Chandigarh

StateCommission

CC/38/2016

Chander Bhushan - Complainant(s)

Versus

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

Paramjit Batta, Adv.

01 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	38 of 2016
Date of Institution	:	01.02.2016
Date of Decision	:	01.06.2016

 

1. Chander Bhushan son of Dr. Brij Lal.

 

2. Mrs. Sunila wife of Chander Bhushan son of Dr. Brij Lal.

 

Both are residents of House No. 1289, Sector 37-B, Chandigarh – 160036.

 

……Complainants

V e r s u s

1. M/s Emaar MGF Land Limited, Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through its Director/Partner.
2. M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Director.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Paramjit Batta, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants, being senior citizens, in order to settle their daughter in or around Chandigarh, after her marriage, decided to buy a flat for her to be gifted in her marriage to be solemnized in near future. As such, the complainants booked a flat in the project of the Opposite Parties under the name and style “The Views at Mohali Hills”, Sector 105, SAS Nagar and the basic price of the said unit was fixed at Rs.39,82,500/- with car parking space of Rs.1.50 lacs extra. At the time of booking, the complainants were assured for possession of the unit within a period of 24 months from the date of booking. It was stated that as per application for allotment dated 11.11.2010 (Annexure C-1), the complainants paid an amount of Rs.7 lacs and unit bearing No.TVM H2-F06-603, Tower No.H2, Block No.4-2 was earmarked/allotted to them in their joint name. It was further stated that as per Clause 16 of the application for allotment, it was agreed by the Opposite Parties that possession of the unit would be delivered to the complainants within a period of 24 months from the date of signing the Buyer’s Agreements.  Thereafter, the complainants entered into Unit Buyer’s Agreement with the Opposite Parties on 30.11.2010 (Annexure C-2) and made the payment, which was acknowledged by them (Opposite Parties) vide receipt/certificate (Annexure C-3). It was further stated that as per schedule of payment – Down Payment Plan – August, 2010, the complainants paid the total consideration amount of the dwelling unit to the Opposite Parties. It was further stated that as per Clause 21.2 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of the Agreement and as per Clause 23.1 of the Agreement, in case, the Opposite Parties fails to deliver the same, they would be compensated for the delayed possession with a compensation @ Rs.5/- per sq. ft. per month of the covered area for the period of such delay beyond the period of  36 months. It was further stated that the Opposite Parties required to deliver possession of the unit by 11.10.2012 but they failed to hand over the same. Thereafter, the complainants visited the office of the Opposite Parties a number of times and requested to deliver the possession but they did not do so. It was further stated that the complainants even sent request letters on 03.01.2013, 05.03.2013, 27.04.2014, 18.11.2014 and 16.06.2015 respectively to the Opposite Parties by making request to hand over possession of the unit, but to no avail. 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 complainants, 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, in their joint written version, have taken a specific objection regarding arbitration clause in the Agreement for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement and, as such, this Commission has no jurisdiction to entertain the complaint. It was further stated that the complainants did not fall within the definition of “consumer”, as envisaged under the Consumer Protection Act, 1986, as they are already having their own house at Chandigarh and purchased the property/flat for speculation purposes only. It was further stated that the Opposite Parties offered relocation to the complainants to another tower, wherein, the construction was at advanced stage but they refused to accept it. It was further stated  that as per Clause 21.1 of the Agreement, the Opposite Parties had ‘proposed’ to handover possession of the unit within 36 months from the allotment with a further grace period of 90 days for applying and obtaining Occupation Certificate. It was further stated that the term “proposes” duly indicated that there was no definitive commitment to hand over possession within 36 months, as time was not the essence of the Agreement and as far as possession is concerned, the complainants had accepted the alleged delay, as their interest was safeguarded by the compensation clause in the Agreement and the Opposite Parties had committed to bear penalty for delayed compensation, if any, beyond the time frame stipulated under the Agreement, at the time of registration of the unit. It was further stated that the complaint is barred by limitation, as the consumer complaint can be filed within 2 years from the date of cause of action and in the present case, the cause of action, if any, arose to the complainants for seeking possession/refund arose after 3 years from the date of Buyer’s Agreement, as such, the cause of action arose on 30.11.2013 and the present complaint now being filed is barred by limitation. It was further stated that the complainants are bound by the terms and conditions of the Agreement and in case of seeking refund, forfeiture clause would be applicable. It was further stated that the Agreement was executed at Mohali, property is situated at Mohali and the registered office of the Opposite Parties is situated at Delhi, as such, this Commission has no territorial jurisdiction to try and entertain the complaint. It was further stated that this Commission has no pecuniary jurisdiction to try this complaint. It was denied that possession was to be offered within a period of 24 months because the Company had mentioned in the Buyer’s Agreement regarding offer of possession within 36 months from the date of allotment. It was further stated that the total cost of the unit allotted to the complainants was Rs.39,76,915.01, as per allotment letter issued on 29.11.2010. It was further stated that the complainants initially paid the booking amount of Rs.7 lacs and, thereafter, the Company issued the provisional allotment letter in favour of the complainants. It was further stated that the Company had received an amount of Rs.37,55,667/- against the unit, as per statement of accounts (Annexure R-1). It was further stated that a sum of Rs.2,21,248/- is payable at the time of intimation of possession, as per page No.32 of the Buyer Agreement and further they are liable to pay other amounts towards registration, stamp duty and other charges for electricity, water and maintenance. It was further stated that the complainants have been allotted unit in Tower H and finishing works were going on in the said tower, as such, possession was likely to be offered soon.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor it indulged into unfair trade practice.

3.           The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they 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.           Admittedly, the complainants booked a flat/unit in the project of the Opposite Parties i.e. “The Views” at Mohali Hills in Sector 105, SAS Nagar, District Mohali, Punjab vide application for allotment dated 11.11.2010 (Annexure C-1) and as per Clause 16 of the application form, possession of the unit was to be delivered to the complainants within a period of 24 months but with a maximum period of 30 months from the date of signing of the Buyer’s Agreement, subject to certain limitations, as provided in the Agreement. It was also the admitted fact that Unit Buyer’s Agreement was executed between the parties, at Chandigarh, on 30.11.2010  (Annexure C-2), in respect of unit bearing No.TVM H2-F06-603 in tower No.H2. It was also the admitted fact that as per the Agreement, the total consideration of the unit, in question, was Rs.38,75,553.61, out of which, the complainants paid an amount of Rs.37,55,667/-, as is evident from Statement of Account (Annexure R-1). It was also the admitted fact that as per Clause 21.1 of the Agreement, possession of the unit was to be delivered to the complainants within a period of 36 months from the date of allotment but despite receipt of the huge amount, neither the Opposite Parties delivered possession of the unit, to the complainants within the stipulated period, as mentioned in the application form as well as in the Agreement nor refunded the amount to them, despite repeated requests.

7.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

8.        This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of 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), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that in the face of existence of arbitration clause in the Agreement, 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, being devoid of merit, is rejected”.

9.           Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

 

10.        It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 andNational Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

11.        In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

12.          As regards objection raised by the Opposite Parties in their written statement, with regard to pecuniary jurisdiction, they (Opposite Parties) have failed to state as to how this Commission has no pecuniary jurisdiction to try this complaint. It may be stated here, that the complainants have sought refund of Rs.37 lacs (approx.),  paid by them, towards price of the said unit, alongwith interest @18% p.a ; compensation for delay in handing over the possession i.e. Rs.1,50,000/-; compensation to the tune of Rs.5 lacs, for harassment & mental agony and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

13.          Another frivolous objection was taken by the Opposite Parties, by stating that the unit, in question, is situated at Mohali, Agreement was executed at Mohali, and registered office of the Opposite Parties situated at Delhi, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), 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, Unit Buyer’s Agreement, in respect of the unit bearing No.TVM H2-F06-603, Tower No. H2, in the project ‘The Views’, was executed, between the complainants and the Opposite Parties, at Chandigarh on  30.11.2010 (Annexure C-2).  Not only this, perusal of record reveals that payment request for service tax vide letter dated 18.07.2012 (Annexure C-3), was sent by Chandigarh office of the Opposite Parties, as the same had the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, also stands rejected.

14.          To defeat claim of the complainants, another objection raised by the Opposite Parties, in their written reply, was that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as the complainants are already having their own house at Chandigarh, as such, they purchased the unit for speculation purposes only. After going through the documents and record of the case, we do not find any merit in the contention of the Opposite Parties because the complainants have specifically mentioned in their rejoinder that they purchased the unit, in question, to be gifted to their only daughter in her marriage, which has been solemnized in the recent past and they are unable to gift the unit, in question, to her, because of the same being not completed, as yet, by the Opposite Parties. So, it is clearly proved that the complainants purchased the said unit to be gifted to their daughter only.

            It may be stated here that there is nothing, on the record to show, that the complainants are property dealers, and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the Hon’ble 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants for speculative purposes. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected. 

15.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was barred by time or not. The Counsel for the Opposite Parties stated that the complaint is time barred, having been filed beyond two years of alleged cause of action, which allegedly accrued to the complainants on 30.11.2013 because in the present case, cause of action, if any, arose to the complainants for seeking possession/refund arose after three years from the date of Buyer’s Agreement and, as such, the cause of action arose on 30.11.2013 itself and the complaint now being filed by the complainants is barred by limitation. After going through the record of the case, we are not impressed with the contention of the Counsel for the Opposite Parties. No doubt, the complaint filed by the complainants on 01.02.2016. Even the complainants have specifically mentioned in para No.12 of the complaint that they sent request letters on 03.01.2013, 05.03.2013, 27.04.2014, 18.11.2014 and 16.06.2015 respectively (Annexure C-4 colly.) for handing over possession of the built-up flat to the Opposite Parties, but to no avail. It may be stated here, that neither physical possession of the unit was delivered to the complainants, by the stipulated date, as mentioned in the application form as well as in the Unit Buyer’s Agreement, after receipt of huge amount from them, nor refunded the deposited amount to them, despite repeated requests. As such, there was, thus, a continuing cause of action, in favour of the complainants, to file the complaint.  In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing-fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon’ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.          As regards objection raised by the Opposite Parties, in their written statement, that as per Clause 21.1 of the Unit Buyer’s Agreement, the Opposite Parties had “proposed” to hand over possession of the unit within a period of 36 months from the allotment with a further grace period of 90 days for applying and obtaining occupation certificate. It was further stated that the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within 36 months, as time was not the essence of the Agreement. In the instant case, the Opposite Parties specifically mentioned in Clause No.16 of the terms and conditions of the application for allotment (Annexure C-1) that ‘the Company shall make all efforts to handover possession of the unit within (24) months but within maximum period of 30 months from the date of signing of the Buyer’s Agreement, subject to certain limitation, as provided in the Buyer’s Agreement. Thereafter, Unit Buyer’s Agreement was also executed between the parties on 30.11.2010 (Annexure C-2) and it is evident from Clause 21.1 of the Agreement that  the Opposite Parties were to hand over possession of the said unit, in favour of the complainants, within a period of 36 months from the date of allotment. Moreover, the Opposite Parties in para No.3 of their written statement (at page No.98 of the file) have specifically mentioned regarding the issuance of allotment letter on 29.11.2010. So, it is clearly proved that possession was to be delivered after 36 months from the date of allotment (29.11.2010) i.e. latest by November, 2013. Thus, once a specific period of 36 months was mentioned in the Agreement, the Opposite Parties were bound to deliver possession in the said 36 months i.e. latest by November, 2013 and not beyond that.  It is not the case of the Opposite Parties that they encounted any force majeure circumstances, as no document has been placed on record in this regard. The time was, thus, unequivocally made the essence of contract. Therefore, the  objection taken by the Opposite Parties, in their written statement, being devoid of merit, must fail, and the same stands rejected.

17.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. According to Clause No.16 of the terms and conditions of the application for allotment (Annexure C-1) ‘the Company shall make all efforts to handover possession of the unit within (24) months but within maximum period of 30 months from the date of signing of the Buyer’s Agreement, subject to certain limitation, as provided in the Buyer’s Agreement.’ However, the Opposite Parties denied that possession was to be delivered within 24 months, as alleged by the complainants. According to Clause 21.1 of the  Unit Buyer’s Agreement dated 30.11.2010 (Annexure C-2), subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver possession of the unit, in question, within a period of 36 months, from the date of allotment and the said period has already expired in November, 2013. However, till the date of filing of the complaint i.e. 01.02.2016, the Opposite Parties neither delivered possession of the unit to the complainants, despite repeated requests. Moreover,  the Opposite Parties already received a huge amount of Rs.37,55,667/-, towards the said unit, as is evident from the statement of account (Annexure R-1). By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of the allotment, the Opposite Parties failed to abide the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

18.          The next question, that falls for consideration, is, as to whether, the complainants are entitled for refund of the amount of Rs.37 lacs (approx.), as claimed by them,  towards the unit, in question. It may be stated here that the aforesaid amount of Rs.37 lacs (approx.) as claimed by the complainants, clearly shows that they are not sure that how much amount was deposited by them towards the unit, in question. However, it is admitted by the Opposite Parties, in their written statement, that they received an amount of Rs.37,55,667/- from the complainants, as is evident from the statement of account (Annexure R-1). The Unit Buyer’s Agreement was executed between the parties on 30.11.2010 and as per the said Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment i.e. latest by November, 2013 and about  5 ½ years had passed from the date of issuance of allotment letter i.e. 29.11.2010 but the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainants.  The Opposite Parties in  their written statement clearly stated that the complainants have been allotted unit in Tower H and finishing works are going on in the said tower, as such, possession is likely to be offered soon.   Even the Opposite Parties had no right, to retain the hard earned money of the complainants, without rendering them, any service. Therefore, it is clearly proved that the Opposite Parties were not in a position to deliver possession of the unit to the complainants.  In our considered opinion, the complainants are entitled to refund of amount of Rs.37,55,667/-, deposited by them.

              At the time of arguments, Counsel for the Opposite Parties stated that when complainants sought refund of the amount, forfeiture clause is applicable upon the complainants. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Moreover, the Opposite Parties in their written statement clearly stated the complainants have been allotted unit in Tower H and finishing works are going on in the said tower, as such, possession is likely to be offered soon. It is clearly proved that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to offer possession of the unit to the complainants, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount to the complainants. 

19.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the deposited amount of Rs.37,55,667/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.37,55,667/-, on the basis of misleading information, given by the Opposite Parties, that it would be handed over legal physical possession of the unit, in question, within a period of 36 months from the date of allotment i.e. by November, 2013. However, the Opposite Parties failed to deliver physical possession of the unit to the complainants, despite receipt of the huge amount. The complainants were, thus, caused financial loss.  Hard earned money, deposited by the complainants, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. 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. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 20.1 of the Unit Buyer’s Agreement, the Opposite Parties were charging interest @15% per annum compounded from the complainants. Under these circumstances, in our considered opinion, if  interest  @15% P.A. compounded, on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.  

20.          The next question, that falls for consideration, is, as to whether, the  complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as it neither delivered physical possession of unit to them nor refunded the amount to them, despite repeated requests. The complainants purchased the unit, to be gifted to their only daughter in her marriage, which has been solemnized in the recent past and they are unable to gift the said flat to her because of the fault of the Opposite Parties, as they failed to deliver the same. The complainants, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

21.          Since we are refunding the whole deposited amount to the complainants, therefore, they are not entitled to claim compensation for delay in possession, as interest awarded @15% p.a. compounded will take care of the relief qua delayed possession.

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

23.          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 Rs.37,55,667/-, to  the complainants, alongwith interest compounded @ 15% per annum, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% P.A., instead of interest compounded @ 15% P.A., from the respective dates of deposits, till realization, and interest compounded @15% 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.

 

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.

June 1, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

rb