Chandigarh

StateCommission

CC/627/2016

Nita Dhawan - Complainant(s)

Versus

Emaar MGF - Opp.Party(s)

N.S.Jagdeva, Adv.

03 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	627 of 2016
Date of Institution	:	22.09.2016
Date of Decision	:	03.02.2017

 

Nita Dhawan w/o Pardeep Dhawan r/o 126, Model Town Ambala City, Haryana.

……Complainant

V e r s u s

1. Emaar MGF Pvt. Ltd., through its Branch Head, SCO No.120-122, Sector 17-C, Chandigarh.
2. Emaar MGF Land Ltd., through its Managing Director, Registered Office, MGF House 17-B, Asaf Ali Road, New Delhi.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  N.S.Jagdeva, Advocate for the complainant.

Sh.  Ajiteshwar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that Ms. Anuradha Adalakha had applied for plot with the project of the Opposite Parties namely Mohali Hills vide application No.1057 in July, 2007. She was allotted plot bearing No.331, measuring 300 sq. yards, Pine Wood in Sector 108, Mohali Hills, SAS Nagar, Mohali vide allotment letter (Annexure C-1). Buyer Agreement was executed between the Opposite Parties and the original allottee (Mrs.Anuradha Adalakha) on 04.07.2007. It was stated that on 03.09.2010 the complainant purchased the plot from Ms.Anuradha Adalakha and paid her all dues, which she had paid to the builder. As per the Agreement, the total sale price of the plot was Rs.35,97,249/-. The Opposite Parties had agreed to hand over possession of the plot to the complainant within a period of 3 years from the date of signing of the Agreement i.e. latest by 07.07.2010 but they failed to deliver the same, as such, they are liable to pay the penalty of Rs.50/- per sq. yard per month. The complainant had paid the total amount of Rs.40,02,899/- to the Opposite Parties and only 5% i.e. Rs.5,32,362/- remains to be paid on completion and handing over the possession. The complainant had availed loan of Rs.30 lacs from HDFC Bank and he was paying huge interest on the loan. It was further stated that when the complainant visited the site, it was found that no development work like roads, sewerage, electricity poles and other basic amenities had been carried out. As per the Agreement, the project was to be completed within three years, which period expired on 04.07.2010 but neither the possession was handed over to the complainant nor paid any penalty for delay in delivery of possession. It was further stated that the Opposite Parties sent demand notice on 03.05.2014 (Annexure C-16) to the complainant, which was duly replied by her vide email dated 24.05.2014 (Annexure C-17) and objected to the said illegal demand. It was further stated that the demand raised in the notice dated 03.05.2014 were illegal and without any basis against the terms of Agreement since the club membership charges were not liable to be charged, as it was an optional facility and O.T.P.R @5% was passed on to the complainant at the time of transfer. It was further stated that at the time of transfer, the EDC was deposited @Rs.1811/- per sq. yard which comes to Rs.5,43,300/-, which was later on reduced by the Government in September, 2013 and she had been asking for reversal of the said excess payment of EDC but the same was not done initially but later on, it was reflected in company letter dated 03.05.2014 (Annexure C-16) that a reversal of Rs.3,01,200/- was to be made against the registration charges and stamp duty charges at the time of registration by the Company. However, the Opposite Parties retained the above amount but no interest has been paid by them for the period of three years and no response was given by the Opposite Parties even after writing email on 29.05.2014. Thereafter, the Opposite Parties issued email dated 30.05.2014 (Annexure C-18), whereby, sought indemnity affidavit and in response to the said email, the complainant had sent email and letter dated 06.06.2014 (Annexure C-19), whereby, she deposited Rs.16573/- and regarding rest of payment, she clearly wrote that these demands are not applicable on her. The Opposite Parties arbitrarily issued illegal demands vide their notices (Annexures C-20 to C-22). It was further stated that the complainant had submitted indemnity affidavit vide her letter dated 18.06.2014 (Annexure C-23). In response to the letter dated 11.08.2014, the complainant sent emails (Annexures C-24 & C-25) clarifying her stand. Thereafter, the Opposite Parties further exchanged correspondence vide emails (Annexure C-26 colly.) but no redressal has been given to her by the Opposite Parties. The complainant also sent email dated 16.04.2015 asking for refund of the excess EDC amounting to Rs.3,01,200/- for the period of three years but nothing was done. Copies of the email dated 16.04.2015 and 28.04.2015 showing the EDC has been adjusted in settlement of final due are Annexures C-27 & 27-A. The complainant finally sent email on 09.09.2015 to the Opposite Parties for possession. Ultimately, the complainant sent legal notice dated 13.10.2015 (Annexure C-28) through her Counsel but to no avail. It was further stated that the Opposite Parties never offered possession to the complainant. Although the Opposite Parties informed the complainant through email dated 12.09.2015 that offer of possession was sent on 16.12.2011 but it was not a clear offer of possession. 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 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 Parties, 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 stated that provisional allotment in respect of unit No.108-PP-331-300 i.e. plot No.301 situated in the residential colony Pinewood Park, Sector 108, Mohali was granted in favour of the original allottee i.e. Mrs. Anuradha Adlakha on 05.05.2007. Further, Plot Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 04.07.2007, whereby, as per Clause 8, possession of the plot was to be delivered within a period of three years from the date of execution of the Agreement i.e. maximum by July 5, 2010, failing which, they would be liable to pay penalty of Rs.50/- per sq. yards per month for delay beyond the period of three years. It was further stated that the Opposite Parties vide letter dated 30.01.2010 (Annexure R-1) offered possession to the original allottee, subject to payment of such amounts, as such, no compensation could be said to be due under Clause 8 of the Agreement. It was further stated that once the original allottee was amenable to the payment of charges, the charges in respect of water and electricity, amongst others, would become due and payable by her, as per actuals. It was further stated that the complainant purchased the said property in resale from an original allottee and for transfer of the property, some requisite documents were required to be submitted. Thereafter, upon receipt of the said documents, the Opposite Parties issued No Objection Certificate in favour of the complainant (Annexure R-2). It was further stated that the time period of three years for allotting possession to original allotee, as contemplated under the Agreement dated 04.07.2007 had already lapsed on 04.07.2010 and the possession stood offered since 30.01.2010. It was further stated that the complainant was silent and no action has been taken by her, after the statutory period had expired and she approached this Commission only in 2016 i.e. after a lapse of 6 years when cause of action first arose and the instant complaint is barred by time.   It was further stated that the complainant was aware of the fact that possession of the plot stood offered on 30.01.2010 to the original allottee and further that when the amounts mentioned in the possession letter were paid by the complainant in September, 2010, she for all intents and purposes stepped into the shoes of the original allottee, including the fact that possession stood transferred in her name. It was further stated that the complainant has further failed to place on record the fact that the Opposite Parties through their letter dated 16.12.2011 intimated her that she could approach the concerned authorities to get her building plans approved, for which, they even offered to render assistance and even through the said letter, the complainant was also intimated that upon her receiving approval from concerned authorities, formalities regarding execution and registration of sale deeds would be carried out.  Copy of the letter dated 16.12.2011 is Annexure R-5. The said fact is fortified by the complainant’s own email dated 06.06.2014 (Annexure C-19), wherein, amongst other things, the complainant is seeking further time to execute the sale deed. It was further stated that even on 10.09.2014 (Annexure R-6) another request for extension for execution for a period of further three months was made by the complainant.  It was further stated that when the complainant opted out of membership privileges etc. she was asked to submit an undertaking to the effect that she would not use the facilities provided. The indemnity-cum-undertaking dated 19.06.2014 (Annexure C-23) could not be accepted. It was further stated that a sample format of the requisite indemnity-cum-undertaking was also sent to the complainant (Annexure C-26) but for the reasons best known to her, she did not submit the same. It was further stated that the complainant demanded refund of EDC charges amounting to Rs.3,01,200/-, which purportedly stood revised, have been adjusted towards the charged demanded under the letter dated 03.05.2014 (Annexure C16), as duly informed to the complainant through email dated 28.04.2015 (Annexure C-27/A) and the remainder of the amount would be adjusted with the stamp duty and registration charges payable at the time of execution of the conveyance deed. It was further stated that the complainant was also informed that EDC, being a levy by the Government, which has been passed on by the Opposite Parties to the State, cannot carry any component of interest but she did not pay any heed. It was denied that the complainant is a consumer and competent to file the complaint, as she purchased the plot in resale from the original allottee for earning profits. It was further stated that the complainant should also be disclosed regarding all the properties under her name, either jointly and/or in part with others in respect of other properties and in the absence of the same, it was denied that the complainant did not have any other property in the tricity and there was no commercial aspect involved in the complaint. It was further stated that the subject property was transferred in the name of the complainant on receipt of transfer charges amounting to Rs.75,000/-. It was denied that no development works have been carried out, as averred. It was further stated that all the amenities were completed in respect of the said property and the same was duly intimated on 30.01.2010. It was further stated that the factum of the legal notice sent by the complainant is a matter of record, however, the same is misconceived as complete facts seemingly have not been made available to the Advocate.   It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.           The complainant filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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 Parties, 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 Parties, stands rejected.

7.           The objection taken by the Opposite Parties, to the effect that the complainant being investor, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is, no doubt, true that the complainant purchased the plot from the original allottee (Mrs. Anuradha Adlakha) on 03.09.2010 but it is not true that the same was purchased by her for resale or earn profit in future because the complainant has specifically stated in para No.2 of the complaint that she purchased a residential plot, in question, in resale for her own family use and she has not purchased the plot for resale or for earning profits, as she is not having any other plot/property in the tricity. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

8.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is the admitted fact that the Opposite Parties failed to intimate the complainant regarding offer of possession and the possession offered, as alleged, by them vide letter dated 03.01.2010 (Annexure R-1) declared only as paper possession and not more than that. So, it is clearly proved that the Opposite Parties failed to deliver possession of the unit complete in all respects to the complainant, as such, 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 Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

9.           The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit/plot, in question, to the complainant, complete in all respects or not. Admittedly, plot No.331 having approximate area of 330 sq. yds. in Pinewood Park, Sector 108, Mohali Hills, Mohali was allotted in favour of the original allottee vide provisional allotment letter dated 05.05.2007 (Annexure C-1). Thereafter, Plot Buyer’s Agreement was executed between the original allottee (Mrs. Anuradha Adlakha) and the Opposite Parties, at Chandigarh, on 04.07.2007 (Annexure C-2). Then, the complainant purchased the plot from the original allottee i.e. Ms. Anuradha Adalakha on 03.09.2010, which was endorsed in her favour on 04.09.2010, as stipulated from the stamp affixed on the receipts (Annexures C-4 to C-12). Therefore, the complainant stepped into the shoes of the original allottee. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years. So, the period of 3 years from the date of execution of the Agreement dated 04.07.2007 has expired on 03.07.2010. According to the Opposite Parties, they offered possession of the said plot to the original allottee vide letter dated 30.01.2010 (Annexure R-1) i.e. before the expiry of stipulated period of 3 years and the same was within the knowledge of the complainant.  On the other hand, the Counsel for the complainant stated that the possession letter was not within the knowledge of the complainant because she purchased the plot after the aforesaid offer of possession letter and if we believe the version of the Opposite Parties, it is only a paper possession and not more than that because after purchase of the plot, when she visited the site, it was found that no development work like roads, sewerage, electricity poles and other basic amenities had been carried out. A bare perusal of letter (Annexure R-1) clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. The relevant portion of the said letter dated 30.01.2010 (Annexure R-1) reads thus :-

“x x x x x x We take this opportunity to update you on the status of the development work of the project and in particular about the plot situated in Pinewood Park Sector 108 of the project.

X x x x xx

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Pinewood Park, Sector 108, Mohali Hills, where your plot is situated. X x x x x x x”  

From the afore-extracted paragraph, it is clearly proved that it is only an updation letter regarding development work of the project and not more than that. A bare perusal of the said letter clearly reveals that the Opposite Parties subject to making payment of the amount, prepared to hand over possession of the plot.  Even the Opposite Parties 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 they are ready for possession. Not only this, it is also relevant to note that a number of cases of Sector 108 of the Opposite Parties Company have already been decided by this Commission, in which, the basic amenities were not available at the site.

              It is pertinent to note that the Opposite Parties  (Emaar MGF) filed appeal in another case i.e. First Appeal bearing No. 709 of 2016 titled as ‘Emaar MGF Land Limited Vs. Mandeep Saini’ before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, against the order of this Commission and the Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed the order dated 14.09.2016, which reads thus :-

“x x x x xx

It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.

X x x x x xx x”

From the afore-extracted order, it is clearly proved that Counsel for the Opposite Parties admitted before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the delay in delivery of possession to these Sectors i.e. Sectors 104, 106, 108 & 109 was due to the sealing of main access road by the Forest Department. It is clearly proved that the Hon'ble National Consumer Disputes Redressal Commission, New Delhi without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant i.e. Emaar MGF Land Limited is still not in a position to deliver possession of the fully developed units with proper access, to the complainant i.e. till the passing of the afore-extracted order dated 14.09.2016. So, we are of the view that in the present case, the possession offered by the Opposite Parties is only a paper possession and not more than that.

10.           The next question, that falls for consideration, is, as to whether there was delay in delivery of possession of the plot to the complainant. According to Clause 8 of the  Agreement dated 04.07.2007 (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the plot, within a period of two years but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the plot, in question, in favour of the complainant, within a maximum period of three years, from the date of execution of the Agreement i.e. latest by 03.07.2010. Even the Opposite Parties only sent letter dated 30.01.2010  (Annexure R-1) to the original allottee and after purchase of the unit from the original allottee, the Opposite Parties failed to send any separate communication to the complainant. So, it is clearly proved that the Opposite Parties failed to deliver possession of the plot, complete in all respects to the complainant, despite receipt of the huge amount of Rs.40,02,899/- in respect of the unit, in question, as is evident from the statement of account (at page No.53 of the Opposite Parties documents), which amounted to deficiency in service on the part of the Opposite Parties.

11.          With regard to the prayer of the complainant for refund of excess EDC charges alongwith interest, retained by the Opposite Parties for the last three years is concerned, it is the admitted fact that the Opposite Parties charged the excess EDC from the complainant and stated that it was duly informed to the complainant through email dated 28.04.2015 (Annexure C-27/A) and the remainder of the amount would be adjusted with the stamp duty and registration charges payable at the time of execution of the conveyance deed. The Opposite Parties further stated in their written statement that the complainant was also informed that EDC being a levy by the Government, which has been passed on by the Opposite Parties to the State, cannot carry any component of interest but she cannot pay any heed to any of the explanations and clarifications given by the Opposite Parties and rather claimed refund of EDC alongwith interest. It is the admitted fact that at the time of transfer of the unit, the EDC was deposited @Rs.1811/- per sq. yard which comes to Rs.5,43,300/-. According to the complainant, the EDC was later on reduced by the Government in September, 2013 and he had been asking for reversal of the said excess payment of EDC but the same was not done initially but later on, it was reflected in company letter dated 03.05.2014 (Annexure C-16). A bare perusal of the letter dated 03.05.2014 (Annexure C-16) clearly reveals the reversal of Rs.-3,01,200/-. However, the Opposite Parties retained the above amount and even no interest was paid by them for the period of three years. Not only this, the complainant sent email dated 24.05.2014 (Annexure C-17) to the Opposite Parties with regard to the interest on the amount of EDC but they did not pay any heed and the Opposite Parties are willing to set off the same against registration charges. Moreover, the Opposite Parties charging interest @15% p.a. compounded, as per Clause 3 of the Agreement, from its customers on the delayed payments. So, we are of the view that the complainant is certainly entitled for the amount of excess EDC of Rs.3,01,200/- alongwith interest @15% p.a. (simple) from the date of collection of the same.

12.          The next question, that falls for consideration, is, as to what amount is required to be deposited by the complainant for taking possession of the plot/unit.  It is an admitted fact that the complainant paid the total amount of Rs.40,02,899/-, as is evident from statement of account (at page No.53 of the Opposite Parties documents). A bare perusal of the statement of account clearly shows except the amount of registration & Infra Dev. Charge as well as Stamp Duty Charges of Rs.3,24,000/-, the following amount is to be paid by the complainant :-

Sr. No.	Type	Amount
1.	Interest Free Maintenance Security	30,000/-
2.	Electrification Charges	14,250/-
3.	Electricity Connection Charges	24,196/-
	Total	Rs.68,446/-

 

So, it is clearly proved that the complainant is required to pay an amount of Rs.68,446/- in respect of the unit, in question, except the amount of registration & infra dev. as well as stamp duty charges.

13.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit in question within the maximum stipulated period of three years to the complainant. As stated above, in the instant case, the Opposite Parties have not delivered possession of the unit, complete in all respects to the complainant, within the stipulated time frame and the letter dated 30.01.2010 (Annexure R-1) is only a paper possession and not more than that. No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, was incorporated but it does not mean that the intention was that even in the event of inordinate delay, delivering the possession, the complainant would be entitled to meagre compensation/penalty of Rs.50/- per sq. yds. per month, which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view, Clause 8 was meant for computing penalty/compensation, in case of a delay in delivery of possession.  If the argument of the Opposite Parties is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates.  This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act. Recently in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.

14.          As regards payment of holding charges by the complainant to the Opposite Parties is concerned, we are of the view that the same is not liable to be paid by the complainant with the reason that no intimation of possession has been sent to the complainant. The letter, referred by the Opposite Parties, at Annexure R-1 dated 30.01.2010 was addressed to the original allottee and the complainant was not informed about the completion of the project and he was never offered any possession letter, so as to say that even the letter dated 30.01.2010 was a mere paper possession. Therefore, ho holding charges is payable by the complainant to the Opposite Parties.

15.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to her, by not delivering the physical possession of plot, to her, within the stipulated period, as mentioned in the Agreement. As per the Agreement, the Opposite Parties were bound to deliver possession of the plot to the complainant within a maximum period of three years from the date of execution of the Agreement i.e. latest by 03.07.2010 but they failed to deliver the same complete in all respects to her. Even the Opposite Parties used the money of the complainant. The complainant  underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation,  to the tune of Rs.1 lac, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1 lac, as indicated above.

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

17.         For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-

1. To hand over physical possession of  the plot, complete in all respects, to the complainant, within a period of three months, from the date of receipt of a certified copy of this order, on payment of the amount, legally due against her, which works out to Rs.68,446/- as is evident from statement of account annexed by the Opposite Parties.
2. To execute and get registered the sale deed, in respect of the plot, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges & Infra Dev. Charge as wellas stamp duty i.e. Rs.3,24,000/-, as reflected in statement of account  (Annexure R-3), by the complainant.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount (Rs.40,02,899/-), to the complainant, from the date of endorsement i.e. 04.09.2010 till 31.01.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainant  w.e.f. 01.02.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15 % p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay excess EDC charges of Rs.3,01,200/- to the complainant alongwith interest @15% p.a.(simple), retained by the Company illegally, from the date of deposit till its payment, failing which, the same shall also carry penal interest @18 % p.a. (simple), instead of 15% p.a.(simple),  from the date of default, till payment is made.
6. To pay compensation, in the sum of Rs.1,00,000/- on account of mental agony and physical harassment, caused to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
7. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

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

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

Pronounced.

February 3, 2017.                                   Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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