DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Bharat Bhushan Bansal s/o Late Sh. Bhagwant Dass Bansal, resident of H.No. 1141, Sector 14, Sonepat.

                                    ---Complainant

Vs

1.         M/s Emaar MGF Land Limited, Registered Office, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its General Manager/ Authorized Representative.

2.         M/s Emaar MGF Land Limited, Branch Office: SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Authorized Representative.

---- Opposite Parties.

BEFORE:          MRS.MADHU MUTNEJA                                    PRESIDING MEMBER

                                Sh. JASWINDER SINGH SIDHU             MEMBER

Argued By:              Sh. Sandeep Bhardwaj, Counsel for Complainant.

Sh. Sanjeev Sharma, Counsel for Opposite Parties.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.                        The Complainant had booked a flat in “The Views”, Sector 105, Mohali, with the opposite parties by paying an initial amount of Rs.7 lacs on 18.08.2006 (Receipt Annex.C-2) in terms of the specifications given at Annexure C-1. After receiving the booking amount, the opposite parties allotted Unit/Apartment No.B-1/401 on 4^th Floor in favour of the Complainant vide letter dated 30.11.2006 (Annex.C-3). The Complainant was also told to pay Rs.2,95,050/- vide this letter. The Complainant in the meantime had also approached the opposite parties with payment and requested for completing the booking formalities. However, the opposite parties had asked the Complainant to wait for written communication from their side. The Complainant received another letter dated 20.4.2007 (Annex. C-4), wherein the allotment of Apartment No. was changed from B-1/401 to C1-F03-301. He was also told that the total price of the Apartment is Rs.51,42,750/-. As the Complainant had opted for construction linked plan he was asked to pay Rs.7,92,575/- by 15.05.2007. Another letter dated 20.4.2007 (Annex. C-5) was received in which reference was made to letter dated 6.11.2006 regarding allotment of Unit No.C1-F03-301 whereas in the year 2006 Unit No.B-1/401 had been allotted. These facts were brought to the knowledge of the opposite parties by the Complainant.   Also as no construction had been started on the site till 20.4.2007, the complainant requested the opposite parties to refund the amount paid.  Later the Complainant paid a sum of Rs.7,92,575/- to the opposite parties on 17.7.2007 after assurance was given that possession will be handed over as per terms & conditions of agreement (Receipt Annex. C-6).

                        The Complainant now received a copy of the agreement with covering letter dated 25.2.2008 (Annex.C-7). The Complainant was asked to return the same after signing at places marked “X” along with photograph of each allottee. The Complainant signed the agreement and returned it to the opposite parties. A copy of the same was later sent to the Complainant for his record (Annex. C-8 & C-9). As per Annexure II i.e. Schedule of Payments attached with the Agreement, the Complainant was required to pay installment amount of Rs.4,97,525/- at the time of start of construction. Demand letter for the same was received vide letter dated 5.9.2009 (Annex.C-10). The Complainant on receiving this letter went to the site and found that no construction had started. On inquiry, the opposite parties were not able to give him any satisfactory reply. The Complainant has stated that in terms of the agreement, the opposite parties were bound to hand over the possession of the Apartment within 36 months from the date of allotment i.e. by April, 2010.

                        The Complainant felt that the opposite parties will be unable to deliver the possession as per the terms and conditions of the agreement and thus requested the opposite parties for refund of the amount of Rs.14,92,575/- along with interest vide letter dated 4.9.2011 (Annex.C-11). The opposite parties in reply offered a relocation option to the Complainant in another tower as construction of tower-C in which the Complainant had been allotted had not started. However, the Complainant did not wish to accept the offer and requested for refund. As the amount has not been paid, the Complainant has filed this complaint with a prayer for refund of the amount of Rs.14,92,575/- along with interest @15% p.a. besides compensation and costs of litigation. The Complainant has prayed that as clause 20 of the agreement provides that the opposite parties can charge interest @15% p.a. compounded in case of delay in payment, they should be liable to refund the paid amount to the Complainant along with the same interest due to delay in completion of project.    

2.                        Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.                        Opposite Parties No.1 & 2 filed joint reply. In the preliminary objections the opposite parties have contended that the complaint is barred by imitation as the amount was deposited by the Complainant in 2006 and 2007 and the complaint has been filed after more than 04 years after this deposit. The opposite parties have also taken objection of territorial jurisdiction as its corporate office is at Delhi and the property is in Mohali. The Complainant had signed an advance application form for booking of apartment in the project known as “The Views” at Mohali in 2006 and deposited a sum of Rs.7 lacs as earnest money. The allotment at that time was only provisional. The advance registration form to this effect had been signed by the Complainant. 

                        On merits, Opposite Parties have reiterated the contentions given above. The opposite parties have also stated that the Complainant has been informed that in case he chose to cancel the allotment, his money was liable to be forfeited as the Buyers Agreement did not provide for refund of money. The allotment of apartment B-1/401 was provisional and the change to apartment C1-F03-301 was also provisional. Construction of the Project “the views” has already started. Also, the allegations of the Complainant about approaching the OPs for payment and refusal of the same by the OPs have been denied. The Complainant has failed to pay the demanded amount. The Complainant had requested for refund initially in 2007 and thereafter, even waived his request and made further payment.

                        Denying all other averments and stating that the Complainant is not himself adhering to the terms of agreement and reiterating that the Complainant is not entitled to any refund, OPs have prayed for dismissal of the complaint. It is stated that the Complainant is not interested in buying the apartment as he has not made the required payments. Also, he has not opted for relocation.   

4.                        Parties were permitted to place their respective evidence on record in support of their contentions.

5.                        We have heard the learned counsel for the Parties and have perused the record.

6.                        The grievance of the complainant is that the opposite parties have not yet handed over the property allotted despite payment made by him.  He has stated that in the given situation as the possession of the property is not definite, he would like to opt for refund of the amount paid alongwith interest. Clause 20 of the agreement provides that the opposite parties can charge interest @ 15% in case of delayed payment of installments, accordingly, the Complainant has prayed that OPs should also be burdened to pay the same rate of interest to him on the deposited amount. 

7.                        The opposite parties in their reply have taken objection that the complaint is time barred, as the amount was deposited in 2006-07. It is settled law that in case of allotment of property, cause of action is continuous and hence the objection raised by the opposite parties holds no ground.

8.                        OPs have also stated that the amount of Rs.7.00 lacs deposited by the complainant was earnest money and as per the terms and conditions of the agreement, in case of cancellation, the amount of earnest money is to be forfeited. This contention to our mind is unreasonable as the OPs have not yet even started construction of the allotted plot.

9.                        The opposite parties have also taken the objection of territorial jurisdiction but as the agreement has been executed at Chandigarh in April 2008, this plea is also not tenable and is devoid of merit.

10.                      Admittedly the construction of the apartment allotted to the complainant has not been completed by the opposite parties and the date of completion of possession is not certain.  Under these circumstances, the complainant cannot be expected to wait indefinitely for delivery of possession.  The offer given by the opposite parties for an alternate property in the same premises, in a different tower, is also not acceptable to the complainant as he seems to have lost faith in the opposite parties.  Hence, his request for refund of the amount deposited alongwith interest, to our mind, is not unjustified.  The opposite parties have themselves breached clause 21.1 of the agreement wherein it has been mentioned that the period of handing over of possession is 36 months.  The agreement is dated 11.4.2008. As such, the period of 36 has already expired on 10.4.2011.  Construction of the property has still not commenced.

11.                      Under these circumstances, it is our opinion that the opposite parties cannot enrich themselves at the cost of complainant by breaching the provisions of clause 21.1 of the apartment buyer’s agreement. The complainant is thus entitled to the relief claimed for refund of the amount deposited.  The claim of the complainant for interest is also justified as the money has been deposited by him since 2006 and the opposite parties are enjoying the usage of the same without any benefit to the complainant. 

                        Here we are also fortified by the order dated 1.2.2013 of the Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh in complaint case No.53 of 2012 titled as Devinder Singh & Anr. Vs. M/s Emaar MGF Land Limited & Anr. In this case also while deciding in favour of the Complainant the Hon’ble State Commission was pleased to direct the opposite parties to refund the amount alongwith interest, compensation and costs of litigation.

12.                      Accordingly, in terms of settled law and the discussion above, we accept the contentions of the complainant and allow this complaint. The opposite parties are directed as under:-

i)           to refund the amount of Rs.14,92,575/- alongwith interest @ 9% per annum from the respective date(s) of deposit;

ii)   to pay a sum of Rs.50,000/- as compensation for mental agony and harassment; and

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

13.                    This order be complied with by the opposite parties within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @12% per annum from the date of this order till actual payment, besides payment of litigation costs.

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

Announced

08^th April, 2013.                                                          

Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER