STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Complaint Case No. | : | 05 of 2012 | Date of Institution | : | 09.01.2012 | Date of Decision | | 16.08.2012 |
1. Smt. Satwant Kaur, aged about 65 years widow of Late Sh. Nirmal Singh resident of House No.3229, Sector 35-D, Chandigarh. 2. Sh. Hardeep Singh, aged about 48 years, son of Late Sh. Nirmal Singh resident of House No.3229, Sector 35-D, Chandigarh. …Complainants Versus The EMAAR MGF Land Private Limited, through its Branch Head/Manager, SCO No.120-122, 1st Floor, Sector-17-C, Chandigarh-160017. ---Opposite Party. Complaint under Section 17(1)(A)(i) read with Section 18 of Consumer Protection Act, 1986. BEFORE: MR. JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER. Argued By: Sh. Neeraj Pal Sharma, Advocate for the complainants. Sh. Sanjeev Sharma, Advocate for the Opposite Party. MRS. NEENA SANDHU, MEMBER The facts, in brief, are that, in pursuance of the Scheme advertised, by the Opposite Party, in the leading newspapers, Shri Anil K Kalia, s/o Shri Krishan Kumar, r/o House No. 172, Sector 10, Panchkula & Shri Beant Singh, S/o Shri Amar Singh, r/o House No. 2092, Phase VII, Mohali, jointly expressed their interest, in the same (scheme) and registered with it for 300 Square Yards Residential Plot. They were allotted customer code MH/2499 by the Opposite Party on 23.09.2006. It was stated that the basic price, fixed by the Opposite Party for the plot, in question, was @ Rs.11,500/- per square yard only, and an amount of Rs.10,35,000/- was paid vide Receipt dated 23.09.2006 (Annexure C-1). According to the complainants, a Provisional Allotment Letter dated 05.05.2007 (ANNEXURE – I) was issued in favour of the above said persons, vide which they were allotted Plot No.294 in Augusta Greens, Sector 109, Mohali Hills, Mohali, Punjab. It was further stated, that as per the said letter, the Basic Sale Price of the Plot was fixed at Rs.34,50,000/-, while the total cost of the plot was shown as Rs.40,50,354/-. A Plot Buyers Agreement dated 30.06.2007 (Annexure C-3) was also executed between the parties, as per which the Opposite Party was to deliver the possession of the said plot within the period of 2 Years i.e. by 30.06.2009 and at the maximum within 3 Years i.e. by 30.06.2010. It was further stated that the earlier allottees, paid Rs.3,16,236 on 15.06.2007, Rs.3,16,235/- on 30.09.2007, Rs.4,88,779/- on 14.12.2007 and finally, Rs.3,45,000/- to the Opposite Party, as per the Schedule of Payments, vide receipt [Annexure C-4 (Colly.)]. According to the complainants, the said Shri Anil K Kalia and Shri Beant Singh, substituted the said customer code, in favour of the complainants, on 04.04.2008 and they (complainants) as Co-Allottees stepped into their shoes and were duly accepted by the Opposite Party, as the holders of customer code MH/2499, in place of the earlier allottees. It was further stated that vide letter of transfer of allotment dated 05.04.2008 Annexure C-5, the name of the complainants was also got endorsed on the original Plot Buyers Agreement on the same very day i.e. 05.04.2008. It was further stated that the Opposite Party thereafter received the amounts of Rs.5,000/- as transfer fee on 08.04.2008, Rs.3,45,000/-and Rs.4,12,341/- on 17.04.2008, and Rs.4,48,699/- from the complainants on 16.09.2008 vide Payment Receipts [Annexure C-6 (Colly.)]. It was further stated that the complainants, in all, paid a total sum of Rs.37,52,290/- to the Opposite Party, in terms of the payment schedule. 2. It was further stated that the Opposite Party, informed the complainants, vide letter dated 15.01.2009 (Annexure C-7) that the balance outstanding as against the complainants was NIL (i.e. Rs. 0/-). It was also informed by the Opposite Party to the complainants vide their communiqué dated 04.02.2009 (Annexure C-8), that since they had been paying the dues on time, hence they were eligible for participation in the “Pay on time” rewards scheme of the Opposite Party, and all the principal amount due towards Installments stood already cleared by them. The possession of the plot, in question, was to be handed over to the complainants, by the Opposite Party, as per the terms and conditions of the agreement, within 3 years, from the date of its execution, subject to force-majeure conditions, but the same was not delivered to them. When the complainants visited the site, they did not see any development there. It was further stated that the he Opposite Party through their e-mail dated 14.11.2011 (Annexure C-9) finally informed that the development was yet to be completed, and the same would entail delay of yet another period of over 4-6 months from November, 2011. It was further stated that for all intents, the possession might be delivered by the Opposite Party, sometime in the month of May/June, 2012. It was further stated that the aforesaid act of the Opposite Party, in non-delivery of physical possession of the plot, in question, within the stipulated time, even after the receipt of entire sale consideration, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17(1)I(A)(i) read with Section 18 of the Consumer Protection Act,1986 (hereinafter to be called as the Act only), for delivery of developed and vacant possession of the plot in question, compensation for harassment, costs of litigation, as also additional compensation as agreed in Clause 8 of plot buyer’s agreement was filed. 3. In the written reply, filed by the Opposite Party, a specific preliminary objection was raised that since the Plot Buyers Agreement was executed at Delhi and the plot, in question, is situated at Mohali, so the State Commission at Chandigarh had no territorial jurisdiction, to entertain and try the present complaint. However, on merits, the Opposite Party admitted that the plot, in question, was initially allotted to Mr. Anil Kalia and Mr. Beant Singh and, later on, it was transferred, in the name of the complainants, after completion of formalities. The Opposite Party also admitted that it was bound to offer possession within 3 years, from the date of execution of the Plot Buyers Agreement dated 30.06.2007 and not 30.06.2009. Thus, the Opposite Party was to deliver the possession of the plot by 30.06.2010. It was further stated that the Opposite Party was developing the area, and was not able to deliver the plots, on time due to various factors, which were beyond its control. It was further stated that the development work was going on in full swing and the Opposite Party, had already given possession of plots to a number of other allottees. It was, however, specifically stated that the Opposite Party had now completed all the amenities, in the area, and had all the necessary approvals to complete the project. According to the Opposite Party, the complainants could now take possession of the unit, after completion of formalities. It was further stated that, as the amount was demanded and received, as per the installments due, as per payment schedule agreed, and accepted by the complainants in Plot Buyer’s Agreement, so there was no question of any interest being charged on the amounts paid by the complainants, for the price of the plot. It was further stated that the penalty, if any, would be applicable, as per the terms and conditions of the Buyers Agreement and payable/adjustable at the time of final possession/registration. It was further stated that the Opposite Party, was making all efforts to give possession of plot to the complainants, on time, and there was no occasion for it to delay the delivery thereof. It was denied that the opposite party was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The complainants, in support of their complaint, filed their own affidavit, by way of evidence, with which a number of documents were attached. 5. The opposite party, in support of its case, filed the affidavit of Sh. Mohit Kaura, A.G.M, Emaar MGF Land Ltd., alongwith statement of account of complainant No.1 as Annexure R-1. 6. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully as well as the written submissions of both the parties. 7. Before going into the merits of the case, it is important to settle the preliminary objection, raised by the Opposite Party, with regard to the territorial jurisdiction of this Commission to entertain the present complaint. According to the Opposite Party, since the Plot Buyers Agreement was executed at Delhi, and the plot, in question, is situated at Mohali, Punjab, so, this State Commission at Chandigarh has no territorial jurisdiction to try the complaint. On the other hand, the complainant has specifically averred that since, the Opposite Party, had received the consideration, from them, from time to time, at Chandigarh, so, this State Commission has the territorial jurisdiction to entertain and adjudicate the present complaint. From the bare perusal of the Payment Receipts dated 15.03.2008 (at page 43 of Annexure C-4); dated 08.04.2008, 17.04.2008, 17.04.2008 and 16.09.2008 (Annexure C-6), it is established that all these payments were received by the Opposite Party, at its Chandigarh Branch. These receipts also bear the seal of Chandigarh Office of the Opposite Party. So, a part of cause of action, definitely accrued to the complainants, at Chandigarh, and, as such, this State Commission has the territorial jurisdiction to entertain and try the present complaint. In this view of the matter, the objection raised by the Opposite Party, being unsustainable, is rejected. 8. During the course of arguments, the Counsel for the Opposite Party, took an objection that this Commission has no pecuniary jurisdiction, to try the present complaint. A bare perusal of the reply filed by the Opposite Party, shows that the Opposite Party did not take this objection, in its reply. So, he cannot rake up this issue at this stage, just to defeat the purpose of complaint. Therefore, this objection is rejected. 9. The Counsel for the Opposite Party, while referring to Clause No.39 of the Plot Buyers Agreement, submitted that any dispute between the parties, was to be settled through Arbitration. In this regard, it is pertinent to mention here, that Section 3 of the Act provides an additional remedy. Therefore, the mere existence of arbitration clause, in the Agreement, cannot oust the jurisdiction of the Consumer Fora. Therefore, this objection of the Opposite Party is also rejected being meritless. 10. Adverting to the merits of the case, admittedly, the plot, in question, was registered in the name of the two co-allottees on 23.09.2006 vide Annexure C-1 and thereafter a Provisional Letter of allotment (Annexure C-2) was issued by the Opposite Party. As per the Plot Buyers Agreement (Annexure C-3), executed between the parties, the physical and vacant possession of the plot was to be delivered within a period of 24 months, from the date of signing the same, which could be maximum to the extent of 3 years. Despite making the payment of Rs.37,52,290/- against the total price of Rs.40,50,354/-, the Opposite Party, failed to deliver the possession to the complainants till 30.06.2010. After the expiry of the said period of 36 months, it was informed by the Opposite Party, vide its email dated 14.11.2011 (Annexure C-9) that the delivery of possession might take place by May/June, 2012. However, in the affidavit filed by Sh. Mohit Kaura, A.G.M, on behalf of the Opposite Party, it was specifically testified that all the amenities in the area have been provided and all the necessary approvals to complete the project have been obtained and, the complainants could now take possession of the unit, after completion of formalities. Admittedly, as per Clause No.8 of the Agreement, the Opposite Party was liable to deliver possession of the Plot to the complainants, within a period of 2(two) years, from the date of execution of the same, but not later than 3(three) years. No doubt, the paper possession of the plot was offered to the complainants, but, admittedly, the physical possession has not been delivered to the complainants, till date. It is, thus, proved that the Opposite Party has not complied with the terms and conditions of the agreements and till date nothing has been done. By not delivering the physical possession of the plot, within the stipulated period, after fully developing the area, the Opposite Party was not only deficient in rendering service, but also indulged into unfair trade practice. 11. Since, it has been established that the physical possession has still not been delivered to the complainants by the Opposite Party, therefore, according to Clause No.8 of the Agreement, in the event of failure of the Opposite Party, to hand over possession within the stipulated period, it will be liable to pay penalty for delay in the sum of Rs.50/- (rupees fifty only) per sq. yard, per month, for such period of delay beyond three years, from the date of its execution. The parties are bound by the terms and conditions of the agreement. The Opposite Party made a false promise, with the complainants, regarding the delivery of possession, within three years from 30.6.2007. It, thus, misled the complainants, in this regard. The Opposite Party, thus, fleeced the innocent buyers, of their hard earned money, knowing fully well, that they were unable to abide by their commitment. It, thus, indulged into unfair trade practice. The Opposite Party is, thus, liable to pay penalty @ Rs.50/- per sq. yard, per month, from 30.06.2010 till realization, for indulging into unfair trade practice. 12. The next question, that arises for consideration, is, as to whether, the complainants are entitled to compensation, if so, to what extent. According to Section 14(d) of the Consumer Protection Act,1986, the Consumer Foras, are entitled to award not only the value of the goods or services, but also to compensate a consumer, for injustice suffered by him. The complainants deposited a huge sum of Rs.37,52,290/- with the Opposite Party , in the hope of getting physical possession of the plot in two or at the maximum 3 years, from the date of signing the plot buyers’ agreement, with an intention to construct a house thereon. Their hopes were dashed to the ground, when they saw that there was no development, at the spot. The complainants, thus, underwent a tremendous physical harassment, and, mental agony at the hands of the Opposite Party, on account of their act and conduct. For tremendous physical harassment and mental agony, undergone by the complainants, on account of non-delivery of physical possession or non-refund of the amount, by the Opposite Party, they are entitled to compensation to the tune of Rs.One lac, keeping in view the law laid down by the Hon’ble Apex Court, and Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Buddhist Mission Dental College & Hospital Vs Bhupesh Khurana & Others, 1(2009)CPJ25(SC) and Paramvir Singh Vs P.H.Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011, respectively. 13. No other point was urged, by the Counsel for the parties. 14. For the reasons, recorded above, the complaint is accepted with costs, in the following manner: - (i) The Opposite Party is directed to deliver the physical possession of the fully developed Plot No.294, Augusta Greens, Sector 109, Mohali Hills, Mohali, Punjab to the complainants, within three months from the date of receipt of a copy of the order, subject to the payment of the remaining amount, against the sale price of the plot i.e. Rs.40,50,354/-, as shown in Annexure C-2. (ii) The Opposite Party is further directed to pay compensation of Rs.One lac to the complainants, as indicated in Para No.12 of the order. (iii) The Opposite Party is further directed to pay penalty to the complainants @Rs.50/ per sq. yard, per month, for the period from 30.06.2010 until realization of the amount, as indicated in Para No.11 of the order. (iv) The Opposite Party shall also pay costs of litigation of Rs.10,000/- to the complainants. (v) The aforesaid amounts depicted in Clauses (ii) and (iii) shall be paid within 45 days, from the date of receipt of a copy of the order, failing which, the Opposite Party shall pay interest @12% p.a. on the same till realization, besides costs. 15. Certified copies of this order be sent to the parties, free of charge. 16. The file be consigned to the Record Room. Pronounced. 16th August, 2012. Sd/- [JUSTICE SHAM SUNDER(RETD.)] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Ad
STATE COMMISSION [Complaint Case No.05 of 2012] Argued By: Sh. Neeraj Pal Sharma, Advocate for the complainants. Sh. Sanjeev Sharma, Advocate for the Opposite Party. Dated the 16th day of August, 2012. ORDER Vide our detailed order of the even date, recorded separately, this complaint has been accepted with costs, in the manner, depicted therein. [NEENA SANDHU] MEMBER | [JUSTICE SHAM SUNDER(RETD.)] PRESIDENT | |
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| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
