Chandigarh

StateCommission

CC/147/2016

Darbara Singh - Complainant(s)

Versus

Emaar MGF Land - Opp.Party(s)

Sh. Vishal Goel, Adv.

22 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	147 of 2016
Date of Institution	:	18.04.2016
Date of Decision	:	22.08.2016

Darbara Singh s/o Makhan Singh r/o C-402 Belle Vista Sector 15, CBD Belapur, Navi Mumbai.
Rajinder Kaur W/o Darbara Singh r/o C-402 Belle Vista Sector 15, CBD Belapur, Navi Mumbai.
Kamaldeep Singh Bhullar s/o Darbara Singh r/o C-402 Belle Vista Sector 15, CBD Belapur, Navi Mumbai. Now at present r/o 474, South 4^th Street, Unit A San Jose, CA-95112 USA, through his Special Power of Attorney Darbara Singh s/o Makhan Singh r/o C-402 Belle Vista, Sector 15, CBD Belapur, Navi Mumbai.

……Complainants

V e r s u s

Emaar MGF Land Limited, MGF House, 17-B, Asaf Ali Road, New Delhi – 110002 through its Managing Director.
Emaar MGF Land Limited, SCO No.120-122, 1^st floor, Sector 17-C, Chandigarh, through its Authorised Officer.

.... Opposite Parties No.1 & 2

Housing Development Finance Corporation Limited, SCO 153-155, Sector 8-C, Chandigarh, through its Authorized Officer.

.... Performa Opposite Party

Argued by:

Sh. Vishal Goel, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for Opposite Parties No.1 and 2.

Ms. Rupali Shekhar Verma, Advocate for Opposite Party No.3.

Complaint case No.	:	217 of 2016
Date of Institution	:	18.05.2016
Date of Decision	:	22.08.2016

Narinder Kaur w/o Kanwaljit Singh, r/o E-108, Rishi Apartments, Sector 70, Mohali.

……Complainant

V e r s u s

Emaar MGF Land Limited, MGF House, 17-B, Asaf Ali Road, New Delhi – 110002 through its Managing Director.
Emaar MGF Land Limited, SCO No.120-122, 1^st floor, Sector 17-C, Chandigarh, through its Authorized Officer.

.... Opposite Parties

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Vishal Goel, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

By this order, we propose to dispose of, following cases:-

CC/147/2016	Darbara Singh & Ors.	Vs.	EMAAR MGF Land Ltd. & Ors.
CC/217/2016	Narinder Kaur	Vs.	EMAAR MGF Land Ltd. & Anr.

2. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same.

3. At the time of arguments, on 19.07.2016, it was agreed between Counsel for the parties, that facts involved in all the complaints, by and large, are the same, and therefore, these two complaints can be disposed of, by passing a consolidated order.

4. Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 147 of 2016, titled as “Darbara Singh & Ors. Vs. EMAAR MGF Land Limited & Ors.”

5. The facts, in brief, are that the complainants entered into an Agreement with Opposite Parties No.1 and 2 for the purchase of Bungalow No.564 in their residential project in Augusta Green, Sector 109, Mohali Hills, Mohali, Punjab and in this regard Buyer’s Agreement was executed between the complainants and Opposite Parties No.1 and 2 on 29.01.2010 (Annexure C-1). As per the Agreement, the total consideration of the Bungalow was Rs.75,69,300/-. It was stated that as per Clause 8 of the Agreement, possession of the unit was to be delivered to the complainants within a period of 24 months from the date of execution of the Agreement that means upto 29.01.2012 but Opposite Parties No.1 and 2 failed to deliver possession. It was further stated that the complainants paid an amount of Rs.76,91,408/- and, as such, Rs.7,04,432/- was paid in excess to Opposite Parties No.1 and 2. Copy of the statement of account is Annexure C-2. It was further stated that the complainants wrote an email dated 14.10.2014 to Opposite Parties No.1 and 2, vide which, they (complainants) sought the status of possession of the unit, which was duly replied by them vide email dated 16.10.2014 and mentioned that possession of the unit is expected within next 45-60 days but they failed to deliver the same. Copies of the emails dated 14.10.2014 and 16.10.2014 are Annexures C-3 and C-4. It was further stated that the complainants again sent an email dated 06.03.2016 regarding the status of possession and the same was duly replied by Opposite Parties No.1 and 2 vide email dated 11.03.2016, vide which, it was mentioned that the final finishing work is in progress and was expected to be completed by July, 2016 vide copies of the emails dated 06.03.2016 & 11.03.2016 are Annexures C-5 & C-6. Thereafter, the complainant visited the office of the Company on 17.03.2016 to see the development of the site and was shocked to see that still the possession is pending for delivery and the cracks were developed on the walls & plinth of the Bungalow ; frames of the wooden doors got badly damaged and the builder just fixed the patches over there, as is evident from the photographs (Annexure C-7). It was further stated that the complainants had earlier visited the site in the year 2013 and was shocked to see the poor construction work over the unit and, as such, they wrote an email to the builder on 13.11.2013 (Annexure C-8) but they did not bother. It was further stated that the complainants were burdened with interest, as they took loan of Rs.50 lacs from HDFC (Annexure C-9 colly.). It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, 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.

6. Opposite Parties No.1 and 2, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they 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 further stated that the complaint is time barred, as the consumer complaint has been filed more than 2 years after accrual of alleged cause of action. It was further stated that the complainants failed to show that Buyer Agreement was executed at Chandigarh or payments were made at Chandigarh, whereas, clause of the Agreement provided that Agreement has been signed at Mohali, Punjab, so this Commission has no jurisdiction to entertain and try the complaint. It was further stated that the Agreement was executed between the parties on 29.01.2010 and as per Clause 8 of the Agreement, the Company was to handover the unit within 2 years from the date of signing of the Agreement and in case of any delay, there was sufficient safeguards provided in the Agreement to protect their interests in terms of compensation i.e. @Rs.50/- per sq. yards per month beyond 2 years. It was further stated that in case of immovable property, time was not the essence of the contract because the Agreement also provided for compensation clause in case of delay, which makes it clear that time was never the essence of the contract. It was further stated that the complainants paid an amount of Rs.76,91,408/- against the unit, in question. It was further stated that the complainants had defaulted in making payment of installments and reminders were also issued to them for making the payments (Annexure R-2 colly.). It was further stated that the replying Opposite Parties had already offered interim possession to the complainants in June, 2012, which was duly accepted by them (Annexure R-3). It was further stated that the complainants did not take any action for getting the fit outs done for the bungalow, which was offered in 2012. Later on, Occupation Certificate was also obtained for the said unit (Annexure R-4). It was further stated that the unit is complete and internal and external finishing works are going on at the unit, in question, and possession should be offered to the complainants in July, 2016 itself. It was further stated that the complainants are bound by the terms and conditions of the Agreement and in case of seeking refund, forfeiture clause would be applicable. It was further stated that the replying Opposite Parties vide email dated 14.11.2013 (Annexure R-5) duly replied to the email of the complainant, stated that all the defects were rectified and now the bungalow of the complainant is ready to be handed over in July, 2016, after completion of all amenities. It was further stated that the customer booked the unit under subvention payment schedule, in which, the pre-emi interest was borne by the Company, as is evident from statement of accounts and cheques showing payment made by the replying Opposite Parties is Annexure R-6 and the replying Opposite Parties have made payment of EMI under subvention to the bank (Opposite Party No.3) and also informed to the complainants in this regard (Annexure R-7). It was further stated that in case of seeking refund by the complainants, the replying Opposite Parties were also entitled to seek EMI amount from the complainants alongwith interest. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

7. Opposite Party No.3, in its written statement, stated that the replying Opposite Party has financed the loan amount of Rs.50 lacs, out of which, an amount of Rs.46,70,000/- has already been disbursed to the developer. Copy of the account statement is Annexure R-3/3. It was further stated that in case of cancellation of the unit or in the contingency of termination of the Agreement, the HDFC Limited has the first charge/right to seek apportionment of its dues. Copy of the Tripartite Agreement is Annexure R-3/2. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice

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

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

10. Admittedly, Buyer’s Agreement in respect of bungalow/unit No.564, Augusta Greens, Sector 109, was executed between the parties on 29.01.2010 (Annexure C-1), vide which, total consideration of the unit was Rs.75,69,300/-. It is also the admitted fact that the complainants paid an amount of Rs.76,91,408/-, as is evident from statement of account (Annexure C-2).

11. 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 Opposite Parties No.1 and 2, 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 i n 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 Opposite Parties No.1 and 2, stands rejected.

12. Another frivolous objection was taken by Counsel for Opposite Parties No.1 and 2, by stating that the complainants have failed to show that Buyer Agreement was executed at Chandigarh or payments were made at Chandigarh and as per clause of the Agreement, the same has been signed at Mohali, Punjab, as such, this Commission has not territorial Jurisdiction to entertain and decide the complaint.

According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them. In the instant case, Buyer’s Agreement, in respect of the unit, in question, was executed, between the parties, at Chandigarh on 29.01.2010 (Annexure C-1). Not only this, perusal of record reveals that reminder 1 dated 19.10.2011, reminder 2 dated 03.11.2011 and interim possession letter dated 14.06.2012, (Annexures C-2 colly. & C-3) were sent by Chandigarh office of Opposite Parties No.1 and 2, as the same bore the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for Opposite Parties No.1 and 2, also stands rejected.

13. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was barred by time or not. The Counsel for Opposite Parties No.1 and 2 stated that the complaint is time barred, having been filed beyond two years of alleged cause of action. After going through the record of the case, we are not impressed with the contention of the Counsel for Opposite Parties No.1 and 2. It may be stated here, that neither physical possession of the bungalow/unit was delivered to the complainants, by the stipulated date, as mentioned in the Agreement, after receipt of huge amount from them, nor refunded the deposited amount to them, despite repeated requests. As such, there was, thus, a continuing cause of action, in favour of the complainants, to file the complaint. 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 objection of the Counsel for Opposite Parties No.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

14. As regards objection taken by Counsel for Opposite Parties No.1 and 2, that as per Clause 8 of the Buyer’s Agreement, Opposite Parties No.1 and 2 shall endeavor to deliver possession of the unit to the allottee within a period of 24 months from the date of execution of the Agreement, as such, there was no definitive commitment to hand over possession within 24 months, as time was not the essence of the contract. It is, no doubt, true that Buyer’s Agreement was also executed between the parties on 29.01.2010 (Annexure C-1) and it is evident from Clause 8 of the Agreement that Opposite Parties No.1 and 2 were to hand over possession of the said unit, in favour of the complainants, within a maximum period of 24 months from the date of execution of the Agreement i.e. latest by 28.01.2012. Thus, once a specific period of 24 months was mentioned in the Agreement, Opposite Parties No.1 and 2 were bound to deliver possession in the said 24 months i.e. latest by 28.01.2012 and not beyond that. It is not the case of Opposite Parties No.1 and 2 that it encountered any force majeure circumstances, as no document has been placed on record in this regard. The time was, thus, unequivocally made the essence of contract. Therefore, the objection taken by Counsel for Opposite Parties No.1 and 2 in this regard being devoid of merit, must fail, and the same stands rejected.

15. The next question that falls for consideration is, as to whether, Opposite Parties No.1 and 2 rightly offered interim possession of the bungalow/unit, complete in all respects, to the complainants in June,2012. The Counsel for Opposite Parties No.1 and 2 stated that the Company has already offered interim possession to the complainants in June, 2012 and the same was also accepted by them (complainants) vide interim possession letter dated 14.06.2012 (Annexure R-3). He further stated that the bungalow is ready for possession and the complainants did not take any action till date for getting the fit outs done for the bungalow, which was offered in 2012. However, Opposite Parties No.1 and 2 in para No.7 of their written statement clearly stated that there is a delay in handing over possession of the unit allotted in favour of the complainants, as the unit is not ready for handover. They further stated in their written statement that now the unit is complete and internal and external finishing works are going on at the unit, in question, and possession should be offered to the complainants in July, 2016, upon completion of all the amenities, as per the Agreement. Even the complainants also placed on record photographs of the unit, which shows the poor construction work over the unit. So, it is clearly proved that the unit is not ready for possession, complete in all respects and the interim possession given by Opposite Parties No.1 and 2 is only an eye-wash.

16. The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the bungalow/unit, in question, when the same was offered to them vide Interim Possession Letter dated 14.06.2012 (Annexure R-3), 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 Opposite Parties No.1 and 2 that the said delay occurred, on account of force majeure circumstances, met by them, 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, the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided 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 aforeasid 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 Opposite Parties No.1 and 2, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainants were at liberty, not to accept the offer made after a long 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.

17. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. According to Clause 8 of the Buyer’s Agreement dated 29.01.2010 (Annexure C-1), subject to force majeure conditions and reasons, beyond the control of the Company, Opposite Parties No.1 and 2 were to deliver possession of the unit, in question, within a maximum period of 24 months, from the date of execution of the Agreement i.e. latest by 28.01.2012. Even, possession of the unit, in question, was neither delivered to the complainants, within the stipulated period, as contained in the terms and conditions of the Agreement nor when the complaint was filed i.e. in the current year 2016. On the other hand, Opposite Parties No.1 and 2 have already received the huge amount i.e. Rs.76,91,408/-, towards the said unit, as is evident from the statement of account (Annexure C-2). By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 24 months, from the date of execution of the Agreement, and by not abiding by the commitments, made by Opposite Parties No.1 and 2, they (Opposite Parties No.1 and 2) were not only deficient, in rendering service, but also indulged into unfair trade practice.

18. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.76,91,408/-, deposited by them, towards the price of the unit, in question. The complainants, in their complaint have sought refund of the amount, deposited by them, towards the same. Under these circumstances, the complainants are entitled to refund of the amount, deposited by them, towards the said unit. By not refunding the amount to the complainants, Opposite Parties No.1 and 2 were deficient, in rendering service.

At the time of arguments, Counsel for Opposite Parties No.1 and 2 stated that when complainants sought refund of the amount, forfeiture clause is applicable upon the complainants. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

“It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment, with grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

23. As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants, started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked, then we fail to understand as to how before completing the construction appellants demanded the aforesaid amount. This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment, subject to certain payments.

24. Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013, which was against the terms of the Agreement. The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013. Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25. The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. It is evident from the para aforesaid that the builder have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to deliver possession of the unit to the complainants, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that Opposite Parties No.1 and 2 are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, Opposite Parties No.1 and 2 are not entitled to forfeit any amount, and refund the deposited amount to the complainants.

19. The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount of Rs.76,91,408/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.76,91,408/-, on the basis of misleading information, given by Opposite Parties No.1 and 2, that they would be handed over legal physical possession of the unit, in question, within a maximum period of 24 months from the date of execution of the Agreement i.e. by 28.01.2012, but they failed to do so and even interim possession letter (Annexure R-3) issued by Opposite Parties No.1 and 2 to the complainants is only an eye wash because they admitted in their written statement that the expected date of delivery of possession of the unit, complete in all respects, in July, 2016. The complainants were, thus, caused financial loss. Hard earned money, deposited by the complainants, towards price of unit, in question, was utilized by Opposite Parties No.1 and 2, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. It is therefore, held that Opposite Parties No.1 and 2, by neither delivered possession of the unit, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Buyer’s Agreement, Opposite Parties No.1 and 2 were charging interest @24% per annum compounded from the complainants. Under these circumstances, in our considered opinion, if interest compounded @15% p.a., on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.

20. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of Opposite Parties No.1 and 2, for a number of years, as they failed to deliver physical possession of unit, in question, to them, by the promised date. The complainants purchased the unit, with the hope to have a roof over their head, but their hopes were dashed to the ground. Till date, physical possession of the unit, complete in all respects, has not yet been handed over, to the complainants, by Opposite Parties No.1 and 2. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 and 2. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

21. The next question, that falls for consideration, is, as to whether, Opposite Parties No.1 and 2 are entitled to refund of the amount, deposited by them, under subvention payment schedule, to the Bank alongwith interest. It is, no doubt, true that Opposite Parties No.1 and 2 had made payment of EMI under subvention to the Bank (Opposite Party No.3), as is evident from Annexure R-6 and in case refund of the deposited amount alongwith interest, allowed to the complainants, then Opposite Parties No.1 and 2 are also entitled for the said deposited amount paid under subvention to the Bank alongwith interest @9% p.a.

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

23. For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2 are jointly and severally directed, as under:-

To refund the amount Rs.76,91,408/-, to the complainants, alongwith interest compounded @ 15% p.a., from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then Opposite Parties No.1 and 2 shall be liable to pay the amount mentioned in Clause (i) with interest compounded @18 % p.a., instead of compounded @ 15% p.a., from the respective dates of deposits, till realization, and interest compounded @15% p.a., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

24. The complainants are also directed to refund the amount, whichever paid by Opposite Parties No.1 and 2 to the Bank i.e. Opposite Party No.3 as pre-emi under subvention payment schedule, alongwith interest @9% p.a. (simple) to Opposite Parties No.1 and 2 from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.

25. The complaint qua Opposite Party No.3 (Housing Development Finance Corporation Limited) stands dismissed.

Complaint Case No.217 of 2016 titled ‘Narinder Kaur Vs. Emaar MGF Land Limited & Anr.’

26. In the instant case, the complainant purchased plot No.401 in Augusta Park, Sector 109, Mohali Hills, Mohali measuring 300 sq. yards. It is the admitted fact that Buyer’s Agreement was executed between Mr.Atul Sachdeva (initial allottee) and the Opposite Parties on 20.06.2007 (Annexure C-1) and the same was endorsed in favour of the complainant on 14.03.2011. As per the payment plan (at page No.18 of the file), total cost of the plot was Rs.36,19,104/-, out of which, the complainant paid an amount of Rs.36,18,759/-, as is evident from statement of account (Annexure C-4). It is also the admitted fact that intimation of possession of plot No.109-AP-401-300 in Block AP situated at Sector 109, Mohali Hills was offered to the complainant vide letter dated 27.04.2016 (Annexure R-2).

27. No doubt, Plot Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 20.06.2007, the complainant is a subsequent allottee and she made all the payments on 14.03.2011 and the Plot Buyer’s Agreement was endorsed in favour of the complainant on 14.03.2011. Counsel for the Opposite Parties has vehemently argued that as per the Agreement, three years stipulated period for handing over of possession of the unit stood expired in June, 2010 and whereas the complainant purchased the same in March, 2011 and all the payments were made by the complainant at the time of endorsement in March, 2011 only and, therefore, she is entitled to interest on the deposited amount from the date she purchased the unit, in question, in March, 2011. Moreover, it is very clear that the relevant transfer formalities of the unit, in question, took place in the year 2011 much after the original expected date of possession i.e. June, 2010, whereby, the complainant is very well aware of the delay caused in handing over of the possession and yet chose to get the unit endorsed in her favour in March, 2011.

28. The next question that falls for consideration is, as to whether, the Opposite Parties rightly offered possession of the plot, complete in all respects, to the complainant vide letter of intimation (Annexure R-2), within the specified period mentioned in the Agreement. It is, no doubt, true that the Opposite Parties offered possession of the plot vide intimation of possession letter dated 27.04.2016 (Annexure R-2). According to the complainant, the Opposite Parties offered possession only to save their skin for the refund of money, otherwise, till date, the locality is not fully developed, as per the Agreement. The complainant purchased the plot and the Agreement was endorsed in her favour on 14.03.2011. The Opposite Parties, however, offered possession of the plot on 27.04.2016. It may be stated here that non-delivery of possession of the plot, in question, by the stipulated date i.e. even a long period of delay, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, 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:-

In view of the above, it is held that since there was a material violation on the part of the Company, in not handing over physical possession of the plot, 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 long 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.

29. In view of reasons recorded above, the complaint bearing No.217 of 2016 is partly accepted with costs. The Opposite Parties are jointly and severally directed, as under:-

To refund the amount Rs.36,18,759/-, to the complainant, alongwith interest compounded @ 15% p.a., from the date of endorsement i.e. 14.03.2011 onwards, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.3,00,000/- 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.
To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
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 compounded @18 % p.a., instead of compounded @ 15% p.a., from the date of endorsement, till realization, and interest compounded @15% p.a., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

30. However, it is made clear that, if the complainant(s), in all the aforesaid two cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant(s).

31. Certified copy of this order be placed in Consumer Complaint No.217 of 2016 titled ‘Narinder Kaur Vs. Emaar MGF Land Limited & Anr.’.

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

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

Pronounced.

August 22, 2016. Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/147/2016

Darbara Singh - Complainant(s)

Versus

Emaar MGF Land - Opp.Party(s)

Sh. Vishal Goel, Adv.

22 Aug 2016

ORDER

V e r s u s

V e r s u s

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