STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Satish Kumar Sachdeva son of Sh. Harbhagwan Sachdeva, resident of House No.1014, Sector 13-P, Hissar, Haryana.

……Complainant

V e r s u s

1.Emaar MGF Land Pvt. Ltd., SCO 120-122, Sector 17-C, Chandigarh, through its Managing Director.

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

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

BEFORE:     JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

Argued by:Sh. Rakesh Bajaj, Advocate for the complainant.

PER 

             he facts, in brief, are that the complainant applied for the allotment of a residential plot, to the Opposite Parties, in the year 2007, by way of submission of an advance registration form. He was allotted plot no.450, measuring 300 square yards, in Mohali Hills, Sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) Preferential Location Charges (PLC) of Rs.3,45,000/- plus (+) External Development Charges of Rs.1,69,104/-. Thus, the total sale consideration, in the sum of Rs.39,64,104/-, was required to be paid by the allottee. In all, the complainant deposited a sum of Rs.39,64,201/-, the total price of the residential plot, in question, as is evident from the Account Summary Annexure C-13. Receipts dated 02.08.2007 (Colly.), 03.01.2008, 25.03.2008, 19.04.2008, 21.06.2008, 04.02.2009 (colly.) and 01.07.2009 (colly.), were issued by the Opposite Parties, to the complainant, towards the said amount.

2.           subject to force majeure conditions and reasons beyond the control of the Company,the physical possession of fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that, at the time of registration and allotment of plot, according to the scheme of Mohali Hills, which included Sectors 105, 108 and 109, the complainant could be allotted the same, in any of the same.

3.           that there was no development, in the area, in which the same (plot) was allotted. Even there was no hope of delivery of possession of the plot, in question, in the near future. On the other hand, the Opposite Parties had developed Sector 105. The complainant made a number of oral, as well as written requests, to the Opposite Parties, to deliver legal physical possession of the plot, in question, complete in all respects, but they failed to do so. Ultimately, when the complainant found that there was no development, in the Sector, where he was allotted the plot, in question, and, as such, the question of handing over possession thereof, did not at all arise, he asked for the refund of amount, deposited by him, but to no avail. It was further stated that the huge amount of Rs.39,64,201/-, deposited by the complainant, towards the price of plot, in question, was utilized by the Opposite Parties, for a long number of years, as a result whereof, he was caused financial loss. It was further stated that even the complainant underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to him, or by not refunding the amount, deposited by him.It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.39,64,201/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation, in the sum of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.

4.           The Opposite Parties, in their joint written version, pleaded that the complaint was not maintainable, as the complainant did not fall within the definition of a consumer, on the ground, that he purchased the plot, in question, from Mr. G.S. Bedi, in resale, in August 2007. It was further pleaded that cause of action arose to the complainant, in the year 2010, when possession of the plot, in question, was to be delivered, as per thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-12, but he filed the Consumer Complaint, in the year 2013, and, as such, the same was barred by time. It was stated that the complainant, by not seeking possession of the plot, or compensation, as provided in the Agreement aforesaid, in the year 2010, waived off his right to seek refund, in the year 2013. It was admitted that the complainant made payment ofRs.39,64,201/-,towards the price of the residential plot, in question. It was further stated that the complainant made default, in making payment of installments, and reminders were issued to him, to deposit the same, as and when, the same fell due. Execution of thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-12, between the parties was admitted.subject to force majeure conditions and reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement),yet, at the same time, it was also mentioned therein, that, in case of delay, the Opposite Parties were liable to pay compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay. It was further stated that the development activities, in the Sector, in which the plot, in question, was allotted, in favour of the complainant, were in full swing. It was denied that the complainant ever visited the office of the Opposite Parties. It was also denied that any letters were written by the complainant, asking them, for delivery of possession of the plot, in question, or refund of the amount, deposited by him. It was also denied that the complainant visited the site, to find out, as to whether, there was any development. 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. The remaining averments, were denied, being wrong.

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8.           Plot Buyer`s Agreement dated 04.07.2007, Annexure C-12, was executed between the parties. According to Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-12,subject to force majeure conditions and reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). Neither possession of the plot, in question, was delivered to the complainant, nor the refund of amount, deposited by him, with interest, was made, nor was the compensation paid to him.There was, thus, continuing cause of action, in favour of the complainant, to file the complaint.

9.            Rs.39,64,201/-,towards the price of plot, has already been paid by the complainant, by the stipulated date/time. Since, there was no development at the site, the Opposite Parties were unable to handover the legal physical possession of the plot, in question, to the complainant, by 04.07.2010. Even, the development was not completed by the time, the complaint was filed. No documentary evidence was produced by the Opposite Parties, by way of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, actually, there was development of the area, where the plot, in question, was allotted, in favour of the complainant. In the absence of production of such documentary evidence, which could be easily available with the Opposite Parties, only one and the one inescapable conclusion, which can be arrived at, is that the version set up by the complainant that there was no development at the site, where the plot was allotted to him, is correct. By not delivering the legal physical possession of the fully developed residential plot, to the complainant, by 04.07.2010, i.e. by the stipulated date, even after receipt of the entire price thereof, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

10.        Plot Buyer`s Agreement dated 04.07.2007, Annexure C-12, that the same was executed between the complainant and the Opposite Parties. From the receipts, referred to above, as also the account summary Annexure C-13, it is also evident that the complainant made payment of the entire sale consideration of the plot, in question, to the Opposite Parties. Even if, it is assumed for the sake of arguments, that originally the plot, in question, was allotted, in favour of Mr. G.S. Bedi, and his right and interest, in the same were transferred, in favour of the complainant, by the Opposite Parties, he stepped into his (Mr. G.S. Bedi) shoes, and became a consumer, as he availed of their (Opposite Parties) services, for the allotment of residential plot, in question.The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.        Rs.39,64,201/-,deposited by him, towards the price of plot, in question, without rendering him, any service. Since, the plot, in question, had not been developed, even by the time, the complaint was filed, in the year 2013, no alternative was left with the complainant, then to ask for the refund of amount, deposited by him. In our considered opinion, the complainant is entitled to the refund of amount ofRs.39,64,201/-,deposited by him. By not refunding the amount, deposited by the complainant, with interest, the Opposite Parties were deficient, in rendering service.

12.        Rs.39,64,201/-,towards the price of plot, in question, was deposited by the complainant, as is evident, from receipts, and summary of account Annexure C-13, referred to above. The complainant was deprived of his hard earned money, on the basis of misleading information given by the Opposite Parties, that he would be handed over the legal physical possession of the residential plot, in question, by 04.07.2010, but they failed to do so. The complainant was, thus, caused financial loss.

13.        the submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

14.        Counselfor the Opposite Parties, that since the parties being governed, by the terms and conditions ofthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-12,thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-12. Had the complainant prayed for possession of the residential plot, in question, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount, alongwith interest @12% P.A.

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17.        For the reasons recorded above, the complaint is partly accepted, with cost, in the following manner:-

                             The Opposite Parties are directed to                             The Opposite Parties are further directed to pay compensation, in the sum of Rs.1.5 lacs, 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.

                           The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

                           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 @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @12% P.A., on the 

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Pronounced.

Feb. 3, 2014

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

Rg.