DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

1.                 Brig. Baljit Singh Gill s/o S. Nachattar Singh Gill r/o 608, Sector 36-B, Chandigarh.

2.                 Major Jagminder Singh Gill s/o Brig. Baljit Singh Gill r/o 608, Sector 36-B, Chandigarh.

3.                 Major Karamvir Singh Gill s/o S. Nachattar Singh Gill r/o 608, Sector 36-B, Chandigarh.

                                      ---Complainants.

Versus

1.                 Emaar MGF Land Pvt. Ltd. (Earlier SCO No.120-122), at present SCO-122-123, Sector 17-C, Chandigarh through its Director.

2.                 Emaar MGF Land Pvt. Ltd., ECE House, #28, Kasturba Gandhi Marg, New Delhi through its Managing Director.

---Opposite Parties.

BEFORE:  SMT. MADHU MUTNEJA, PRESIDING MEMBER

                   SHRI JASWINDER SINGH SIDHU, MEMBER

Argued by:  Brig, Baljit Singh Gill, complainant No.1 in person and as authorised agent of complainant No.2 & 3.

                   Sh. Sanjeev Sharma, Counsel for the OPs.

PER JASWINDER SINGH SIDHU, MEMBER

1.                           In brief, the case of the complainants is that they booked a residential unit in the project of the opposite parties namely ‘Terraces’ in Mohali Hills, Sector 108, Mohali by depositing Rs.3,00,000/- on 3.9.2008. They were allotted unit No.551/GF in the said project on 12.5.2009 and the agreement was duly executed.  The complainants deposited a sum of Rs.4,15,445/- vide four different receipts (C-6 to C-9).  Subsequently, the opposite parties vide letter dated 10.7.2009 changed the payment schedule from time linked to structure linked.  The complainants further paid the amount of Rs.7,63,140/- in different installments vide C-12 to    C-18.  According to the complainants, the total price of the unit as per the allotment letter was Rs.47,89,631/- and they deposited total amount of Rs.18,60,155/- as per the rescheduled plan.  The remaining amount was to be paid with the progress of construction and at the time of handing over the possession.  It has been averred that the possession was to be delivered within 36 months from the date of signing of the agreement i.e. by 12.5.2012 but till date there is no construction at site.  In these circumstances the present complaint has been filed praying for refund of the amount alongwith interest, compensation and costs etc.

2.                           In their written reply the opposite parties admitted that the unit in question was allotted to the complainants.  It has been averred that the cost of the unit, at the time of booking, was Rs.47,89,631/- (excluding service tax).  It has been admitted that the payment was made by the complainants as per the payment plan. It has also been admitted that the payment schedule of the complainants was restructured from time linked to construction linked.  It has also been admitted that the complainants paid the amount of Rs.18,60,000/-.  It has been pleaded that no additional demand was made to the complainants due to delay in the start of construction.  According to the opposite parties, work at the project is going on but the unit allotted to the complainants got delayed.  It has been averred that the complainants were given the option of relocation for speedy possession but they did not accept the same.   Pleading that there is no deficiency in service on their part, prayer for dismissal of the complaint has been made.

3.                           We have heard the complainant No.1 in person, learned counsel for the opposite parties and have gone through the documents on record, including the written arguments. 

4.                           Admittedly, unit No.551/GF in the project of the opposite parties was allotted to the complainants.  It is also the admitted case of the opposite parties that their project got delayed.  However, the contention of the opposite parties is that after deposit of Rs.18,60,155/- by the complainants they never raised any demand from the complainants as the plan was changed from time linked to construction linked on 10.7.2009 (C-10) after the passage of nearly one year, due to no progress in the construction at the site. The complainants made repeated communications to the opposite parties vide Annexures C-19, C-20, C-23 to C-26 raising objections with regard to delay in completion of the proposed project and also the loss being suffered by them on account of such delay. The opposite parties in their reply dated 3.12.2011 (C-26) offered complainants the possession of some other unit wherein according to them and in their words “construction is at advance stage and the delivery of unit is expected to be during middle of next year.” The complainants having lost faith in the promises made by the opposite parties, on 2.5.2012 (C-27) gave them an ultimatum for refund of their money alongwith interest for the period it was used by the opposite parties to their advantage. The opposite parties did not reply to this communication of the complainants, which amounts to not addressing the genuine grievance of the complainants.         

5.                           The claim of the opposite parties is that the complainants are not entitled to refund of their amount, but they are entitled to the compensation as per the clause 22 (1).  On having gone through the relevant clause, it is apparent that the opposite parties would first recover the entire amount of the sale price and thereafter would be liable to pay such compensation on the date of notice of possession.  However, if there are reasons beyond their control, they cannot be held liable for such compensation.  The only meaning which flows out of this clause is that the complainants even after paying the entire sale consideration would be at the mercy of the opposite parties, and they would dictate their own terms for any such compensation as the reasons for the delay have not been mentioned to be considered to be covered under the definition of force majeure.  Meaning thereby, the complainants even after paying full sale consideration will have to wait till eternity for the possession of their flat.  Such condition is surely not the essence of the contract which, as per the opposite parties, was time bound.  

6.                           The opposite parties having themselves changed the plan from time linked to construction linked have already bought an additional 1 ½ year of time beyond the 36 months deadline and as they are still not in a position to hand over the possession, the complainants cannot be made to suffer. The act of the opposite parties in delaying the construction of the unit in question and not honouring the request of the complainant for refund of the amount paid amounts to deficiency in service on their part.  Even the demand of the complainants to be compensated for the monetary loss on their investments, is just because had the amount been kept in deposit with the bank it would have earned handsome interest. 

7.                           In view of the above discussion the present complaint deserves to succeed and the same is allowed.  The opposite parties are directed as under :-

i)                   to refund the deposited amount with interest @ 9% per annum from the respective dates of deposits till payment;

ii)                to pay Rs.35,000/- as compensation for mental agony and harassment;

iii)              to pay Rs.10,000/- as costs of litigation.

8.                           This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) shall carry interest @18% per annum, besides payment of litigation costs.

9.                           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

18.6.2013.

Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER