DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Rajdeep Singh, resident of House No.2156, Phase VII, Mohali, Punjab.

                                      ---Complainant.

Versus

1.                 Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017, through its General Manager

2.                 Emaar MGF Land Limited ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through its Managing Director.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. R.S. Randhawa, Counsel for the complainant

                        Sh. Mandeep Singh Khillan, Counsel for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Rajdeep Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :-

i)                   to return the amount received alongwith compound interest @ 18% per annum.

ii)                To pay compensation of Rs.10.00 lacs.

iii)              Any other relief.

2.                           In brief, the case of the complainant is that the opposite parties were developing a residential project known as ‘The Terraces”. The complainant applied for an apartment and paid Rs.3,00,000/- as booking fee.  Later on, vide letter dated 13.4.2009 (C-1), the complainant was informed that unit No.762/GF in the project of the opposite parties situated in Sector 108, SAS Nagar, Mohali  has been provisionally allotted to him and the opposite parties asked for further payment of Rs.4,15,445/-.  In response to the said letter, the complainant paid the above said amount vide receipts (C-3 to C-6). Thereafter Independent Floor Buyer’s Agreement was executed between the complainant and the opposite parties on 19.5.2009. As  per the terms of this agreement, the opposite parties were required to hand over the possession of the apartment within 36 months from the date of signing of the agreement.  It has further been pleaded that in order to pay the remaining outstanding installments, the complainant wanted to avail loan from some bank.  However, the bank officials asked the complainant to submit certain documents which were necessary for sanction of the loan.  The said documents were in possession of the opposite parties as they related to development of the area.  The complainant requested the opposite parties a number of times for supply of the said documents but the opposite parties kept putting off the matter on one pretext or the other and failed to supply the same to the complainant.  Resultantly, the complainant could not pay the remaining installments in time. 

It has further been pleaded that despite the fact that as per agreement the possession was to be delivered within 36 months from the date of signing of the agreement, the possession has not been delivered to the complainant. According to the complainant, the opposite parties have failed to obtain the necessary permissions/approvals from the concerned authorities and even the construction work has not started so far.  Therefore, the complainant requested the opposite parties to refund the amount paid by him but to no effect. Ultimately the complainant issued a legal notice to the opposite parties but they failed to refund the amount. 

In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           In their written statement the opposite parties have admitted that the complainant had applied for an independent floor in the project of the opposite parties.  It has also been admitted that unit No.762/GF in the project of the opposite parties at Sector 108, SAS Nagar, Mohali  was provisionally allotted to him and that the complainant paid total sum of Rs.7,15,445/-. According to the opposite parties, the complainant failed to pay the installments as per the schedule. Therefore, the possession could not be delivered to him.  It has further been pleaded as per clause 20.2 of the agreement, the opposite parties had the right to extend the date of delivery of possession in case the installments are not paid in time.  Thus, according to the opposite parties, the complainant has failed to pay the installments in time, as per the schedule. So there is no deficiency in service on their part.  It has further been pleaded that it was for the complainant to arrange money either by raising loan or by other means and the opposite parties were not obliged to arrange the loan for the complainant.  It has been averred that no document was ever sought by the complainant. Thus, according to the opposite parties there is no deficiency in service on their part and the complaint deserves dismissal. 

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           Admittedly, the complainant applied for an apartment in the project of the opposite parties known as “The Terraces”.  It is also admitted case of the parties that the complainant paid a sum of Rs.7,15,445/-.  This fact also stands fortified from Annexure C-1 and C-3 to C-6.  Annexure C-2 is the Independent Floors Buyer’s Agreement. Clause 20.1 of the said agreement reads as under :-

“20.1   Subject to Force Majeur conditions and reasons beyond the control of the Company, and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the Independent Floors within a period of 36 months from the date of signing of this Agreement. The allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 36 months for applying and obtaining the occupation certificate in respect of the Terraces.”

From the bare perusal of this clause it is apparent that the possession of the independent floor was to be delivered by the opposite parties within 36 months of the signing of the agreement. The said agreement is dated 19.5.2009. As per the agreement the opposite parties were to deliver possession by 18.5.2012. The complainant has pleaded specifically that even the construction work has not started and the opposite parties have failed to take necessary approvals and sanctions from the respective departments.  In their written statement the opposite parties have pleaded that they have obtained/applied for various approvals, meaning thereby that all the approvals have not been obtained by the opposite parties so far.  For the sake of argument even if it is admitted that all the approvals have been obtained by the opposite parties as per clause 20.1, the possession was to be delivered within 36 months.  There is no averment in the written statement that the construction of the apartments has been completed and the possession is not being delivered because of default on the part of the complainant in payment of the installments.  Despite the fact that the complainant has specifically pleaded that the construction work has not started, there is no averment in the written statement specifically stating that the construction has been completed or that the construction will be completed within a specific period.  In such circumstances, the plea taken by the opposite parties to the effect
that the possession is being delayed because of default on the part of the complainant in payment of installments is simply a false excuse.  In fact, the units have not been constructed so far.  The complainant cannot be made to wait for the completion of the construction of the apartments till infinity.  In these circumstances, the complainant is entitled for refund of the amount paid by him.  Failure on the part of the opposite parties to deliver possession within the specified period and to return of the amount despite requests, amounts to deficiency in service on the part of the opposite parties.

6.                           In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

i)                   to refund the total amount of Rs.7,15,445/- to the complainant  with interest @  9% per annum from the respective dates of deposit.

ii)                to pay Rs.10,000/- as litigation costs.

7.                           This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) shall carry interest @18% per annum from the respective dates of deposit till payment, besides payment of litigation costs.

8.                           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

31.1.2013.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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