Chandigarh

StateCommission

CC/429/2016

Krishan Lal Manchanda - Complainant(s)

Versus

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

Mukand Gupta & Geeta Gupta, Adv.

28 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	429 of 2016
Date of Institution	:	05.08.2016
Date of Decision	:	28.12.2016

 

1. Krishan Lal Manchanda son of Babu Ram, resident of House No.369, Sector 7, Panchkula.
2. Ms. Vinod Manchanda wife of Krishan Lal Manchanda, resident of House No.369, Sector 7, Panchkula.

 

……Complainants

V e r s u s

Emaar MGF Land Pvt. Ltd., SCO No.120-122, Sector 17-C, Chandigarh, through its Authorized Representative.

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Mukand Gupta, Advocate for the complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants were lured by the advertisement of the Opposite Party to develop the mega housing project and, as such, they registered themselves for allotment of a 300 Sq. Yard plot on 28.07.2012 and paid the registration amount of Rs.5 lacs. Thereafter, the Opposite Party allotted plot No.387, Augusta Park, Sector 109, Mohali vide provisional allotment letter  (Annexure C-1). The total price of the plot included the Basic Sale Price and External Development Charges and after giving rebate, was Rs.49,87,050/-. Plot Buyer’s Agreement was executed between the parties on 22.10.2012 (Annexure C-2) and as per the said Agreement, the payment was required to be made within one year. According to the Agreement, possession of the unit was to be delivered between 12 to 18 months i.e. latest by  22.04.2014. The complainants deposited the total amount of Rs.47,64,862/- with the Opposite Party vide receipts (Annexure C-3). It was further stated that the complainants sent an email on 07.09.2014 (Annexure C-4) to the Opposite Party requesting for possession of the unit but it failed to deliver the same.  The complainants also visited the office of the Opposite Party with a request to know about the status of delivery of possession. Ultimately, another letter on 27.03.2015 was sent by the Opposite Party, wherein, the complainants were informed that it was unable to deliver the possession, as a result of which, the Opposite Party asked the complainants for relocation of another plot, which was not accepted by them. Thereafter, another letter was written by the complainants to the Opposite Party on 04.05.2015 requesting to deliver the possession as early as possible but the Opposite Party on 30.07.2015 (Annexure C-5) flatly refused to deliver the possession and instead changed the location of the plot and reallocated another plot and gave an offer of allotment of another plot bearing No.269, Sector 108, Mohali measuring 310.415 sq. yards. It was further stated that the original plot was allotted in Sector 109, Mohali and the Opposite Party reallocated another plot in Sector 108, Mohali, that too of a different size and location, which was not acceptable to them. Therefore, the complainants never signed any amended Plot Buyer’s Agreement. Thereafter, the complainants sent a letter dated 05.07.2016  (Annexure C-6) to the Opposite Party, wherein, it was informed that the Opposite Party failed to deliver possession of the plot originally allotted to the complainants and, as such, they requested for refund of the amount alongwith interest and compensation. It was further stated that the Opposite Party forcibly issued intimation of possession letter of reallocated plot to the complainants on 16.07.2016 (Annexure C-7) and that too after a delay of three year, which was not acceptable to them. After receipt of the said letter, the complainants gave reply vide letter dated 27.07.2016 (Annexure C-8) to the Opposite Party and sought refund of the amount but it failed to refund the same. It was further stated that the Opposite Party was required to take all the requisite permissions from the competent authorities before developing the mega housing project and even before offering possession of the units to the consumers but the same was not done by the Opposite Party well within time. It was further stated that Government of Punjab, Department of Housing & Urban Development issued notification dated 02.09.2014, wherein, it was decided that all the housing projects were required to take completion certificate/partial completion certificate (Annexure C-9) and in pursuance of the aforesaid notification, District Town Planner, GMADA, Mohali issued a letter dated 16.02.2015 (Annexure C-10) to the Opposite Party to get completion certificate but the Company instead of getting completion certificate, applied only for partial completion certificate and that too of only a small part of area, which was issued only on 16.10.2015 with some terms and conditions (Annexure C-11).  It was further stated that as per revised layout plan issued by the competent authority on 15.12.2014, total area of the mega housing project of the Company is 524.08 acres and the Opposite Party took certificate of partial completion on 16.10.2015 for area of 310.139 acre, without disclosing the fact that for which sector the Company applied for the said certificate.  It was further stated that the Opposite Party was required to develop two STP and the said STP should be installed under the inspection of independent expert and report be submitted to the Ministry of Environment and Forests but it failed to place on record any document to prove the same. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, 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 Party, in its written version, has not taken objection regarding arbitration clause in the Agreement, and it 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 as per request of the complainants, the Opposite Party offered to relocate the another unit to them, where possession could be offered expeditiously. It was further stated that as per Clause 21.1 of the Agreement, possession was “proposed” to be handed over within 36 months from the date of allotment. Thus, there was no definitive agreement stating that possession would definitely be delivered within 36 months and it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract, more so when there is penalty clause under the Agreement. It was further stated that the complainants are not consumers, as they are residents of House No.369, Sector 7, Panchkula, which apparently shows that the complainants are already having properties. Thus, the complainants purchased the unit, in question, for commercial purposes/speculation and they did not fall within the definition of “Consumer”. It was further stated that this Commission has no pecuniary as well as territorial jurisdiction to entertain and try the complaint. It was admitted regarding launching of the project ; booking of the plot by the complainants and issuance of provisional allotment letter. It was further stated that the Opposite Party has received an amount of Rs.47,64,865/- towards unit No.109-AP-387-300, which was later transferred to the relocated/present unit No.108-PP-269-310. It was further stated that the Opposite Party has also given a credit of Rs.2,16,493/- as compensation for delay in handing over of possession. It was denied that the Opposite Parties were unable to deliver possession of the originally allotted unit. It was further stated that on the request of the complainants, the Opposite Party agreed to relocate the unit to the complainants and they accepted the option vide email dated 25.06.2015 (Exhibit OP/3). It was further stated that the Amendment Agreement was sent to the complainants but they failed to sign the same. It was denied that the letter dated 05.07.2016 was ever sent or received by the Opposite Party. It was further stated that as per letter dated 30.07.2015 (Annexure C-5), it was clearly stated that on allotment of new plot, the complainants would be left with no right, title or interest in old plot. It was further stated that the complainants act to ask for refund was a reactive approach after possession was offered on 16.07.2016 for the unit accepted by them. It was pleaded that the Opposite Party credited the amount of compensation in the account of the complainants, as is evident from statement of account (Exhibit OP/4). It was further pleaded that the Opposite Party had obtained all necessary sanctions and approvals and intimation of possession has been sent subsequently. It was further stated that no completion/occupation certificate was to be obtained by the Opposite Party from Government of Punjab. It was further stated that the Governor of Punjab was pleased to exempt the aforesaid housing project of the Opposite Party from the provisions of PAPRA Act vide notification dated 22.12.2006 (Exhibit OP/5). Hence, there was no requirement for the Opposite Party to obtain any completion certificate. It was further stated that once partial completion certificate has been granted, there is no cause for the complainants to dispute possession. It was denied regarding receipt of request for refund of the money. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3.           The complainants filed rejoinder to the written statement of the Opposite Party, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, 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.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Party, stands rejected.

7.           Another objection taken by the Opposite Party in its written statement with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of an amount of Rs.47,64,862/-paid by them, towards price of the plot, alongwith interest @15% p.a. from the respective dates of deposits, till realization;  compensation to the tune of Rs.5 lacs, for mental agony & harassment; and cost of litigation, to the tune of Rs.80,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

8.             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 complainants, 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 the Agreement was executed between the allottee and the Opposite Party at Chandigarh. Not only this, even the provisional allotment letter alongwith schedule of payment (Annexure C-1), receipts/acknowledgment-cum-receipts (Annexure C-3), letter dated 30.07.2015 (Annexure C-5) and letter of intimation of possession dated 16.07.2016 (Annexure C-7)  were also sent by the Opposite Party form their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.           The next question, that falls for consideration is, as to whether, the complainants fall within the definition of “Consumer” as prescribed under the Consumer Protection Act, 1986. The Counsel for the Opposite Party submitted that the complainants did not fall within the definition of “Consumer” as they are residents of House No.369, Sector 7, Panchkula, which shows that they are already having properties and, as such, they purchased the unit for commercial purposes/speculation and did not fall within the definition of ‘consumer’. After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Party because the complainants have specifically stated in their rejoinder that House No.369, Sector 7, Panchkula is not allotted to the complainant(s) but the said plot was allotted by HUDA to the elder brother. Even there is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property.           Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015.  Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, for commercial/ investment purpose. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Counsel for the Opposite Party in this regard, being devoid of merit, is rejected.

10.          Another objection raised by Opposite Party in its written statement that since as per Clause 21.1, the Company shall endeavour to deliver possession of the plot within maximum period of 36 months, as such, time was not the essence of contract, is also devoid of merit. A bare perusal of the Plot Buyer’s Agreement (Annexure C-2), which was executed between the parties on 22.10.2012, reveals that no clause of 21.1 is mentioned in the Agreement. 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 Party, within a maximum period of 18 months from the date of execution of the Agreement, subject to force majeure circumstances or reason beyond the control of the Opposite Party. In the instant case, the Opposite Party did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Party was bound to deliver possession of the unit, within a maximum period of 18 months from the date of execution of the same, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Party cannot evade its liability, merely by saying that since the word tentative/ proposed/tentative 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 Party in this regard also stands rejected.

11.          The next question that falls for consideration, is, as to whether the Opposite Party issued letter of intimation of possession dated 16.07.2016 (Annexure C-7) to the complainants in Sector 108, Mohali Hills, Mohali instead of Sector 109. It is, no doubt, true that the complainants booked plot in Sector 109, Mohali Hills, Mohali, and plot bearing No.109-AP-387-300 was allotted to the complainants vide provisional allotment letter dated 24.09.2012 (Annexure C-1). As per schedule of payment, total price of the unit, in question, was Rs.49,87,050/-, out of which, the complainants paid the total amount of Rs.47,64,862/- in respect of the unit, in question. Thereafter, Plot Buyer’s Agreement was executed between the parties on 22.10.2012 (Annexure C-2) and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by April, 2014. The objection of the Opposite Party is that as per request of the complainants, the plot was reallocated to them in Sector 108, Mohali Hills, Mohali and, as such, intimation letter of offer of possession was sent to them. It was further stated that the Amended Agreement was also sent to the complainants but the same was not signed by them. According to the complainants, the possession of the unit was to be delivered by April, 2014 but the same was not delivered, as such, the complainants sent an email to the Opposite Party on 07.09.2014 but they (complainants) have failed to place on record the said email. Ultimately, another email was sent by the complainants to the Opposite Party on 27.03.2015 (Annexure C-4). A bare perusal of the said email clearly reveals that there was a delay in the possession of the unit and the complainants were offered another possession-able unit in the same Sector 109 but they did not like that unit and requested to hold the said plot temporarily and in the meanwhile, the official of the Company (Shweta) would suggest the complainants some other units. So, it is clear from the aforesaid letter that the Opposite Party was unable to give possession of the unit in Sector 109 to the complainants and tried to allocate the another unit, which was not acceptable to them. Thereafter, the complainants have also placed on record letter dated 30.07.2015 (Annexure C-5), which was sent by the Opposite Party to them regarding allocation of plot No.108-PP-269-310.415, Mohali Hills, Mohali in lieu of plot No.109-AP-387-300, Mohali Hills, Mohali. A bare perusal of the said letter shows that as per request of the complainants vide letter dated 25.06.2015, the new plot in Sector 108 was allocated to them. The Opposite Party has also placed on record letter dated 25.06.2015 (Exhibit OP/3) to prove the said fact. The reallocation of the plot was not acceptable to the complainants, as the original plot was allotted in Sector 109, Mohali and reallocated another plot in Sector 108, Mohali that too the size and location of the plot has been changed. Due to this reason, the complainants have never signed any amended Plot Buyer’s Agreement. Therefore, the complainants sent a letter on 05.07.2016 (Annexure C-6). A bare perusal of the said letter clearly reveals that the Company failed to deliver possession of the original allotted unit to the complainants, so they requested for refund of the amount. But the receipt of the said letter was denied by the Opposite Party. The allegation of the complainants are that after receipt of the said letter, the Opposite Party, instead of refunding the amount to them, sent letter of intimation of possession dated 16.07.2016 (Annexure C-7) of re-allocated of unit in Sector 108, Mohali Hills, Mohali, which was not acceptable to them. It is pertinent to note that large number of cases of Sector 109, Mohali Hills, Mohali was decided by this Commission, in which, it was clearly proved that the Opposite Party failed to give possession of the unit to the innocent buyers. In the instant case, huge amount was deposited by the complainants in respect of the unit, in question and there was no delay regarding payment of the said amount. It may be stated here that when any of the buyer makes timely payment to the builder, it is the duty of the builder to give timely possession to the customers but in the instant case, it did not do so. The complainants booked the plot in the year 2012, which was not given to them latest by April, 2014, as per the stipulated period mentioned in the Agreement. It is obvious that when the possession was not delivered to the complainants by April, 2014, they approached the Opposite Party regarding possession but it was already delayed. Further, the fact remains that despite seeking possession of the original allotted unit, the Opposite Party offered him relocation of the plot from Sector 109 to Sector 108, Mohali, which was never acceptable to the complainants. Rather, the complainants kept on insisting for possession of the original allotted plot. If the Opposite Party was unable to hand over possession of the original allotted plot, the option left with the complainants to seek refund of the amount paid by the complainants. The complainants in their complaint have clearly stated that they are not ready to accept the reallocated unit and sought refund. If we believe the averments of the Opposite Party, then it is not the case that the complainants requested for reallocation of the unit in another sector, within the stipulated period of 18 months. So, it is clearly proved that the Opposite Party was not ready for possession of the unit allotted in Sector 109, within the stipulated period, as mentioned in the Agreement, which amounted to deficiency in service and unfair trade practice on the part of the Opposite Party. Even the complainants could not be relocated the plot forcibly or under coercion. It is not the case of the Opposite Party that the said delay occurred, on account of force majeure circumstances, met by it, 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.

 

At the time of arguments, the Counsel for the complainants also relied upon 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 aforeasid 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 Party, in not handing over physical possession of the original unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made in different sector 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.

12.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.47,64,862/-, deposited by them. It is an admitted fact that the  Opposite Party is unable to deliver  possession of the originally allotted unit, in question, within the stipulated period, as mentioned in the Agreement and firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the original unit in Sector 109, Mohali because the re-allocated unit in Sector 108 was not acceptable to them. The  Opposite Party, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

13.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.47,64,862/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the Opposite Party was charging heavy rate of interest (compounded quarterly @24%) 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  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.47,64,862/-alongwith interest @15% compounded quarterly, from the respective dates of deposits till realization.

14.           As far as the plea taken by Counsel for the Opposite Party at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party) case, that it was ready with possession of the original plot in Sector 109, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Party, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are 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 Party, in this regard, has no legs to stand and is accordingly rejected.

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

16.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed as under:-

1. To refund the amount Rs.47,64,862/-, to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
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% compounded quarterly, instead of @15% compounded quarterly, from the respective dates of deposits onwards, and interest @15%  compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

17.          However, it is made clear that, if the complainants 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 them (complainants).

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

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

Pronounced.

December 28, 2016.                                       Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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