Chandigarh

StateCommission

CC/140/2015

Dr. Manuj Chhabra - Complainant(s)

Versus

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

Gaurav Chopra,Adv.

05 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	140 of 2015
Date of Institution	:	16.07.2015
Date of Decision	:	05.11.2015

 

Dr. Manuj Chhabra son of Sh.S.K. Chhabra, resident of 429, Springwood Road, Daisy Hill, QLD, Australia, through his Attorney Mr.S.K. Chhabra son of Late Sh.Rattan Lal Chhabra, resident of House No.1137, Sector 7, Panchkula.

……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 Authorized Representative.
2. M/s Emaar MGF Land Limited, having its Branch Office at SCO No.120-122, First Floor, Sector 17-C, Chandigarh-160017, through its Authorized Representative.

               .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:  JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                 MRS. PADMA PANDEY, MEMBER

               

Argued by:  Sh. Gaurav  Chopra, Advocate for the complainant.

                  Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER MRS. PADMA PANDEY, MEMBER

           

            The facts, in brief, are that allured by the advertisements, given by the Opposite Parties, in various newspapers, in respect of their project, launched under the name and style of  Mohali Hills, Augusta Park, Sector 109, SAS Nagar, Mohali, Punjab, the complainant, applied to them, vide application  dated 07.09.2006 Annexure C-1, for allotment of a residential plot, and paid a sum of Rs.17,25,000/-, as booking amount. Vide letter dated 15.06.2007 Annexure C-2, the complainant was provisionally allotted plot no.255, measuring 400 square yards, in Sector 109, Mohali Hills, Augusta Park, SAS Nagar, Mohali, Punjab (in short the plot), @Rs.11,500/- per square yard, plus (+) External Development Charges of Rs.2,25,472/- plus (+) Preferential Location Charges of Rs.5,75,000/-.  The basic sale price of the said residential plot was to the tune of Rs.46 lacs. Thus, the total sale consideration, in the sum of Rs.51,75,000/-, was required to be paid by the complainant.

2.       It was stated that, thereafter, as per the demand made by the Opposite Parties, an amount of Rs.76,648/- was paid by the complainant, towards part price of the said plot. Subsequently, vide letter dated 31.08.2007 Annexure C-3, the total sale consideration of the plot, in question, was increased to Rs.54,00,472/-, by the Opposite Parties. As per the demands raised by the Opposite Parties, further amount was paid by the complainant, towards part price of the said plot. However, vide letter dated 26.09.2007 Annexure C-5, the Opposite Parties informed the complainant that on account of revision of layout plan of the project, area of the plot had been revised to 500 square yards, from 400 square yards, as a result whereof, the total sale consideration stood revised to Rs.67,50,590/-.
3.       Plot Buyer's Agreement dated 04.07.2007, Annexure C-7 (in short the Agreement), in respect of the plot, in question, was executed between the parties. As per Clause 8 of the said Agreement, subject to force majeure conditions, and reasons beyond control of the Company,  physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement), i.e. latest by 03.07.2010, failing which, they were liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
4.       It was further stated that since the complainant had made timely payments, towards the said plot, as such, he was given rebate of 5% of the basic sale price i.e. Rs.2,87,500/-, vide letter dated 04.02.2009 Annexure C-9. The entire sale consideration, in respect of the said plot, was made by the complainant, to the Opposite Parties. It was further stated that despite the fact that the complainant had been given rebate of 5% of the basic sale price i.e. Rs.2,87,500/-, the Opposite Parties made demand of the said amount, vide letter dated 16.06.2009 Annexure C-10, as a result whereof he served legal notice dated 09.01.2010 Annexure C-11, and the matter was then resolved between the parties. The said legal notice was withdrawn by the complainant, vide letter dated 23.02.2010 Annexure C-13.
5.       It was further stated that when possession of the plot, in question, was not offered, by the stipulated date, the father of the complainant made various requests to the Opposite Parties, to apprise him about the status of the project, but to no avail. It was further stated that when the father of the complainant visited the site, where the plot, in question, was carved, he was surprised to see that there was no development. Even basic amenities were not available at the site. However, on the other hand, even in the absence of development work, as also basic amenities at the site, a letter dated 17.08.2012 Annexure C-14 was issued by the Opposite Parties, informing the complainant that on the basis of ground demarcation, area of the plot, had been increased to 501 square yards. The complainant was asked to pay certain amount, in respect of increased area, as also delayed payment interest, before taking possession of the plot, in question. Aggrieved of this, the complainant sent email dated 20.08.2012, to the Opposite Parties, asking them, as to how, they could offer possession, at this stage, in  the absence of development work, as also want of basic amenities at the site. In response to the said email, the Opposite Parties, vide email dated 23.08.2012 Annexure C-15, informed him that they were in the process of obtaining completion certificate, in respect of the said project. He was further informed that work with regard to sewerage treatment plant, water, electricity, rain water harvesting system and installation of transformers across all sectors, are expected to be completed within six to eight months, and status of development will be informed to him.
6.       It was further stated that, thereafter, when despite waiting for a sufficient period, the complainant found that there was no development work and basic amenities at the site, he visited the office of the Opposite Parties, a number of times, to apprise him, about factual position of the project, in question, as also delivery of actual possession of the plot, in question, but to no avail.  Even legal notice dated 06.09.2012, served upon the Opposite Parties, in the matter, did not yield any result. Eventually, vide letter dated 19.01.2015 Annexure C-18, the Opposite Parties asked the complainant to pay the outstanding amount of Rs.17,41,044.31Ps. It was further stated that since the demand made vide letter dated 19.01.2015 Annexure C-18, was illegal and arbitrary, as such, the complainant objected to the same, as a result whereof, finally, vide letter dated 09.03.2015, he was asked to pay Rs.14,22,280/-, before taking possession of the plot, in question. It was further stated that, on receipt of the said letter, the complainant again made visits to the project, and was surprised to see  that still there was no development at the site. Basic amenities like roads, parks, sewerage treatment plant etc. etc., had still not been made available. Thereafter, various communications took place between the parties, in the matter, but it did not yield any positive result.
7.       It was further stated that, not only this, the main entrance gate of the said project, wherein the plot, in question, is located, has been sealed by putting a barbed wire, as a result whereof, it is not possible to access to the same (plot), on account of the reason that the Opposite Parties had not obtained requisite permissions/sanctions from the Forest Department. It was further stated that, thus, the project of the Opposite Parties has been proved to be farced.
8.       It was further stated that the huge amount of Rs.64,63,090/-, deposited by the  complainant, towards the price of plot, in question, was utilized by the Opposite Parties, without providing him any services, as a result whereof, he was caused financial loss. It was further stated that even the complainant underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to him, as a result whereof, he was constrained to ask for the refund of amount, but to no avail.
9.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.64,63,090/-, alongwith interest @18% P.A., compounded quarterly, from the respective dates of deposits, till realization; pay compensation to the tune of Rs.10 lacs, towards mental agony, physical harassment and escalation in prices of the real estate; and cost of litigation, to the tune of Rs.1 lac.
10.       The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act, as he being Non-Resident Indian (NRI), had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. It was further pleaded that this Commission has got no pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that since a cause of action accrued, in favour of the complainant, on 17.08.2012, when possession of the plot, in question, was offered to him and he could file the complaint, within 2 years, from that date, as such, the complaint having been filed on 16.07.2015, was palpably barred by time. It was further pleaded that the complaint was not maintainable, as an Arbitration Clause, existed, in the Agreement, and, in case of any dispute, the matter was to be referred to the Arbitration. Booking of the plot, in question; provisional allotment thereof in favour of the complainant; and payment of the amount mentioned in the complaint, by him, was admitted. It was stated that, as per Clause 8 of the Agreement,  possession of the plot, in question, was proposed to be delivered to  the  complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that it was well within the knowledge of the  complainant that time was not the essence of contract and for any delays, stipulated penalty had been provided in the Agreement, which safeguarded his rights. It was further stated that the amount of compensation/penalty, for the period of delay, has already been credited to the account of the complainant, maintained by them. It was further stated that the Opposite Parties were in possession of all the necessary permissions/sanctions, before possession of the plot, in question, was offered to the complainant. It was further stated that the Opposite Parties were exempted from the provisions of the Punjab Apartment and Property Regulation Act, 1995, and, as such, completion certificate was not required to be obtained, at the time of offer or delivery of possession of the plot, in question. It was further stated that, no doubt, there was some delay, in the delivery of possession of the unit, in question, yet, when the same was offered to the complainant, vide letter dated 17.08.2012, upon completion of the amenities,  as per Clause 23 of the Agreement, on payment of the amount due to be paid by him, he did not accept the same, for the reasons best known to him. It was further stated that the demand raised by the Opposite Parties, vide letter dated 19.03.2015, was legal and valid. It was further stated that the complainant defaulted in making payment of installments, towards the said plot. It was further stated that, and, in case, the complainant still wanted refund, the same would amount to surrender of the unit, and attract forfeiture charges, as per Clauses 2(f) of the Plot Buyer's Agreement. 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. The remaining averments, were denied, being wrong.
11.       In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
12.       The complainant submitted affidavit of his General Power of Attorney Holder, Sh. S.K. Chhabra, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
13.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 
14.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
15.       The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere objection of the Opposite Parties that since the complainant  is a Non-Resident Indian (NRI), as such he had purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It was clarified by the complainant, in paragraph no.5 of the rejoinder, that he purchased the said plot, for residential purpose of his parents, living in India. Even otherwise, the mere fact that it was a residential plot, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. No law debars an NRI, who basically belonged to India, to purchase a residential property in India. Recently, 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 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 plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.  
16.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the complainant has sought refund of the amount of Rs.64,63,090/-, paid by him, towards price of the said plot, alongwith compound interest quarterly @18%, from the respective dates of deposits, till realization; compensation to the tune of Rs.10 lacs, for mental agony, physical harassment, unfair trade practice and escalation in prices of real estate; and cost of litigation, to the tune of Rs.1 lac, aggregate value whereof [excluding the interest claimed] came to be around Rs.75,63,090/-, and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
17.       The next question, that arises for consideration, is, as to whether, compound interest quarterly @18%, claimed by the complainant, on the amount of Rs.64,63,090/- 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”.

18.       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 setting aside 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, meaning thereby that the same had attained finality. The principle 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 submission of Counsel for Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
19.       The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an Arbitration Clause existed, in the Agreement. It may be stated here that a similar question fell for determination, before this Commission, in a case titled as Sh.Dharampal Gupta Vs. Emaar MGF Land Limited and another, consumer complaint No.147 of 2015 decided on 13.10.2015, wherein, heavy reliance was placed by the Opposite Parties therein, upon ratio of Sudarshan Vyapar Pvt. Ltd. and another's Vs. Madhusudan Guha and another (2013) 1 CALLT 546 (Calcutta HC)  and M/s S.B.P. and Co.'s cases (supra) to support above argument. In Sh.Dharampal Gupta's case (supra), further reliance was placed on a judgment rendered by the State Consumer Disputes Redressal Commission, Punjab, at Chandigarh, titled as Raj Kumar Singal Vs. M/s Puma Realtors Private Limited and another, Miscellaneous Application Nos.1226 and 1227 of 2014, in Consumer Complaint No.60 of 2014. However, by noting ratio of the judgments mentioned above and on making reference to the ratio of judgments of the Hon'ble Supreme Court of India, in Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi, III (1996) CPJ 1 (SC) = (1996 (6) SCC 385, National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy & Anr., I (2012) CPJ 1 (SC), it was firmly held that remedy provided under Section 3 of the 1986 Act is in addition to and not in derogation of the provisions of any other law. It was specifically observed that ratio of judgment passed in M/s S.B.P. and Co.'s case (supra), will not debar a Consumer Fora from entertaining a complaint, even in cases where an alternative remedy of Arbitration is provided. Similar view was taken by the National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/Opposite Party challenged that order in the Hon'ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon'ble Supreme Court of India, by making reference to the ratio of  judgment in the case M/s S.B.P. and Co.'s case (supra),  observed that the judgment has no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. In the above judgment, the Supreme Court had not interpreted the provisions of 1986 Act in the light of the provisions contained in 1996 Act. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to make reference to the Arbitral Tribunal. The ratio of judgment of Sh.Dharampal Gupta's case (supra), wherein the issue regarding Arbitration Clause was dealt with and clarified by this Commission, while placing reliance on various judgments, in the manner, referred therein, is fully applicable to the facts of the present case. In view of the above, it is held that submission of the Counsel for Opposite Parties, that the consumer complaint was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Agreement, being devoid of merit, and stands rejected.
20.       The next question, that falls for consideration, is, as to whether, possession of fully developed residential plot was offered to the complainant, vide letter dated 17.08.2012 or not. The relevant portion of the said letter, reads as under:-

“The development activities in all three sectors of Mohali Hills i.e. Sector 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Park Sector 109, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.

In view of the above development and our constant endeavor to enhance our customer's satisfaction, we are prepared to hand over possession of the Plot to you, subject to your making payments mentioned below.

On the basis of ground demarcation, the area for your plot has been increased/decreased and as a consequence the revised area is 501 sq.yards, and in view thereof the total consideration has been revised. The details of which is mentioned hereunder;

1. Outstanding amount (if any) towards the Plot amounting to Rs.13,501/- as per payment plan agreed by you.

2. Delayed interest thereon (if any) @15%  amounting to Rs.53,311/- on account of delay in making payment of installment as agreed by you.

3. Payment of additional External Development Charges levied by Government of Punjab as and when communicated by the company.

On our complying with the aforementioned conditions, the possession of the Plot shall be handed over to you. You may note that all payments, with respect to the consumption of electricity and water shall be made by you, at actuals, to the Company.

Pursuant to taking possession, you may apply to the appropriate authority for sanction of building plans to initiate construction on the Plot.  

Kindly note on completion of the infrastructure work for the entire Project we shall execute sale deed, in your favor, for the Plot subject to you making payment for Stamp Duty and Registration Charges at the rate prevailing on the date fixed for execution of the sale deed. However, till the time of execution of the sale deed the terms and conditions under the Plot Buyer's Agreement shall remain valid and would be binding between us.

In case you are agreeable to take possession of the Plot, on the terms and conditions mentioned hereinabove, you are requested to give your consent to the foregoing by signing and returning the duplicate copy of this communication as token of your acceptance”.

21.       It may be stated here, that perusal of contents of the afore-extracted letter, reveal that the complainant was only intimated that significant progress had been made, with respect to the development of basic infrastructure, like water pipelines, sewer pipelines,  development of roads, parks etc. It is also evident, from the afore-extracted portion of the said letter that only temporary electricity and water connection had been sanctioned for the Project. It was also informed vide the said letter that area of the plot had been revised to 501 square yards, as a result whereof, the total sale consideration stood revised. It was further made clear, in the said letter that, on completion of the infrastructure for the entire project, sale deed shall be executed, in favour of the complainant, in respect of the plot, in question, on making payment of stamp duty and registration charges. On receipt of the said letter dated 17.08.2012, the father of the complainant visited the site and found that there were no basic amenities available such as roads, sewerage, electricity, water  etc. etc. The matter was reported to the Opposite Parties, vide email dated 20.08.2012, as a result whereof, an email dated 23.08.2012, was received from them, wherein the complainant was informed by the Opposite Parties that they are in process of obtaining completion certificate, for the project in question, and also that the development work with regard to sewerage treatment plant, water tanks, rain water harvesting system and installation of transformers across all sectors, is in progress, which will be completed within 6 to 8 months. The complainant was assured that he would be kept informed, on status of development. However, when nothing was done, feeling aggrieved, the complainant served legal notice dated 06.09.2012, upon the Opposite Parties but to no avail. From the contents of letter aforesaid only, it was proved that basic amenities had not been provided in the area, where the plot, in question, is situated. As such, it could very well be said that vide letter dated 17.08.2012, only an information regarding significant progress of development work, at the project, in question, as also information regarding increase in area of the plot, was given to the complainant, and, in no manner, it could be termed as offer of possession, in respect of the same (plot, in question). Even otherwise,  in case, all these development activities, had been undertaken, and completed at the site, by 17.08.2012, then it was for the Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. As stated above, the entire price of the plot, in question, had already been paid by the complainants, and nothing remained due, against him. Since the entire amount had been paid by the complainant, had all the development activities been completed, at the site, as mentioned in the letter, in question, no prudent person, much less them (complainant), who had deposited the huge amount, would have refused  to take over possession of the plot, in question. It is therefore held that possession of fully developed residential plot was never offered to the complainant, vide letter dated 17.08.2012, whereas, as stated above, only intimation regarding significant progress of development work at the site; increase in area of plot; as also the amount to be paid, in respect thereof, including the delayed payment interest, was given through the same. The submission of Counsel for the Opposite Parties, that possession of the plot, in question, was offered to the complainant, complete in all respects, vide letter dated 17.08.2012, therefore being devoid of merit, must fail and the same stands rejected.
22.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here, that since it has been held in paragraph 21 above, that possession of the plot, in question, was never offered to the complainant, vide letter dated 17.08.2012, but on the other hand, only intimation regarding significant progress of development work at the site; increase in area of plot; as also the amount to be paid, in respect thereof, including the delayed payment interest, was given through the same, as such, the submission of  Counsel for the Opposite Parties, that since the cause of action accrued, in favour of the complainant, on 17.08.2012, when the possession of plot, in question, was allegedly offered to him, and he could file the complaint, within 2 years, from that date, as such, the complaint having been filed on 16.07.2015, was palpably barred by time, being devoid of merit, must fail and the same stands rejected. On the other hand, in our considered opinion, it could very well be said that offer of possession of the plot, in question, was, for the first time, made by the Opposite Parties, vide letter dated 09.03.2015 Annexure C-20, and that too was not accepted by the complainant, for want of development work; basic amenities at the site, as also the entry points had been sealed by the Forest Department, as they  failed to take requisite permissions/sanction from it, which fact has also been admitted by them (Opposite Parties), in paragraph No.18 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure OP/7, sent by the Opposite Parties to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by the Opposite Parties in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the Opposite Parties, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, clearly goes to prove that even till that date (15.04.2015), they (Opposite Parties) were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. In these circumstances, it could very well be said that neither the possession of plot, in question, was delivered to the complainant, by the stipulated date, nor till the date of filing the complaint nor in the alternative the refund of amount deposited by him, was made to him. There was, thus, a continuing cause of action, in favour of the complainant. 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 submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
23.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount of Rs.64,63,090/-, deposited by him, towards the price of said plot. It may be stated here, that, as stated above, it has been proved, that the Opposite Parties have failed to discharge their part of the contract in not offering possession of the plot, in question, within the stipulated time i.e. by 03.07.2010. Not only this, as stated above, possession was offered for the first time, only on 09.03.2015 i.e. after a delay of about more than 5 years, and that too, in the absence of basic amenities at the site, as also want of approvals/sanctions, from the Forest Department. Whether mere offer of possession of plot, vide letter dated 09.03.2015, will disentitle the complainant, to claim refund of the amount deposited by him or not. In a similar case, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, was decided by this Commission on 23.09.2015, noting ratio of the judgment of the National Commission, 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 date. 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 National Commission, 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.”

24.       It was clearly stated by the National Commission, in Emaar MGF Land Limited and another's case [III (2015) CPJ 329 (NC)] (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.  In the above case, it was laid down as a matter of fact that non-acceptance of possession after the agreed date, would not amount to rescinding of contract. In the present case also, as stated above, the Opposite Parties committed breach of their obligation, in not offering possession of the plot, in question, within a maximum period of 36 months, whereof 04.07.2007 (Buyer's Agreement was signed on this date). As a matter of fact, possession of the plot was offered only on 09.03.2015, and that too has been held to illegal, as the Opposite Parties have not taken requisite permissions/sanctions from the Forest Department, as a result whereof, entry points of the project have been sealed, stating to be “illegal access”, which fact is apparent from the letter dated 15.04.2015, referred to, in earlier part of this order. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the plot, in question. In our considered opinion, the complainant is entitled to the refund of amount of Rs.64,63,090/-,  deposited by him, towards price of the said plot. The complainant was, thus, caused financial loss.  Hard-earned money, deposited by the complainant, towards the plot, in question, was utilized by the Opposite Parties, for a number of years. In case of delay, in deposit of installment(s), the Opposite Parties had been charging interest @15% P.A., compounded at the time of every succeeding installment, from the complainant, as per Clause 3 of the Agreement. It is, therefore, held that the Opposite Parties, by neither delivering physical possession of the plot, in question, complete in all respects, 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. The complainant, is, thus, entitled to the refund of Rs.64,63,090/-, alongwith interest compounded quarterly @15%, from the respective dates of deposits.
25.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment or not. After making payment of Rs.64,63,090/-, towards price of the plot, in question,  no progress was made by the Opposite Parties, at the site, by the stipulated date. Not only this, as held above, still the Opposite Parties are not in a position to deliver actual physical possession of the plot, in question, to the complainant, on account of the reasons, explained above, while placing reliance on the documents on record. The complainant had purchased the said plot, to have a roof over his head, as and when he visited India and for his parents, by constructing a house thereon, but his hopes were dashed to the ground, when possession of the same was not delivered to him, after about more than 8 years of the allotment thereof. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainant, is, thus, entitled to compensation, to the tune of Rs.02 lacs, on account of this reason.
26.       The Counsel for the Opposite Parties, however, submitted that the parties being governed, by the terms and conditions of the Agreement, as per Clause 8 of the same (Agreement), in case of delay, in the delivery of physical possession of residential plot, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 3 (three years), from the date of execution of the same, which they had already credited in the account of the complainant, maintained by them. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainant, prayed for the delivery of physical possession of residential plot. In the instant case, prayer for the refund of amount, was made by the complainant, as there was no progress in development of the area, where the plot, in question, is located, as also necessary sanctions/approvals have not been obtained by the Opposite Parties, in respect of the project, in question.  This Clause could be invoked by the Opposite Parties, only, in the event, the complainant had sought relief of delivery of physical possession of the residential plot. As stated above, the hard-earned money of the complainant was used by the Opposite Parties, for investment, for a long time. He was neither given physical possession of the residential plot, nor refund of the amount. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching them, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Clause 8 of  the Agreement. Had the complainant prayed for possession of the residential plot, in question, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount, alongwith interest compounded quarterly @15%. 
27.       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 and Ashok Khanna's cases (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 Agreement, subject to force majeure conditions, and reasons beyond the control of the Company,  physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement). The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid cases, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
28.       No other point, was urged, by the Counsel for the parties.
29.        For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-
    1. To refund the amount of  Rs.64,63,090/-, to the complainant, alongwith interest compounded quarterly @15% , from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
    2. To pay compensation, in the sum of Rs.02 lacs, 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 above in Clauses (i) to (iii), is not made, within the stipulated period, then the same shall carry penal interest compounded quarterly @18%   till the date, the same is actually paid to the complainant.
30.        Certified Copies of this order be sent to the parties, free of charge.
31.       The file be consigned to Record Room, after completion.

Pronounced.

05.11.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [PADMA PANDEY]

MEMBER

 

 

Rg.