Chandigarh

StateCommission

CC/83/2016

Colonel Balvinder Singh - Complainant(s)

Versus

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

Gaurav Chopra, Adv.

27 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	83 of 2016
Date of Institution	:	02.03.2016
Date of Decision	:	27.06.2016

 

Colonel Balvinder Singh son of late Sh. Bhagwant Singh resident of Village Bhagatpura, Post Office Chunni, Tehsil & District Fatehgarh Sahib.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited having its registered office at ECE House, 28 Kasturba Gandhi Marg, New Delhi – 110001, through its Authorised Representative.  
2. M/s Emaar MGF Land Limited, having its branch office at SCO No.120-121, 1^st floor, Sector 17-C, Chandigarh – 160017, through its Authorised Representative. 

                                              .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

 

Sh. Gaurav Chopra, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the Opposite Parties had advertised the launch of an exclusively designed project viz. Mohali Hills on ‘first come first serve basis’ which consisted of residential plots, flats, luxurious villas etc. and at the time of advertising, the Opposite Parties assured regarding the commencement of the construction work and timely completion of the project. It was stated that initially one Sh. Puneet Bharti had submitted an application dated 04.07.2010 (Annexure C-1) for seeking allotment of a fully built up residential unit in “The Bungalows”, SAS Nagar, Mohali and deposited the booking amount of Rs.5 lacs in respect of unit having tentative No.42 in Sector 105, Mohali Hills, Mohali.   The Opposite Parties vide letter dated 21.07.2010 had provisionally allotted Bungalow No. TBM-300-CR42  in their project (Annexure C-2) and requested the original allottee to remit the amount. Thereafter, the amount of Rs.11,68,300/-, as demanded by the Opposite Parties, was deposited by the original allottee vide acknowledgment-cum-receipt (Annexure C-3). Subsequently, a demand for an amount of Rs.11,62,500/- was raised by the Opposite Parties, which was also deposited by the original allottee. As such, the Opposite Parties received an amount of Rs.28,30,800/- from the original allottee, as per Construction Linked Payment Plan. Thereafter, Buyer’s Agreement dated 03.11.2010 was executed between Sh. Puneet Bharti (original allottee) and the Opposite Parties, at Chandigarh, whereby, the total sale consideration of the allotted unit was fixed at Rs.85,98,300/- (Annexure C-4).  It was further stated that the complainant with an intention to set up an accommodation for his use and occupation as well as that of his family members upon retiring from the Army, had approached the original allottee for the purchase of the unit and a sum of Rs.75,000/- was paid as transfer charges. As such, the said unit was transferred in the name of the complainant vide transfer letter dated 28.12.2010 (Annexure C-5). It was further stated that the Opposite Parties vide letter dated 08.12.2010 had raised a demand for payment of an amount of Rs.9 lacs, which was duly paid by the complainant vide receipts (Annexure C-7). Further, the Opposite Parties also demanded an amount of Rs.9 lacs from the complainant vide letter dated 07.03.2011, which was duly paid by him. It was further stated that as per Clause 8 of the Agreement, possession of the allotted unit was to be delivered by the Opposite Parties within a period of 18 months from the date of execution of the Agreement but not later than 24 months i.e. on or before 03.11.2012.    Copy of the statement of account generated by the Opposite Parties in respect of the unit, in question, is Annexure C-9. It was further stated that the complainant paid the total amount of Rs.71,80,800/- to the Opposite Parties. It was further stated that the complainant was due to retire from the Army on 31.12.2015 and before his retirement, he wanted to ensure that possession of the unit would be handed over to him, completed in all respects, in order to enable him and his family members to reside in the said unit. The complainant sent an email dated 07.12.2011 (Annexure C-10) to the Opposite Parties to know about the progress of the unit and upon receipt of the said email, the Opposite Parties assured to hand over possession of the unit to the complainant by July, 2012. It was further stated that the complainant sent another email dated 10.10.2012 to the Opposite Parties, which was duly replied by them, wherein, they stated that considerable infrastructure work had been accomplished in all sectors in Mohali Hills and the Opposite Parties had assured the complainant that they were trying to expedite construction activity without confirming the date for the start of the construction. Copies of the emails exchanged between the parties are Annexure C-12. Thereafter, the complainant again sent emails dated 16.08.2013, 06.11.2013 and 23.11.2013 (Annexure C-13 colly.) to the Opposite Parties for seeking the progress report on the construction of the unit but to no avail. Then, the complainant wrote emails dated 07.10.2015, 01.02.2016 and 03.02.2016 (Annexure C-14 colly.) complaining about the complete absence of any construction activity at the site of the unit and, thus, seeking refund of the amount made by him.   It was further stated that the complainant visited the office of the Opposite Parties on 20.02.2016, where he met their official, who had failed to commit regarding the tentative date of completion of the allotted unit and delivery of its possession. The complainant was constrained to write an email dated 22.02.2016 (Annexure C-15) to the Opposite Parties for seeking refund of the entire amount alongwith interest. In response to the aforesaid email, the Opposite Parties informed the complainant vide email dated 26.02.2016 (Annexure C-16) that they were currently in a position only offer the option to convert the allotted unit into a plot and take possession. The said offer was not accepted by the complainant. It was further stated that due to the aforesaid act of the Opposite Parties, it is clearly proved that they are unable to offer possession of the unit, despite a lapse of more than 5 years from the execution of the Agreement. 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, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that the complaint is time barred, as the cause of action accrued in favour of the complainant in 2012 because he was informed in 2012 that construction of the unit allotted to the complainant is still not constructed and, thus, he was aware of fact of non-construction of Bungalow and he filed the complaint more than 2 years after accrual of alleged cause of action, as such, being barred by limitation. It was further stated that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, the complainant is not entitled to claim possession within any time bound manner. It was further stated that as per Clause 8 of the Agreement, possession was “endeavored” to be handed over within 24 months from the date of execution of the Agreement and, as such, there was no definitive agreement stating that possession would definitely be delivered within 24 months. It was further stated that in case the Opposite Parties failed to deliver possession within stipulated time, the Company should be liable to pay penalty. It was further stated that the complainant did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as the complainant is a speculator because he purchased the unit for selling the same and when due to recession in the property market, he filed the instant complaint and seeking refund of the amount alongwith interest. It was further stated that the Opposite Parties launched the scheme in 2006 and all the customer who were interested in booking the units remitted the booking amount, as applicable, after duly satisfying them of terms and conditions. It was averred that the Opposite Parties received the total amount of Rs.71,80,800/- from the complainant, as is evident from statement of account (Annexure R-1). It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint as the unit allotted to him is located at Mohali, registered office of the Opposite Parties is at Delhi and Agreement also stipulates jurisdiction at Mohali. It was further stated that this Commission has no pecuniary jurisdiction to try the complaint.  It was further stated that vide email dated 10.10.2012 it was categorically mentioned that construction activity has not yet started and even after the due date, as per submission of the complainant, for handing over of possession, he did not send mail and accepted the delay and agreed to get delayed interest. It was further stated that the Opposite Parties should pay the delayed interest for delay in possession, when possession should be handed over to the complainant, as such, he is not entitled to refund of the amount, as claimed. It was further stated that the complainant was also informed that bungalow is not being constructed so he could get possession of the plot, where possession could be handed over readily but he refused to accept the same.    It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.           The Parties led evidence, in support of their case.

4.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.           Admittedly, Sh.Puneet Bharti (original allottee) vide application dated 04.07.2010 ( Annexure C-1) seeking allotment of a fully built up residential unit in “The Bungalows”, SAS Nagar, Mohali. It is also the admitted fact that Bungalow No. TBM-300-CP-42 in the project “The Bungalows” at Mohali Hills, Mohali was provisionally allotted to the original allottee vide provisional allotment letter dated 21.07.2010 (Annexure C-2). It is also the admitted fact that Buyer’s Agreement was also executed between the original allottee and the Opposite Parties, at Chandigarh, on 03.11.2010 (Annexure C-4). It is also the admitted fact that the unit was purchased by the complainant from Sh.Puneet Bharti and it was transferred in the name of the complainant vide transfer letter dated 28.12.2010 (Annexure C-5). It is also the admitted fact that the complainant paid the total amount of Rs.71,80,800/- in respect of the said unit, as is evident from statement of account (Annexure R-1). It is also the admitted fact that as per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 18 months but not later than 24 months from the date of execution of the Agreement i.e. latest by November, 2012 but despite receipt of the huge amount from the complainant, the Opposite Parties neither delivered physical possession of the unit nor refunded the amount to him, despite repeated requests.

6.           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).”

7.        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”.

8.           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.”   

 

9.         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.”

 

10.        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.

11.          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 complainant has sought refund of Rs.71,80,800/-, paid by him, towards price of the said unit, alongwith interest @24% p.a compounded quarterly ; compensation to the tune of     Rs.5 lacs, for mental agony & harassment and for the delay in offering possession of the allotted unit and cost of litigation, to the tune of Rs.50,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

              The question, that arises for consideration, is, as to whether, interest @24% p.a compounded quarterly, claimed by the complainant, on the deposited amount of Rs.71,80,800/- aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs.18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

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

              Not only this, a similar question regarding pecuniary Jurisdiction, fell before this Commission, in a case titled as Karnail Singh  and another Vs. M/s Emaar MGF Land Limited, Consumer Complaint No.05 of 2014 decided on 09.04.2014. In that case also, an objection was raised by the Opposite Parties (Emaar MGF Land Limited) that since the complainants,  had sought refund of amount of Rs.62,60,750/- alongwith interest @24% P.A., from the respective dates of deposits, alongwith compensation and litigation costs, as such, if the reliefs are clubbed together alongwith interest claimed, the aggregate value therefore fell above Rs.1 crore, and as such, this Commission had no pecuniary Jurisdiction to entertain the complaint. In that case, while rejecting the said objection of the Opposite Parties, this Commission, while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’ case (supra),  came to the conclusion that it had pecuniary Jurisdiction to entertain the complaint, and ordered refund of the amount alongwith interest, compensation and litigation costs, vide order dated 09.04.2014. Appeal filed by the Opposite Parties (Emaar MGF Land Limited) against the order dated 09.04.2014, before the National Commission, was dismissed with punitive damages of Rs.5 lacs. Still feeling aggrieved, the Opposite Parties, filed Special Leave to Appeal (C) No.29392 of 2014, which was also dismissed by the Hon’ble Supreme Court of India, in limine, vide order dated 14.11.2014. In this manner, the findings given by this Commission in Karnail Singh and another’s case (supra), while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’s case (supra), to the effect that it has pecuniary Jurisdiction to entertain and decide the complaint, in the manner, referred to above, were upheld by the National Commission, and also the Hon’ble Supreme Court of India. Recently, in the case of Enis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection of the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

12.          Another frivolous objection was taken by Counsel for the Opposite Parties, by stating that the unit, in question, is situated at Mohali, registered office of the Opposite Parties is 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,  Buyer’s Agreement, in respect of the unit, was executed, between Sh. Puneet Bharti (original allottee) and the Opposite Parties, at Chandigarh, on  03.11.2010 (Annexure C-4).  Not only this, perusal of record reveals that provisional allotment letter dated 21.07.2010 (Annexure C-2), acknowledgment-cum-receipt (Annexure C-3), transfer letter dated 28.12.2010 (Annexure C-5), payment request (Annexure C-6), acknowledgment-cum-receipts  (Annexure C-7) and payment request for installment (Annexure C-8), were 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 complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Counsel for the Opposite Parties, also stands rejected.

13.          To defeat claim of the complainant, another objection raised by the Opposite Parties was that the complainant did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as the complainant is a speculator because he purchased the unit for selling the same and when due to recession in the property market, he filed the instant complaint and is seeking refund of amount alongwith interest.  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 complainant has specifically mentioned in his complaint that he was due to retire from the Army on 31.12.2015 and before his retirement, he wanted to ensure that possession of the unit would be handed over to him, completed in all respects, in order to enable him and his family members to reside in the said unit. So, it is clearly proved that the complainant purchased the said unit for residential purposes for himself and his family members.

              It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principal of law, laid down, in the aforesaid cases, 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 complainant for investment/speculative purposes. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected. 

14.          No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held, in the said case, that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Buyer's Agreement dated 03.11.2010 (Annexure C-4),  the Opposite Parties were to hand over physical possession of the said unit, in favour of the allottee, within a maximum period of 24 months, from the date of execution of the Agreement and in the event the Company fails to deliver possession of the unit within the stipulated period, the Company shall be liable to pay the penalty for such period of delay beyond 24 months from the date of execution of the Agreement.  Even after the expiry of more than about 5 years from the execution of the Agreement, possession thereof, was not even offered/delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Opposite Parties. The plea taken by the Opposite Parties, in their written statement, thus, being devoid of merit, must fail, and the same stands rejected.

15.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. The Opposite Parties stated in their written statement, that the complaint is time barred, having been filed beyond two years of alleged cause of action, which allegedly accrued to the complainant in the year 2012, when non-construction of the unit allotted to the complainant was informed to him, for the first time.  After going through the record of the case, we are not impressed with the contention of the Opposite Parties. No doubt, the complaint filed by the complainant on 02.03.2016. According to the complainant, the cause of action accrued to the complainant on 22.02.2016 when the Opposite Parties failed to refund the principal amount alongwith interest. It may be stated here, that neither possession of the unit was offered nor delivered to the complainant, by the stipulated date, after receipt of the huge amount from him, nor the deposited amount was refunded to him, despite repeated requests. As such, there was, thus, a continuing cause of action, in favour of the complainant, 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 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 within which period, the delivery of possession of the unit, was to be given to the complainant. According to Clause 8 of the  Buyer’s Agreement, which was executed between the original allottee and the Opposite Parties, on 03.11.2010 (Annexure C-4), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the unit, in question, within a 18 months but not later than 24 months from the date of execution of the Agreement. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of the allottee,  within the maximum period of 24 months, from the date of execution of the  Agreement i.e. latest by  November, 2012 but the Opposite Parties failed to offer/deliver physical possession of the unit, in question, to the complainant, within the stipulated period, as contained in the terms and conditions of the Agreement, despite the receipt of huge amount of Rs.71,80,800/- from the complainant, as is evident from statement of account (Annexure R-1). By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 24 months, from the  date of execution of the  Agreement, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

17.          The next question, that falls for consideration, is, as to whether, the complainant is entitled for refund of the amount of Rs.71,80,800/-, as claimed by him,  towards the unit, in question. It is the admitted fact that the Opposite Parties received an amount of Rs.71,80,800/- from the complainant, as is from the statement of account (Annexure R-1).  The Buyer’s Agreement was executed between the parties on 03.11.2010 and possession of the unit was to be delivered within a maximum period of 24 months i.e. by November, 2012 and more than 5  years had passed from the date of execution of the Agreement but the Opposite Parties neither offered nor delivered possession of the unit to the complainant.  It is pertinent to note that vide email dated 26.02.2016 (Annexure C-16), the Opposite Parties informed the complainant that they were currently in a position only offer option to convert the allotted unit into a plot and take possession, which was not accepted by him.  So, it is clearly proved that the Opposite Parties were unable to deliver possession of the unit, within the stipulated period to the complainant. Moreover, the Opposite Parties had no right, to retain the hard earned money of the complainant, without rendering him, any service. Therefore, it is clearly proved that the Opposite Parties were not in a position to deliver possession of the unit to the complainant.  In our considered opinion, the complainant is entitled to refund of amount of Rs.71,80,800/-, deposited by him.

              At the time of arguments, Counsel for the Opposite Parties stated that when complainant sought refund of the amount, forfeiture clause is applicable upon the complainant. 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 that bungalow is not being constructed so he could get possession of a plot, where possession could be handed over readily but he refused to accept the same.  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 complainant, 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 complainant. 

18.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.71,80,800/-, if so, at what rate. The complainant was deprived of his hard earned money, to the tune of Rs.71,80,800/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the unit, in question, after the completion of maximum period of 24 months i.e. by November, 2012, but they failed to do so. The complainant, thus, incurred financial loss.  Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither offered/delivered possession of the unit, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. As per Clause 3 of the Agreement, the Opposite Parties were charging interest @24% per annum compounded from the complainant. Under these circumstances, in our considered opinion, if  interest  compounded @15% P.A., on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

19.          The next question, that falls for consideration, is, as to whether, the  complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to him. 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 complainant suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a number of years, as he failed to offer/deliver possession of unit, in question, to him, by the stipulated period i.e. by November, 2012. The complainant purchased the unit, with the hope to have a roof over his head after the retirement from the Army, by raising construction thereon, but his hopes were dashed to the ground. The complainant, thus, underwent a lot of mental agony and physical 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 complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

20.          Since we are refunding the whole deposited amount to the complainant, therefore, he is 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.

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

22.          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.71,80,800/-, to  the complainant, 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 physical harassment, to the complainant, 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 complainant.
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.

 

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

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

Pronounced.

June 27, 2016.                                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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