Chandigarh

StateCommission

CC/858/2016

Ms. Nirmal Gupta - Complainant(s)

Versus

Emaar MGF Land Private Limited (EMAAR MGF) - Opp.Party(s)

Deepak Aggarwal, Adv.

03 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	858 of 2016
Date of Institution	:	29.11.2016
Date of Decision	:	03.08.2017

 

Ms. Nirmal Gupta wife of Dr. Yashpal Singla resident of YPS Hospital, Sector 70, SAS Nagar, Mohali (Punjab).

 

……Complainant

V e r s u s

1.  Emaar MGF Land Private Limited (EMAAR MGF), through its Managing Director, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh.

Site Office : Sector 105, Landran-Banur Road, Opposite Reliance Petrol Pump, SAS Nagar, Punjab 160062.

2. Emaar MGF Land Private Limited, registered office at ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its Authorized Signatory.

                                              .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Deepak Aggarwal, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainant wanted to have her own house in Mohali exclusively for the purpose of her livelihood from her retiral benefits, as such, she contacted Opposite Party No.1 and, thereafter, she was impressed by the claims/projections made by the Opposite Parties vide their advertisements in the leading newspapers/brochures for the sale of plots. Therefore, plot bearing No.176, Augusta Greens, Sector 109 was purchased by the complainant in resale from one Sh.Manjit Singh Ghai through services of the Opposite Parties. The complainant paid the total amount of Rs.55,76,210/- in respect of the unit, in question vide receipts – Annexure C-2 (Colly.). The total amount includes transfer charges of Rs.75,000/- made to Opposite Party No.1 at Chandigarh on 10.02.2011. Thereafter, endorsement was made by the Opposite Parties on 10.02.2011 in favour of the complainant. Plot Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 11.07.2007 (Annexure C-3). The complainant also placed on record provisional allotment letter dated 05.05.2007 (Annexure C-4) and letter dated 28.12.2009 (Annexure C-5), vide which, the Opposite Parties claimed to have made offer of possession. After purchase of the plot, the complainant requested the Opposite Parties to hand over physical vacant possession of the plot, after properly demarcating the same and also after completion of development works. However, the Opposite Parties lingered on the matter on one pretext or the other. Nothing concrete happened in the matter but only time was gained by the Opposite Parties. It was further stated that as per Clause 8 of the Agreement, possession of the plot was required to be delivered within a period of two years from the date of execution of the Agreement but not later than 3 years and in the event of failure, the Opposite Parties should be liable to pay penalty of Rs.50/- per sq. yds. per month for such period of delay beyond three years from the date of execution of the Agreement. It was further stated that the complainant was allotted plot No.176, which is facing sector dividing road in Sector 109 and there is no road available to reach the said plot till date and in order to visit the said plot, the complainant has to take some katcha road and zig-zag path. It was further stated that the Opposite Parties have charged Rs.4,31,250/- towards PLC, whereas, the plot, in question, is not even having the access road.  It was further stated that there was no approved layout plan for the plots and first approval for layout for plots was only granted on 29.02.2008. It was further stated that the Opposite Parties have illegally advertised and sold the plots in the year 2006, when they were not having approved layout plan. Further even Agreement was executed after about 10 months of booking, which also amounted to indulgence into unfair trade practice. It was further stated that when the possession complete in all respects was not offered to the complainant, a lot of correspondence took between the parties through emails (Annexure C-14 colly.). It was further stated that the Opposite Parties started raising bill for common area maintenance charges, water bills, interest free maintenance security, electrification charges etc. without obtaining completion certificate from the competent authority. It was further stated that even the customer care official, who accompanied the complainant to the site, could not locate the exact plot, as there was no road to reach there, no demarcation, no water arrangement but crops and wild growth were seen around. It was further stated that revenue roads/village rasta are not in possession of the Opposite Parties, rather they were not legally authorized to lay any service in area of revenue roads till the same was transferred in their name. According to RTI replies, the Opposite Parties were not in a position even to complete their project in near future. It was further stated that statement was made by the Opposite Parties through their Counsel on 10.01.2014 (in I.A. No.4442 of 2013 in FA No.212 of 2012) before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, that project Augusta Greens Sector 109, Mohali Hills in which plot was allotted, to be completed by the year 2009 is still not fully developed (Annexure C-16). It was further stated that offer of possession was made on 28.12.2009 by the Opposite Parties to the original allottee was only on papers without fully developed and even without basic amenities. The complainant made the payments, as per the terms and conditions contained in the payment schedule. Huge amount was collected by the Opposite Parties from the complainant and other members without providing the promised facilities. It was further stated that without provided those facilities and amenities, the complainant and the other allottees are unable to construct their house. It was further stated that the Opposite Parties have not deposited the bank guarantee amount with the PSPCL, Government of Punjab, due to which, even electricity connection etc. has not been provided by the electricity department. Further, the permanent electricity and water connection are not available even till date. The complainant have taken huge loan from HDFC vide loan documents/certificates & tri-partite Agreement are Annexure C-17 (Colly.). Thereafter, the complainant visited the office of the Opposite Parties for redressal of their grievances but demands of the complainant fell on deaf ears. 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.

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 further stated that the complaint is time barred, as it has been filed more than two years after accrual of alleged cause of action i.e. 28.12.2009 when possession was offered to the original allottee or at best 10.02.2011 when same was endorsed in favour 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 and registered office of the Opposite Parties is at New Delhi and as per settled law, a company can be sued only at the place its registered office is located. It was further stated that the complainant is not a consumer, as per the Consumer Protection Act, 1986 because as the complainant is already having her house in Mohali and there is no averment that she does not have any other plot in her name. It was further stated that this Commission has no pecuniary jurisdiction to try the complaint, as the claim together with interest and compensation exceeds Rs.1 crore. It was further stated that the complainant has failed to disclose that possession was offered to her and reminders were sent to her. It was further stated that the complainant wanted benefits of DPC and club charges waiver, which was duly granted but the complainant failed to take over possession. The complainant has also concealed the fact that letter dated 30.06.2014 was sent to her for settlement of final dues, in which, she was reminded to take over possession and execute conveyance by paying the stamp duty (Exhibit OP/3).  In pursuant thereto, the complainant made the payment of Rs.72,996/- towards enhanced EDC  and Rs.68,445/- towards IFMS, electrification and electricity on 10.11.2014, as is evident from email written by the complainant himself. Copy of the email dated 12.11.2014 is annexed as Exhibit OP/4. Further, the complainant also executed indemnity on 08.11.2014 towards waiver of delayed payment charges (Exhibit OP/5). The complainant also furnished undertaking cum indemnity on 08.11.2014, wherein, she agreed to execute conveyance deed within 3 months of taking over possession and to commence construction on plot within 3 years. Copy of indemnity with regard to deferring registration and payment of maintenance etc. are annexed as Exhibits OP/6 & OP/7. It was further stated that the original allottee Mr.Manjit Singh Ghai purchased plot No.109-AG-176-300 on 06.09.2006 after remitting the booking amount of Rs.10,35,000/-. The plot was later transferred to the complainant on 10.02.2011. It was further stated that intimation of possession (IOP) was sent to the original allottee on 28.12.2009 (Exhibit OP/8). It was further stated that the original allottee was a defaulter and had failed to pay the installments within their due dates despite repeated reminders. The Opposite Parties executed Agreement with the original allottee on 11.07.2007 and as per Clause 8 of the Agreement, the Company shall endeavour to deliver possession. Thus, there was no definitive agreement stating that possession would definitely be delivered within 3 years. The word “endeavour” means to try/make effort. Thereafter, reminders were sent to the complainant to take over possession many times and the complainant never raised dispute regarding lack of amenities. Copies of emails dated 08.04.2011 and 12.07.2011, wherein, the complainant was sent reminders to take over possession are Exhibits OP/9 & OP/10. It was further stated at the time of offer of possession in 2009, there was no issue of alleged sealing of forest department, there is still adequate access to plot of the complainant through a motorable road. It was further stated that the original allottee had seen all approvals and the complainant purchased the plot from secondary market after satisfying herself and no interaction was there with the Opposite Parties.  It was denied that any completion certificate was to be obtained from Government of Punjab. It was further stated that the exercise of the powers vested in him, under Section 44(2) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA Act) vide notification dated 22.12.2006. Hence, there was no requirement for the Opposite Parties to obtain any completion certificate.  Copy of notification dated 22.12.2006 is Exhibit OP/11. To avoid inconvenience to the allottees, the Opposite Parties decided to obtain the issued partial completion certificate etc. by way of abundant caution, even though it was not required to do so in view of exemption. Copy of partial completion certificate is Exhibit OP/12. Further, it was denied that there is wild growth or the plot is not locatable. A few photographs are annexed as Exhibit OP/13 (Colly.). It was further stated that all amenities as per Agreement have been completed and internal roads, water, sewerage and electrical lines had been laid, in the area, where the plot of the complainant is situated and only then possession had been offered.  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 complainant, filed rejoinder to the written statement of the Opposite Parties, wherein she 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 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 ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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.

26.        To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by 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. Relevant portion of the said case, reads thus:-

“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.”

35.     In  view of the above, the plea taken by the opposite party, that 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, being devoid of merit, is rejected.”

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

7.           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 Annexure C-2 (Colly.) – receipts/acknowledgment–cum-receipts, settlement of final dues  letter, allotment letter dated 04.11.2014, provisional allotment letter (Annexure C-4), possession letter dated 28.12.2009 (Annexure C-5), letters (Annexure C-6, C-7 & C-13) 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. 

8.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection.  As per admitted facts, the complainant sought refund of amount paid i.e. Rs.55,76,210/- alongwith interest @18% p.a. from the due dates of deposits; penalty of Rs.50/- per sq. yard per month ; compensation to the tune of Rs.5 lacs, for mental agony, harassment and punitive damages and cost of litigation to the tune of Rs.1.5 lacs. It is argued by Counsel for the Opposite Parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. This issue, whether interest is to be counted when looking into pecuniary jurisdiction of this Commission, came up for consideration in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, wherein, after noting similar objections it was observed as under:-

“13.        Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.        In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

15.       It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

              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.

9.           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 already is having her house in Mohali and there is no averment that she does not have any other plot in her name.  Even the complainant in para No.1 of her complaint has clearly stated that she wanted to have her own house in Mohali exclusively for the purposes of her livelihood. 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 her, by way of investment, 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. 

10.          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 three years, 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 three years, 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, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of three years from the date of execution of the same, 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 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.

11.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainant, complete in all respects or not. As per Clause 8 of the Agreement, which was executed between the original allottee and the Opposite Parties, possession of the unit was to be delivered to the complainant within a period of 2 years from the date of execution of the Agreement but not later than 3 years. So, the period of 3 years from the date of execution of the Agreement dated 11.07.2007 has expired on 10.07.2010. However, the Opposite Parties alleged that they offered possession to the complainant vide letter dated 28.12.2009 (Annexure C-5) which was within the stipulated period, as mentioned in the Agreement but the complainant failed to take possession for the reasons best known to her. At the time of arguments, Counsel for the complainant stated that the possession offered by the Opposite Parties is only a paper possession because updation letter regarding the project was sent to the complainant instead of actual physical possession. To prove this fact, the complainant has also placed on record possession letter dated 28.12.2009 (Annexure C-5). The relevant portion of the said letter 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 x xx x x x”

From the afore-extracted letter, it is clear that it is only an updation letter regarding status of the development work of the project and it is not an actual physical possession letter. Even the complainant in her complaint has specifically stated that she exchanged number of emails with the Opposite Parties – Annexure C-14 (Colly.) with regard to lack of amenities and not offering actual physical possession of the plot. The complainant further stated that she was allotted plot No.176, which is facing sector dividing road and in order to visit the said plot, the complainant has to take some katcha road and zig-zag path. The complainant further stated that the Opposite Party even charged Rs.4,31,250/- towards PLC charges, whereas, the plot, in question, is not having any access road. The complainant has also pointed out emails, which was exchanged between the parties – Annexure C-4 (Colly.) i.e. email dated 06.06.2016 (at page No.108) which was written by the complainant to the Opposite Parties, in which, it has been clearly mentioned that there is no proper approach road yet to the plot and there was no provision for getting electricity, sewerage or water supply from the concerned authorities such as PSPCL etc. The complainant has also pointed out email dated 14.09.2016 (at page No.107 of the file), which was sent by the complainant to the Opposite Parties. The relevant portion of the said email reads thus :-

“x x x x x x

It has been more than 5 years since I paid the full price of the land and I am requesting your office to make arrangements for physical possession of the plot in proper condition for the last three years, but every time I contact you for this purpose, I get some more bills to be paid even though I have paid for each and everything, I was told to. X x x x”

The complainant has also pointed out email dated 06.06.2016 (at page No.108 of the file), which was sent by the complainant  to the Opposite Parties. The relevant portion of the said email reads thus :-

“x x x x. I have visited the plot site at two different times but found it not up to the mark for possession. There is no proper approach road yet to the plot and there was no provision for getting electricity, sewerage or water supplies from the concerned authorities such as PSPCL etc.

There was a crop next to the plot and wild growth all around. X x x x x x”

As such, it is clearly proved that the Opposite Parties are not in a position to give physical possession of the plot. The complainant has also placed on record photographs (Annexures C-18 Colly.) to prove the said fact. It is the admitted fact that the Opposite Parties only obtained Partial Completion Certificate dated 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainant vide letter dated 28.12.2009 (Annexure C-5) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about six years of offer of possession. The complainant has also pointed out in his rejoinder that engineering schemes were approved by GMADA only on 09.02.2010 and that too subject to fourteen conditions (at page No.129 to 131 of the file) and one of the condition being that promoter shall secure the required permission of competent authority before laying services under the revenue rasta , if any. It is further stated that the land of revenue rastas falling in Sector 109 was under litigation uptill 01.10.2014, as is clear from the decision rendered by Hon’ble High Court of Punjab & Haryana, Chandigarh in Civil Writ Petition No.4212 of 2014 (O & M), date of decision 01.10.2014. It is further stated that electrical layout was approved only in the month of March, 2011 and without approval of electrical layout even the electrical poles cannot be laid in the area, where the plot of the complainant is situated. The complainant has also attached RTI information dated 30.06.2014 (at page No.119 of the file), in which, it has been clearly mentioned that not even a single connection has been released under the category of permanent domestic connection category in Sector 109, in the project of the Opposite Parties by PSPCL from 2007 to 2014. The complainant has also placed on record RTI information dated 16.06.2014 (at page No.138), it has come on record that even the acquisition process of land in Sector 109 is stopped due to court case i.e. CWP No.25843 of 2013. It was further stated that uptill 13.08.2014 no external development work had been commenced by the GMADA as per RTI information (at page No.221). The complainant has also placed on record RTI information obtained by another allottee i.e. dated 05.05.2015 (Annexure C-19), in which, it has been clearly mentioned that the entry points of the project of M/s Emaar MGF Land Ltd. (Mohali Hills) for Sector 109, 108 and 105 have been closed by the Forest Department by thorny fencing wire and digging the trenches. The abovementioned paths has been closed due to the reason that user agency has not obtained the requisite permission from Government of India for the use of land of Forest Department under FCA 1980 for the paths and the paths will be opened only after obtaining the final approval from Government of India. It is also relevant to note that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi vide order dated 10.01.2014 (Annexure C-16) in MA/531/2013 in FA/212/2012, in which, it has been mentioned that “learned Counsel appearing for the appellants has candidly admitted that the project Augusta Greens, Sector 109, Mohali Hills, in which the plot was allotted to the complainants/respondents, to be completed by the year 2007, is still not fully developed.”  From the afore-extracted paragraph, it is clearly proved that the infrastructure in Sector 109 was not completed and as on date, the position was the same. Even the Opposite Parties failed to place on record any document, which could prove that all the basic amenities were complete at the site. 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.

12.          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, in question, when the same was offered to her vide letter dated 28.12.2009 (Annexure C-5) and that too, 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 3 years from the date of execution of the Agreement i.e. latest by 10.07.2010. However, the Opposite Parties sent letter of offer of possession only vide letter dated 28.12.2009 to the complainant 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. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held 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. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of 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, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

Moreover, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   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 complainant 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.

13.          The next question, that falls for consideration, is, as to what amount was deposited by the complainant in respect of the unit, in question. The complainant has claimed in the prayer clause of the complaint, an amount of Rs.55,76,210/-. On the other hand, at the time of arguments, Counsel for the Opposite Parties denied the receipt of the amount of Rs.3,16,236/- from the complainant. Even the complainant has failed to place on record to prove that she paid the amount of Rs.3,16,236/- in respect of the plot, in question. As such, it is clearly proved that the complainant paid the total amount of Rs.52,59,974/- (Rs.55,76,210/- - Rs.3,16,236/-) in respect of the unit, in question. 

14.          The next objection that falls for consideration before us is as to whether the complaint was time barred, as the same was filed more than 2 years after accrual of alleged cause of action i.e. 28.12.2009 when possession was offered to the original allottee or at best 10.02.2011 when the same was endorsed in favour of the complainant.

It may be stated here that it is very clear from the record that paper possession in nature was offered to the original allottee on 28.12.2009 and the said plot was purchased by the complainant, which was endorsed in favour of the complainant on 10.02.2011 but the complainant filed the instant complaint on 2911.2016 i.e. after a gap of five years for redressal of her grievance against the Opposite Parties. It is pertinent to note that the Opposite Parties failed to give physical possession complete in all respects to the complainant, despite receipt of the huge amount from her, so it is clearly proved that there is continuing cause of action, in her 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.

15.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.52,59,974/-, deposited by her. It is 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 her. 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 her. 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 her.

16.          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.52,59,974/-, 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 @15%) 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 her, to the tune of Rs.52,59,974/-alongwith interest @15% p.a., from the respective dates of deposits till realization. 

17.          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 she (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 herself is rescinding the contract, as such, she 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.

18.          Since we are refunding the whole deposited amount to the complainant alongwith compensation and litigation expenses, therefore, we are of the view that she is not entitled to claim any other relief, as claimed by her in the prayer clause.

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:-

1. To refund the amount Rs.52,59,974/-, to  the  complainant, alongwith interest @15% p.a.,     from the respective date of endorsement of the unit i.e. from date 10.02.2011 onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.55,000/- 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 @18% p.a., instead of @15% p.a., from the respective date of default and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

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

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

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

Pronounced.

August 3, 2017.                                      Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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