DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Naresh Kansal s/o Sh. Janki Dass, R/o #70, New Lal Bagh, Patiala.

              ---Complainant

Vs

1]   Emaar MGF Land Private Limited, E.C.E. House, 28, Kasturba Gandhi Marg, New Delhi, through its Managing Director.

2]   The Manager, Emaar, MGF Land Private Limited, 1^st Floor, SCO No. 120-122, Sector 17-C, Chandigarh – 160017.

---- Opposite Parties

BEFORE:    SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Amit Chopra, Counsel for Complainant.

Sh. Neeraj Sobti, Proxy Counsel for

Sh. Sanjeev Sharma, Counsel for Opposite Parties.

PER MADHU MUTNEJA, MEMBER

1.          The Complainant had applied for a plot @ Rs.10,000/- per sq. yds. advertised by the Opposite Parties in Sector 105, SAS Nagar, Mohali. The price was later enhanced to Rs.11,500/- per sq. yds. An advance cheque of Rs.6.00 lacs dated 21.11.2005 paid earlier was returned to the Complainant and a fresh cheque of Rs.10.35 lacs was sent by the Complainant to the Opposite Parties on 7.9.2006 for allotment of a plot measuring 300 sq. yds. in Sector 105, SAS Nagar, Mohali.

          However, when the letter of allotment dated 11.5.2007 was received, the Complainant found that he was allotted Plot No. 606 measuring 300 sq. yds. in Sector 109, SAS Nagar, Mohali. The Complainant also deposited an additional amount of Rs.1,72,500/- on request of the Opposite Parties on 15.6.2007. The Complainant had stated that he had applied for a residential plot in Sector 105, SAS Nagar, Mohali as advertised by the Opposite Parties. However, the Opposite Parties allotted him a Plot in Sector 109, SAS Nagar, Mohali. Again, despite making payment, possession of Plot No. 606, Sector 109, SAS Nagar, Mohali has still not been given to him. The Complainant has also stated that on his visit to the proposed site on 10.10.2010, along with the representative of the Opposite Parties, he found that no plot was actually demarcated or numbered and there was a 5 ft. ditch filled with water, without any approach road in the area where the plot was to be situated. Various e-mails/letters exchanged between the parties have been placed as Annexure C-3 to C-18. The Complainant has been requesting the Opposite Parties for refund, while the Opposite Parties have offered Plot No.537 in exchange. However, this plot has also not yet been given to the Complainant.

          The Complainant has thus filed the present complaint with a prayer for refund of the amount paid, along with interest and compensation, besides costs of litigation.

2.          Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.          The Opposite Parties in their joint reply have taken preliminary objection of jurisdiction by relying on the judgment of the Hon’ble Supreme Court in case Sonic Surgical Vs. National Insurance Co. Limited, IV(2009) CPJ 40 (SC). The Opposite Parties have further stated that the Complainant was allotted a Plot No. 606, measuring 300 sq. yds. in Sector 109, SAS Nagar, Mohali @ Rs.11,500/- per sq. yds. as per the terms & conditions mentioned in the advance application form. As per the terms and conditions of provisional allotment, it was clearly stated that if the Complainant chose to surrender the plot or failed to submit duly signed letter by 15.6.2007, the amount paid by him would be refunded after deducing a charge equal to 20% of the amount paid. The advance registration form has been duly signed by the Complainant and is thus binding on him (Advance application for expression of interest and provisional allotment letter is at Annexure R-1 and R-2). Opposite Parties have further stated that the Complainant is seeking refund of the amount paid in contravention of the accepted terms and conditions. The Opposite Parties have stated that they have written a number of letters to the Complainant to pay the amount due, but he has never deposited any amount, nor sent back the signed Plot Buyers Agreement. 

          On merits, Opposite Parties have denied the contents of all paragraphs of the complaint. They have submitted that the Complainant has not deposited any amount after June, 2007 and his allotment stood cancelled on 04.12.2010. Earlier, he was offered possession of his provisionally allotted plot in January, 2010. The company had also taken a lenient view and offered relocation when the Complainant had assured them to make payment of the entire outstanding dues. However, he failed to deposit the amount, so there was no question of relocation. Opposite Parties have relied on various mails sent to the Complainant to show that the plot already stood cancelled and the Complainant had been a defaulter since 2007. Plot No. 537 in Sector 109, SAS Nagar, Mohali was offered to him, as an option to relocate subject to clearance of all dues. Despite conciliation the company has considered the request of the Complainant for delayed interest waiver, but the Complainant has still failed to make payment of the outstanding amount due. Opposite Parties have placed on record Annexures R-3 to R-11 which are the correspondence regarding the reminder of payment to the Complainant for his booked property and Annexure R-12 is a final notice regarding cancellation of plot in case of non-receipt of payment as per the policy. Annexure R-13 is regarding cancellation of the allotment. Pleading that there was no deficiency in service on its part, Opposite Parties has prayed for dismissal of the complaint with costs.

4.          The Complainant also filed rejoinder wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted. The Complainant has specifically denied receipt of letters placed on record by the Opposite Parties from Annexures R-3 to R-11.  

5.          Parties were permitted to place their respective evidence on record in support of their contentions.

6.          We have heard the learned counsel for the parties and have perused the record along with the written submissions advanced on behalf of the Complainant as well as Opposite Parties.

7.          The grievance of the Complainant is that despite paying Rs.12,07,500/- to the Opposite Parties against a Plot in Sector 105, SAS Nagar Mohali, an allotment of a Plot No. 109 was made to him in Sector 109, SAS Nagar Mohali. The relocated plot was also not handed over to him, as the area has not yet been developed. Receipt of most of the communications sent by both the parties to each other has been denied by both the parties. The Complainant has specifically stated that the letter of cancellation has never been received by the Complainant. He has also stated that efforts were made for relocation of another plot No.537, but relocation was never done. The Complainant has stated that he is not interested in the property any more and has prayed for refund of the amount paid by him along with interest and compensation. The Opposite Parties in reply has stated that the Complainant has continued to be a defaulter since 2007 and his plot now stands canceled. Opposite Parties have placed on record Annexure R-1 and R-2 which is the advance application form and provisional allotment letter. We do not agree with the preliminary objection taken by the Opposite Parties about jurisdiction, as the Opposite Parties have an office in Chandigarh. Moreover, as per this letter, the Plot Buyers Agreement as well as other documents are available in the Chandigarh office (Annexure R-2).

8.          It is evident from the facts and circumstances that Sector 109, SAS Nagar Mohali stated to be developed by the Opposite Parties has actually not been developed and the demarcation of a plot to the Complainant has not yet been finalized. The Opposite Parties have been offering him different plots but have actually not handed over anything concrete to the Complainant.

9.          It seems that the Opposite Parties are only indulging in the policy of enjoying ‘OPM’ (other people’s money). It is evident that the Sector has not been developed. Interestingly, money has been received by the Opposite Parties from the Complainant since 2005. The Complainant is definitely justified in not wanting to give more money in the absence of any concrete proposal or specific plot in hand. The Opposite Parties have accordingly cancelled his allotment. To our mind, canceling the allotment due to non-payment would in our opinion amount to unfair trade practice by the Opposite Parties since even at the time of arguments, there was no concrete offer of a developed area/plot for the Complainant by the Opposite Parties. We also feel that there would be many other allottees in the same boat as the Complainant in the instant case, waiting for allotment/ possession, who would be in a state where they would not know whether to wait for allotment/ possession or ask for refund.  

10.        In view of the foregoing discussion, we allow this complaint and direct the Opposite Parties, jointly and severally, as under:-

[a]  to refund Rs.12,07,500/- to the complainant with interest @9% p.a. from the respective dates of deposit till the date of payment;

[b]  to pay Rs.50,000/- to the Complainant as compensation for the harassment caused in not giving him a concrete allotment/ possession.

[c]  to pay a sum of Rs.10,000/- as costs of litigation.

11.        In addition to the above, we feel that since the Opposite Parties have clearly indulged in an unfair trade practice, by entrapping gullible consumers by collecting huge amounts of money, but not handing over possession, it will be in the interest of justice to grant punitive damages in terms of Section 14(d) and (hb) of the Consumer Protection Act, 1986. Accordingly, we impose punitive damages on the Opposite Parties to the tune of Rs.5,00,000/-. The said amount be deposited by the Opposite Parties with the State Legal Services Authority, U.T. Chandigarh.

12.        This order be complied with by the Opposite Parties within 45 days from the date of receipt of its certified copy, failing which, Opposite Parties shall be liable to pay the amount of Rs.12,07,500/- to the complainant along with interest @ 18% p.a. from the respective dates of deposit till the date of actual payment, besides payment of Rs.50,000/- as compensation and Rs.10,000/- as costs of litigation.

          The amount payable to the State Legal Services Authority, U.T. Chandigarh shall also be paid within 45 days of receipt of this order, under intimation to this Forum.

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

Announced

15^th January, 2013.                                                 

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

 (JASWINDER SINGH SIDHU)

MEMBER

“Dutt”

 (Complaint No. 107 of 2012)

Date of Order: 04.02.2013

DISSENTING  ORDER

PER SH.JASWINDER SINGH SIDHU, MEMBER

[1]                    It is a privilege to go through the orders of the Hon’ble Lady Member in the case titled above, which was allowed by her, having observed a deficiency in service on the part of the Opposite Parties, and giving the relief of refund of the amount deposited by the Complainant, along with a compensation of Rs.50,000/- and costs of litigation to the tune of Rs.10,000/-. We express our consent to the extent of relief granted by the Hon’ble Lady Member in Para No. 10 of her order alone.

[2]                    However, Hon’ble Lady Member has also opined and has expressed her views about the indulgence by the Opposite Parties into an unfair trade practice “by entrapping gullible customers by collecting huge amounts of money, but not handing over possession, it will be in the interest of justice to grant punitive damages in terms of Section 14 (1)(d) and (hb) of the Consumer Protection Act, 1986”, we differ with the observations of the Hon’ble Lady Member as quoted above in Para 11 of her order. Section 14(1)(d) and (hb) of the Consumer Protection Act, 1986, read as follows: -

14(1)(d)    to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opposite Party;

                                Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit;

(hb)       to pay such sum as may be determined by it, if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently;

                                Provided that the minimum amount of sum so payable shall not be less than five per cent. of the value of such defective goods sold or services provided, as the case may be to such consumers;

                                Provided further that the amount so obtained shall be credited in favour of such person and utilized in such manner as may be prescribed;

[3]                    The Hon’ble Lady Member while saddling the Opposite Parties with punitive damages to the tune of Rs.5.00 lacs under above quoted Section 14(1)(d) of the Act, has actually held the Opposite Parties liable to such damages as they had indulged in unfair trade practice by receiving huge amounts of money from numerous people, but at the same time, neither any quantum of amount of money, nor the identity of numerous people could be located from the file of the Complainant. At the same time, the definition of unfair trade practice as per Section 2(r) of the Act is as follows: -

(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely;—

(1) the practice of making any statement, whether orally or in writing or by visible representation which,—

(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;

Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;

(viii)makes to the public a representation in a form that purports to be—

(i) a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,

if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x) gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation.—For the purposes of clause (1), a statement that is—

(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public,

shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;

(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation .—For the purpose of clause (2), "bargaining price" means—

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

(3) permits—

(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

(3A) withholding from the participants of any scheme offering gifts, prizes or other items free of charge, on its closure the information about final results of the scheme.

Explanation.—For the purposes of this sub-clause, the participants of a scheme shall be deemed to have been informed of the final results of the scheme where such results are within a reasonable time, published, prominently in the same newspapers in which the scheme was originally advertised;

(4) permits the sale or supply of goods intended to be used, or are of a kind to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;

(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to  make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of

those or other similar goods or services.

(6) manufacture of spurious goods or offering such goods for sale or adopts deceptive practices in the provision of services.

(2) Any reference in this Act to any other Act or provision thereof which is not in force in any area to which this Act applies shall be construed to have a reference to the corresponding Act or provision thereof in force in such area.

[4]                    In case of present complaint, the Complainant had made a part payment of the consideration amount of the flat subscribed by him with the Opposite Parties. The Complainant had actually agreed to a time bound payment of the consideration amount as per the schedule mentioned at Page 18 of Annexure C-1 (colly), within 24 months from the date of allotment of the Unit and at the same time, the Opposite Parties were to develop the site in 30 months time period from the date of allotment, meaning thereby that the Complainant would have paid the entire amount before the due date of completion of the construction of the flat applied for.  In the given situation, the Complainant who had only made a payment of Rs.12,07,500/- as against the total amount of Rs. 36,19,104/- that comes out to be 30% of the agreed consideration only. Hence, as per the evidence available on the file, even the Complainant has made only a part payment of the consideration amount, he was obliged to pay. Hence, it is proved that the Opposite Parties have not collected any exorbitant amount of money, as opined by the Hon’ble Lady Member. Having received the amount mentioned above, non-delivery of the possession of the plot in question, is a deficiency in service, but the same cannot be held an unfair trade practice in terms of the Section referred above. Hence, the Opposite Parties have not indulged in any unfair trade practice as per the definition quoted above, at the same, there is also no evidence that there were other numerous people, who have been misled by them, so as to qualify to be penalized under Section 14(1)(d) & 14(1)(hb) of the Act.   In the given situation, the Hon’ble Lady Member should not have awarded the penalties as mentioned in para 11 of her order.

[5]                    In the light of the above observations, we feel that the award of damages to the tune of Rs.5.00 lacs should not have been passed against the Opposite Parties, as the same is not in consonance with the provisions of the Consumer Protection Act, 1986. While differing with the award mentioned in Para 11 of the order, we express our consent with the award of the Hon’ble Lady Member as para 10 and 12 of the order only.

[6]                    Hence, the Opposite Parties are directed to: -

[a]        refund Rs.12,07,500/- to the complainant with interest @9% p.a. from the respective dates of deposit till the date of payment;

[b]        pay Rs.50,000/- to the Complainant as compensation for the harassment caused in not giving him a concrete allotment/ possession.

[c]        to pay a sum of Rs.10,000/- as costs of litigation.

[7]                    The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 & 2; thereafter, they shall be liable for an interest @18% per annum from the respective dates of deposit instead of @9% p.a. on the amount mentioned in Para 6[a] and the amount mentioned in Para 6[b], above, would attract interest @18% p.a. from the date of this order, till it is paid, apart from cost of litigation of Rs.10,000/-.  

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

Sd/-

[Lakshman Sharma]

President

Sd/-

[Jaswinder Singh Sidhu]

Member

“Dutt”