Chandigarh

StateCommission

CC/16/2015

Rajesh Saini - Complainant(s)

Versus

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

Rakesh Bajaj, Adv.

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	16 of 2015
Date of Institution	:	28.01.2015
Date of Decision	:	01.04.2015

 

Rajesh Saini son of Sh. Ram Nath Saini, resident of 1639, Sector 34-D, Chandigarh.

……Complainant

V e r s u s

1. Emaar MGF Land Private Limited, SCO 120-122, Sector 17-C, Chandigarh-160017, through its Managing Director.
2. Emaar MGF Land Pvt. Limited, ECE House, #28, Kasturba Gandhi Marg, New Delhi, through its Director.

               .... 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. Subhash Chander Sharma, Advocate for the                     complainant.

                        Sh. Sanjeev Sharma, Advocate for the Opposite                      Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that in the year 2006, the complainant, applied to the Opposite Parties, vide application  No.1010, for the allotment of a residential plot, and paid a sum of Rs.10,35,000/-, as booking amount, vide cheque No.519822 dated 05.09.2006. Vide Provisional Allotment Letter dated 09.05.2007 Annexure C-2, the complainant was allotted plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.1,69,104/- plus (+) Preferential Location Charges of Rs.3,45,000/-.  The basic sale price of the said residential plot was to the tune of Rs.34,50,000/-. Thus, the total sale consideration, in the sum of Rs.39,64,104/-, was required to be paid by the  complainant.

2.       It was stated that Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1 , in respect of plot No.415, Augusta Park, Sector 109, Mohali, was executed between the parties. It was further stated that, as per Clause 8 of the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, 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. It was further stated that, thus, the Opposite Parties were liable to deliver possession of the plot, in question, latest by 03.07.2010.
3.       It was further stated that the amount of Rs.37,91,604/- was paid by the complainant, towards part price of the said plot. Since the complainant had made timely payment, he was given rebate of 5% of the basic sale price. In this manner, the entire sale consideration, in respect of the said plot was made by the complainant, to the Opposite Parties.
4.       It was further stated that possession of the plot, in question, was not delivered to the complainant, by the stipulated date i.e. 03.07.2010. 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 when the complainant visited the site, where the plot, in question, was carved, he was surprised to see that there was no development. Even the basic amenities were not available at the site. It was further stated that even the necessary permissions/sanctions including the completion and occupation certificates, were not obtained by the Opposite Parties, from the Competent Authorities. As such, the project floated by the Opposite Parties was just a farce.
5.       It was further stated that the huge amount of Rs.39,64,104/- (infact Rs.37,91,604/-), deposited by the  complainant, towards the price of plot, in question, was utilized by the Opposite Parties, 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, as a result whereof, he was constrained to ask for the refund of amount, but to no avail.
6.       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.39,64,104/- (infact Rs.37,91,604/-), alongwith interest @15% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.9 lacs, towards mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
7.       The Opposite Parties were served and put in appearance on 03.03.2015. They filed their written version, on 26.03.2015. In the written version, it was pleaded by the Opposite Parties, that the cause of action accrued, in favour of the complainant, on 04.07.2010, when the possession of plot No.415, in question, was to be offered to him. It was further pleaded that the complainant could file the complaint, within 2 years, from 04.07.2010. It was further pleaded that the complaint having been filed on 28.01.2015, was palpably barred by time. 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 got no 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 dated 04.07.2007, Annexure C-1, and, in case of any dispute, the matter was to be referred to the Arbitration. It was admitted that the complainant, applied to the Opposite Parties, vide application  No.1010, for the allotment of residential plot, and paid a sum of Rs.10,35,000/-, as booking amount, vide cheque No.519822 dated 05.09.2006. It was also admitted that vide Provisional Allotment Letter dated 09.05.2007 Annexure C-2, the complainant was allotted plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.1,69,104/- plus (+) Preferential Location Charges of Rs.3,45,000/-, the basic sale price whereof was to the tune of Rs.34,50,000/-. It was also admitted that, the total sale consideration, in the sum of Rs.39,64,104/-, was required to be paid by the  complainant. It was stated that the complainant had deposited the amount of Rs.37,91,604/- towards part price of the said plot. It was also admitted that, as per the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1,  possession of the plot, in question, was proposed to be delivered 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 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-1, which safeguarded his rights. It was also admitted by the Opposite Parties that the possession of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, could not be delivered by the stipulated date, and even till the date of filing the complaint. It was further stated that possession of the plot, in question, complete in all respects, was expected to be delivered by July, 2015. It was further stated that since the amenities, where plot No.415 is located, had not been completed, the complainant could be offered relocation in relation to some other plot, in the same project. It was further stated that the Opposite Parties were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of delivery of possession of the plot. 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.
8.       The complainant submitted his own affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
9.       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, a number of documents were attached. 
10.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
11.       The first 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, 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.13 of the complaint, supported by his affidavit, by way of evidence, that he purchased the said plot, for his residential purpose. Even otherwise, the mere fact that it was a residential plot, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. 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, 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.  
12.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that since the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, in respect of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was executed on 04.07.2007 and the possession thereof, (plot No.415), was to be handed over by 03.07.2010, the cause of action accrued to him on that date (03.07.2010) and the complaint having been filed on 28.01.2015, was palpably barred by time. It may be stated here that, according to the Plot Buyer’s Agreement   dated 04.07.2007, Annexure C-1, the Opposite Parties were to hand over physical possession of the plot, in favour of the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement).  The Opposite Parties, frankly admitted in paragraph No.6 of their written version, that the possession of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was expected to be offered by the end of July 2015, as still the basic amenities were not complete at the site. Thus, neither the possession of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was offered, nor delivered to the complainant, by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, was paid to him, nor in the alternative the refund of Rs.37,91,604/- deposited by him, was made to him. There was, thus, a continuing cause of action, in favour of the complainant. 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 Parties, 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 consumer complaint, or not. No doubt, the Counsel for the Opposite Parties, submitted that as per Clause 39 of the Plot   Buyer’s Agreement dated 04.07.2007, Annexure C-1, the High Court of Punjab and Haryana at Chandigarh, and the Courts subordinate thereto, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement), this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here that the Consumer Foras’ are not the Courts. Clause 39 of the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, only confers Jurisdiction on the High Court of Punjab and Haryana at Chandigarh, and the Courts subordinate thereto. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts.  It was further held, in the said case, that there is a difference between Section 11 of the Act, which a para materia to Section 17 of the Act and the provisions  of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. In the instant case, the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, was made and executed at Chandigarh. Not only this, bare perusal of the receipts Annexures C-4 to C-9, placed on record, clearly goes to establish that part payment towards the said plot was received by the Chandigarh Office of the Opposite Parties. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at  Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected
14.       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-1.  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.”

15.       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-1, 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.
16.           The next question, that falls for consideration, is, as to whether, the Opposite Parties were required to obtain the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995. Section 14 of the PAPRA 1995 reads as under:-

 

“14.Occupation and completion certificate:- (1) It is the responsibility of the promoter:-

(i)         in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii)       in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted, to him under section 5.

(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate”.

17.       Section 44 of the PAPRA 1995 reads as under:-

“44. Exemption:- (1) Subject to the provisions of section 32, nothing in this Act shall apply if the promoter is:-

(a)      a local authority or statutory body constituted for the development of land or housing: or

(b)     a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government.

(2) If the State Government is of the opinion, that the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it may impose”.

18.       No doubt, in the normal course, the Opposite Parties were required to obtain occupation and completion certificates, under Section 14 of the PAPRA 1995. However, in exercise of the powers vested under Section 44(2) of the PAPRA 1995, and all other powers enabling him, to act in this behalf, the Governor of Punjab, was pleased to exempt the aforesaid Housing Project of M/s Emaar MGF Land Ltd/Opposite Parties, from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, which does not relate to the  subject matter, vide Notification Nos. 18/41/2006-5HG-II/7397 dated 11.08.2006, 18/41/2006-5HG-II/12790 dated 22.12.2006  and CTP  (Pb)  MPR.  2/594  dated 22.01.2008.    Once the exemption was granted, by the State Government, vide the Notifications aforesaid, to the project of the Opposite Parties, from the provisions  of the PAPRA 1995, it could not be said that, in the absence of occupation and completion certificates, legal possession of the plot, in question, could not be handed over to the complainant. Had vide these Notifications, the project of the Opposite Parties, been not exempted, from the provisions of the PAPRA 1995, the matter would have been different.  In that event, there would have been some merit, in the submission of the Counsel for the complainant. It is, therefore, held that obtaining of the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995, was not necessary, by the Opposite Parties, in respect of their project, in view of the exemption, having been granted to it, vide the Notifications, aforesaid. The submission of the Counsel for the complainant, therefore, being devoid of merit, must fail, and the same stands rejected.
19.       The next question, arises for consideration, is, as to within which period, delivery of possession of the plot, was to be given to the complainant. The Plot Buyer’s Agreement Annexure C-1 , in respect of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was executed between the parties, 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.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, in question, in favour of the  complainant, within three years, from the date of execution of the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1. Admittedly, possession of the plot, in question, was not delivered to the complainant, 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, the entire sale consideration, in the manner, referred to above, towards plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, has been paid by the  complainant, but   possession of the same (plot No.415), was not delivered to him, as the same had not been developed.  Since, neither possession of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  which was allotted to the complainant, was offered to him (complainant) by the stipulated date, nor by the time, the complaint was filed, nor till date, he (complainant) was right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  would be given to the complainant, within a maximum period of three years, from the date of execution of the Plot  Buyer’s Agreement dated 04.07.2007, Annexure C-1, 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.
20.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.37,91,604/-, deposited by him, towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab. As stated above, the Opposite Parties, failed to deliver possession of plot No.415, Augusta Park, Sector 109, Mohali, allotted in favour of the complainant, by the stipulated date or even till date. The Opposite Parties, therefore, had no right, to retain the hard earned money of the complainant, in the sum of Rs.37,91,604/-, deposited towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, without rendering him any service. Under these circumstances, the complainant was left with no alternative, than to ask for the refund of sale consideration paid by him. In our considered opinion, the complainant is entitled to the refund of amount of Rs.37,91,604/-,  deposited by him, towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab. By not refunding the amount, aforesaid, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
21.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. The amount of Rs.37,91,604/-, towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, was deposited by the complainant. The complainant was deprived of his hard earned money, to the tune of Rs.37,91,604/-, on the basis of misleading information, given by the Opposite Parties, that he would be handed over legal physical possession of plot No.415, Augusta Park, Sector 109, Mohali, on or before 04.07.2010, but they failed to do so. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties had been charging compound interest @15% P.A., from the complainant, as per Clause 3 of Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1. It is, therefore, held that the Opposite Parties, by neither delivering possession of the plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of Rs.37,91,604/-, alongwith interest @12% P.A., from the respective dates of deposits.
22.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment or not. After making payment of Rs.37,91,604/-, towards the part price of plot no.415, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab,  no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainant had purchased the said plot, to have a roof over his head and his family, by constructing a house thereon, but his hopes were dashed to the ground, when possession of the same was not even offered to him, after about more than 7 years of the allotment thereof, what to speak of delivery thereof. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainant, is, thus, entitled to compensation, to the tune of Rs.1,00,000/- (one lac only), on account of this reason.
23.       The Counsel for the Opposite Parties, however, submitted that the parties being governed, by the terms and conditions of the Plot Buyer’s Agreement dated 04.07.2007, Annexure C-1, as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential plot, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 3 (three years), from the date of execution of the same. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainant, prayed for the delivery of physical possession of residential plot. In the instant case, prayer for the refund of amount, was made by the complainant, as there was no progress in development of the area, where the plot, in question, is located,  and even the delivery of possession thereof, was not in sight. This Clause could be invoked by the Opposite Parties, only, in the event, the complainant had sought relief of delivery of physical possession of the residential plot. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for investment, for a long time. He was neither given physical possession of the residential plot, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 8 of the Plot Buyer’s Agreement dated 04.07.2007 Annexure C-1. 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.  
24.       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  and Ashok Khanna Vs. Ghaziabad Development Authority, Revision Petition No.2002 of 2005, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 18.08.2009, to contend that time was not the essence of contract. The facts of Smt. Chand Rani’s and Ashok Khanna’s cases (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. Whereas, in Ashok Khanna’s case (supra), the National Consumer Disputes Redressal Commission, New Delhi, held that at the time of delivery of possession, the respondent did not charge any additional price. Rs.57,000/- were paid by the petitioner without any protest. In the said case, the possession was taken on 15.12.1993, whereas, the complaint was filed in the later months of 1995, i.e., after a lapse of about 2 years, which showed that, at the time of delivery of possession, the petitioner was satisfied, but later on he changed his mind and filed the complaint, seeking interest on the deposited amount. 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-1, 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). The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid cases, 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.
25.       No other point, was urged, by the Counsel for the parties.
26.        For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-
    1. To refund the amount of  Rs.37,91,604/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
    2. To pay compensation, in the sum of Rs.1,00,000/- (one lac only), 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.
    3.  To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    4.  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  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs.
27.        Certified Copies of this order be sent to the parties, free of charge.
28.       The file be consigned to Record Room, after completion.

Pronounced.

01.04.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

 

 

Rg.