Chandigarh

StateCommission

CC/267/2015

Jasbir Kaur - Complainant(s)

Versus

Emaar MGF Land Pvt. Ltd. - Opp.Party(s)

Vishal Goel, Adv.

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	267 of 2015
Date of Institution	:	06.11.2015
Date of Decision	:	26.04.2016

 

Jasbir Kaur w/o Lakhbir Singh, r/o VPO Sikri, Tehsil Nagar, District Bhartpur, Rajasthan.

……Complainant

V e r s u s

1. Emaar MGF Land Pvt. Limited, MGF House, 17-B, Asaf Ali Road, New Delhi through its Authorized Officer.
2. Emaar MGF Land Pvt. Limited, SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh, through its Authorized Officer.  

                                                    .... Opposite Parties

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Vishal Goel, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

              The facts, in brief, are that the complainant purchased plot No.161 in Augusta Park, Sector 109, Mohali Hills, Mohali measuring 400 Sq. yards from the Opposite Parties. The Agreement was executed on 04.07.2007 by the Opposite Parties with Mr.Anil Kumar Consul (original allottee) and, thereafter, the aforesaid plot was purchased by the complainant, as such, endorsement dated 02.04.2008 had been done in favour of the complainant and, accordingly, the transfer of the said unit was made in his name.  Copies of the Agreement and endorsement are Annexure C-1 and C-2. It was stated that according to the said Agreement, the total sale consideration of the unit was Rs.52,85,472/-. It was further stated that as per Clause 8 of the terms and conditions of the Agreement, possession of the said unit was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years and now more than 8 years had passed from the execution of the said Agreement but till the date of filing of the complaint, physical possession was not handed over to the complainant. It was averred that the complainant had paid almost full amount of the unit, as per the payment schedule i.e. Rs.50,55,472/-. It was further stated that as per Clause 8 of the Agreement, the complainant is entitled to the tune of Rs.50/- per sq. yard per month for the period of delay beyond three years from the date of execution of the Agreement. It was further averred that due to non-delivery of possession of the unit, in question, the complainant has to suffer the acceleration of cost of construction as well as she has to bear the rent of the house, in which, she is presently residing.  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 joint written version, though have taken objection regarding arbitration clause in the Agreement, and they also 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 stated that the complainant is a subsequent purchaser and she purchased the plot from open market and not bought from the Opposite Parties, which was endorsed in favour of the complainant, on completion of transfer formalities in April, 2008. It was further stated that Buyer’s Agreement was also executed between the original buyer and the Opposite Parties on 04.07.2007, which was subsequently endorsed in favour of the complainant on 02.04.2008. It was further stated that as per Clause 8 of the Agreement, the Opposite Parties was supposed to hand over possession of the unit within 3 years from the date of execution of the Agreement and in case of any delay, compensation @Rs.50/- per sq. yard per month was payable for such period of delay beyond the 3 years from the date of execution of the Agreement. It was further stated that the calculation for delayed compensation should be payable when possession of the unit is to be offered to the complainant and not at this stage. It was further stated that since the basic amenities at the site, where the unit was allotted to the complainant, have not been completed, therefore, possession of the same has not been offered to her. It was further stated that in case, the complainant seeks early possession of the unit, then the Opposite Parties are ready to relocate her to another unit, which is ready for immediately possession. 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 Parties led evidence, in support of their case.

4.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.           Admittedly, the complainant purchased a plot bearing No.161, measuring 400 sq. yds. in Augusta Park, Sector 109, Mohali Hills, Mohali for the total sale consideration of Rs.52,85,472/-, as stipulated from Plot Buyer’s Agreement, which was executed between the original buyer i.e. Mr.Anil Kumar Consul and the Opposite Parties on 04.07.2007 at Chandigarh (Annexure C-1). It is also the admitted fact that the said unit was subsequently purchased by the complainant and endorsed in her favour on 02.04.2008 (Annexure C-2). It is also the admitted fact that the complainant paid a sum of Rs.50,55,472/- vide Statement of Accounts (Annexure C-3). It is also the admitted fact that as per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years. It is also the admitted fact that after receipt of the huge amount from the complainant, the Opposite Parties failed to deliver physical possession of the unit, in question, to her, despite repeated requests.

6.           It is pertinent to note that earlier in the complaint, the complainant sought delivery of possession of the unit alongwith interest, compensation and litigation expenses. However, during the pendency of the complaint, the complainant moved a miscellaneous application bearing No.123 of 2016 for amendment of the prayer clause in the complaint, in which, the complainant sought a direction to the Opposite Parties to deliver possession of the unit to the complainant immediately ; to pay an amount of Rs.50/- per sq. yds. per month to the complainant for delayed possession and interest @18% be imposed upon the Opposite Parties on the amount paid by the complainant for the purchase of the aforesaid unit till the delivery of the unit  OR   direction be issued to the Opposite Parties to refund an amount of Rs.50,55,472/- paid by the complainant to the Opposite Parties for the purchase of the unit alongwith interest @ 18%  per annum from the date of payment till refund of the amount alongwith compensation and litigation expenses.

              At the time of arguments,  on 11.04.2016, Sh.Sanjeev Sharma, Advocate, Counsel for the Opposite Parties stated that “as on today, it is not possible for the Opposite Parties to hand over possession of a developed plot to the complainant”. In view of the above, the application of the complainant for amendment in the prayer clause made in the complaint, was allowed. The application stood disposed of accordingly.

7.           The principal 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. It may be stated here that under similar circumstances, in the cases titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora & Anr. Vs. Emaar MGF Land Limited, Complaint case No.198 of 2015, decided on 04.04.2016 decided alongwith other connected cases, the issue regarding the arbitration has been dealt with in detail by this Commission and after giving detailed findings, the argument raised on behalf of the Builder 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, the State Commission has no jurisdiction to entertain the consumer complaint, has been rejected. In view of the above, it is held that this Commission has jurisdiction to entertain this complaint. 

8.           The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the  complainant. According to Clause 8 of the Plot Buyer’s Agreement dated 04.07.2007 (Annexure C-1), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the unit, in question, within a period of 2 (two) years, from the date of execution of the Agreement, but not later than 3 (three) years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of  the complainant,  within the maximum period of 3 years, from the date of execution of the Plot Buyer’s Agreement dated 04.07.2007, i.e. latest by July, 2010. Even now about 8 years has been passed from the execution of the Agreement but till the date of filing of the complaint, no physical possession of the unit, in question, was delivered to the complainant, within the stipulated period, as contained in the terms and conditions of the Agreement. On the other hand, the Opposite Parties have already received a huge amount of Rs.50,55,472/-, towards the said unit, as is evident from the statement of accounts (Annexure C-3). It is pertinent to note that at the time of arguments, Counsel for the Opposite Parties admitted that as on today i.e. April, 2016, it is not possible for the Opposite Parties to hand over possession of a developed plot to the complainant. By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 3 years, from the  date of execution of the  Agreement, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

9.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.50,55,472/-, deposited by her, towards the unit, in question.   Moreover, the complainant has already paid huge amount of Rs.50,55,472/-, out of the total sale consideration of Rs.52,85,472/-. It is clearly proved that about 8 years has expired from the date of execution of the Agreement but the Opposite Parties failed to deliver physical possession of the unit, in question,  to the complainant. Even the complainant approached the Opposite Parties numerous times for possession of the unit but they failed to deliver the same, despite repeated requests.  So, the Opposite Parties had no right, to retain the hard earned money of the complainant, without rendering her, any service. Since, the unit, in question, had not been completed, even by the time, the complaint was filed, no alternate was left with the complainant, than to ask for the refund of amount, deposited by her. Even till date, the Opposite Parties are unable to hand over the legal physical possession of the unit, in question. In our considered opinion, the complainant is entitled to refund of amount of Rs.50,55,472/-, deposited by her.

10.          At the time of arguments, Counsel for the Opposite Parties submitted that when complainant sought refund of the amount, forfeiture clause is applicable upon the complainant.    In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Moreover, the Counsel for the Opposite Parties stated at the time of arguments i.e. April, 2016 that the Opposite Parties failed to hand over physical possession of the unit, in question, to the complainant. It is clearly proved that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and nor given possession of the unit to the complainant. So, it is clearly proved that there was no fault on the part of the complainant and the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount, as prayed by the complainant.  

11.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.50,55,472/-, if so, at what rate. The complainant was deprived of her hard earned money, to the tune of Rs.50,55,472/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the plot, in question, after the completion of maximum period of three years i.e. by July, 2010, but they failed to do so. The complainant, thus, incurred financial loss.  Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. As per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @15% per annum compounded from the complainant, under these circumstances, in our considered opinion, if  interest  compounded @15% P.A., on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

12.          The next question, that falls for consideration, is, as to whether, the  complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to her. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a number of years, as they failed to deliver physical possession of unit, in question, to her, by the promised date i.e. July, 2010. The complainant purchased the unit, with the hope to have a roof over her head, by raising construction thereon, but her hopes were dashed to the ground. Till date, physical possession of the unit, has not yet been offered, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

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

14.          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.50,55,472/-, to  the complainant, alongwith interest compounded @ 15% per annum, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% P.A., instead of interest compounded @ 15% P.A., from the respective dates of deposits, till realization, and interest compounded @15% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

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

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

Pronounced.

April  26, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

rb