Chandigarh

StateCommission

CC/165/2014

Lovenish Goyal - Complainant(s)

Versus

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

Gaurav Bhardwaj

12 Feb 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	165 of 2014
Date of Institution	:	25.11.2014
Date of Decision	:	12/02/2015

 

1. Lovenish Goyal son of Sh. Ramesh Chandra Goyal, (Earlier resident of House No.1662-P, Sector-13, Urban Estate, Kurukshetra), at present D.M. (Medical Oncology), Senior Consultant, Lifeline Hospital, Jindal Chowk, Hisar.
2. Priyanka Goyal, wife of Lovenish Goyal, Earlier resident of House No.1662-P, Sector-13, Urban Estate, Kurukshetra, at present D.M. (Medical Oncology), Senior Consultant, Lifeline Hospital, Jindal Chowk, Hisar.

……Complainants

V e r s u s

Emaar MGF Land Pvt. Limited, S.C.O. No.120-122, Sector 17-C, Chandigarh, through its Managing Director.

              ....  Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MR. DEV RAJ, MEMBER

               

Argued by: Sh.Gaurav Bhardwaj, Advocate for the complainants.

                   Sh.Sanjeev Sharma, Advocate for the Opposite Party.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that, one Mr.Mohinder Pal Garg, booked an apartment, measuring 1550 square feet, in the project of the Opposite Party, under the name and style of “The Views”, Mohali Hills, Sector 105, Mohali, on payment of Rs.7 lacs. It was stated that, later on, Mr. Mohinder Pal Garg transferred booking of the apartment, in favour of the complainants. It was further stated that, thereafter, vide various receipts, the complainants, paid an amount of Rs.13,99,995/-, (infact Rs.13,99,495/-, as per receipts on record), towards part price of the said apartment. As such, the complainants were allotted apartment No.TVMC3-F01-103, measuring 1550 square feet, in its Project, namely “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, alongwith one car parking space. The total cost of the said apartment was to the tune of Rs.45,72,150/-, which included Rs.1,50,000/- per parking bay, External Development Charges (EDC) @Rs.93/- per square feet and Interest Free Maintenance Charges (IFMS) @Rs.10/- per square feet. Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, in respect of the said apartment, was executed between the parties, at Chandigarh. The payment plan opted by the complainants was construction linked.

2.       It was further stated that according to Clause 21.1 of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, the Opposite Party was to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Apartment Buyer,s Agreement). It was further stated that it was also mentioned in Clause 23.1 of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, that, in case, the Opposite Party, failed to deliver possession of the apartment, in question, within the stipulated period, it was liable to pay penalty/compensation, to the complainants, @Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Party was to deliver possession of the apartment, in question, to the complainants, latest by 09.04.2011.
3.       It was further stated that the complainants visited the site, a number of times, but were surprised to see that construction of the apartment had not been started. It was further stated that the complainants contacted the Opposite Party, to apprise them, with regard to the date of delivery of possession of the apartment, in question, to them, but to no avail.
4.       It was further stated that when the complainants saw that there was no development, at the site, they sent an  email   dated 04.08.2010 Annexure C-10, to the Opposite Party. In response to the said letter Annexure C-10, the Opposite Party vide email dated 06.08.2010, intimated the complainants that it apologized for delay, in delivery of possession of the unit, allotted to them. However, the complainants were given option for relocation of any apartment, in its project, in Towers K3, K1, K3 and G3.
5.       It was further stated that, thereafter, another letter dated 04.04.2014 Annexure C-12, was sent by the Opposite Party, to the complainants, intimating them that they had been relocated to unit No.TVMF1F01-103 in Tower F-1. Alongwith the said letter, revised payment schedule, in respect of the said unit was also attached, wherein the total price of the same was mentioned as Rs.48,38,490.86Ps. It was further stated that, not only this, the complainants also received emails dated 24.05.2014 and 28.06.2014, from the Opposite Party, wherein they were asked to make payment of instalments towards the relocated unit No.TVMF1F01-103, as per the new payment schedule. It was further stated that the complainants were not interested in relocation and hence they did not accept the same.
6.       It was further stated that the Opposite Party collected the amount of Rs.13,99,495/-, towards the part price of apartment, originally allotted, by making a false promise, that physical possession thereof, shall be handed over within a period of 36 months, from the date of execution of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, but it did not abide by its commitment. It was further stated that, as such, the amount deposited by the complainants, towards the part price of apartment, was utilized by the Opposite Party, as a result whereof, they were caused huge financial loss. It was further stated that, as such, the complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission, on the part of the Opposite Party.
7.       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 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.13,99,995/- (infact Rs.13,99,495/-), alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.10 lacs, on account of mental agony and physical harassment; and  cost of litigation, to the tune of Rs.55,000/-
8.       The Opposite Party, put in appearance, on 01.01.2015, and filed its joint written version, on 05.02.2015. In its written version, it was pleaded by the Opposite Party, that the present complaint was barred by limitation. It was further pleaded that this Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint.  It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that time was not the essence of contract. The factum of allotment of apartment No.TVMC3-F01-103, measuring 1550 square feet, in the Project, namely “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, in favour of the complainants, was admitted. It was stated that the complainants had paid an amount of Rs.13,21,995/- towards part price of the apartment, in question, and not Rs.13,99,995/-, as mentioned in the complaint, by them. Execution of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, between the parties was also admitted. It was also admitted that possession of the apartment, originally allotted, could not be delivered, to the complainants, till the date of filing the consumer complaint, or even till date. It was stated that the possession of apartment No.TVMC3-F01-103, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, could not be offered to the complainants, on account of the reason that there was revision in the layout plans. It was further stated that the Opposite Party, by way of relocation was ready to give some other apartment, to the complainants, in the same project in Tower-F1, possession whereof, could be delivered to them, at the earliest, as the construction thereof was at advanced stage, but they kept silent. It was further stated that it was well within the knowledge of the complainants that for any delays, stipulated penalty had been provided, in the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, which safeguarded their rights, subject to compliance of the terms and conditions thereof. It was further stated that since the complainants defaulted in making payment of instalments, in respect of the said unit, as such, they were not entitled to any compensation/penalty. 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. The remaining averments, were denied, being wrong.
9.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.
10.       The Opposite Party, in support of its case, submitted the affidavit of Sachin Kapoor, its Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
11.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
12.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, in respect of apartment No.TVMC3-F01-103, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was executed between the parties. The possession of the said apartment was to be delivered by 09.04.2011. The possession was not offered to the complainants, by 09.04.2011, on account of non-existence of the said apartment, as there was revision in the lay-out plans, in respect of the Tower, in question, where the same (apartment) was allotted to them. No doubt, later on, the Opposite Party, gave an option to the complainants for relocation of the apartment, which was not accepted by them. It means that, in the absence of acceptance of relocation of the apartment, no final contract came into being between the parties, in relation to the same. No possession of the originally allotted apartment No.TVMC3-F01-103, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, was offered to the complainants, either on the stipulated date i.e. 09.04.2011, or till date, and, as such, there was a continuing cause of action. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon,ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
13.       The  next question, that falls for consideration,  is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act,  a  consumer  complaint could 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, the Apartment Buyer,s Agreement dated 10.04.2008,  Annexure C-8, in respect of the apartment, in question, was executed, between the parties, at Chandigarh, as is evident from page 31 of the file. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, in its written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.
14.       The next question, that falls for consideration, is, as to whether, this Commission has got the pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the apartment, in question,  was  Rs.45,72,150/-. The complainants have sought refund of the amount of Rs.13,99,995/- (infact Rs.13,99,495/-),  paid by them, towards part price of the apartment,  in question, alongwith interest @18% P.A., from the respective dates of deposits, till realization; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-. The aggregate value of the reliefs inclusive of compensation, and cost, claimed by the complainants, in the complaint, [excluding the interest claimed @18% P.A. on Rs.13,99,995/-], came to be around Rs.24,54,995/-and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary 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.
15.       The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under;

“3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

16.       Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected. 
17.       The next question, that falls for consideration, is, as to whether, time was the essence of contract or not.  It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, the Opposite Party was to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Apartment Buyer,s Agreement). It was further mentioned in Clause 23.1 of Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, that, in case, the Opposite Party, failed to deliver possession of the apartment, in question, within the stipulated period, it was liable to pay penalty/compensation, to the complainants, @ Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Thus, the Opposite Party was to deliver possession of the apartment, in question, to the complainants, latest by 09.04.2011. Even, after the expiry of more than 3½ years, from the stipulated date, the possession thereof, was not delivered to the complainants. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Party, thus, being devoid of merit, must fail, and the same stands rejected.
18.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the apartment, in question, was to be given to the complainants. As stated above, according to Clause 21.1 of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, the Opposite Party was to hand over physical possession of the said apartment, in favour of the complainants, within a period of 36 months, from the date of execution of the same (Apartment Buyer,s Agreement), failing which, as per Clause 23.1 of the same (Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8), it (Opposite Party), was liable to pay penalty/compensation, to them (complainants) @Rs.5/- (Rupees Five only), per square feet, per month, of the super area, for the period of delay. Admittedly, possession of the apartment, in question, was not delivered to the complainants, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, the Opposite Party frankly admitted that possession of the apartment, in question, could not be offered to the complainants, on account of non-existence of the same, as there was revision in the lay-out plans, in respect of the Tower, in question, where the same (apartment) was allotted to them. On the other hand, the option for relocation of the apartment, was not accepted by the complainants. Admittedly, the part sale consideration of the apartment, in question, to the tune of Rs.13,99,495/-, had already been paid, by the time of filing the complaint, but possession of the apartment, was not even offered to the complainants. By making a misleading statement, that the possession of apartment No.TVMC3-F01-103, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, would be delivered within three years, from the  date of  execution of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8, and by not abiding by the commitments, made by the Opposite Party, it (Opposite Party) was not only deficient, in rendering service, but also indulged into unfair trade practice.
19.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.13,99,495/-, deposited by them. Since, the Opposite Party is unable to deliver possession of apartment No.TVMC3-F01-103, measuring 1550 square feet, “The Views”, Mohali Hills, Sector 105, Mohali, Punjab, to the complainants, they are entitled to the refund of amount, deposited by them, towards the price of the apartment, in question.  
20.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.13,99,495/-, towards the price of apartment, in question, was deposited by the complainants. The complainants were deprived of their hard earned money, on the basis of misleading information, given by the Opposite Party, that they would be handed over the legal physical possession of the residential apartment, by 09.04.2011, but it failed to do so. As stated above, it has been frankly admitted by the Opposite Party, in its written version, that possession of the apartment, could not be offered to the complainants, on account of the reasons, referred to above. The complainants were, thus, caused financial loss.  The hard earned money of the complainants was utilized by the Opposite Party, for a sufficient longer period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of instalment(s), the Opposite Party was charging interest @15% P.A. (compounded quarterly), as is evident from Clause 4.1 of the Apartment Buyer,s Agreement dated 10.04.2008, Annexure C-8. Under these circumstances, in  our  considered  opinion, if   interest @12% P.A., on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.
21.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to them, for a long number of years, by not delivering physical possession of the apartment, to them or by not refunding the amount deposited. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. Compensation,  to the tune of Rs.50,000/-, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Party, if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.50,000/-, as indicated above.
22.       No other point, was urged, by the Counsel for the parties.
23.       For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
    1. The Opposite Party is directed to  refund the amount of Rs.13,99,495/-, to  the complainants,  alongwith interest @ 12% per annum, from the respective  dates of deposits onwards,  within 2 months, from  the    date of receipt of a certified copy of  this   order.
    2. The Opposite Party is further directed to pay compensation, in the sum of Rs.50,000/-for causing mental agony and physical harassment, to the complainants, within 2 months, from the date of receipt of a certified copy of this order.
    3. The Opposite Party is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
    4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% 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, to the tune of Rs.20,000/-.
24.       Certified Copies of this order be sent to the parties, free of charge.
25.       The file be consigned to Record Room, after completion.

Pronounced.

February 12, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

Rg.