafter, sent telephonic reminders and reminder letters dated 09.05.2014 and 19.04.2017, after completion of amenities, the complainants did not come forward to take possession of the said plot, in question. On the other hand, as per the complainants, the Opposite Parties offered possession vide the aforesaid letter, without completion of amenities, at the site because when the complainants visited the site, they found that the entry points were sealed by the Forest Department, as such, possession offered by the Opposite Parties was just a mere paper possession.   After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Parties because the Opposite Parties in their intimation of possession letter in respect of plot No.243, Augusta Greens in the project under the name and style of Emaar MGF, Mohali Hills, Sector 109, SAS Nagar, Mohali dated 23.04.2013 (Annexure C-5) sent to the complainants, which reads thus :-

 “This has reference to the Plot allotted to you in the Project. We take this opportunity to update you on the status of the development work of the Project and in particular about the Plot situated in Augusta Greens, Sector 109 of the Project.

X x x x x x

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Greens, Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.”

 A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainants regarding updation of the status of the development work of the project.  In the present case, according to the Agreement, possession was to be delivered to the complainant within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 27.10.2012 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainants, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 23.04.2013 i.e. after a delay of about 6 months that too was only a paper possession and not more than.  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.  The Opposite Parties only obtained Partial Completion Certificate only on 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainants vide letter dated 23.04.2013 (Annexure C-5) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about 2 ½ years of offer of possession. So, it is clearly proved that when the possession letter was sent to the complainants, the project was not complete. A bare perusal of possession letter (Annexure C-5) clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by                            this Commission regarding the issue of sealing of project by Forest Department and other issues in Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

“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 having regard 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 flats 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 possession offered by the Opposite Parties is only a paper possession and not more than that.

17.          The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit/plot, in question, when the same was offered to them vide letter dated 23.04.2013 (Annexure C-5) and that too, after a delay of about six months, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainants within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 27.10.2012. However, the Opposite Parties sent letter of offer of possession of different unit only vide letter dated 23.04.2013 to the complainants, after a delay of about six months and that too 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 were at liberty, not to accept the offer made after a long delay followed by reminder dated 09.03.2014 and 19.04.2017, 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.

18.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It is clearly proved from the aforesaid paras that the Opposite Parties failed to offer/deliver possession of the unit, complete in all respects, to the complainants within the stipulated period, as per terms and conditions of the Agreement and the possession offered by the complainants vide intimation of possession letter dated 23.04.2013 (Annexure C-5) i.e. only a paper possession and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

19.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.60,55,800/-, as claimed by them. It is evident from the statement of account (Annexure C-4) that the complainants deposited the total amount of Rs.60,55,800/-. In the present case, the Opposite Parties only offered paper possession and failed to give physical 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 complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by them. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the  Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

20.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is no doubt true that an amount of Rs.60,55,800/-, was paid by the complainants, 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  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.60,55,800/-alongwith interest @10% p.a., from the respective dates of deposits till realization. 

21.          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 complainants, by the stipulated date but it was they (complainants) 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 are  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 complainants themselves are rescinding the contract, as such, they are 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.

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

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

1. To refund the amount of Rs.60,55,800/-, to  the  complainants, alongwith interest @10% p.a.,  from the respective dates of deposits onwards.
2. To pay compensation, in the sum of     Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.
4. 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 @12% 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.

 

Consumer complaint bearing no. 676 of 2017 titled as Mamta Bhardwaj Vs. Emaar MGF Land Ltd. :-

24.           In the present case, the complainant was allotted plot No.243 measuring 300 sq. yards vide provisional allotment letter dated 11.04.2007 (Annexure C-1). Thereafter, as per the request of the complainant, the Opposite Parties changed the aforeasaid plot and allotted plot bearing No.309 in the project named Augusta Park, situated at Sector 109, Mohali vide allotment letter dated 29.08.2007 (Annexure C-2). Plot Buyer’s Agreement was executed between the parties on 04.07.2007 (Annexure C-3). According to Clause 8 of the Agreement, possession of the said 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 i.e. latest by 03.07.2010. The complainant already paid the amount of Rs.39,52,855/-. It was further stated that the Opposite Parties vide letter dated 05.05.2011 updating the complainant regarding status of the development work of the project (Annexure C-8). After receipt of the letter, the complainant visited the site and found the sealing of the entry points of the concerned sector i.e. Sector 109 and intimated the Opposite Parties regarding incomplete development of the project. However, the Opposite Parties failed to give complete physical possession of the plot, in question, to the complainant, which amounted to deficiency in service and indulgence into unfair trade practice.

25.          On the other hand, the Opposite Parties took similar objections, as taken in CC/675/2017, so there is no need to reiterate it again.

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

1. To refund the amount of Rs.39,52,855/-, to  the  complainant, alongwith interest @10% p.a.,  from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant.
4. 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 @12% 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.

 

27.          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).

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

29.          Certified copy of this order be placed in CC/676/2017.

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

Pronounced.

May 2^nd, 2018                                         Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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