DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Ms. Alka Arora w/o Lalit Arora r/o House No.778, Sector-8, Panchkula.

                                      ---Complainant.

Versus

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

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

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. Subhash Chander Sharma, Adv. for the complainant

                        Sh. Ashim Aggarwal, Adv. for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Ms. Alka Arora has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs against the opposite parties :-

(i)                To pay Rs.4,50,000/- alongwith interest @ 15%.

(ii)             To pay Rs.7,00,000/- on account of interest over the deposited amount and Rs.2,00,000/- on account of damages and mental harassment alongwith interest @ 15%.

(iii)           To pay Rs.10,000/- as litigation charges

2.                           In brief, the case of the complainant is that she was allotted plot No.361 measuring 300 sq. yards in Mohali Hills.  Prior to the allotment the complainant filled the advance registration form and alongwith that enclosed a cheque of the basic price @ Rs.10,000/- per sq. yard + applicable EDC which was accepted by the opposite parties.   According to the complainant when the provisional allotment of the plot was issued through letter dated 9.5.2007 the opposite parties mentioned the rate @ Rs.11,500/- per sq. yard  instead of Rs.10,000/- per sq. yard. Plot Buyer’s Agreement dated 4.7.2007 was also executed between the parties.   

                   According to the complainant she visited the office of the opposite parties a number of times.  Every time she was assured that the amount in excess shall be adjusted in future installments.  But the opposite parties failed to do so.  According to the complainant till 6.1.2009 she has deposited Rs.38,94,965/- but still there is no development in the area.  Neither the roads have been constructed nor electricity has been provided.  Even the sewerage work has not been completed.

                   It has further been pleaded that the possession was to be provided by 3.7.2009 but the same has not been provided till date.  So, the complainant is entitled to charge compound interest @ 15% p.a. over the amount deposited by the complainant.  It has been pleaded that the act and conduct of the opposite parties amounts to deficiency in service.

                   In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           In their written statement the opposite parties denied that any advance registration form of any kind was issued by them towards any advance registration of any plot prior to 5.9.2006.  According to the opposite parties as per clause 5 of the application form towards the registration of expression of interest in a residential plot in Mohali Hills dated 5.9.2006, duly signed by the complainant, the basic price was Rs.11,500/- per sq. yard.  It has been averred that towards the said advance application, the complainant deposited an amount of Rs.10,35,000/-.  It has been denied that no development works are going on.  According to the opposite parties close to 800 plots in Sectors 105,108 and 109 in Emaar MGF Mohali Hills had been offered for possession after completion of infrastructure facilities including roads, sewerage water and electricity as mentioned in the agreement.  It has been denied that the complainant is entitled to any claim of delayed interest as per the terms and conditions of the Plot Buyers Agreement.  It has been pleaded that the complainant is a defaulter and she has failed to pay the complete amount as per the payment plan.  It has been denied that the complainant suffered any mental agony or that the opposite parties indulged in any deficiency in service.  Hence it has been prayed that the complaint deserves dismissal.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           It has been argued by the ld. Counsel for the complainant that she filled the advance registration form and alongwith that enclosed a cheque of the basic price @ Rs.10,000/- per sq. yard + applicable EDC.  However, subsequently the opposite parties mentioned the rate of the plot as Rs.11,500/- per sq. yard.  However, the ld. Counsel has failed to place on record any document in support of this contention. 

6.                           Admittedly the Plot Buyer’s Agreement dated 4.7.2007 was executed between the parties.  Both the parties have appended their signatures on the agreement. As per this agreement, the rate per sq. yard of the plot in question has been mentioned as Rs.11,500/-.  Hence the contention of the complainant that the basic price of the plot in question was Rs.10,000/- per sq. yard cannot be believed and the same is rejected.

7.                           It has been next argued by the ld. Counsel for the complainant that despite payment of Rs.38,94,965/- till 6.1.2009, she was not offered possession of the plot.  According to the ld. Counsel, as per clause 8 of the agreement the opposite parties were to deliver possession of the plot within a period of two years from the date of execution of the agreement i.e. by 4.7.2009, but they failed to do so.      It has further been argued that when the complainant visited the Project site, she found that there was no development.

8.                           A bare reading of clause 8 of the agreement reveals that the opposite parties were to hand over possession of the plot in question within a period of two years from the date of execution of the agreement (i.e. by 4.7.2009), but not later than three years for reason of any force majeure event.  However, the opposite parties have failed to lead any evidence to prove that they could not complete the project in time due to some force majeure circumstances.   Thus, the opposite parties cannot claim the benefit of the third year, which was allowed only in the event of any force majeure circumstances.  Hence, there is no merit in this argument of the ld. Counsel for the opposite parties.

9.                           Faced with this situation, the ld. Counsel for the opposite parties argued that the complainant was defaulter in payment of installments.  However, he has not been able to place on record any document to this effect.   Hence, there is no merit in this argument also of the ld. Counsel for the opposite parties.

10.                       We are already near the end of year 2012, but the opposite parties have failed to lead any specific evidence to prove that the project of the opposite parties, where the complainant was allotted the plot in question, is complete in all respects, even today.  It is undisputed that the complainant had deposited the total sum of Rs.38,94,965/- towards the plot in question.  However, despite that the complainant has not been offered possession of the plot.  The opposite parties have used the amount deposited by the complainant for their own good.  Hence, they are liable to compensate the complainant for the delay caused in giving possession of the plot because had the complainant deposited the same in some bank, she would have certainly earned good returns thereon.  Hence, there is certainly deficiency in service on the part of the  opposite parties.

11.                       In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

(i)                to pay interest @ 12% per annum on the amount of Rs.38,94,965/- deposited by the complainant from the respective dates of deposit till handing over possession of the plot in question

(ii)             to pay Rs.30,000/- as compensation for causing mental agony and harassment

(iii)           to pay Rs.10,000/- as costs of litigation.

12.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) shall carry interest @18% per annum from the respective dates deposit till handing over possession and the amount at Sr.No.(ii) shall carry interest @18% from the date of this order till actual payment, besides payment of litigation costs.

13.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

19.10.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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