Chandigarh

StateCommission

CC/9/2020

Bibek Singh - Complainant(s)

Versus

m/s Emaar MGF land Limited - Opp.Party(s)

Deepak Aggarwal Adv.

31 Mar 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	9 of 2020
Date of Institution	:	03.01.2020
Date of Decision	:	31.03.2021

 

 

 

 

1. Bibek Singh son of Awtar Singh R/o 13/530, Munshi Puliya, Indira Nagar, Lucknow, U.P.226016 (Earlier at House No.3571, Ground Floor, Sector 35-D, Chandigarh – 160022).
2. Gurveen G. S. Kalra w/o Bibek Singh R/o 13/530, Munshi Puliya, Indira Nagar, Lucknow, U.P.226016 (Earlier at House No.3571, Ground Floor, Sector 35-D, Chandigarh – 160022).

. ...Complainants.

 Versus

1. M/s Emaar MGF Land Ltd., SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh through its Managing Director/director/Authorised Signatory.

Corporate Office:- Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab 160062.

Registered Office at:- Emaar MGF Land Ltd., 306-308, Square One, C-2, District Centre, Saket New Delhi South Delhi DL 110017.

2. Sh. Bharat Bhushan Garg, Director of M/s Emaar MGF Land Ltd., 306-308, Square One, C-2, District Centre, Saket New Delhi South Delhi DL 110017.

…..Opposite Parties.

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                  MRS. PADMA PANDEY, MEMBER.

                 MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-    

 

Sh. Deepak Aggarwal, Advocate for the complainants.

Sh. Gurdeep Singh, Advocate for opposte party No.1.

Opposite Party No.2 exparte vide order dated 26.06.2020.

 

PER RAJESH  K. ARYA, MEMBER

                   The above captioned complaint has been instituted by the complainants stating that they booked a flat bearing No.TVM L1-F01-103 in the project of the opposite parties, namely, “The Views” Mohali Hills situated in Sector 105, SAS Nagar, Mohali, Punjab on 14.10.2014, the total cost whereof inclusive of additional charges was Rs.80,46,760.90. As per the payment schedule, the complainants, in all, paid an amount of Rs.19,73,032/- up-to 10.12.2014 and further paid petty amount of Rs.1,123/- on 29.06.2017 for delayed payment. Thus, the complainant paid total amount of Rs.19,74,155/- to the opposite parties. The remaining amount towards the price of the unit, in question, i.e. Rs.60,73,729.42 was to be paid at the time of intimation of possession by the opposite parties. Unit Buyer’s Agreement was executed between the parties on 3.11.2014, Annexure C-2, as per Clause 21 whereof, the possession of the said unit was to be handed over by the opposite parties within a period of 36 months from the date of allotment i.e. up-to 02.11.2017. Further the opposite parties could take grace period of 90 days, after expiry of 3 years for applying and obtaining the occupation certificate in respect of the Group Housing Complex.

2.                 It has been stated that number of requests made in the matter, in writing as well as oral, to the opposite parties, to complete the development and construction work and deliver possession of the unit in question ended with bald assurances only. At one point of time, the opposite parties vide email dated 12.06.2018, Annexure C-4 intimated that the tower wherein the unit of the complainants is located is under final  finishing and  the opposite parties would initiate physical handing hand over process subsequent to the receipt of occupation certificate from the authorities. However, the opposite parties offered intimation of possession vide letter dated 29.08.2018, Annexure C-5 and also raised illegal demand of Rs.71,98,395/- against the payment schedule, which amount was to be Rs.60,73,729.42. On receipt of above offer letter, the complainants visited the project site in September 2018 and were shocked to see that the flat was not ready at all. Vide email dated 17.09.2018, Annexure C-9, opposite parties intimated the complainant that their concern  would be redressed but to no avail. Thereafter, vide email dated 25.10.2018, Annexure C-14, the opposite parties asked the complainants to  inspect the unit again but it was intimated that possession date could not be changed because it was system generated but the opposite parties assured to waive off delayed payment charges and holding charges. On visiting the project site on 27.10.2018, the complainants were shocked to notice that lot of work was still pending including wooden flooring, electricity work,  sanitary fittings etc. It was further stated that during the period intervening, the complainants came to know that the project, in question, is under dispute with the Govt. Of Punjab, Forest Department resulting into sealing/fencing of the main entries.  Further vide email dated 06.11.2018, Annexure C-19, the opposite parties admitted that they were working on the snagging points and the same would be rectified by 15.11.2018. Under these circumstances, the complainants vide letter dated 27.10.2018 gave intimation for cancellation of the booking of the unit, in question, and sought refund of the amount but to no avail.

3.                 By stating that the aforesaid act and conduct of the opposite parties  amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainant seeking directions to the opposite parties to refund the amount of Rs.19,74,155/- alongwith interest @12% per annum from the respective dates of deposit till realization alongwith Rs.2,00,000/- as compensation for mental agony, physical harassment, financial loss, escalation, deficiency in service, negligence & adoption of unfair trade practice besides Rs.65,000/- as cost of litigation.

4.                 Their claim has been contested by opposite party No.1, on number of grounds, inter alia, that that the complainant did not fall within the definition of “consumer” as he is a speculator; that time was not the essence of the contract as for any delay in offering possession, this Commission does not has the  territorial as well as pecuniary jurisdiction to entertain and try the complaint; and that since the project, in question, in ongoing project, duly registered under the provisions of Real Estate (Regulation and Development) Act, 2016 (RERA) vide registration number PBRERA-SAS81-PR0119 (Annexure OP-4), as such, jurisdiction of this Commission is barred to entertain this complaint. An objection was also raised that earlier the complainant had filed Consumer Compliant No.768 of 2019 before State Consumer Disputes Redressal Commission, Punjab and the said complaint was dismissed as withdrawn on 29.10.2019 with liberty to file a fresh with better particulars. The complainant ought to have filed the present complaint before the State Commission, Punjab and not before this Commission, which is not maintainable.

5.                 On merits, purchase of the unit, in question, by the complainants; payments made as mentioned in the complaint; execution of agreement; and that there was delay in offering possession of the plot has not been disputed by the opposite parties. It was further stated that the possession has been delayed on account of reasons beyond the control of the opposite parties. It was further stated that the construction was duly completed within the stipulated period and the opposite parties applied for the grant of partial/completion certificate before the competent authorities on 22.02.2018. It was further stated that partial completion for the project has been obtained on 27.07.2018, which is Annexure R-5. It was further stated that thus, there was delay on the part of the competent authorities in issuing partial completion certificate. It was further stated that the opposite parties duly paid compensation to the complainant by crediting an amount of Rs.72,653/- in their account as reflected in Statement of Account sent alongwith  intimation of possession dated 29.08.2018. It was further stated that additional refurbishing work as pointed out by the complainants were also completed and thus, vide email dated 17.09.2018, intimation was again sent to the complainant. It was further stated that the unit was fully developed on the date of offer of possession and there was no sealing in 2014 or in 2018.

6.                 The complainant filed rejoinder, wherein it reiterated all the averments, contained in the complaint, and repudiated those, contained in the written statement of the opposite parties.

7.                 We have heard the contesting parties and have gone through record of the case, including the written submissions, very carefully.

8.                 From the pleadings of parties and other material available on the record, following points have emerged for consideration in this    case: -

1. Whether the complainants fall under the definition of consumer?
2. Whether the time was the essence of the agreement?
3. Whether the complaint is maintainable or not?
4. Whether this Commission has the territorial jurisdiction to entertain and try the complaint?
5. Whether this Commission has the pecuniary jurisdiction to entertain and try the complaint?
6. Whether the complainant is bound to take over possession in view of the fact that the same has not been offered or delivered by the opposite parties within the stipulated period?
7. Whether the complainants are entitled to get refund of the amount deposited and if yes, at what rate of interest?

9.                 As far as objection taken to the effect that the complainants do not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite parties to establish that the complainants have purchased the unit, in question, to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge that onus, hence we hold that the complainants are consumers.

10.               As far as objections raised by the opposite parties, to the effect that the time was not the essence of the agreement between the parties, it may be stated here that the same is devoid of merit as, in the present case, as per Clause 21.1 of the Agreement, the possession, which was to be offered/delivered by the opposite parties to the complainants by 02.11.2017, was offered to the complainant only on 29.08.2018. Under these circumstances, in our considered  opinion, the time was very much the essence for handing over the possession of the unit, in question. Accordingly, the objection raise stands rejected.  

11.               As regards preliminary objections qua territorial jurisdiction of this Commission and that since the complainant had earlier filed Consumer Compliant No.768 of 2019 before State Consumer Disputes Redressal Commission, Punjab, which was dismissed as withdrawn on 29.10.2019 with liberty to file afresh with better particulars, therefore, this second complaint before this Commission is not maintainable, are concerned, it may be stated here that Unit Buyer’s Agreement dated 03.11.2014 was executed between the complainants and the opposite parties at Chandigarh and as such, part of cause of auction arose to the complainants within the territorial jurisdiction of this Commission. Not only this, the complainants, in their rejoinder, filed to the written statement, have categorically rebutted this very objection stating that once liberty has been availed by the complainants to file fresh complaint in accordance with law, therefore, they were at liberty to file it again in any Court/Fora having jurisdiction for deciding the same. Therefore, this Commission has the territorial jurisdiction to entertain and try the complaint. The objection raised by the opposite parties in this regard being unsustainable in the eyes of law is rejected.

12.               As regards preliminary objection qua pecuniary jurisdiction of this Commission, it may be stated here that the value of the property, in question, and the interest claimed on the amount paid from the respective dates of deposit and compensation claimed for mental agony etc. does not exceed Rs.1 Crore which was the maximum pecuniary limit of this Commission under the Consumer Protection Act, 1986. Therefore, the Commission has the pecuniary jurisdiction to entertain and try the complaint. The objection raised in this regard being unsustainable in the eyes of law is rejected.

13.               As far as the contention raised by the opposite parties to the effect that since the project, in question, has been got registered under the RERA, as such, jurisdiction of this Commission is barred to entertain this complaint arising out in respect of the plot, in question, located in the said project and that the complaint be relegated to RERA, is concerned, the same does not merit acceptance, in view of the ratio of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/S. Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-

24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.

25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called “consumers” within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything inconsistent in the provisions of the CP Act with that of the RERA Act.

*27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- “The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. *(See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking *Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint…”

 

14.               In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Since, this complaint involves the consumer dispute and the same is maintainable before this Commission, as such, objection taken in this regard by the opposite parties stands rejected.

15.               On merits of the case, the sole question for determination is as to whether the complainants are bound to take over possession in view of the fact that the same was not offered or delivered by the opposite parties within the stipulated period. There is no dispute with regard to the fact that the complainants paid the first two instalments as per the payment schedule, totalling Rs.19,74,155/- and the remaining sale consideration i.e. Rs.60,73,729.42 was to be paid at the time of the possession to the opposite parties. Despite the fact that it was in a clear-cut manner, committed by the opposite parties, vide Clause 21.1 of the agreement that possession of the unit will be delivered within a period of 36 months from the date of allotment i.e. on or before 02.11.2017, yet, they miserably failed to do so as possession of the plot, in question, was not offered to the complainant on 02.11.2017. The possession offered vide Intimation of Possession vide letter dated 29.08.2018 was not completed as there were numerous defects/snags in the unit allotted to the complainants, which fact, stands corroborated from email dated 15.10.2018, Annexure C-12 Colly., which reads thus:-

“I am surprised to see that despite my written complaint (on 11^th Sep), the revised statement of accounts has nto been sent yet (indicating a revised possession ate).

I had given a written complaint that the unit was not ready for possession.

I also attached the pictures that clearly indicate that lot of work is still pending.

Therefore, the possession date should have been accordingly postponed. Xxxxx

Xxxxxx

Xxxxxxx

Note that my payment plan is ‘Possession Link Plan’.

I cannot accept the unit till the work is completed as per the committed quality.

Therefore, request you to please immediately do the following:

1. Share the revised possession date (tentative).
2. Roll Back the ‘Delayed Payment Charges’ related entry.
3. Share the updated statement of accounts.

Would appreciate if this email can be reverted within 2 working days.”

16.     The opposite parties reverted back to the complainant vide email dated 21.10.2018, Annexure C-13, wherein they stated that “Although it is taking little more time, be rest assured that this is our endeavour to assist you with a satisfactory Redressal.” Thereafter, vide email dated 25.10.2018, Annexure C-14, the opposite parties informed that complainants that all the snags provided by them at the time of site visit, have been rectified and the complainants were asked to revisit the unit and further, it was informed that possession date could not be changed. This email dated 25.10.2018 of the opposite parties stating rectification of all the defect was contrary to their subsequent email dated 06.11.2018, Annexure C-19, wherein the opposite parties again assured the complainants to rectify the defects by 15.11.2018, which further proves that the possession was not ready and still there was numerous defects in the unit, in question. The said email dated 06.11.2018, Annexure C-19, reads thus:-

“We would like to inform you that snagging point given by you at the time of your visit has been noted by concerned facility team and they are working on it and same will be rectified by 15.11.2018 so that you can proceed for possession accordingly.

Furthermore, you are requested to remit the outstanding to avoid further accrual of delayed payment charges and holding charges and to enable us to facilitate for possession.”

17.     Not only above, when the complainants already sent cancellation request on 27.10.2018 vide letter, Annexure  C-18, the opposite parties did not pay any heed to their request and adamantly, issued email dated 01.03.2019, Annexure C-20 Colly., again asked the complainants to pay the holding charges to the tune of Rs.40,432/- and clear the outstanding due and thereafter only, possession could be delivered. Admittedly, till 27.10.2018, on which date, the complainants opted for cancellation of the unit, in question, the possession was not complete as there were deficiencies/snags in the said unit, which the opposite parties assured to rectify till 15.11.2018. The opposite parties also failed to justify for the delay in offering possession of the unit, in question, to the complainants. However, without giving any convincing justification of such an inordinate delay; to wriggle out of the situation, it has been simply stated in the written reply that the construction was duly completed within the stipulated period and the opposite parties applied for the grant of partial/completion certificate before the competent authorities on 22.02.2018, which was issued by the competent authorities on 27.07.2018, Annexure R-5 and possession was offered on 29.08.2019. It may be stated here that as already held above, possession could not be said to be complete on 29.08.2019 due to numerous defects/snags in the unit, in question, therefore, this plea of delay in issuing Partial completion certificate by the competent authorities is of no help to the opposite parties.

18.               Further, we may state here that the question as to whether an allottee is obliged to take possession, in case there is a delay in offering the same, fell for determination before the Hon’ble National Commission in Govindan Raghavan Vs. Pioneer Urban Land And Infrastructure Ltd., Consumer Case No. 239 of 2017, decided on 23 Oct 2018, wherein while negating the plea taken by the builder, refund of the amount paid was ordered, by holding as under:-

“16.    The learned counsel for the OP submits that in CC No.239 of 2017, not only the construction of the apartment has already been completed, even the requisite Occupancy Certificate has been obtained on 23.07.2018 and therefore, the complainant should now take possession of the allotted flat instead of insisting upon the refund of the amount paid by him towards the cost of the flat.  The learned counsel for the said complainant states on instructions that the complainant is no more interested in taking possession of the allotted flat and wants refund of the amount paid by him alongwith appropriate compensation.  Considering that the last date for completion of the construction expired about three years before the Occupancy Certificate was obtained, and in fact, it had expired more than one year before this complaint was instituted, the complainant, in my opinion, cannot be compelled to accept possession of the flat at this belated stage.”

 

19.     Feeling aggrieved, against the order dated 23.10.2018, the builder went in Civil Appeal No.12238 of 2018 (Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan), before the Hon’ble Supreme Court, which was dismissed by it vide order dated 02.04.2019, while holding as under:-

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired…….”

 

20.     Similar view had been expressed by the Hon’ble Supreme Court of India in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. Because in the present case, there is an inordinate delay of more than  10  years in offering possession of the plot in question, which has not been offered till date, as such, in view of settled law that non-delivery of possession of plots/units in a developed project by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid, if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. The complainant is, therefore, held entitled to get refund of the amount paid alongwith interest, from the respective dates of deposits till realization. In view of above, the contention of the opposite parties that the Company compensated the complainant, for the period of delay in offering possession, does not merit acceptance and is accordingly rejected. 

21.               The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon’ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon’ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Under similar circumstances, the Hon`ble National Commission in Anil Kumar Jain & Anr. Vs. M/S. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a. As such, it is held that the complainant is entitled to get interest @12% p.a. from the respective dates of deposit on the amount of Rs.19,74,155/-.

22.               For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.19,74,155/- to the complainants, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.19,74,155/-  shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for mental agony and harassment caused to the complainants and also litigation expenses, in lumpsum, to the tune of Rs.50,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization.

23.               However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of instalments towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.

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

 

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

Pronounced

31.03.2021.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH  K.  ARYA)

MEMBER

 

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