STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | : | 314 of 2016 |
Date of Institution | : | 22.11.2016 |
Date of Decision | : | 07-07-2017 |
- M/s Emaar MGF Land Limited, Registered office ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its General Manager/Authorized Representative.
- M/s Emaar MGF Land Limited, Branch Office - SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh through its Authorized Representative.
……Appellants
V e r s u s
Sofi Zahoor s/o Sh.Ghulam Hassan Sofi, resident of House No.2659, FF, Sector 69, Mohali, Punjab.
...Respondent
Appeal under Section 15 of the Consumer Protection Act,
1986 against order dated 02.05.2016 passed by District Consumer Disputes Redressal Forum-II, U.T.Chandigarh in Consumer Complaint No.417/2014..
Argued by: Mr. Ashim Aggarwal,Advocate for the appellants.
Mr. Sandeep Bhardwaj, Advocate for the respondent.
Appeal No. | : | 317 of 2016 |
Date of Institution | : | 29.11.2016 |
Date of Decision | : | 07.07.2017 |
- M/s Emaar MGF Land Limited, Registered office ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its General Manager/Authorized Representative.
- M/s Emaar MGF Land Limited, Branch Office - SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh through its Authorized Representative
-Appellants
V e r s u s
Kabir Khanna S/o Sh.Vishwa Bandhu Khanna, resident of House No.1747, Sector-4, Panchkula.
..Respondent
Appeal under Section 15 of the Consumer Protection Act,
1986 against order dated 21.09.2016 passed by District Consumer Disputes Redressal Forum-I, U.T.Chandigarh in Consumer Complaint No.543/2014..
Argued by: : Mr. Ashim Aggarwal,Advocate for the appellants.
Mr. Sandeep Bhardwaj, Advocate for the respondent
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER
PER DEV RAJ,MEMBER
Vide this order we propose to dispose of aforementioned two appeals bearing Nos.314 of 2016 titled as M/s Emaar MGF Land Ltd. & another Vs Sofi Zahoor filed by Opposite Parties against order dated 2.5.2016 passed by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh allowing consumer complaint bearing No.417 of 2014 filed by respondent/ complainant, and 317 of 2016 titled as M/s Emaar MGF Land Ltd. & another Vs Kabir Khanna, filed by Opposite Parties against order dated 21.9.2016 passed by the District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (for short ‘the Forum’ only) allowing consumer complaint bearing No.543 of 2014 filed by respondent/ complainant. During arguments, it was agreed between Counsel for the parties that facts involved in the above two appeals by and large, are the same and both appeals can be disposed of by passing one consolidated order.
To dictate order, the facts are being taken from appeal No.314 of 2016 titled as M/s Emaar MGF Land Ltd. & another Vs Sofi Zahoor.
2.. In brief, the facts are that the complainant vide OPs’ letter dated 15.5.2007 was allotted a 300 sq. yard plot in Central Park, Sector 105, Mohali (Annexure C-3). A Plot Buyer’s Agreement (Annexure C-4) was entered into with the Opposite Parties on 4.7.2007.. The complainant paid an amount of Rs.11,10,000/- on 6.11.2006 as registration amount (Annexure C-1). The complainant paid another sum of Rs.7,24,500/- after getting loan from the Bank (Annexure C-2). Further the complainant paid an amount of Rs.28,35,750/- after taking loan from the bank. It was further stated that basic price of the plot was Rs.34.50 lacs and total cost of the plot including external development charges and preferential location charges was Rs.40,82,394/-. The complainant opted Time Linked Payment Plan attached with the Agreement and paid all installments in time. (Copies of receipts are annexed collectively as Annexure C-5). It was further stated that on clearing payments in time, the complainant qualified for reward for Pay On time, which meant waiver of last installment which was 5% of the basic sale price. It was also stated that the OPs also gave rebate of Rs.1,72,500/- to the complainant as all payments were made on time by him.
3. It was stated that as per agreement, possession was to be delivered on 3.7.2010, failing which the OPs were liable to pay penalty of Rs.50/- per sq. yard per month for such period of delay beyond three years from the date of execution of agreement. It was further stated that the complainant did not receive any letter of offer of possession from the OPs and as such approached the OPs, who sent letter dated 12.9.2011 (Annexure C-7) asking the consent to take possession, and on perusing the same, the complainant got suspicious about the progress of the project. When the complainant visited the site, he was shocked to see that there was no such progress at the site as was being projected by the OPs in their letters. It was further stated that Opposite Parties again issued letter dated 16.12.2011(C-9) wherein they informed that they had initiated community development work like parks, golf course, roads, electrical lighting and setting up of sewerage treatment plant, rain water harvesting system and electrical sub-stations. It was stated that OPs vide their reply through e-mail dated 12.3.2012 admitted about non-issuance of completion certificate (Annexure C-8). It was further stated that OPs remained silent till 2014 and sent a letter dated 8.1.2014 (Annexure C-11) informing him about final dues. It was further stated that it was clear from the reply of the Opposite Parties received through e-mail dated 10.2.2014 (Annexure C-15) that neither there were permissions with them, nor the development activities were complete at the site, hence the demand of any charges by the Opposite Parties was illegal. It was stated that the Opposite Parties asked the complainant to deposit delayed interest and additional amount of EDC. It was further stated that in the year 2014, the OPs asked to pay the enhanced EDC, Club Membership, Electricity connection charges, stamp duty charges, monthly maintenance charges, which clearly proved that the project was not complete in the year 2010. It was further stated that the demand of charges itself proved that electricity, club, external development was not complete in the year 2010 and asking for consent was only to deprive the complainant compensation to which he was entitled in accordance with Clause No.8 of the Agreement. It was further stated that delay in completing the project was on the part of the Opposite Parties and since they used the money of the complainant, they were liable to pay penalty along with interest on the deposited amount to the complainant, apart from compensation. Alleging aforesaid acts of omission and commission of the OPs, deficiency in providing service and indulgence into unfair trade practice, a complaint was filed before the Forum.
4. Upon notice, Opposite Parties filed their joint reply taking preliminary objection that all contentions of the Complainant were baseless , complaint was time barred and was not maintainable being beyond the pecuniary jurisdiction of the Forum. On merits, Opposite Parties denied the allegations of unfair trade practice. The allotment of plot in question, execution of agreement between the parties and payment made by the complainant, were admitted. It was further stated that though there was certain delay in remitting the installments by the complainant, the Opposite Parties as an exception offered to extend 5% incentive scheme to him (complainant). It was stated that there was no promise for delivering possession within 3 years definitely which was highlighted by the fact that there was a clause providing for penalty in case of delay beyond 24 months. It was also stated that possession was offered to the complainant well within the stipulated period in the year 2010, which the complainant failed to take citing extraneous reasons. It was further stated that penalty clause was not attracted to the Opposite Parties as the possession was offered to the complainant within the period stipulated. It was further stated that the complainant did not lead any evidence to prove that the area was not developed in the year 2010. It was stated that all amenities, as per Clause 23 of the Agreement, were complete and internal roads, water, sewerage and electrical lines were laid, in the area, where the plot of the complainant was situated, and such amenities were complete in the year 2010 when possession was offered. All other allegations of the Complainant were denied. A prayer was made for dismissal of the complaint with exemplary costs.
5. To the reply filed by OPs, complainant filed rejoinder, reiterating the averments made in the complaint and those made in the reply filed by the OPs, were controverted.
6. Both the parties led evidence. The Forum, on analysis of pleadings, documents on record, and arguments addressed, allowed complaint of the complainant.
7. Counsel for the appellants raised arguments that the complaint was beyond the pecuniary jurisdiction of the Forum as complainant by praying for interest/penalty till the date of issuance of completion certificate was infact praying for possession of plot, hence its value has also to be taken into consideration. Counsel argued that this issue was not discussed and decided by the Forum, and as such impugned order dated 2.5.2016 was liable to be set aside. It was further argued that as per recent judgment of larger Bench of the National Consumer Disputes Redressal Commission, New Delhi, titled as Ambrish Kumar Shukla and 21 ors. Vs Ferrous Infrastructure Pvt. Ltd. Consumer Case No.97 of 2016, decided on 7.10.2016, value of the plot alongwith reliefs claimed has to be taken into consideration for determining the pecuniary jurisdiction. It was stated that the said judgment was clarificatory and hence retrospectively applicable to the facts of the present case in which admittedly total price of the plot, as per Agreement, was Rs.40,82,394/- and hence complaint was beyond the pecuniary jurisdiction of the Forum and was liable to be dismissed/returned as such.
8. It may be stated here that a similar question arose in Appeal No.29 of 2017 titled as Ansal Properties & Infrastructure Ltd. Versus Manish Dang (decided on 21.2.2017), wherein the objection relating to pecuniary jurisdiction was elaborately discussed and decided by this Commission, by observing as under ;
“…………In the first instance, the argument raised appears to be attractive, however, on deep analysis of the ratio of judgment in the case of Ambrish Kumar Shukla’s case (supra) and provisions of Sections 21 and 21A of The Code of Civil Procedure, 1908, we are not going to buy argument, raised by Counsel for the appellant. In the case of Ambrish Kumar Shukla`s case (supra), following question of law was posed for its answer:-
“2 (i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of determining such pecuniary jurisdiction. (Reference made in First Appeal Nos.166,504 and 505 of 2016, vide order dated 11.08.2016 before a single Member Bench of the National Commission)”
After discussing the relevant provisions of 1986 Act, and law on the subject, the National Commission gave answer in the following manner:-
“14. Reference order dated 11.8.2016
Issue No. (i)
It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.”
It was said that when determining pecuniary jurisdiction of the Consumer Fora, the aggregate value of the goods or services hired or availed by a consumer, when added to the compensation, if any claimed, in the complaint, needs to be noticed. The said judgment was passed on 07.10.2016. It was nowhere stated that, in case, decision has already been held on merits, simply by taking note of value of deficiency claimed in a complaint, such decision will become a nullity. Furthermore, when we look into the provisions of Sections 21 and 21A of the Civil Code, such a finding could not have been given. Before proceeding further, it is necessary to note down the provisions of Sections 21 and 21A of the Civil Code, which read thus:-
“21. Objections to jurisdiction.
1[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.
2[(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]
1[21A. Bar on suit to set aside decree on objection as to place of suing.
No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.”
It is specifically mandated that no objection qua pecuniary jurisdiction of a Court shall be noticed by the Appellate or the Revisional Court, unless such an objection was taken in the Court, in the first instance, at the earliest available opportunity i.e. before framing of issues and/or unless there was a consequent failure of justice. Section 21A of the Civil Code, mandates that to set-aside a judgment, alleging lack of territorial jurisdiction, a separate suit cannot be filed.
No doubt, the provisions of Civil Code are ipso facto not applicable to the proceedings, under the 1986 Act, in litigation, before the Consumer Foras, however, when deciding issues between the parties, the Consumer Foras can take help from the provisions of Civil Code and its interpretation given by the Courts, from time to time.
The provisions of Section 21 of the Civil Code came up for consideration, before the Hon’ble Supreme Court of India in a case titled as Kiran Singh and Others vs Chaman Paswan and Others, 1954 AIR 340, 1955 SCR 117. In that case, judgment passed on merits was challenged by alleging that the Lower Court had no pecuniary jurisdiction, in terms of the Suits Valuation Act, 1887 (in short the Valuation Act), as the suit was undervalued. The suit was dismissed. However, appeal filed by the plaintiff was also dismissed. The plaintiff went to Patna High Court. It was also dismissed by the Patna High Court, holding that decision taken on merits can be reversed, only when the party can establish prejudice caused on merits. The matter went to the Hon’ble Supreme Court and by interpreting the provisions of Section 21 of the Civil Code and Section 11 of the Valuation Act, it was observed as under:-
“With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits, The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act.”
Noting that no prejudice was caused on account of lack of pecuniary jurisdiction, appeal filed by the petitioner was dismissed by the Hon’ble Supreme Court. To the same effect, is the ratio of judgment in the case of Subhash Mahadevasa Habib Vs. Nemasa Ambasa Dharmadas (D), Appeal (Civil) 1449 of 2007, decided on 19 March, 2007, decided by the Supreme Court of India. In that case, under similar circumstances, it was observed as under:-
“ The Code of Civil Procedure has made a distinction between lack of inherent jurisdiction and objection to territorial jurisdiction and pecuniary jurisdiction. Whereas, an inherent lack of jurisdiction may make a decree passed by that court one without jurisdiction or void in law, a decree passed by a court lacking territorial jurisdiction or pecuniary jurisdiction does not automatically become void. At best it is voidable in the sense that it could be challenged in appeal therefrom provided the conditions of Section 21 of the Code of Civil Procedure are satisfied. It may be noted that Section 21 provided that no objection as to place the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing Section was numbered as sub- Section (1) and sub-Section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice.”
It was further observed as under:-
“The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits."
Similar view was expressed by the Rajasthan High Court in a case titled as Smt.Mani Vs. Kishan Lal and another, AIR 1997 Raj 19. It was specifically stated that objection qua jurisdiction needs to be taken at an earliest available opportunity and if the matter is decided on merits, such an objection cannot be taken in appeal etc. To the same effect, is the ratio of judgment in case of Brihaspati Bai Wd/O Chintaram Vs. Mohan Lal Chintaram Swarnkar, 1994 (0) MPLJ 878.
Now we have to see the application of ratio of the judgments, in the context of the present case. As has been referred, in earlier part of this judgment, a large number of opportunities were given to the appellant, to file reply and evidence, before the Forum, however, it was not done, despite imposing costs many a time. The last opportunity was granted to file reply and evidence on 18.02.2016. On the said date, instead of filing reply and evidence, an application was filed by the appellant, raising objection only to the extent that in the face of existence of arbitration clause, in the Agreement, for settlement of disputes between the parties through an Arbitrator, the Forum has no jurisdiction to entertain and decide the instant complaint. That application was dismissed by the Forum, vide order dated 14.07.2016. In the meantime, reply and evidence was filed raising objection qua pecuniary jurisdiction of the Forum to entertain the complaint. The facts of the case make it very clear that the said issue was not pressed, though it was taken, but was not taken as a primary issue, as the Forum was never asked to take decision on the said issue. Furthermore, it was not taken at the earliest available opportunity with the appellant. Furthermore, when looking into the merits of the case, we feel that the view taken by the Forum qua grant of compensation, in the shape of interest on the deposited amount, for the period of delay, in handing over possession of the unit, is in consonance with the law, as exists today. To grant compensation, reference has been made to the judgments of the National Commission. At the time of arguments, Counsel for the appellant failed to show that any prejudice has been caused to the interest of the appellant by allowing the complaint by the Forum. Rather, we feel that the appellant got one more opportunity to redress its grievance before this Commission. Otherwise, it would have only one right to appeal before the National Commission. In view of above, no relief can be granted to the appellant, on this score alone.”
In view of above, and the fact that appellants got due opportunity to project their defence before the Forum, contention of appellants/OPs is not tenable and the same stands rejected.
9. The principal question which falls for consideration is as to whether there was delay in offering possession and whether at the time of offering of possession, there was complete development and amenities available. The Counsel for appellant argued that the District Forum wrongly held the cause of action to be continuing and failed to appreciate that possession had been offered vide letter dated 17.5.2010(OP-4) and reminders sent to the complainant on 12.8.2011 (OP/5), 12.9.2011(C/7) and 16.12.2011(C-9).
It may be stated here that Plot Buyer’s Agreement was executed between the appellants/Opposite Parties and the respondent/complainant at Chandigarh on 4.7.2007. As per Clause 8 of the Agreement, subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver possession of the Plot to the allottee within a period of two years from the date of execution of the Agreement, but not later than three years. In the event that the possession of the plot was likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion ……..etc. etc. the Company shall be liable to pay to the allottee, a penalty of the sum of Rs.50/- per sq. yard. per month for such period of delay beyond three years from the date of execution of the Agreement. In this manner, appellants/OPs were to handover possession by 3.7.2010 and for delay beyond three years, the penalty @ Rs.50/- per sq.yard was payable. It is the case of the complainant that possession offered by the OPs vide letter dated 17.5.2010(OP-4) was never received. The same letter by way of duplicate copy was sent by the OPs to the complainant on 12.9.2011(C-7). The contents of letter dated 12.9.2011 (C-7), being relevant, read as under ;
DUPLICATE COPY 12-9-2011 Mr.Sofi Zahoor H.No.1953 Phase10, Mohali-160062 Sub: Possession of Plot No.87, Central Park in the project being developed under the name and style of Emaar MGF Mohali Hills Sector105, S.A.S. Nagar, Mohali, Punjab. Reg.No.MH/1726 Dear Sir/Madam, Greetings from EMAAR MGF ! This has reference to the Plot allotted to you in the Project. 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 Central Park, Sector-105 of the Project. As you are aware, the real estate sector in India has witnessed some sharp upheavals in the past few months due to sudden change in the global economy. However, we have, keeping in mind the interest of our valuable customers, by putting extra efforts and resources continued with the development of the Project and are now pleased to inform you that we are ready to hand over the possession of the plot allotted to you. 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 Central Park Sector 105, Mohali Hills, where your plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project. In view of the above development and our constant endeavor to enhance our customer’s satisfaction, we are prepared to hand over possession of the plot to you, subject to your making payments mentioned hereunder;- 1.Outstanding amount (if any) towards the Plot amounting to Rs.0/- as per payment plan agreed by you. 2.Delayed interest thereon (if any) @15% amounting to Rs.0/- on account of delay in making payment of installments as agreed by you. 3.Payment of additional External Development Charges levied by Government of Punjab as and when communicated by the company. On your complying with the aforementioned conditions, the possession of the Plot shall be handed over to you. You may note that all payments with respect to the consumption of electricity and water shall be made by you, at actuals, to the Company. Pursuant to taking possession, you may apply to the appropriate authority for sanction of building plans to initiate construction on the plot. Kindly note on completion of the infrastructure work for the entire project we shall execute sale deed, in your favour, for the Plot subject to you making payment for Stamp Duty and Registration charges at the rate prevailing on the date fixed for execution of the sale deed. However, till the time of execution of the sale deed the terms and conditions under the Plot Buyer’s Agreement shall remain valid and would be binding between us. In case you are agreeable to take possession of the Plot, on the terms and conditions mentioned hereinabove, you are requested to give your consent to the foregoing by signing and returning the duplicate copy of this communication as token of your acceptance. Reference our Offer of possession sent to you on 17th May 2010(copy enclosed) and your confirmation that the same has not been received at your end, we are hereby issuing this duplicate copy for your record. The Offer of possession stands offered to you as of 17th of May,2010 in our records. For EMMAR MGF LAND Limited Sd/- Authorized Signatory |
10. Thereafter Appellants vide letter dated 16.12.2011 (Annexure C-9) informed the complainant that they had already initiated community development works like parks, gold course, roads, electrical lighting and setting up of STP, rain water harvesting system and electrical sub-stations. Perusal of this letter also revealed that completion certificate was not received. Physical and financial progress report (Page 253-255) also indicated that amenities were not complete. The complainant sent email in response to which appellants/OPs sent reply vide email dated 12.3.2012 (Annexure C-8), which reads as under ;
Dear Mr.Zahoor Thanks for writing in. With regard to your queries, we would like to clarify as under : 1.Work is going on to complete all the mandatory amenities required for obtaining a completion certificate and we expect to complete the same within the next 6-8 months. In fact we have already taken up construction of water tanks, STPs (Sewage treatment plants) and rain water harvesting system and expect to complete them within the timeframe mentioned above. We shall keep your updated on the status in due course of time. 2. There are no pictures attached, as mentioned by you. However, we would like to inform you that all amenities are completed for your unit and possession has been offered subsequently, as per terms and conditions of the agreement. 3.As already mentioned above in point No.1, the Company has undertaken completion of amenities like STP, water tanks, rain water harvesting system and Registration process would be initiated once this activity is completed. 4. The Statement of accounts is attached for the unit allotted in your favour. However, it is pertinent to mention that any change in EDC payable will have to be borne by you, as and when communicated by the Company. (Embedded image moved to file:pic29869.jpg) Please let me know a convenient time when you would like to visit and discuss the same, though possession of the above unit can be taken immediately after completion of formalities at your end. Look forward to the meeting Regards Mohit Kaura/AGM. Customers Services Emmar MGF Land Limited. |
11. The Opposite Parties sent letter dated 8.1.2014 (Annexure C-11) wherein they asked the complainant to make payment in the sum of Rs.8,79,870.14p. The complainant sent email dated 10.2.2014 (Annexure C-12) which reads as under ;
Dear Promoter, Greetings from us you too. We thank you for offering us the possession of plot for building up our dream home. With reference to the IOP letter sent by you and in reply of same, I have earlier on dated 23rd January already sent a speed post letter, where I have requested you to settle my claims for credit the amount of Rs.50/- per sq.yard/per month(as agreed in clause 8 Plot Buyers Agreement) for delay in possession beyond 3 years. I have noted the change in your bank details below and once our credit amount (to be paid by you to us for delay in project) is adjusted against the demand request raised by you through your letter dated 8-Jan-2014. And I will make the balance payment. As the moment, we have not received any reply to my letter sent on 23rd Jan and we are awaiting the same. Best Regards Sofi Zahoor. |
12. The above correspondence exchanged between the Opposite Parties and the complainant clearly reveals that possession when offered in 2010-11 was not complete for want of development at the site. It is further clear from letter dated 8.01.2014 wherein complainant was informed that OPs shall be commencing process of registration of conveyance deed in favour of the complainant to enable the OPs to handover possession of the plot. These contents clearly reveal that till the date of issuance of letter dated 8.1.2014, possession had not been offered.
13. Counsel for the respondent/complainant placed reliance on email dated 6.2.2014 (Annexure C-14) sent by Mr.Kabir Khanna, who is respondent/complainant in the connected appeal and similarly placed. In this email, it is mentioned that appellant/OP No.1 stated in the letter that the plots were ready with amenities such as roads, drainage, sewerage, water supply and electricity connection. Appellants/OPs were requested to credit the amount due as per Clause-8 of the Plot Buyer’s Agreement and complainant sought clarification for paying the club membership charges, water connection charges, electricity connection charges, registration charges, electrification charges and calculation of stamp duty charges in the sum of Rs.583920/- . During pendency of the complaint, the complainant made payment in the sum of Rs.1,29,720/-under protest.
14. Counsel for the respondent/complainant vehemently argued that possession offered vide letter dated 12.9.2011 was not complete as the site lacked basic amenities and this fact was apparent from letter dated 8.1.2014 of the appellants/OPs. The Counsel placed reliance on this Commission’s judgement in the case titled as Sh.Krishan Chander Chandna Vs Emaar MGF Land Pvt. Ltd. and other Consumer Complaint No.50 of 2013 decided on 24.10.2013, in which possession letter was more or less on the same lines as in the instant case. The Hon’ble National Commission affirmed the view taken by this Commission that possession, so offered, after delay of one year from the stipulated date, was a mere paper possession as the development in the area was not complete. The same view was reiterated in Dr. Manuj Chhabra Vs M/s Emaar MGF Land Limited & another, Consumer Complaint No.140 of 2015 decided on 5.11.2015. Further this Commission in zimni order dated 17.4.2017 noted that completion certificate was issued by GMADA to the appellants/OPs on 16.10.2015. Further in terms of this Commission order dated 17.4.2017, possession was handed over to the respondent/complainant on 25.4.2017. The mere fact that completion certificate was issued on 16.10.2015 proves the fact that before issuance of completion certificate, development/amenities were not complete and by no stretch of imagination, the OPs could offer/deliver possession before that date.
15. The next argument raised by the Counsel for the appellants was that complaint filed before the District Forum was barred by limitation. The complaint before the District Forum was filed on 13.8.2014. Not only communication dated 8.1.2014 reveals that possession was yet to be handed over, the fact of issuance of completion certificate on 16.10.2015 clearly establishes that possession offered was merely a paper possession and possession could not be considered a valid and legal possession. In such a situation, complaint before the District Forum was well within time.
16. The next argument put forth by the Counsel for the appellants/OPs was that they were not required to obtain completion certificate. It is on record that OPs applied for completion certificate which was also granted to them by GMADA on 16.10.2015 (Annexure OP-12). OPs’ letter dated 16.12.2011 indicated that they assured the complainant that after receipt of completion certificate from GMADA they would commence the process of execution and registration of sale deeds and shall keep the complainant updated. No doubt, Counsel for the OPs relied upon notification vide which exemption was granted to OPs from all provisions of the Punjab Apartment and Property Regulation Act,1995 (PAPRA Act) except Section 32 but that exemption was subject to certain conditions mentioned in the notification. Since OPs have failed to produce the document to show that they complied with all the conditions mentioned in the notification, they cannot escape from their liability of completion of the project and obtaining the completion certificate from GMADA. Thus, when OPs were required to obtain completion certificate, offering of possession by them till they obtained the completion certificate was not legal and valid. The complainant has also in his prayer in the complaint prayed for interest @ 15% on the deposited amount till the issuance of completion certificate and compensation of Rs.50/- per sq. yard in accordance with Clause 8 of the Agreement from 04.07.2010 till the date of issuance of completion certificate by the competent authority i.e. GMADA.
17. The next argument raised by Counsel for the appellants/OPs was that the District Forum had gone beyond the prayer of the complainant. The compensation granted by the District Forum in para 12(a) & (b) is as under ;
[a] To make payment of cumulated penalty, as is calculated till date, along with 9% interest p.a., as per Clause 8 of the Agreement (ann.C-4), at the rate of Rs.50/- per sq. yard per month, to the complainant, from 3.7.2010.
[b] To further make payment of penalty as per Clause 8 of the Agreement (Ann.C-4), at the rate of Rs.50/- per sq. yard per month, to the complainant, from the date of this order till actual the possession of the plot is physically handed over to the complainant, after providing the internal services, regularly each month.
Besides other reliefs, the complainant in his complaint has very fairly claimed compensation under Clause-8 of the Plot Buyer’s Agreement till the date of issuance of completion certificate. The complainant is, therefore, entitled to compensation in terms of Clause-8 of Plot Buyer’s Agreement from due date of handing over of possession w.e.f. 4.10.2010 till 16.10.2015.
18. Considering the factum of issuance of completion certificate on 16.10.2015 and prayer in the complaint, the respondent/complainant is held entitled to payment of penalty/ compensation as per Clause-8 of the Agreement (Annexure C-4) @ Rs.50/- per sq. yard per month from 4.7.2010 till 16.10.2015 only. The Forum erred in granting penalty as per Clause 8 of the Agreement till actual possession of the plot was handed over. After calculating the amount of penalty/compensation upto 16.10.2015, the complainant shall be entitled to interest @ 9% p.a. with effect from 16.10.2015 till payment is made to the complainant. By granting penalty/compensation and interest as above, the benefit of penalty/compensation amount, if any, already granted to the complainant shall get reduced.
19. Counsel for the appellants argued that compensation in the sum of Rs.3.00 lacs is on the higher side. The plot buyer agreement was executed between the complainant and the OPs on 4.7.2007 and the stipulated period for handing over possession was upto 3.7.2010. There was delay in delivering possession for want of complete development and lack of amenities. It is on record that OPs were granted partial completion certificate only on 16.10.2015. Considering all the facts and circumstances of the case, compensation granted in the sum of Rs.3 lacs is on the higher side, and the same needs to be suitably reduced. The compensation so granted by the Forum, if reduced to Rs. One lac, in our opinion, shall serve the ends of justice.
20. For the reasons recorded above, appeal bearing No.314 of 2017 titled as M/s Emaar MGF Land Limited & another Vs Sofi Zahoor is partly accepted. The order of the Forum dated 2.5.2016 passed in Consumer complaint No.417 of 2014 is modified in the following manner;
- Appellants/OPs shall pay penalty to the respondent/complainant @ Rs.50/- per sq. yard per month w.e.f. 4.7.2010 till the date of completion certificate i.e. 16.10.2015.
- On the amount of penalty which became due upto 16.10.2015, the respondent/complainant shall be entitled to get interest @ 9% p.a. w.e.f. 16.10.2015, till the date payment is made. The amount of penalty, if any, already paid, shall be reduced/adjusted.
- Appellants/OPs shall pay Rs.One lac to the complainant as compensation for causing mental agony and harassment on account of deficiency in service.
- The order of the District Forum granting Rs.15,000/- in 12(d) towards litigation expenses is affirmed.
The above order shall be complied with by the appellants/OPs within 45 days of its receipt. Thereafter interest @ 12% p.a. shall be payable on the compensation amount from the date of filing the complaint till it is paid, apart from complying with directions at Clause (i), (ii) and (iv) above.
21. Order dated 21.9.2016 passed by the District Forum in Consumer Complaint No.543/2014 does not suffer from any infirmity and the same is upheld. Consequently appeal bearing No.317 of 2016 titled as M/s Emaar MGF Land Limited & another Vs Kabir Khanna is dismissed, with no order as to costs. However, it is clarified that penalty @Rs.50/- per square yard per month w.e.f. 21.6.2010, as per Clause-8 of the Plot Buyer’s Agreement shall be payable to the complainant till the issuance of the Completion Certificate by GMADA, which was issued on 16.10.2015 (Annexure A-8).
22. Certified copies of this order, be placed on the file of Appeal bearing No.317 of 2016
23. Certified copies of this order, be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
7th July,2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | : | 317 of 2016 |
Date of Institution | : | 29.11.2016 |
Date of Decision | : | 07-07-2017 |
- M/s Emaar MGF Land Limited, Registered office ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its General Manager/Authorized Representative.
- M/s Emaar MGF Land Limited, Branch Office - SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh through its Authorized Representative
-Appellants
V e r s u s
Kabir Khanna S/o Sh.Vishwa Bandhu Khanna, resident of House No.1747, Sector-4, Panchkula.
..Respondent
Appeal under Section 15 of the Consumer Protection Act,1986
against order dated 21.09.2016 passed by District Consumer Disputes Redressal Forum-I, U.T.Chandigarh in Consumer Complaint No.543/2014..
Argued by: : Mr. Ashim Aggarwal,Advocate for the appellants.
Mr. Sandeep Bhardwaj, Advocate for the respondent
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER
PER DEV RAJ,MEMBER
Vide our separate detailed order of the even date, recorded in Appeal bearing No.314 of 2016 titled as M/s Emaar MGF Land Limited & another Vs Sofi Zahoor, this appeal has been dismissed.
2. Certified copy of the order passed in Appeal bearing No. 314 of 2016, shall also be placed on this file.
3. Certified copies of this order, alongwith the main order passed in Appeal bearing No. 314 of 2016, be sent to the parties, free of charge.
4. The file be consigned to Record Room, after completion.
