Chandigarh

DF-I

CC/622/2014

Raghav Mahajan - Complainant(s)

Versus

EMAAR MGF Pvt. Ltd. - Opp.Party(s)

Paras Money Goyal

17 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

 

 

                

Consumer Complaint No.	:	CC/622/2014
Date  of  Institution	:	16/09/2014
Date  of  Decision	:	17/06/2015

 

Raghav Mahajan @ Raghav Gupta s/o Sh. R.D. Gupta r/o 839, First Floor, Phase-X, Mohali.

…..Complainant

V E R S U S

1.     EMAAR MGF Pvt. Ltd. through its H.E. Mohamed Ali Alabbar (Chairman) & Mr. Shravan Gupta (Managing Director), SCO No.120-122, Sector
17-C, Chandigarh.

2.     EMAAR MGF through its General Manager, SCO No.120-122, Sector 17-C, Chandigarh.

 …..Opposite Parties

 

 

QUORUM :	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                                                                       

 

                       

For complainant	:	Sh. Gaurav Bhardwaj, Advocate.
For OPs	:	Sh. Sanjeev Sharma, Advocate.

                                   

PER P.L.AHUJA, PRESIDENT

1.           Shri Raghav Mahajan, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against EMAAR MGF Pvt. Ltd. and another, Opposite Parties (hereinafter called the OPs alleging that he came across active publication and advertisement in various modes of media by the OPs in which they were publishing the launch of their housing/commercial project in Sectors 105, 109, 108, 107, SAS Nagar – Mohali.  

                According to the complainant, he fell prey to the tall claims made by the OPs and agreed to purchase a residential independent floor in Sector 108, SAS Nagar, Mohali. The complainant paid an amount of Rs.2,00,000/- to the OPs and booked unit No.TTM-SF-741 in their project named as “The Terraces Mohali”. Thereafter the complainant was made to sign the Independent Floors Buyer’s Agreement (Annexure C-3) on 1.9.2009 as per which he was allotted Unit No.741/SF measuring 1430 sq. ft. against total consideration of Rs.37,89,631/-. It has been averred by the complainant that the OPs promised to hand over possession of the unit within a period of 36 months from the date of signing the agreement, but, they failed to do so.  Vide receipts dated 29.9.2009 (Annexure C-4) and 3.5.2010 (Annexure C-6), the complainant made further payment of Rs.3,65,445/- and Rs.9,04,711/- respectively to the OPs.  According to the complainant, on several occasions he visited the premises of the project and found that no construction work was going on and even the project had not yet started. The complainant made several requests to the OPs and their representatives to either refund the amount of Rs.14,70,156/- with interest or to deliver the possession of the independent floor as well as compensation as per clause 22.1 of the agreement, but they failed to do so.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 

2.         In their joint written reply, the OPs have admitted the facts with regard to allotment of residential unit in question, execution of agreement, receipt of a total sum of Rs.14,70,156/- from the complainant and that the total cost of the unit was Rs.37,89,631/-.  It has been denied that the possession was to be delivered within 36 months (plus grace period of 90 days) as the complainant had concealed the fact that the installment plan was later on changed to “construction linked” from “Time Linked” and the said fact was informed to the complainant on 10.7.2009. It has been pleaded that the OPs had committed to bear the penalty for delayed possession, if any payable, as per terms of the agreement and the same was to be adjusted in the last installment payable by the allottee/complainant.  It has been contended that the complainant never paid the installments on time and was a defaulter. It has further been contended that the complainant had been offered relocation by the OPs to a unit/floor/apartment where possession could be delivered at an earlier stage, but he failed to act.  It has been averred that the OPs had already started development of “The Terraces” and had already offered possession of independent floors to many of their customers. The remaining averments have been denied being wrong. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint.
3.         The parties led evidence in support of their contentions.
4.         We have gone through the entire record and written arguments of both the sides.
5.         It is the admitted case of the OPs that the complainant paid an amount of Rs.2,00,000/- vide receipt, copy of which is Annexure C-1, and booked a unit No.TTM-SF-741 in their project named as “The Terraces Mohali”. The OPs issued a provisional allotment letter dated 13.4.2009 (Annexure C-2) in respect of Unit No.741/SF at Sector 108 having approximate area of 1431 sq. ft. for a total consideration of Rs.37,89,631/- in favour of the complainant. Thereafter, the complainant was asked to sign the independent floors buyer’s agreement dated 1.9.2009 (Annexure C-3) as per which he was allotted Unit No.741/SF measuring 1430 sq. ft. in The Terraces, Sector 108, Mohali against the total consideration of Rs.37,89,631/-.  It is also admitted case of the OPs that the complainant had made payment of an amount of Rs.3,65,445/- vide receipt dated 29.9.2009 (Annexure C-4) and another amount of Rs.9,04,711/- vide acknowledgement cum receipt dated 3.5.2010 (Annexure C-6).  In this way, the complainant has made payment of Rs.14,70,156/- to the OPs. 
6.         It is also admitted that as per the terms and conditions incorporated in the Independent Floors Buyer’s Agreement, the possession of the allotted unit had to be handed over to the complainant within 36 months of the date of signing of the agreement dated 1.9.2009.  As per clause 20.1 of the agreement, upon the expiry of the period of 36 months, OPs were entitled to a grace period of 90 days for applying for and obtaining the Occupation Certificate in respect of the complex. Hence, as per the terms and conditions of the agreement, OPs were required to hand over the possession of the flat in question to the complainant on or before 1.12.2012. 
7.         It has been urged by the complainant that the OPs have failed to raise any construction of the unit and to hand over the physical possession of the allotted unit within the time period stipulated in the Independent Floors Buyer’s Agreement which expired on 1.12.2012. It has been submitted that the complainant made several requests to the OPs to start the project work and the OPs assured him that the project would be completed in time, but, the project has not been started till date.  The complainant has submitted that since the OPs have not commenced the work of construction of the allotted unit so far, therefore, he made a request to the OPs to refund an amount of Rs.14,70,156/- alongwith interest. The complainant has also contended that as per clause 22.1 of the agreement (Annexure C-3), OPs are also liable to pay the compensation to him to the tune of Rs.5/- per sq. ft. per month i.e. Rs.7,150/- per month from December 2012 on account of non-delivery of the possession within the requisite time.
8.         On the other hand, it has been urged on behalf of the OPs that in case of seeking refund of the amount and cancellation by the complainant, the matter would be governed by the terms of the Independent Floors Buyer’s Agreement and the complainant would have to lose a considerable amount on account of the forfeiture.  It has been submitted in the written arguments of the OPs that the installment plan was subsequently changed from “time linked” to “construction linked” and the OPs have not asked for any payment after the payment of Rs.14,70,156/-. It has further been submitted that the OPs are not liable to pay any interest on the amount paid by the complainant. It has further been submitted that as per clause 22.1 of the agreement, in the event of delay in giving possession of the unit within the specified time frame, the company is liable to pay compensation @ Rs.5/- per sq. ft. per month of the super area of the unit till the time the possession is offered to the consumer, therefore, the complainant is not entitled to get back the principal amount with interest.
9.         We have given our thoughtful consideration to the rival contentions.  The factual matrix of the case is not in dispute.  It is the admitted case of the parties that as per clause 20.1 of the Independent Floors Buyer’s Agreement (Annexure C-3), the possession of the allotted unit was to be handed over to the complainant within 36 months of the date of the signing of the agreement dated 1.9.2009.  After adding the grace period of 90 days for obtaining the occupation certificate in respect of the complex, the OPs were required to hand over the possession of the unit to the complainant on or before 1.12.2012. The affidavit of the complainant shows that he has been repeatedly requesting the OPs to start the project work so that the same can be completed in time. Though the OPs have pleaded that it was proposed to hand over the possession within 39 months of the execution of the agreement and there was no definite commitment to hand over the possession within 39 months, yet, we are not impressed with this contention. Even if the installment plan was later on changed to “construction linked” from “time linked”, still there is no evidence to this effect that there was some modification in the contents of clause 20.1 of the Independent Floors Buyer’s Agreement.  Furthermore, though the OPs have pleaded that they have already started development of “The Terraces” and have already offered possession of independent floors to many of their customers, yet, they have not produced any documentary evidence to substantiate this plea.  We are of the view that when the possession of the unit has not been handed over to the complainant within the stipulated period and the construction of the unit has not yet been commenced, it is a clear case of deficiency in service on the part of the OPs. This case is squarely covered by a decision in Complaint case No.40 of 2014 titled Seema Juneja Vs. M/s Emaar MGF Land Limited decided by our own Hon’ble State Commission, UT, Chandigarh on 20.6.2014 where the possession of the plot was not handed over to the complainant within the stipulated period.  It was held that the OP was not only deficient in rendering service but also indulged into unfair trade practice.  In that case, apart from refund the amount of Rs.40,50,354/- + the amount of Rs.97,642/- in respect of the delayed payments was ordered to be refunded with interest @ 12 % per annum  from the respective dates of the deposit.  In the instant case also, we are of the view that the complainant is entitled to the refund of the amount of Rs.14,70,156/- with interest @ 12% per annum from the respective dates of deposit. 
10.         As far as the contention of the complainant that in case of delay in delivery of the possession as per clause No.22.1 of the Buyer’s agreement, he is entitled to get compensation @ Rs.5/- per sq. ft. per month of the super area is concerned, it is significant that in this case the complainant has not prayed for the possession of the unit in question. In similar circumstances in Seema Juneja Vs. M/s Emaar MGF Land Limited (supra) it was held that had the complainant prayed for possession of the residential plot, the matter would have been different.  The said clause could be invoked by the complainant only in the event if he had sought the relief of delivery of physical possession of the unit.  Hence, there cannot be any question of invoking clause 22.1 of the Buyer’s Agreement. However, we are of the opinion that the complainant has suffered ample of mental agony and physical harassment on account of delay on the part of the OPs in handing over the possession of the unit to him, therefore, he is entitled to compensation on that account. 
11.         For the reasons recorded above, we find merit in the complaint and the same is allowed partly.  The OPs are directed :-
    1. To refund the amount of Rs.14,70,156/- to the complainant alongwith interest @ 12% per annum from the respective dates of deposit till realization.
    2. To pay a compensation in the sum of Rs.1,00,000/- for causing mental agony and physical harassment to the complainant as also damages for escalation in the prices of the real estate.
    3. To pay an amount of Rs.11,000/- to the complainant as litigation costs. 
12.         This order shall be complied with by OPs within one month from the date of receipt of its certified copy; thereafter OPs shall pay the amount mentioned at Sr.No.(i) above with interest @ 15% per annum instead of 12% per annum from the respective dates of deposit and the amount mentioned at Sr.No.(ii) above with interest @ 12% per annum from the date of filing of the present complaint, till realization by the complainant, besides payment of litigation costs.
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
17/06/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President