Chandigarh

StateCommission

CC/359/2016

Sukhbir Kaur Marwaha - Complainant(s)

Versus

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

Mukand Gupta, Adv.

20 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	359 of 2016
Date of Institution	:	18.07.2016
Date of Decision	:	20.02.2017

 

Sukhbir Kaur Marwaha, Lyderhornslien, 125, Leil 104, Loddefjord, Norway, c/o Mukand Gupta, resident of House No.2087, Sector 21-C, Chandigarh.

 

……Complainant

V e r s u s

Emaar MGF Land Pvt. Limited, SCO No. 120-122, Sector 17-C, Chandigarh, through its Authorized Representative.

                                                    .... Opposite Party

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Mukand Gupta, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant was lured by the proclamation made by the Opposite Party, as such, she applied for a flat on 12.09.2008 and made the payment of booking amount of Rs.7 lacs. The Opposite Party allotted flat bearing No.J-3-F07-702 in Sector 105, Mohali in the project of the Opposite Party on 29.09.2008 and as per allotment letter, total price of the flat was Rs.58,60,158/- which included Basic Sale Price, EDC, PLC, IFMS and car parking charges (Annexure C-1). Thereafter, Flat Buyer’s Agreement was executed between the parties at Chandigarh on 03.10.2008 (Annexure C-2). The complainant opted for Construction Linked Payment Plan. The complainant made the payment, as and when, demanded by the Opposite Party and there was no delay in making the payment, rather, excess amount has been paid by her. As per Clause 21.1 of the Agreement, possession of the said unit was to be delivered within a period of 36 months from the date of allotment i.e. by 29.09.2011.  It was further stated that the complainant had deposited Rs.56,13,890/- with the Opposite Party and, thereafter, it demanded balance 5% amount from her as well as difference of the increase of the super area of the unit alongwith amount of stamp duty charges and maintenance charges, which was deposited by her, therefore, the complainant paid the total amount of Rs.71,00,258/- in respect of the unit, in question, vide receipts (Annexure C-3) against the increased total price of the flat to the tune of Rs.62,79,087/- but till date, the Opposite Party failed to deliver possession of the flat to the complainant, despite repeated letters/emails exchanged between the parties (Annexures C-4 to C-11). It was further stated that the complainant visited India in July, 2016 in the office of the Opposite Party and found that the Opposite Party failed to deliver possession of the unit and, as such, she asked for refund of the amount, which was flatly refused by the Opposite Party. 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 taken objection regarding arbitration clause in the Agreement, and 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 did not fall within the definition of “Consumer”, as per in the Consumer Protection Act, 1986, as she is resident of Norway and has also a house for herself at Norway purchased by her parents and, therefore, the said unit purchased by her is only for speculation purposes. It was further stated that the pleas now being taken by the complainant are false and illusionary and have been taken solely to justify her illegal demand of refund of amount paid by her, after more than three years from the date when possession was offered to her on 14.08.2013. It was further stated that all the amount towards the flat, including stamp duty and registration charges have been paid and the Opposite Party was proceeding to get sale deed executed in her favour and now she has filed the case seeking refund of amount, which is not maintainable. It was further stated that the complainant has refused to accept the possession of the flat, as she is only a speculator. It was further stated that as per Clause 21.1 of the Agreement, the Opposite Party had “proposed” to handover the possession of the unit within 36 months from the allotment with a further grace period of 90 days for applying and obtaining occupation certificate. 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. The term “proposes” duly indicates that there was no definitive commitment to hand over possession within 36 months, as time was not the essence of the Agreement. It was further stated that the complaint is barred by limitation, as the cause of action, if any, arose to the complainant for seeking possession/refund arose on 14.08.2013 when possession was offered to her and the present complaint is now being filed is barred by limitation. It was further stated that the complainant is bound by the terms and conditions of the Agreement and in case of seeking refund of the amount, forfeiture clause would be applicable. It was further stated that the Company issued provisional allotment letter dated 29.09.2008 for the unit and the total sale consideration was mentioned as Rs.58,60,158/- (excluding service tax). It was further stated that the complainant paid the total amount of Rs.69,06,235/- in respect of the unit, in question, which includes stamp duty & registration charges for execution of the sale deed  and the balance payment has been made towards the maintenance & water charges. Copies of offer of possession letter and final statement of accounts, including stamp duty and registration amount for execution of the sale deed are Annexures R-1 & R-2. It was further stated that there was in delay in making payment of installments by the complainant and, therefore, delayed compensation is not payable for defaults. It was further stated that the complainant also made the payment of Rs.1,94,023/- towards the maintenance and water charges and the unit is ready for possession but she has delayed in taking over the same, as such, she is liable to pay holding charges, as per terms and conditions of the Agreement. It was further stated that this Commission has no pecuniary as well as territorial jurisdiction to try and entertain the complaint. 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 rejoinder to the written statement of the Opposite Party, wherein she 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.            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.

7.           Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs.71,00,258/-  paid by her, towards price of the unit, alongwith interest from the date of deposit, till realization;   compensation to the tune of Rs.4.00 lacs, for mental agony, harassment and cost of litigation, to the tune of Rs.70,000/-, 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.

              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. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment reads thus :-

“13.  Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.         In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

 

15.         It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

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.

8.             The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, it is evident from the record, that Unit Buyer’s Agreement was executed between the allottee and the Opposite Party at Chandigarh. Not only this, even the complainant placed on record receipts (at page No.66 to 74) and letter dated 27.11.2013 ( (Annexure C-7),  was also sent by the Opposite Party from its Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

9.              The next question, that falls for consideration is, as to whether, the complainant is a speculator and purchased the said plot for speculation purposes? The Counsel for the Opposite Party submitted that the complainant is speculator as she is resident of Norway and she was earlier living with her parents who have also purchased a house for herself at Norway and, as such, the said unit purchased by her was only for speculation purposes/commercial purposes. After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Party because the complainant, in para No.2 of her complaint, had clearly stated that she required a flat for her personal use, as she wanted to settle in India with her family. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. Moreover, with regard to the objection taken by the Counsel for the Opposite Party that the complainant is residing outside India and purchased the house at Norway, has no value, at all because even no law debars an NRI, who basically belongs to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, being an NRI, the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. 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 Counsel for the Opposite Party in this regard, being devoid of merit, is rejected. 

10.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  The plea of the Opposite Party is that cause of action arose to the complainant on 14.08.2013 (Annexure C-5), when the Opposite Party offered possession of the unit, in question, to the complainant and the complaint now being filed by her is patently barred by limitation. It is, no doubt, true that the Opposite Party failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated time frame, as mentioned in the Agreement i.e. latest by 28.09.2011 and a bare perusal of the said letter dated 14.08.2013 (Annexure C-5) clearly reveals that it was only a paper possession and when the complainant asked for refund of the amount, the Opposite Party flatly refused to refund the same, which shows that there is continuing cause of action, in her favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.          Another objection raised by Counsel for the Opposite Party that since it was mentioned in the Agreement that the Company “proposes” to deliver possession of the unit within a period of 36 months from the date of allotment and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that subject to force majeure conditions and reasons beyond the control of the Company, the Company proposes to hand over possession of the unit within a maximum period of 36 months from the date of allotment and further grace period of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex. 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 its 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, as per Clause 21.1 of the Agreement, the Opposite Party was bound to deliver possession of the unit, within a maximum period of 36 months from the date of allotment i.e. latest by 28.09.2011 and accordingly, time is  unequivocally, the essence of contract.

                Even otherwise, the Opposite Party cannot evade its liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, and, therefore, 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 Opposite Party in this regard also stands rejected.

12.          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 complainant. As per Clause 21.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment and not more than that. In the present case, allotment of the unit was delivered to the complainant vide letter dated 29.09.2008 (Annexure C-1) and the said period of 36 months when counted from 29.09.2008, possession was to be delivered to the complainant latest by 28.09.2011 and not more than that but the Opposite Party failed to offer/deliver possession of the unit, complete in all respects, within the stipulated period, as mentioned in the Agreement, despite receipt of the huge amount of Rs.71,00,258/-, which amounted to deficiency in service and also indulged into unfair trade practice.

13.          The next question, that falls for consideration, is, as to whether the Opposite Party offered possession of the unit, in question, to the complainant, complete in all respects or not. It is, no doubt, true that the complainant booked flat/unit in the project of the Opposite Party and flat No.J-3-F07-702 in Sector 105, Mohali was allotted to her vide provisional allotment letter (Annexure C-1). Thereafter, Flat Buyer’s Agreement was executed between the parties on 03.10.2008 and as per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a maximum period of 36 months from the date of allotment. The said period has expired on 28.09.2011 but the Opposite Party failed to offer/deliver possession of the unit to the complainant within the stipulated time frame as mentioned in the Agreement. It is an admitted fact that the complainant deposited almost the full amount of Rs.71,00,258/-, which included stamp duty and registration charges in respect of the unit, in question. Thereafter, the Opposite Party sent letter of intimation of possession at “The Views”, Mohali Hills, Mohali of apartment No.TVM J3-F07-702 in Tower No.TVM 13 (residential unit) to the complainant vide letter dated 14.08.2013 (Annexure C-5) i.e. after a delay of almost two years from the stipulated date, as per the Agreement. The Counsel for the Opposite Party stated that the Opposite Party has all the necessary permissions/approvals from the competent authorities. The Counsel for the complainant stated that the said offer made by the Opposite Party is only a paper possession and not more than that because the Opposite Party  did not have requisite permissions/approvals on the said date, when the possession was offered because the complainant placed on record partial completion certificate alongwith her rejoinder, which clearly proves that the same was issued on 16.10.2015 i.e. after the two years of offer of possession. The relevant portion of the intimation of possession letter dated 14.08.2013 (Annexure C-5) reads thus :-

“x  x x x x. We are pleased to inform you that the Company has received the occupation certificate for tower no.J dated 10-JUN-13 and the process of handing over physical possession of the Units in this tower will commence shortly.”

A bare perusal of the aforesaid letter clearly reveals that the said letter is only an intimation and not the possession letter, as alleged by the Opposite Party. The complainant has also annexed copy of email dated 26.11.2013 to the Opposite Party, in which, it is clear that the complainant found so many discrepancies in the unit offered by the Opposite Party. Thereafter, vide letter dated 27.11.2013 (Annexure C-7), the Opposite Party informed the complainant that the refurnishing works are being carried out and the unit would be handed over on 26.01.2014. The complainant has also placed on record copy of email dated 21.12.2015 (Annexure C-9), which was sent to the Opposite Party. The relevant portion of the said email reads thus :-

“x x x x x x We made the flat ready for hand over as requested by you that there is family function and you needed the flat. But unfortunately there was some seepage issue and the flat would be handed over to you.”

So, it is clear from the afore-extracted letter that the Opposite Party failed to hand over possession of the unit, complete, in all respects to the complainant till 21.12.2015. Even the Opposite Party failed to place on record any document, which could prove that all the basic amenities were complete at the site or they sent any letter to the complainant after the aforesaid letter, that the unit is complete in all respects and it is ready for possession. So, we are of the view that in the present case, the possession offered by the Opposite Party vide letter dated 14.08.2013 is only a paper possession and not more than that.

14.         If for the sake of arguments, we believe that the possession offered by the Opposite Party was complete in all respects, even the complainant is not bound to accept such an offer, made by the Opposite Party. 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.

 

Even 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 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 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.

15.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.71,00,258/-, as claimed by her. It is an admitted fact that the complainant deposited an amount of Rs.69,06,235/-, as is evident from statement of account (Annexure R-3). The Opposite Party also admitted in para No.10 of its written statement that the complainant also made the payment of Rs.1,94,023/- towards the maintenance and water charges and if we add the amount of Rs.69,06,235/- & Rs.1,94,023/- the deposited amount is to the tune of Rs.71,00,438/- instead of Rs.71,00,258/-, as claimed by the complainant. So, it is clearly proved that the complainant deposited the total amount of Rs.71,00,258/- in respect of the unit, in question, which included stamp duty and registration charges and after receipt of the aforesaid huge amount, the Opposite Party failed to deliver  possession of the unit, in question, complete, in all respects, within the stipulated timeframe, as mentioned in the Agreement. According to the Opposite Party, it offered possession of the unit to the complainant vide letter dated 14.08.2013 (Annexure C-5), which was only a paper possession. So, the complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. 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 her. 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 her.

16.          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.71,00,258/-, 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. There is no dispute that for making delayed payments, the Opposite Party was charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 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). So, In view of above, the  complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.71,00,258/- alongwith interest @12% p.a. (simple), from the date of deposit, till realization.

17.          As far as the plea taken by the Counsel for the Opposite Party, at the time of arguments, regarding forfeiture of earnest money 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 unit, to be delivered to the complainant, by the stipulated date but it was she (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Party or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Party, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant herself is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of the earnest money, 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.

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

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

1. To  refund   the  amount of Rs.71,00,258/-, to  the complainant, alongwith interest @ 12% p.a. (simple), 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 @15% p.a. (simple), instead of @12% p.a. (simple), from the respective dates of deposit, till realization, and interest @12% p.a. (simple), on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

20.         However, it is made clear that, if the complainant has 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.

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

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

Pronounced.

February 20, 2017.                                        Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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