Chandigarh

StateCommission

CC/163/2014

Hirdesh Chopra - Complainant(s)

Versus

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

Manpreet Singh

20 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	163 of 2014
Date of Institution	:	24.11.2014
Date of Decision	:	20/02/2015

 

Hirdesh Chopra son of Sh.K.C. Chopra, aged 46 years, resident of House No.422, Phase-10, Mohali.

……Complainant

V e r s u s

1. Emaar MGF Land Private Limited, through its Authorized Signatory, ECE, House Level-1, 28, K.G. Marg, New Delhi-110001.
2. Emaar MGF Land Private Limited, through its General Manager, SCO 120-122, First Floor, Sector 17-C, Chandigarh.

              .... Opposite Parties

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

 

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

                 MR. DEV RAJ, MEMBER

                 MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh. Manpreet Singh, Advocate for the complainant.

                  Sh. Sanjeev Sharma, Advocate for the Opposite                      Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that originally Mr. Sanjay Jain, applied to the Opposite Parties, for the allotment of a residential plot, in their project, at Mohali, vide application  No.552, and paid a sum of Rs.10,35,000/-, as booking amount. As such, Mr. Sanjay Jain, was allotted plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.2,01,144/- plus (+) Preferential Location Charges of Rs.4,31,250/-.  The basic sale price of the said residential plot was to the tune of Rs.34,50,000/-. Thus, the total sale consideration, inclusive of External Development Charges and Preferential Location Charges, in the sum of Rs.40,82,394/-, was required to be paid by the  allottee.

2.       Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, in respect of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, was executed between Mr. Sanjay Jain, and the Opposite Parties.
3.       It was stated that, thereafter, the said plot was transferred, in the name of one Dr. Manjot Kalra, on 25.05.2010 with the approval of the Opposite Parties. Subsequently, the said plot was purchased by the complainant and his wife Mrs. Sonika Chopra, jointly, from Dr.Manjot Kalra. Accordingly, the Opposite Parties, vide endorsement dated 26.04.2011, transferred the plot, in the name of the complainant- Mr. Hirdesh Chopra, and his wife-Mrs. Sonika Chopra. Vide letter dated 17.05.2011, the Opposite Parties, intimated Mr. Hirdesh Chopra, that the said plot had been transferred in his and his wife,s name. It was further stated that the amount of Rs.39,09,894/-, was paid to the Opposite Parties, towards the price of the said plot, as was confirmed by them, vide letter dated 17.05.2011 Annexure C-1.
4.       It was further stated that, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, 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 two years, but not later than three years, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within three years, from the date of execution of the same, the Opposite Parties were liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
5.       It was further stated that the complainant patiently waited for the delivery of physical possession of the plot, in his favour. It was further stated that when possession of the plot, in question, was not offered, by the stipulated date, the complainant made various requests to the Opposite Parties, to apprise him about the status of the project, but to no avail. It was further stated that the complainant requested the Opposite Parties, a number of times, to deliver physical possession of the plot, in question, but to no avail. It was further stated that left with no other alternative, legal notice dated 01.08.2014, was also served upon the Opposite Parties, to which they gave vague reply dated 07.10.2014
6.       It was further stated that the complainant approached the Opposite Parties, through every possible means, with a request to deliver possession of the plot, in question, but every time, they kept on putting off the matter, on lame excuses. However, till date, possession of the plot, in question, was not delivered to the complainant.
7.       It was further stated that the huge amount of Rs.39,09,894/-, deposited towards price of the plot, in question, was utilized by the Opposite Parties, without delivering possession of the same to the complainant, as a result whereof, he was caused financial loss. It was further stated that the Opposite Parties played such type of fraud with several other customers. 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.
8.       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 deliver the possession of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, Punjab; pay interest @2% P.A., on the amount of Rs.39,09,894/-, till the possession of plot, in question, is delivered; penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2; compensation to the tune of Rs.5 lacs, towards financial loss, mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.50,000/-.
9.       The Opposite Parties, put in appearance on 08.01.2015, and filed their written version, on 16.02.2015. In the written version, it was pleaded by the Opposite Parties, that since the plot, in question, was purchased in resale, by the complainant namely Hirdesh Chopra and his wife Sonika Chopra, whereas, the instant complaint having been filed by him (Hirdesh Chopra), only, is defective, and, as such, is liable to be dismissed, on this ground only. It was further pleaded that since the allegations of fraud and cheating were leveled against the Opposite Parties, as such, the complainant was required to be relegated to the Civil Court, and the same could not be adjudicated by this Commission, the proceedings before which are summary in nature. It was stated that since copy of order, passed by the District Forum, wherein the complainant was allowed to withdraw the complaint filed there (District Forum), with permission of file a fresh one, on the same cause of action, has not been placed, the instant consumer complaint is liable to be dismissed on this ground too. It was further pleaded that the complainant did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act, as he purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. It was further pleaded that this Commission has no pecuniary and territorial Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Plot Buyer,s Agreement, and, in case of any dispute, the matter was to be referred to the Arbitration. The purchase of plot, in question, by the complainant and his wife, in the manner, referred to above, was admitted. It was also admitted that, as per the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, possession of the plot, in question, was to be delivered to  the  complainant and his wife, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was, however, further stated that it was well within the knowledge of the  complainant that time was not the essence of contract and for any delays, stipulated penalty had been provided in the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, which safeguarded his rights. It was further admitted by the Opposite Parties that the possession of plot no.202, Central Greens, Sector 105, Mohali, Punjab, could not be delivered by the stipulated date, and even till the date of filing the complaint, for want of basic amenities, at the site. It was further stated that since the amenities, where plot no.202, was located, had not been completed, the complainant could be allotted some other plot, in the same project. 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.
10.       In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
11.       The complainant submitted his affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
12.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, reply dated 07.10.2014, to the legal notice dated 01.08.2014, served upon them, by the complainant, was attached. 
13.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
14.       The first question, that falls for consideration, is, as to whether, the residential plot, in question, was purchased by Mr. Hirdesh Chopra, complainant and his wife Sonika Chopra jointly, from Dr. Manjot Kalra, with the approval of the Opposite Parties. The answer to this question is in the affirmative. After the purchase of the plot, in question, the Buyer Agreement, Annexure C-2, was endorsed in favour of Hirdesh Chopra, complainant, and his wife Sonika Chopra, on 26.04.2011. This endorsement was signed by an authorized signatory, on behalf of the Opposite Parties on 17.05.2011. Not only this, vide letter dated 17.05.2011, Annexure C-1, the complainant was informed that the property, in question, stood transferred in his name and Mrs. Sonika Chopra, as a co-owner. No doubt, it is evident from this letter towards the end “ENDORSED IN FAVOUR OF Mr. Hirdesh Chopra s/o K.C. Chopra, R/o House No.422, Phase 10, Mohali, Punjab, in terms of application/affidavit dated 26.04.2011”. However this fact was specifically denied by the Opposite Parties, not only in reply Annexure R-1 to the legal notice, but in their written statement also, which averment was duly corroborated by Mr. Sachin Kapoor, their Legal Manager, by way of affidavit, submitted  in the shape of evidence. In case, any application/affidavit had been submitted by Sonika Chopra, wife of the complainant, giving her no objection to the transfer/endorsement of the plot, in question, in his (complainant) favour, copy thereof could be produced. Even the affidavit of Sonika Chopra, could be produced, to establish that the plot was solely transferred in the name of the complainant, on submission of an application/affidavit by her. However, neither copy of the alleged application/affidavit of Sonika Chopra was produced nor her affidavit, by way of evidence to prove the factum of alleged transfer was furnished. Even no application under Section 13 (4) of the Act, was moved by the complainant, for directing the Opposite Parties to produce either the original application/affidavit or copy thereof, if any, submitted by Sonika Chopra, for the alleged transfer of the plot, in question, on 26.04.2011, in his favour. Under these circumstances, it is held that the plot, in question, was transferred in the names of the complainant and his wife Sonika Chopra jointly, with the approval of the Opposite Parties.
15. It may be stated here that, no doubt, the plot, in question, was purchased by the complainant and his wife Sonika Chopra, jointly, whereas, on the other hand, the instant consumer complaint, has been filed by him (complainant) alone.  The question arises, as to whether, under these circumstances, the complaint having been filed alone by the complainant was maintainable or not. According to Section 2 (1) (b) (iv) of the Act, complainant means one or more consumers, where there are numerous consumers having the same interest. In the instant case, the complainant and his wife Sonika Chopra, are co-purchasers of the plot, in question. They have got the same interest, in the plot, As such, one of them namely the complainant being her husband could file the complaint alone, on her behalf also. In T. T. Private Ltd  Versus  Akhil Bhartiya Grahak Panchayat, LAWS(NCD)-1996-6-34, decided on June 18,1996, a similar question fell for determination, before the National Consumer Disputes Redressal Commission, New Delhi, wherein it was held that the relationship of husband and wife, in marriage, is such that of commonality of interest and inter-dependence on each other, which entitles either party to step in the shoes of another, as far as the complaint regarding deficiency, in rendering service, or adoption of unfair trade practice, in respect of goods, is concerned. Not only this, it was further held by the National Commission, New Delhi, in the said case that the complaint was filed by Akhil Bhartiya Grahak Panchayat, registered Consumer Organization and as per the provisions of Section 2(b)(ii) of the Consumer Protection Act, 1986, it had locus-standi to file the same, although it was loosely mentioned that the complaint was on behalf of complainant No. 2. It was further specifically held by the National Commission, New Delhi, in the said case that “This judgment is important because it recognises the common right of a husband and wife to file a consumer complaint on behalf of each other for any goods/items purchased for use of the family”. Not only this, in Punjab National Bank, Bombay v. K.B. Shetty 1991 (2) CPR 633, it was held that in the Indian conditions, women may be illiterate, educated women may be unaware of their legal rights, thus a husband can file and prosecute complaint under the Consum­er Protection Act, on behalf of his spouse also. Not only this, in  Sh.P.N. Gupta Versus The New India Assurance Co. Ltd., Revision Petition No. 3821 of 2013,  decided on 19.11.2013, it was clearly held by the National Consumer Commission, New Delhi, that if there are numerous consumers having the same interest, one or more consumers can file the complaint. It was further held in that case, that since Dr. Mrs. Meena Gupta was the co-Policy-holder, along with her husband and her son, she could have very well filed the present complaint. In view of what has been held, in the aforesaid cases, the complainant alone could be said to be competent, to file the instant consumer complaint, on behalf of his wife too, in respect of the plot, in question.  Otherwise also, it may be stated here, that the Consumer Protection Act, 1986, is a beneficial legislation, meant to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one contained in Section 13 (4) of the Act, are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice. Under these circumstances, by no stretch of imagination, it could be said that the consumer complaint filed by the complainant alone, was not maintainable. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.    
16.       The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here, that the mere objection of the Opposite Parties that the complainant  purchased the plot, in the manner, referred to above, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It was clearly averred, by the complainant, in paragraph no.10 of the complaint, supported by his affidavit, by way of evidence, that he  would have saved the rent, being paid by him, to the landlords, had possession of the plot, in question, been delivered to him, by the stipulated date, because he would have constructed house thereon, and reside therein. Even otherwise, the mere fact that it was a residential plot, which was purchased by the complainant and his wife, was sufficient to prove that it was to be used for the purpose of their residence. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the plot, in question, was purchased by him and his wife, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential plot, in question, with a view to raise construction thereon, and reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.  
17.       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 existence of an arbitration Clause in the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2. 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.”

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 an arbitration Clause, in the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, 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  Parties, being devoid of merit, must fail, and the same stands rejected.

18.       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 complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, in respect of the plot in question, was endorsed in favour of the complainant and his wife, at Chandigarh, as is evident from page 21 of the file. It means that a part of cause of action arose to the complainant, 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 Parties, in their 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.
19.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the plot, in question, was  Rs.40,82,394/-, including other charges. The complainant has sought delivery of possession of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, Punjab;  interest @2% P.A., on the amount of Rs.39,09,894/-, till the possession of plot, in question, was delivered; penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2; compensation to the tune of Rs.5 lacs, towards financial loss, mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.50,000/-. The aggregate value of the services/goods, plus (+) compensation, and cost, claimed by the complainant, in the complaint, [excluding the interest claimed @2% P.A. aforesaid], came to be around Rs.54,72,394/- 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 Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
20.       The next question, that arises for consideration, is, as to whether, interest @2% P.A., claimed by the complainant, in the manner, referred to above, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/ appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

21.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @2% P.A., claimed by the complainant, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above.
22.       The next question, that falls for consideration, is, as to whether, complicated and complex questions of fact and law are involved, in this complaint, on account of the allegation of fraud, having been leveled by the complainant, the adjudication whereof, is not possible, by this Commission, proceedings before which are summary, in nature. It may be stated here, that no complicated and complex questions of fact and law, are involved, in this complaint, the adjudication whereof is not possible by this Commission, though the proceedings before it are summary, in nature. Mere allegation in the complaint that the Opposite Parties committed similar fraud with other consumers, has no legs to stand without substantiation thereof, through cogent and convincing evidence. It is a simple case of allotment of a plot, and non-delivery of possession thereof, by the stipulated date. The complainant claimed that he purchased the said plot and deposited a sum of Rs.39,09,894/-, towards the part price thereof, but was not handed over the possession of the same, by the stipulated date i.e. on 03.07.2010. The Opposite Parties, admitted that the aforesaid amount was deposited towards part price of the plot. It was however, stated by the Opposite Parties that the plot was purchased jointly, by the complainant and his wife, in their written version. They, however, stated that they were making all out efforts, to complete the project, in which the plot was carved out. It is a well settled principle of law, that the parties are governed by the terms and conditions, contained in the Agreement. In the terms and conditions, in respect of the allotment of plot, in question, it was clearly stated, as to what would be the consequences, if the delivery of possession of the same (plot), was not made by the stipulated date.  Under these circumstances, by no stretch of imagination, it could be said that complicated and complex questions of fact and law, are involved, in the instant complaint, which require examination and cross-examination of the witnesses, and analysis of voluminous evidence. In J.J. Merchant (Dr.) V. Shrinath Chaturvedi, IV (2002) SLT 714 =III (2002) CPJ 8 (SC) =2002 CTJ 757 (SC) (CP), the Hon,ble Supreme Court, held as under:-

“This submission also requires to be rejected because   under   the   Act,  for  summary or speedy  trial,   exhaustive  procedure inconformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers, and that should not be curtailed, on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done, when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards”.

23.             In CCI Chambers Coop. Hsg. Society Ltd. V. Development Credit Bank Ltd. V (2003) SLT 185=III (2003) CPJ 9 (SC)=2003 CTJ 84 (SC) (CP), the Hon’ble Supreme Court also held as under:-

“It cannot be denied that Foras at the National Level, the State level and at the District level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the Fora established under the Act. These Foras have been established and conferred with the jurisdiction in addition to the conventional Courts.   The   principal object sought to be achieved by establishing such Foras is to relieve the conventional Courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure, which at times is accompanied by technicalities. Merely because reading of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any Forum under the Act to the person aggrieved”.

24.        The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the Opposite Parties, in their written version, that since the complicated and complex questions of fact and law are involved in this complaint, the adjudication whereof is not possible, by this Commission, proceedings before which are summary, in nature,  thus, being devoid of merit, must fail, and the same stands rejected.

25.       The next question, arises, as to within which period, delivery of possession of the plot, was to be given to the complainant and his wife. The Plot Buyer,s Agreement Annexure C-2, in respect of plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, was executed, on 04.07.2007. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties, were required to deliver the possession of plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, in favour of the  complainant and his wife, within three years, from the date of execution of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2. Admittedly, possession of the plot, in question, was not delivered to the allottee, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Parties, frankly admitted that they were not able to deliver possession of the plot, in question, to the  complainant, by providing all amenities, as mentioned in the Agreement, till date. As stated above, more than 95%  of the sale consideration, towards the said plot, has been paid by the  complainant and his wife, but   possession of the same (plot No.202), was not delivered to them, as the same had not been developed.  Still the Opposite Parties have not given any exact date of delivery of possession of plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, to the complainant and his wife. Neither possession of plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, which was purchased by the complainant and his wife, was offered to them by the stipulated date nor by the time, the complaint was filed, nor till date. By making a misleading statement, that possession of plot no.202, measuring 300 square yards, in Sector 105, Mohali Hills, Central Greens, SAS Nagar, Mohali, Punjab, would be given to the complainant and his wife, within the maximum period of three years, from the date of execution of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, and by not abiding by the commitment, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant and his wife are certainly entitled to physical possession of the plot, in question.
26.       No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani,s case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani,s case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, within a period of 2 years, and not later than three years, from the date of execution of the same, i.e. latest by 03.07.2010. Even after the expiry of more than seven years, from the date of allotment of plot, and more than about four years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
27.       The next question, that falls for consideration, is, as to whether, the complainant and his wife are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot, in question, by the Opposite Parties, by the promised date. According to Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2, the Opposite Parties were liable to pay to the complainant, penalty/ compensation, in the sum of Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same. The possession of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, was not delivered to the complainant and his wife, by the stipulated date, or even by the time, the complaint was filed. As stated above, the Counsel for the Opposite Parties, frankly admitted that they were not able to deliver possession of the plot, in question, to the  complainant and his wife, by providing all amenities, as mentioned in the Agreement, till date. The complainant and his wife are, thus, entitled to compensation/ penalty @Rs.50/-, per square yard, per month, from 03.07.2010 (promised date) onwards, on account of delay, in the delivery of possession of the fully developed plot, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2.
28.       The next question, that falls for consideration, is, as to whether, the complainant and his wife 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 plot, in question, to them, by the Opposite Parties, by the promised date i.e. 03.07.2010. The complainant and his wife, purchased the plot, with the hope to have a roof over their head, by raising construction thereon, but their hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than four years, from the promised date,  i.e. 03.07.2010, delivery of physical possession of the plot, has not yet been given, to the complainant and his wife, by the Opposite Parties. The complainant and his wife underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, on account of mental agony and physical harassment, caused to the complainant and his wife, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,00,000/-, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,00,000/-.
29.       No other point, was urged, by the Counsel for the parties.
30.       For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:- 

1.           The Opposite Parties, are jointly and severally directed to hand over physical possession of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, to the complainant and Sonika Chopra his wife, within 2 months, complete in all respects,  as per the terms and conditions of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2,  from the date of receipt of a certified copy of this order, on payment of  the amount, if any, legally due against them (complainant and Sonika Chopra).
2. The Opposite Parties are further jointly and severally directed to execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant and his wife Sonika Chopra, within one month from the date  of  handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by them (complainant and Sonika Chopra), to the Registering Authorities.
3. The Opposite Parties, are further jointly and severally directed to pay penalty/compensation @Rs.50/-, per square yard, per month,   from  03.07.2010 (the promised date of delivery of possession), till the delivery of possession of plot no.202, Central Greens, Sector 105, Mohali Hills, Mohali, to the complainant and Sonika Chopra, as per Clause 8 of the Plot Buyer,s Agreement dated 04.07.2007, Annexure C-2.
4. The Opposite Parties, are further jointly and severally directed to pay compensation, in the sum of Rs.1,00,000/-, to the complainant and Sonika Chopra, on account of deficiency in rendering service, adoption of unfair trade practice mental agony and physical harassment, caused to them, at their hands..
5. The Opposite Parties, are further jointly and severally directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant and his wife Sonika Chopra.
6.  Compensation, granted to the complainant and his wife Sonika Chopra, as mentioned in Clause (iii), which has fallen due upto 28.02.2015, shall be paid by the Opposite Parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 03.07.2010, till realization.
7. Compensation accruing due @Rs.50/-per square yard, per month,   w.e.f. 01.03.2015, onwards, shall be paid by the 10^th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.
8. Compensation granted, in favour of the complainant and Sonika Chopra, on account of mental agony and physical harassment, to the tune of Rs.1,00,000/-, as mentioned in Clause (iv),  shall be paid by the Opposite Parties, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.

31.       Certified Copies of this order be sent to the parties, free of charge.
32.           The file be consigned to Record Room, after completion.

Pronounced.

20/02/2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER

 

 

Rg.