Chandigarh

StateCommission

CC/152/2018

Anupam Prakash - Complainant(s)

Versus

M/s Emaar MGF Land Limited - Opp.Party(s)

Saurabh Gautam, Adv.

31 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	152 of 2018
Date of Institution	:	08.04.2018
Date of Decision	:	31.12.2018

 

Anupam Prakash son of Col. J.P.Gupta, resident of House No.A-15/10, DLF City – 1, Gurgaon.

 

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited having address as SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh 160017, through its CEO/Chairman/Authorised Representative.
2. Sh.Shravan Gupta, Director of M/s Emaar MGF Land Ltd. Banur Landra Road, Opposite Reliance Petrol Pump, Sector 105, Mohali Hills, Mohali, Punjab.
3. Sh.Anil Bhalla, Director of M/s Emaar MGF Land Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi 110 001.

 

                                              .... Opposite Parties                                          

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

Argued by:       

 

Sh. Saurabh Gautam, Advocate for the complainant.

Sh. Ajitehswar Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

             

              The facts, in brief, are that the complainant deposited booking amount of Rs.11,10,000/- on 06.09.2006 in respect of booking of residential unit at Sector 108, Mohali Hills and plot no.397 was allotted to him vide letter dated 05.05.2007 (Annexure C-1). It was stated that the complainant was looking for an accommodation for his residential purpose. The Opposite Parties further represented to the complainant to swap with plot No.144 in Augusta Park, Sector 109 (400 sq. yard), Mohali and in this regard, formal letter dated 29.08.2007 (Annexure C-4) was issued. Thereafter, the Opposite Parties issued provisional allotment letter dated 11.10.2007 regarding plot No.144 in Augusta Park, Sector 109, Mohali. Buyer’s Agreement dated 11.07.2007 was executed between the parties in respect of the unit, in question. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of two years but not later than three years i.e. latest by 10.07.2010. The total price of the plot was Rs.48,25,472/-, out of which, the complainant made the total payment of Rs.48,58,417/-. It was further stated that the Opposite Parties vide letter dated 03.02.2009 waived off 5% of the basic price on qualifying for the “pay on time” reward as a part of the “Emaar MGF Cares for you Program.” The Opposite Parties issued letter dated 12.01.2012  to the complainant stating that plot is ready and the possession could be taken after making the payment of Rs.27,883/- on account of delay in making the payment of installments. After receipt of the said letter, the complainant asked his friend to visit the site. Thereafter, the friend of the complainant informed that the plot was not at all ready as kachha road was there. Therefore, the complainant also visited the site and got disappointed as no development work was done, as the internal roads were developed only in parts and there was no connectivity between the roads. Then the complainant confronted the Opposite Parties with the findings and photographs at their office but they failed to give any reply. It was further stated that after two years, the complainant received a sudden call from one Sh.Kundra that the plot is ready for possession.  It was further stated that instead of completing the basic amenities and development at site, the Opposite Parties sent letter dated 17.06.2014 with a subject “Settlement of Final Dues”, wherein, an illegal demand of an amount of Rs.10,60,784.82 on different heads alleging that they will be commencing the process of execution and registration of conveyance deed shortly. The complainant also received a letter dated 26.08.2014 demanding the payment of Rs.9,35,698/-. However, the plot was not ready for possession at all. The complainant duly replied the Opposite Parties vide emails dated 20.10.2014, 06.11.2014 and 07.11.2014. it was further stated that the complainant asked the Opposite Parties to show them completion certificate as also other sanctions/approvals regarding water, electricity etc. in respect of the said project, but they failed to show the same. It was further stated that the complainant in April, 2016 visited the site and found that there were no connecting roads and the Opposite Parties were not in a position to hand over the possession of the plot, whereas, they were to hand over the same in 2009/2010. Photographs are also attached as Annexure C-15. It was further stated that the complainant again visited the site in the year 2017 and found that the entry points of the said sector (109) was sealed/fenced by the Govt. of Punjab, Forest Department, which fact was never disclosed to the complainant. Further, the connecting roads are still in raw and there is no connection at all from the main entrance of Sector 109 to the plot of the complainant, as there is no development activity at all.  Faced with the situation, the complainant visited the office of the Opposite Parties on 16.01.2017 and asked for refund of the amount but despite repeated requests vide email/notice dated 21.05.2017, the Opposite Parties failed to refund the same. 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 have taken objection regarding arbitration clause in the Agreement by moving separate application u/s 8 of Arbitration and Conciliation Act, 1996 for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. In their written statement, it was further stated that it was the complainant who had in fact approached the Opposite Parties for allotment of a plot in the residential colony being developed by them. It was further stated that the complainant through letter dated 01.09.2006 (Annexure R-2) requested the Opposite Parties to transfer the provisional allotment made in favour of the original allottee to his name. In pursuance of the request of the complainant, the Opposite Parties transferred the original allotment in the name of the complainant. Thereafter, Plot Buyer’s Agreement was executed between the parties.  It was further stated that on the request of the complainant, the plot was swapped. It was further stated that the replying Opposite Parties offered possession of the subject property through letter dated 12.01.2012 (Annexure C-9) but for the reasons best known to him, he refused to accept the same. Subsequently, the complainant was reminded of his outstanding dues through letter dated 17.06.2014 (Annexure C-11), wherein, the complainant was called upon to settle the dues but he did not do so. It was further stated that the replying Opposite Party sent letter dated 10.10.2014 (Annexure R-10), wherein, it was specifically stated that the outstanding amount of Rs.9,35,698/- was required to be paid within a period of 30 days, failing which, the replying Opposite Party has a right to terminate the Agreement. It was further stated that the replying Opposite Party granted Partial Completion Certificate in respect of the area/sector where the subject property is located (Annexure R-13). It was further stated that as far as the alleged closure of road is concerned, the said case stands closed/disposed of (Annexure R-14). Even otherwise, there exists an alternate approach to the said area, which is in use since long. It was further stated that the complainant did not fall within the definition of “consumer” as defined in the Consumer Protection Act, 1986, as subject property was purchased purely for speculative/investment purposes. It was further stated that all communication as received from the complainant was duly responded to by the Opposite Parties. It was further stated that the clause of the Agreement pertaining to the payment of compensation, if any, is applicable to only such persons who have never defaulted in their obligations. It was further stated that the complaint filed by the complainant is barred by limitation. It was further stated that this Commission has no jurisdiction to entertain the complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein he 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.           First, we will deal with an objection, raised by  the Opposite Parties , that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, 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. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

7.           Further the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in its recent judgment in the case of Puma Realtors Pvt. Ltd. Vs. Abha Arora, First Appeal No.531 of 2016 decided on 11.10.2018, while endorsing the view held by this Commission in Consumer Complaint bearing No.170 of 2015 decided on 01.04.2016, held in Para 10 as under:-

10.        The State Commission, while allowing the Complaint in part dealt extensively with the question  as to whether the Complaint should be referred to an Arbitrator and has given elaborate findings. This Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAAR MGF Land Limited & Anr., has laid down that though there is a clause of Arbitration in the Agreement it is not a bar for the Consumer Fora to adjudicate the issue and the same has attained finality as the Hon’ble Supreme Court has confirmed this principle vide order dated 13.02.2008 in Civil Appeal No.(s). 23512-23513 of 2017.”

8.               In Aftab Singh’s case (supra), the matter qua arbitration went up to the Hon’ble Supreme Court of India in Civil Appeal No.23512-23513 of 2017, which were dismissed on 13.02.2018. Thereafter, EMAAR MGF Land Limited & Anr. filed review petitions to review judgment dated 13.02.2018 before the Hon’ble Apex Court. In the review petitions, following prayers have been made by the appellant:- 

“(1)       Allow the present review petition and review the Order dated 13.02.2018 passed by this Hon’ble Court in Civil Appeal No. 23512-23513 of 2017; 

(2)        Set aside the Order dated 13.07.2017 passed by the Larger Bench of the Hon’ble National Commission in C.C. 701/2015 holding consumer disputes to be non-arbitrable amongst other similar erroneous findings; 

(3)        Set aside the Order dated 28.08.2017 passed by the Single Judge of the Hon’ble National Commission in C.C. 701/2015 dismissing the Application u/S. 8 of the Arbitration and Conciliation Act, 1996; 

(4)        And pass such other or further order or orders as the Hon’ble Court may deem fit and proper in the interest of justice.” 

9.               The Hon’ble Supreme Court, after detailed discussion and referring to various case laws, dismissed the review petitions vide order dated 10.12.2018, by observing in Paras 55 and 56 as under:-

“55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.  

56. We, thus, do not find that any error has been committed by the NCDRC in rejecting the application filed by the appellant under Section 8. No exception can be taken to the dismissal of the appeals by this Court against the judgment of NCDRC. No ground is made out to review the order dated 13.02.2018. The review petitions are dismissed.”

               

              In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.

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

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that letters (Annexure C-2, C-4, C-9 colly., C-11 & C-14), receipts (Annexure C-3, page Nos.88 to 95)  were sent by the Opposite Parties from their Chandigarh Office as the same bore the address of the Company as “SCO No.120-122, Sector 17-C, Chandigarh, 160017.”  Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

11.          The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere objection of the Opposite Parties that since the subject property was purchased purely for speculative/investment purposes, does not carry any weight and is liable to be rejected. It has been clearly mentioned by the complainant, in para No.5 of the complaint that the complainant was looking for an accommodation for his residential purpose. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Even, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                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.  

12.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the  complainant. According to Clause 8 of the Plot Buyer’s Agreement dated 11.07.2007 (Annexure C-6), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the plot, in question, within a period of two years, from the date of execution of the Agreement, but not later than three years. It is, thus, evident, from Clause 8 of the Agreement, that the Opposite Parties were required to deliver possession of the plot, in question, in favour of  the complainant,  within the maximum period of three years, from the date of execution of the  Agreement dated 11.07.2007, i.e. latest by 10.07.2010 and not more than that.

13.          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 and whether the complainant was bound to accept possession. According to the Opposite Parties, the complainant is subsequent allottee because he requested for transfer of provisional registration dated 20.11.2005 and requested for direct allotment vide letter dated 31.05.2006. Thereafter, the complainant was allotted plot No.397 in Sector 108 vide provisional allotment letter dated 05.05.2007 (Annexure C-2). Even on the request of the complainant, the said plot was swapped with plot No.144 in Augusta Park, Sector 109 and provisional allotment letter of the said plot was issued vide letter dated 11.10.2007 (Annexure C-5). Thereafter, Plot Buyer’s Agreement was executed between the parties on 11.07.2007. As per Clause 8 of the Agreement, possession of the said plot was to be delivered within a maximum period of three years from the date execution of the Agreement i.e. latest by 10.07.2010 and not more than that. The complainant paid the total amount of Rs.48,58,417/- in respect of the plot, in question. The plea of the Opposite Parties is that offer of possession was sent to the complainant vide letter dated 12.01.2012  (Annexure C-9 colly.) but he did not come forward to take the same. On the other hand, as per the complainant, the Opposite Parties offered possession vide the aforesaid letter, without completion of amenities, at the site because when the complainants visited the site, they found that the entry points were sealed by the Forest Department, as such, possession offered by the Opposite Parties was just a mere paper possession. After going through the record, we are not agreeable with the contention of the Counsel for the Opposite Parties because the Opposite Parties in their intimation of possession letter in respect of plot No.144, Augusta Park in the project being developed under the name and style of Emaar MGF, Mohali Hills, Sector 109, SAS Nagar, Mohali (Annexure C-9 colly.) sent to the complainants, which reads thus :-

 ““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 Augusta Greens, Sector 109 of the Project.

X x x x x x

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 Augusta Greens, Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.”

 A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding updation of the status of the development work of the project.  In the present case, according to the Agreement, possession was to be delivered to the complainant within a maximum period of three years from the date of execution of the Agreement i.e. latest by 10.07.2010 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated period, as mentioned in the Agreement and only offered possession vide letter dated 12.01.2012 i.e. after a delay of about two years that too was only a paper possession.  It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder.  After receipt of the offer of possession letter dated 12.01.2012  sent by the Opposite Parties, the complainant visited the site and he was shocked and, therefore, confronted the Opposite Parties with these findings and photographs at their office. Even after two years i.e. in the year 2014, the complainant received a sudden call from Mr.Kundra informing that plot is ready for possession. Between the year 2014 to March, 2016 certain correspondence were exchanged between the parties. The complainant in April, 2016 had visited the site and found that even till 2016 there was no connecting roads and the Opposite Parties were not in a position to hand over the same. Even photographs also clicked as Annexure C-15. Not only this, even in January, 2017, the complainant again visited the site and found that the entry points of the said sector is sealed/fenced by the Govt. of Punjab, Forest Department. Further, connecting roads are still in raw condition and there is no connection at all from the main entrance of the sector to the plot of the complainant, as such, there was no development activity at all. Moreover, the Opposite Parties only obtained Partial Completion Certificate only on 16.10.2015. It is also relevant to mention here that intimation of possession letter sent to the complainants vide letter dated 12.01.2012 (Annexure C-9 colly.) and Partial Completion Certificate obtained by the Opposite Parties vide memo dated 16.10.2015 i.e. after about 3 years of offer of possession. So, it is clearly proved that when the possession letter was sent to the complainant, the project was not complete. It is also the admitted fact that completion certificate of the township of the Opposite Parties has yet not been issued. Only Partial Completion Certificate was issued by the competent authority. A bare perusal of possession letter clearly shows that the gullible consumer was lured by the Opposite Parties stating that development work of the project is complete. Not only this, it is also relevant to note that a number of cases of Sector 109 of Emaar MGF Land Limited have already been decided by                            this Commission regarding the issue of sealing of project by Forest Department and other issues in Sector 109, one of which is titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited & Anr., Complaint Case No.43 of 2016, decided by this Commission vide order dated 29.06.2016”, the relevant portion of the said judgment reads thus :-.

“31. However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”,permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

                Aggrieved against the afore-extracted order passed by this Commission, the Opposite Parties filed First Appeal No.997 of 2016 in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, wherein, the matter was settled between the parties on 08.11.2016, as per the Settlement Agreement.

              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 flats with proper access, to the complainants 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 in the year 2012 i.e. four year back is only a paper possession and not more than that.

14.          The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit/plot, in question, when the same was offered to him vide letter dated 12.01.2012 (Annexure C-9 colly.) and that too, after a delay of about two years, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainant within a maximum period of three years from the date of execution of the Agreement i.e. latest by 10.07.2010. However, the Opposite Parties sent letter of offer of possession of different unit only vide letter dated 12.01.2012 to the complainant, after a delay of about two years and that too only a paper possession, without completion of formalities, as per terms and conditions of the Agreement. It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Parties that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                        In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

15.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is clearly proved from the aforesaid paras that the Opposite Parties failed to offer/deliver possession of the unit, complete in all respects, to the complainant within the stipulated period, as per terms and conditions of the Agreement and the possession offered by the complainant vide intimation of possession letter dated 12.01.2012 i.e. only a paper possession and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in his 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.

16.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.48,58,417/-, as claimed by him. However, the Opposite Parties have placed on record statement of account, vide which, it shows that an amount of Rs.47,58,810/- was paid by the complainant. Moreover, the complainant at page No.5 of the complaint prepared a payment chart, in which, all the receipts are on record, except the payment of Rs.24,607/- paid on 10.02.2015, as alleged by the complainant. If we deduct the aforesaid amount of Rs.24,607/- out of the demanded amount of Rs.48,58,417/-, the total amount comes to Rs.48,33,810/-. In the present case, the Opposite Parties only offered paper possession and failed to give physical possession of the unit, in question, complete in all respects, within the stipulated period, as mentioned in the Agreement. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by him. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the  Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

17.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is no doubt true that an amount of Rs.48,33,810/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him alongwith interest @9.5% p.a., from the respective date of transfer of the unit. 

18.          As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the plot, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by the Opposite Parties or for  any  personal  reason,  and  is  seeking  refund  of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

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

1. To refund the amount of Rs.48,33,810/- to  the  complainant, alongwith interest @9.5% p.a. (as per the prayer made),  from the respective date of transfer of the unit onwards.
2. To pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @12% p.a., instead of @9.5% p.a., from the date of default, and interest @9.5% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

21.          However, it is made clear that, if the complainant in the aforesaid case, has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit(s), it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.

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

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

Pronounced.

December  31^st, 2018                                    

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [RAJESH K. ARYA]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

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