Chandigarh

StateCommission

CC/162/2016

Balraj Singh Randhawa - Complainant(s)

Versus

Emaar MGF Land - Opp.Party(s)

Sh. Harmandeep Sullar, Adv.

22 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	162 of 2016
Date of Institution	:	25.04.2016
Date of Decision	:	22.09.2016

 

Balraj Singh Randhawa having his place of residence at House No.55, Akal Ashram Colony, Opp. Eye Hospital, Sector 77, Mohali, India.

……Complainant

V e r s u s

Emaar MGF Land Limited, having its office at 1^st floor, SCO No.120-122, Sector 17-C, Chandigarh – 160017.  

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Vineet Soni, Advocate, proxy for Sh.Gurmandeep Singh Sullar, Advocate for the complainant.

Sh.  Ashim Aggarwal, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant purchased unit bearing No.104-EP-138-250 from the original allottee i.e. Mr.Abhinav Mittal in Mohali Hills, Sector 104, Mohali, which was transferred in the name of the complainant on 24.11.2010. Prior to the transfer of the unit, the original allottee i.e. Mr. Abhinav Mittal applied for allotment of a plot on 23.07.2010 and paid the booking amount of Rs.5 lacs vide receipt (Annexure C-1). As demanded by the Opposite Party vide communication dated 01.09.2010, the original allottee deposited another sum of Rs.3.5 lacs. Copies of the communication, receipt and confirmation of transfer are Annexures C-2 to C-4. It was stated that at the time of transferring the plot/unit, the Opposite Party informed that all the approvals had been obtained from the competent authorities ; the allotment letter would be issued shortly and possession of the unit would be handed over within a year. Thereafter, the complainant deposited a sum of Rs.9,03,125/- vide cheque dated 03.01.2011. Copies of the receipts alongwith the account statement are Annexure C-5 (Colly.). It was further stated that the complainant deposited the total sum of Rs.50,95,191/- and never delayed the payment interest. After a gap of more than a year, the Opposite Party sent the Plot Buyer’s Agreement to the complainant in May, 2012, which was signed by him on 23.05.2012 (Annexure C-6) and as per the Agreement, the Opposite Party supposed to hand over possession within 12 months from the date of execution of the Agreement i.e. by 12.05.2013 but it did not do so. The complainant sent an email dated 23.09.2013 seeking the status of the development and it was informed by the Opposite Party that some of the development works were being carried out and the same were likely to be completed by the year end. Dissatisfied with the dilly-dallying response, the complainant again requested the Opposite Party to inform the possession date. Thereafter, a number of emails were sent to the Opposite Party enquired about the date of possession and status of development of the plot, however, each time, the Opposite Party sent dilly-dallying replies without giving any concrete details (Annexure C-7 colly.). It was further stated that the Opposite Party vide email dated 01.10.2014 informed the complainant that the plot was ready for possession and asked him to deposit the balance sale consideration. However, when the complainant visited the site, he was shocked to see that the site was in shambles and no development whatsoever had taken place.  Therefore, the said offer of possession was merely a paper entry and another tactic for usurping more money from the complainant. It was further stated that the complainant took up the case with the Opposite Party and immediately appraised regarding the situation but it did not pay any heed. It was further stated that the complainant again vide email dated 12.03.2015 appraised the Opposite Party that after visiting the site he observed that a lot of work was pending and asked for a joint inspection of the site but the same was never carried out. It was further stated that the complainant again demanded for all the documents regarding approvals of the project but the Opposite Party did not produce the same and also did not give him any clarity in relation to the status of the project, after more than 5 years from the date of booking. Ultimately, the complainant sent a legal notice dated 01.02.2016 (Annexure C-8) and sought refund of the deposited amount of Rs.50,95,191/- alongwith interest and damages but to no avail.   It was further stated that the complainant sent cancellation notice to the Opposite Party but it did not refund any amount. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and 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 (in short the ‘Act’ only), was filed.

2.           The Opposite Party, in its written version, has not taken objection regarding arbitration clause in the Agreement, although, it separately moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that the complainant is a re-allottee/transferee, who purchased the plot, in question, from the original allottee and as per law settled by the Hon’ble Supreme Court, a re-allottee cannot claim any compensation or interest for delay in allotment as it could not claim parity with original allottee. It was further stated that the complainant did not fall within the definition of “Consumer” as prescribed under Section 2(d) of the Consumer Protection Act, as he purchased the same for speculation purposes because he already has a residence at Mohali.  It was further stated that this Commission has got no pecuniary jurisdiction to try and entertain the complaint, as the complainant has claimed refund of Rs.50,95,191/- alongwith interest @24% p.a. from the respective date of deposits besides Rs.5 lacs compensation, as such, the claim together with interest claimed exceeds one crore. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, complainant is not entitled to claim immediate possession or within any time bound manner as same would amount to specific performance of the contract. It was further stated that the area in which the plot of the complainant is located, has been developed in accordance with Clause 23 of the Agreement and he had not led any evidence to prove that the area has not been developed. It was further stated that the possession had been offered on 01.10.2014 upon completion of all development/amenities, so, the complainant is not entitled to refund with interest, rather the same would be treated as surrender/cancellation and attract forfeiture charges.  It was further stated that the complainant purchased the unit from the earlier allottee Mr.Abhinav Mittal and the unit was transferred in his name vide letter dated 26.11.2010 on completion of relevant formalities. It was further stated that the complainant received an amount of Rs.50,95,191/- against the unit, which included credit compensation of Rs.73,691/-. It was denied regarding receipt of any cancellation notice from the complainant. It was also denied that possession of the plot would be handed over within one year. It was further stated that as per Clause 8 of the Agreement, the Company was supposed to handover possession of the unit within 18 months from the date of execution of the Agreement and in case of any delay beyond 18 months, the Company was liable to pay compensation as per terms and conditions of the Agreement. It was further stated that the complainant had delayed payment of various installment, as is evident from statement of account (Exhibit OP/2). It was further stated that many customers have already taken possession of their units in Sector 104 and even got them registered. It was denied that offer of possession was mere paper entry. It was further stated that the Opposite Party offered possession of the plot upon completion of all the amenities, as per the Agreement and also obtained Partial Completion Certificate (Exhibit OP/5). It was further stated that the complaint has been filed after nearly 1 ½ years from the date of offer of possession and no effort was made by the complainant to take over possession.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3.           The complainant filed replication to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

4.           The Parties led evidence, in support of their case.

5.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

6.           Admittedly, vide provisional allotment letter dated 01.09.2010, unit bearing No.104-EP-138-250 in the project Mohali Plots at Mohali Hills, Mohali was allotted in favour of Mr.Abhinav Mittal (original allottee), Annexure C-2, which was thereafter endorsed in favour of the complainant on 23.11.2010. It is the admitted fact that Plot Buyer’s Agreement was executed between the parties on 23.05.2012 (Annexure C-6) and as per the Agreement, total consideration of the unit, in question, was Rs.52,34,000/-, out of which, the complainant paid the total amount of Rs.50,95,191/-, as is evident from statement of account (Annexure C-5). It is also the admitted fact that letter of intimation of possession of the plot/unit was issued in favour of the complainant vide letter dated 14.10.2014 (at page No.60 of the file).

7.             The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Party, stands rejected.

8.           The next question, that falls for consideration, is, as to whether, the re-allottee/transferee cannot claim any compensation or interest for delay in allotment. This issue was already decided by this Commission vide order dated 02.06.2016 in Complaint Case No.94 of 2015 titled as D.S.Dhanda Vs. DLF Homes Panchkula Private Limited & Anr. (alongwith two more complaints). The relevant portion of this judgment reads thus :-

“26.      Another additional argument was raised by Counsel for the opposite parties, while placing reliance on a case titled Haryana Urban Development Authority Vs. Raje Ram, Civil Appeal No.2381 of 2003, decided on 23.08.2008, by the Hon’ble Supreme Court,  to the effect that since in consumer complaints no.158 of 2016 and 159 of 2016, the complainants are subsequent allottees and when they had purchased the units, in question, in re-sale, delay in delivery of possession had already been caused and further delay was in their notice, as such, they are not entitled to any compensation. It is not in dispute, that the complainants, in the consumer complaints, referred to above, had purchased the units, in resale, from the original owners. Both the sale transactions were endorsed by the opposite parties, in favour of the complainants. No new conditions were imposed, at the time of transfer of the said units, in the name of the complainants, in the said complaints and the conditions already imposed vide the original Agreements, were kept intact. Not only this, when the complainants in the said consumer complaints, have purchased the units, even by that time, extended period to handover possession, has not yet expired. The purchaser(s) can reasonably expect that as per promise made with the original allottee(s), possession of the unit(s) will be delivered in time or may be within the extended period, if agreed. However, it was not done. It is well settled law that once the property is transferred/endorsed, in the name of the buyer from the original owner, he/she (buyer), is vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she stepped into her/his shoes. It was also so said by the National Consumer Commission, New Delhi in case Vatika Limited   Vs Mr. Rajneesh Aggarwal, REVISION PETITION NO. 525 OF 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee. In that case also, the builder relied upon Haryana Urban Development Authority's case (supra), in support of his contention. In that case, the National Commission, held as under:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs.”

            In its written statement, the Opposite Party stated that as per settled law by the Hon’ble Supreme Court, a re-allottee cannot claim any compensation or interest for delay in allotment but the Opposite Party has failed to mention the name of the judgment of the Hon’ble Supreme Court of India to prove this fact. It is pertinent to note that the complainant purchased the plot from Mr.Abhinav Mittal (original allottee) and the same was transferred in the name of the complainant vide endorsement dated 23.11.2010, after payment of requisite transfer fee.  Moreover, the complainant stepped into the shoes of the initial allottee (Mr.Abhinav Mittal) and he is certainly entitled for the compensation or interest. So, we are of the view that the aforesaid case, decided by the National Commission is fully applicable to the present case. In view of the above, the plea taken by the Opposite Party in its written statement, is being devoid of any merit and is rejected.

9.           The objection taken by the Opposite Party, to the effect that the complainant purchased the plot for speculation purposes, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment/speculation purposes, with a view to resell the same, as and when, there was escalation in the prices thereof. The Opposite Party has failed to place on record any document, which could prove that the complainant already has a residence in Mohali. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Party, mere bald assertion i.e. simply saying that the  complainant purchased the plot for speculation purposes, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

10.          Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection. In the present case, it is the admitted fact that the complainant deposited the total amount of Rs.50,95,191/-, as is evident from the statement of account. Even when the Opposite Party failed to give possession, complete in all respects, to the complainant, he sought refund of the amount alongwith interest and damages. It may be stated here, that the complainant has sought damages amounting to Rs.5 lacs alongwith interest 24% for mental agony & physical harassment and pass any other order as this Commission deems fit, in the interest of justice. If the refund of the deposited amount of Rs.50,95,191/- alongwith damages included together, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

11.          As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

12.          No doubt, the Counsel for the Opposite Party, 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 23.05.2012 (Annexure C-6),  the Opposite Party was to hand over physical possession of the said unit, in favour of the complainant, within a period of 12 months, from the date of execution of the Agreement and in the event the Company fails to deliver possession of the unit within 18 months from the date of execution of the Agreement, the Company shall be liable to pay the penalty for such period of delay beyond 18 months from the date of execution of the Agreement.  Even after the expiry of more than about 4 years from the execution of the Agreement, possession thereof, complete in all respect 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 Opposite Party. The plea taken by the Opposite Party, in its written statement, thus, being devoid of merit, must fail, and the same stands rejected.

13.          The next question, that falls for consideration, is, as to whether,  offer of possession made by the Opposite Party, to the complainant, vide letter dated 14.10.2014 (Exhibit OP/3), in respect of plot bearing No.104-EP-138-250 in Block EP situated at Sector 104 – Mohali Hills (Project), could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Party, to prove that when intimation of possession was given to the complainant, in respect of the unit, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but it failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

              However, the main grouse of the complainant is that, despite receipt of the huge amount from him, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letter of intimation of possession dated 14.10.2014 (Exhibit OP/3), because when the complainant visited the site, he was shocked to see that the site was in shambles and no development whatsoever had taken place. Even the complainant has placed on record photographs of the project alongwith his replication (Annexure C-9 colly.) to prove this fact. The Opposite Party in its intimation of possession letter dated 14.10.2014 (at page No.60 of the file) informed the complainant that “process of handing over of the plots in Sector 104, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Party only intimated the complainant regarding process of handing over of possession shall start within 60 days of this letter. The complainant in his complaint has specifically stated that a number of emails were sent to the Opposite Party enquiring about the date of possession and the status of development of the plot, however, each time, the Opposite Party sent dilly-dallying replies without giving any concrete details (Annexure C-7 colly.). Even when the complainant requested the Opposite Party for joint inspection at the site, the same was not carried out by the Opposite Party. Moreover, when the complainant asked for all the documents relating to approvals of the project, the Opposite Party failed to produce the same. The complainant also sent a legal notice dated 01.02.2016 (Annexure C-8) through Regd. Post but the same was not replied by the Opposite Party merely by denying the receipt of any legal notice.  The Opposite Party has placed on record  Partial Completion Certificate dated 16.10.2015 (Annexure OP/5) to prove regarding the completion of the amenities at the site. No doubt, a plea is taken by Counsel for the Opposite Party that since the Opposite Party has already obtained Partial Completion Certificate in respect of the project, in question, as such, it could very well be said that the development at site was complete and that the Opposite Party was in possession of all the necessary approvals/sanctions and was ready to offer/deliver possession of the unit to the complainant. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Annexure OP/5)  clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Party shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc.   It is the duty of the Opposite Party to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. It is pertinent to note that a bare perusal of Partial Completion Certificate shows that the Opposite Party had applied for Partial Completion Certificate with the competent authority on 03.09.2015, much after the issuance of the letter of intimation of possession dated 14.10.2014 (Exhibit OP/3) and not only this, the said Partial Completion Certificate (Annexure OP/5) was issued by Greater Mohali Area Development Authority vide memo dated 16.10.2015 i.e. after about one year of intimation of possession. So, it is clearly proved that when the said letter of intimation of possession was given to the complainant, the amenities/project was not completed in all respects, as per the terms and conditions of the Agreement. Even the Opposite Party failed to place on record a single document to establish that the development was complete when the intimation of possession was given to the complainant.  In this view of the matter, it is held that the act of the Opposite Party, in offering paper possession of the unit, in question, vide letter dated 14.10.2014, in the absence of basic amenities at the site, which amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the intimation of possession made by the Opposite Party, vide letter dated 14.10.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.

14.          The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide intimation of possession letter dated 14.10.2014 (Exhibit OP/3), i.e. after a delay of 11 months, and that too, in the absence of any force majeure circumstances. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Party that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

Not only this, in the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16.    Admittedly, appellants did not offer possession of the apartment within  the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”,  Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only  in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame  the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering  service but are also guilty of indulging into unfair trade practice. The appellants in  the present  case are enjoying the hard earned money  of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.

                   In view of the above, it is held that since there was a material violation on the part of the Opposite Party, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

15.          Another objection raised by Counsel for the Opposite Party that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within a maximum period of 18 months from the date of execution of the Agreement, and the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within a maximum period of 18 months, as time was not the essence of the Agreement, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the plot will be delivered by the Opposite Party, within a maximum period of 18 months, subject to force majeure circumstances or reason beyond the control of the Opposite Party. In the instant case, the Opposite Party did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond their control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Party was bound to deliver possession of the unit, within a maximum period of 18 months from the date of execution of the same, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Party cannot evade its liability, merely by saying that since the word tentative/ proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon’ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Counsel for the Opposite Party in this regard also stands rejected.

16.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot/unit, was to be given to the complainant. According to Clause 8 of the  Plot Buyer’s Agreement (Annexure C-6), subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the unit, in question, within a maximum period of 18 months, from the date of execution of the Agreement and the said period has already expired on 22.11.2013. Moreover,  the Opposite Party already received a huge amount of Rs.50,95,191/-, towards the said unit, as is evident from the statement of account (Annexure C-5). By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 18 months, from the date of execution of the Agreement, the Opposite Party failed to abide the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

17.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.50,95,191/-, deposited by him. It is an admitted fact that the  Opposite Party is unable to deliver  possession of the unit, in question, within the stipulated time frame, as mentioned in the Agreement and firm date of delivery of possession of the unit, could not be given to him (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by him. The  Opposite Party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

18.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.50,95,191/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. The  Opposite Party was charging heavy rate of interest (compounded quarterly @24% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.50,95,191/- alongwith interest @15% compounded quarterly, from the respective dates of deposits till realization. 

19.           As far as the plea taken by the Opposite Party, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party) case, that it was ready with possession of the plot, to be delivered to the complainant, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Party, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Party, in this regard, has no legs to stand and is accordingly rejected.

20.          No other point, was urged, by the Counsel for the parties.

21.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To  refund   the  amount Rs.50,95,191/-, to  the complainant, alongwith interest compounded quarterly @ 15%, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and 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.50,000/- 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 Party shall be liable to pay the amount mentioned in Clause (i) with interest compounded     quarterly @18%, instead of interest compounded quarterly @ 15%, from the respective dates of deposits, till realization, and interest compounded quarterly @15%, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

22.          Certified Copies of this order be sent to the parties, free of charge.

23.          The file be consigned to Record Room, after completion.

Pronounced.

September 22, 2016.                        Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb