STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.Ved Prakash Upadhyaya son of Shri Ram Sajiwan.

2.Pratima Devi wife of Shri Ved Prakash Upadhyaya.

Both residents of House no.1573, Pushpac Complex, Sector 49-B, Chandigarh.

……Complainants

V e r s u s

M/s Emaar MGF Land Limited, through its Branch Head, Sh. Vikas Gupta, SCO No.120-122, 1^stFloor, Sector 17-C, Chandigarh.

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

Argued by:Ms. Nandini, Advocate for the complainants.

PER 

             The facts, in brief, are that the complainants were looking for a decent residential accommodation/plot, at Mohali. Allured by the rosy picture, projected regarding 

2.           subject to force majeure conditions, and reasons beyond the control of the Company,the physical possession of fully developed residential plot, was to be handed over to the complainants, within a period of 12 (twelve months), but not later than 18 months, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in caseof delay, in handing over possession of the fully developed plot, within 18 (eighteen) months, the Opposite Party was liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.

3.           that there was no development, in the area, in which the same (plot) was allotted. Even there was no hope of delivery of possession of the plot, in question, in the near future. The complainants made a number of oral, as well as written requests, to the Opposite Party, to deliver legal physical possession of the plot, in question, complete in all respects, but it failed to do so. Ultimately, when the complainants found that there was no development, in the Sector, where they were allotted the plot, in question, and, as such, the question of handing over possession thereof, did not at all arise, they asked for the refund of amount, deposited by them, but the Opposite Party refused to do so, and, on the other hand, it (Opposite Party), in response to the letter dated 17.10.2013, sent by the complainants, issued a letter of the even date (17.10.2013) Annexure C-16, stating therein, that in case of cancellation of the unit, they (complainants) shall lose consideration amount, out of the amount, deposited by them, towards the said plot.4.           It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.53,82,654/-, alongwith interest @24% P.A., from the respective dates of deposits, till realization, without deduction of TDS; pay penalty @ Rs.50/- per square yard, per month, for the period of delay, in handing over the possession of the fully developed plot, from 03.06.2013, till realization of amount of Rs.53,82,654/-; compensation,

5.           The Opposite Party, in its written version, pleadedprovisional allotment of the plot, aforesaid, and the issuance of provisional allotment letter dated 12.04.2011 Annexure C-2, in favour of the complainants was also admitted. It was also admitted that the complainants made payment ofRs.53,82,655/-,towards the price of residential plot, in question. Execution of thePlot Buyer`s Agreement dated 02.12.2011, Annexure C-15, between the parties was also admitted.subject to force majeure conditions, and the reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainants, within a period of 12 months, but not later than 18 months, from the date of execution thereof (Agreement),yet, at the same time, it was also mentioned therein, that, in case of delay, the Opposite Partydated 02.12.2011,neither they could go beyond the same, nor any relief, contrary to the same (Agreement), could be granted to the complainants.It was further stated that the complainants made default, in making payment of installments, and reminders were issued to them, to deposit the same, as and when, the same fell due. It was further stated that the development activity, in the Sector, in which the plot, in question, was allotted, in favour of the complainants, was in full swing,and the delivery of physical possession of plots, was likely to be given, within 60 to 90 days.

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9.           The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint or not. According to Section 17 of the Act, a Consumer Complaint, could be filed, in the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants, or the Party against which, the reliefs sought, was working for gain or residing. The perusal of the Plot Buyer’s Agreementdated 02.12.2011, Annexure C-15, reveals that the same was executed at Chandigarh, between the complainants, and the Opposite Party, 12.04.2011 Annexure C-2,dated 02.04.2011, 16.05.2011 (colly.), 11.08.2011, 02.12.2011, 24.05.2012, 20.06.2012, 04.07.2012, 05.10.2012 and 08.02.2013, that the same wereissued by the Opposite Party, in favour of the complainants, from its office, located at SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017. Since, as per the documents, referred to above, a part of cause of action, arose to the complainants, 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.

10.        falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the plot, in question, was Rs.56,16,590/-. It is evident, from the statement of account Anenxure C-14 that the Opposite Party demanded a sum of Rs.53,82,655/-, towards the total sale consideration of the said plot. The complainants have sought refund ofRs.53,82,654/-, paid by them,@ Rs.50/- per square yard, per month, for the period of delay i.e. from 03.06.2013,as per Clause 8 of the Agreement,till realization of the amount of Rs.53,82,655/-), plus (+) compensation, to the tune of 

11.        The next question, that arises for consideration, is, as to whether, interest @24% P.A., claimed by the complainants, on the amount of Rs.53,82,654/-, aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission. In

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. In the instant complaint, the interest, which was claimed by the complainants @24% P.A., on the amount of Rs.53,82,654/- thus, could not be added to the amount of refund, plus (+) compensation and penalty, plus (+) cost of litigation, sought by them, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above. 

12.        02.12.2011. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons beyond the control of the Company, the Opposite Party was liable to deliver the possession of plot, within a period of 12 months, but not later than 18 months, from the date of execution of the same (Agreement). 02.12.2011, Annexure C-15Rs.53,82,654/-,towards the price of plot, demanded by the Opposite Party, has already been paid by the complainants, by the stipulated date/time. Since, there was no development at the site, the Opposite Party was unable to handover the legal physical possession of the plot, in question, to the complainants, by 02.06.2013. Even, the development was not completed by the time, the complaint was filed. No documentary evidence was produced by the Opposite Party, by way of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, actually, there was development of the area, where the plot, in question, was allotted, in favour of the complainants. In the absence of production of such documentary evidence, which could be easily available with the Opposite Party, only one and the one inescapable conclusion, which can be arrived at, is that the version set up by the complainants, that there was no development at the site, where the plot was allotted to them, is correct. By not delivering the legal physical possession of the fully developed residential plot, to the complainants, by 02.06.2013, i.e. by the stipulated date, even after receipt of the entire price thereof, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice.

13.        Rs.53,82,654/-,deposited by them, towards the price of plot, in question, without rendering them, any service. Since, the plot, in question, had not been developed, even by the time, the complaint was filed, no alternative was left with the complainants, than to ask for the refund of amount, deposited by them. In our considered opinion, the complainants are entitled to the refund of amount ofRs.53,82,654/-,deposited by them. By not refunding the amount, deposited by the complainants, with interest, the Opposite Party was deficient, in rendering service.

14.        Rs.53,82,654/-,towards the price of plot, in question, was deposited by the complainants, as is evident, from the receipts, and statement of account Annexure C-14, referred to above. The complainants were deprived of their hard earned money, on the basis of misleading information given by the Opposite Party, that they would be handed over the legal physical possession of the residential plot, in question, by 02.06.2013, but it failed to do so. The complainants were, thus, caused financial loss. The hard earned money of the complainants was utilized by the Opposite Party, for a sufficient longer period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Party was charging compound interest (quarterly) @24% P.A., as is evident from Clause 3 of the Plot Buyer`s Agreement. Under these circumstances, in

15.        Counselfor the Opposite Party, that since the parties are governed, by the terms and conditions ofthePlot Buyer`s Agreement 02.12.2011, Annexure C-15, thePlot Buyer`s Agreement dated 02.12.2011, Annexure C-15. Had the complainants prayed for possession of the residential plot, in question, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount of Rs.53,82,654/-, alongwith interest @ 12 % P.A., from the respective dates of deposits.

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17.        @ Rs.50/- per square yard, as per Clause 8 of the Agreement, referred to above, per month, for such period of delay, beyond 18 months, from the date of execution of the same. This submission of the Counsel for the complainants, does not appear to be correct. Such 

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

19.           For the reasons recorded above, the complaint is partly accepted, with cost, in the following manner:-

                             The Opposite Party is directed to                                      The Opposite Party is further directed to pay compensation, in the sum of Rs.2,00,000/- (two lacs), for causing mental agony and physical harassment, to the complainants, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.

                           The Opposite Party is further directed to pay cost of litigation, to the tune of Rs.30,000/-, to the complainants.

                           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., instead of 12 % P.A., from the respective dates of deposits, till realization, and interest @ 12 % P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.30,000/-.

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Pronounced.

February 11, 2014

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)

Rg.