Punjab

StateCommission

CC/147/2016

Ramesh Chopra - Complainant(s)

Versus

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

Devinder Singh

10 Jan 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,       PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No. 147 of 2016

 

                                                          Date of Institution   :  18.05.2016                                 

                                                         Order Reserved on : 08.01.2018

                                                          Date of Decision     : 10.01.2018

 

Ramesh Chopra son of Sh. Lahori Mal, Resident of House No. 871, 1st Floor, Sector 70 Mohali and now residing at House No. 2431/B, Mundi Complex, Sector 70, Mohali.

                                                                                      ….Complainant

                                      Versus

 

1.      M/s Emmar MGF Land Limited through its Director, registered          office at ECE House, 28-KG Marg, New Delhi 110001

 

2.      M/s Emmar MGF Land Limited through its Manager, Corporate        office SCO 120-122, Ist Floor, Sector 17-C, Chandigarh- 160017.

 

                                                                         …Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. D.S. Soundh, Advocate

          For opposite parties         :  Sh. Ashim Aggarwal, Advocate

            …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs had floated a scheme for allotment of residential plots in their project under the name and style of Mohali Hills. OPs made advertisements in the newspapers with regard to the above project. The complainant intended to settle near Chandigarh/Mohali, therefore, he approached OPs and allured by the presentation given by the OPs, he purchased Plot no. 104-EP-14-250 measuring approximately 250 sq. yards in Mohali Hills Sector 104 SAS Nagar @ Rs.17,000/- per sq. yard for a sum of Rs.52,34,000/- including Rs.5,31,250/-, as preferential location charges, Rs.4,52,750/- as external development charges. Buyer's agreement was executed between the parties on 24.02.2012.  He paid all the installments towards sale  consideration of Rs.52,34,000/-. As per clause 8 of plot buyers agreement, the physical possession of residential plot was to be handed over within a period of 12 months and not later than 18 months from the date of execution of the same to the allottee. The OPs were to deliver the possession of the plot to him at the latest by 24.08.2013. As per agreement, in case, the possession of plot was delayed on account of reasons beyond the control of OPs, they would be liable to pay penalty @ Rs. 50/- per sq. yard per month. He visited the site in the year 2012, where the plot was to be carved out, but there was no progress in the project. He again visited the site in the  year 2013 and was shocked to see that no development work has been done at the site. He requested OPs various times to hand over the physical possession of the plot, but they lingered on the matter on one pretext or the other. After waiting for quite some time, he again approached the OPs, but of no use. He was astonished to find that no sewerage and water supply lines were being laid in the area, where the allotted plot was situated. There was no expectation of completion of requisite amenities and infrastructure even in the near future in the project. When, he enquired about this from officials of OPs and then he was intimated that penalty for delay, in offering the possession, if any shall be applicable, as per the terms and conditions of buyers agreement and same shall be considered at the time of delivery of possession. The OPs collected the huge amount from him by making false promises. He alleged deficiency in service and unfair trade practice on the part of OPs in this case. He requested OPs various times verbally and by making personal visits for refund of his deposited amount, but of no use. He has suffered a huge financial loss and harassment due to this illegal act of OPs. Therefore, he has prayed that OPs be directed to refund the principal amount of Rs.50,85,065/- which was deposited towards booking of plot along with interest @ 18% per annum on the amount deposited by him,  Rs. 5 lac as compensation for mental agony, penalty of @ Rs.50/- per sq. yard and physical harassment and Rs.50,000/- as costs of litigation.  

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by denying all the allegations and averments made in the complaint. The present complaint is alleged to be a gross abuse of the process of law and deserving to be dismissed with costs. The complaint is alleged to be false, frivolous, misconceived and vexatious in nature and filed with sole intention of harassing the OPs. The complaint is alleged to be time barred and no cause of action has accrued to file the present complaint to the complainant. The complainant is alleged to be not a consumer of OPs. On merits, it was averred that complainant purchased the unit from some earlier allottee Mr. Jaipreet Singh and the unit was transferred in his name after completion of relevant transfer formalities. The provisional allotment letter dated 14.09.2010 and booking amount receipt dated 14.09.2010 was endorsed in his favour. The unit was transferred in the name of the complainant, vide letter dated 25.05.2011. The buyer's agreement was executed between the complainant and OPs on 24.02.2012. The unit was transferred in May 2011, hence it was denied that he made payment since 2010. OPs have received Rs.50,21,500/- towards the principal amount and Rs.53565/- towards the delayed payment. It was further averred that possession was to be handed over within 18 months from the date of execution of agreement. In case of immovable property, time is never regarded, as the essence of the contract and no notice had been received from either the original allottee or the complainant seeking immediate possession after expiry of 18 months and thereby they had accepted the  alleged delay. The company has offered possession to many units in Sector 104, however, since roadwork and amenities are not complete in front of the unit of complainant, possession has not been offered. The interest of the complainant is safeguarded by the penalty clause under agreement, OPs stands by its commitment to pay the compensation for delays as per terms of buyer's agreement. It was denied that complainant ever visited the office of OPs or demanded any possession. The complainant was informed about status of development and alleged delay in completion. It was informed to him that compensation for delay would be credited to his account at the time of possession. The plot in question was allotted to him as is clear in the layout approved by competent authorities. It was denied that any  request for refund was ever made by complainant. Any deficiency in service or unfair trade practice was denied by OPs on their part and they prayed for dismissal of the complaint.

3.                The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-15 (a), Ex.C-15(b) and Ex.C-16 to Ex.C-17(a) and Ex.C-17(d) and closed the evidence. As against it; OPs tendered in evidence affidavit of Gurdeep Singh Ex.OP-A along with copies of documents Ex.OP-1 to OP-5 and closed the evidence.

4.                We have heard learned counsel for the parties at considerable length and have also examined the record of the case.

5.                OPs raised preliminary objections in this case that valuation of the subject matter exceeds Rs. 1 crore and as such, matter is not cognizable by this Commission. Specific objection has been raised in preliminary objection no. 3 by OP in this regard. We proceed to decide the preliminary objection, as to whether matter lies within pecuniary jurisdiction of this Forum or not. The submissions of counsel for the parties have been heard on this point elaborately, as to whether the matter is within pecuniary jurisdiction of this Commission or not. It is settled principle of law that the allegations contained in the complaint have to be primarily looked into for determining the matter, as to whether it is within the pecuniary jurisdiction of the Forum or not. The complainant has filed complaint for refund of the amount of Rs. 50,85,065/- from OPs. In addition to that, the complainant has claimed interest @ 18%  p.a on the deposited amount Rs.50,85,065/- since July 2010 till releasing of the deposited amount. The complainant has further prayed for Rs. 5 lac as compensation for mental harassment and Rs.50,000/- as costs of litigation. Interest is not separately awardable as per Section 17(1)(a) of CP Act  and it is the valuation of the subject matter and the compensation if any, claimed, which is primarily to be looked into. However, many authorities have been handed down on this point holding that interest has to be calculated as compensation in determining the valuation of the complaint. The complainant has sought compensation in the shape of interest at 18% p.a from 10.07.2010 till realization of the deposited amount. We have to consider the interest from 10.07.2010 till filing of the  complaint on 18.05.2016. The amount of interest claimed by complainant @ 18% on the amount of Rs. 50,85,065/-  exceeds Rs.50 lac. By adding amount of Rs. 50 lac in the principal amount of Rs.50,85,065/-, it comes to Rs.1,00,85,065/-. The complainant has further claimed compensation of Rs. 5 lac for mental harassment in this case.  As per Section 17(1)(a) of Consumer Protection Act 1986, where the value of goods and services and compensation, if any, claimed exceeds Rs. 1 crore, then matter is not cognizable by this Commission and is triable by National Commission only. The competence of this Commission is only to entertain the complaint in the matter, where the valuation of the goods and services as claimed exceeds Rs. 20 lac, but does not exceed Rs. 1 crore. Since the valuation of goods and services and compensation claimed in this case  exceed Rs. 1 crore and as such this Commission is not competent to entertain and decide this complaint in view of bar of Section 17(1)(a) of Consumer Protection Act 1986.

6.                We have come to this conclusion that this Commission has no pecuniary jurisdiction to try this complaint and as such complaint is ordered to be returned to complainant along with original documents with due endorsement on it for its presentation before Competent Forum. The complainant can invoke indulgence of Section 14 of Limitation Act 1963 in this regard.

7.                Arguments in this complaint were heard on 08.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

8.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

January 10 ,  2018                                                         

(ravi)