Chandigarh

StateCommission

CC/37/2015

Dr. S.K Ummat - Complainant(s)

Versus

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

G.S.Ahluwlia, Adv.

22 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	37 of 2015
Date of Institution	:	04.03.2015
Date of Decision	:	22.05.2015

 

1. Dr. S. K. Ummat S/o (Late) Sh. D. P. Ummat, resident of 2002, 583 Beach Cres. Park West II Vancouver – BC Canada, through Special Power of Attorney (SPA), namely, Er. A. K. Ummat, resident of House No.2093, Sector 15-C, Chandigarh.
2. Mrs. Usha Ummat W/o Dr. S. K. Ummat, resident of 2002, 583 Beach Cres. Park West II Vancouver – BC Canada, through Special Power of Attorney (SPA), namely, Er. A. K. Ummat, resident of House No.2093, Sector 15-C, Chandigarh.

……Complainants.

Versus

1. M/s. EMAAR MGF Land Limited, through its Branch Manager, SCO No.120-122, First Floor, Sector 17-C, Chandigarh.
2. M/s. EMAAR MGF Land Limited, through its Managing Director, ECE House, 28 Kasturba Gandhi Marg, New Delhi.

              ....Opposite Parties.

 

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

               

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh. G. S. Ahluwalia, Advocate for the complainants.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

              The facts, in brief, are that in the year 2005, the Opposite Parties announced construction of a colony called ‘Mohali Hills, Mohali’ on Landran – Banur road and invited applications for advance booking. It was stated that to allure the customers, they made all sorts of promises of early infrastructure development and subsequent handing over the plots. It was stated that in response to the same, one property dealer, namely, Sh. Vinay Shankar, a person known to the complainants, approached them and confirmed that he would be able to get a plot allotted in their favour in consultation with the Opposite Parties. It was further stated that  after getting the requisite money, the Opposite Parties allotted Plot No.472, in Augusta Green, Mohali Hills, Sector 109, Mohali measuring 300 sq. yards to the complainants vide provisional allotment letter No.MH 2057 dated 24.05.2007 (Annexure C-2).

2.         It was further stated that the complainants paid Rs.10,35,000/- as application money. It was further stated that cost of the plot as per allotment letter was Rs.11,500/- per sq. yard i.e. Rs.34,50,000/- plus Rs.1,69,104/- as external development charges and Rs.3,45,000/- as preferential location charges. It was further stated that the total cost worked out to be Rs.39,64,104/- to be paid in installments. It was further stated that the complainants had to pay Rs.40,39,104/- for the plot.  It was further stated that, subsequently, the complainants paid the following amounts/installments, from time to time, vide receipts, Annexure C-3 (colly.) in accordance with the payment schedule attached to the allotment letter:-

Sr. No.	Date	Amount (Rs.)	Annexure
1.	22.05.2007	75,000.00	C-3/1
2.	11.09.2007	2,87,489.00	C-3/2
3.	11.02.2008	2,87,488.00	C-3/3
4.	11.02.2008	4,60,023.00	C-3/4
5.	07.08.2008	3,45,000.00	C-3/5 & C-3/6 are one and the same receipt.
6.	10.09.2008	3,45,000.00	C-3/7
7.	23.12.2008	4,29,552.00	C-3/8
8.	23.12.2008	4,29,552.00	C-3/9
9.	04.02.2009	89,189.00	C-3/10
10.	12.03.2009	1,72,500.00	C-3/11
Total:		29,20,793.00

 

Thus, as per the receipts, on record, the complainants paid an amount of Rs.39,55,793/- (i.e. Rs.10,35,000.000 + Rs.29,20,793.00), to the Opposite Parties. However, in Para 6 of the complaint, it was averred that a total amount of Rs.40,39,104/- including Rs.75,000/- as transfer charges was paid by 04.02.2009.

3.         It was further stated that a Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4) at Chandigarh, was executed between the parties. It was further stated that according to Clause 8 of this Agreement, possession of the plot was to be handed over within 2 years from the date of execution thereof i.e. by 31.08.2009. It was further stated that the Chandigarh based Special Power of Attorney contacted the Opposite Parties, in order to find out the reason for delay in delivering possession of the plot and also visited the site many times. It was further stated that  every time, the Opposite Parties informed that the plots were not yet ready to be handed over due to incompletion of infrastructure. It was further stated that, thus, the Opposite Parties were not handing over possession on one pretext or the other. It was further stated that the Opposite Parties asked the Special Power of Attorney Holder of the complainants, to wait for some time and demanded additional EDCs and some charges for registration of conveyance deed, which were neither justified nor supported by any authentic document.

4.         It was further stated that on 10.03.2011, the Opposite Parties admitted and informed that the EDC charges had been revised and presently they did not have the exact rate applicable. It was further stated that the Opposite Parties further clarified vide letter (Annexure C-5) that they shall intimate the same once the confirmed rates were received by them. It was further stated that   no approved rates were intimated till the date of filing the complaint. It was further stated that the Special Power of Attorney again visited the office of the Opposite Parties and the site area many times to ascertain the exact position, but he found that the pace of development was extremely slow and the roads were still under construction. It was further stated that the mandatory completion certificate was yet to be issued by GMADA. It was further stated that permanent electricity connection and water connection were not available at the site and the sewage treatment plant was not operational. The land earmarked for the plots was low lying and rain water stagnated there. It was further stated that   the plot, therefore, was unfit for any house construction.

5.         It was further stated that the complainants received a letter dated 23.05.2014 (Annexure C-6) from the Opposite Parties, demanding unauthenticated/ undesirable huge amounts for registration of conveyance deed and other charges without any justification for handing over the possession. It was further stated that the registration of conveyance deed had nothing to do with the delivery of possession and the demand for the same was not only arbitrary and discriminatory but also illegal. It was further stated that the Opposite Parties had already delivered possession to many buyers during 2010-2013 without getting registration of conveyance deed. It was further stated that the Opposite Parties did not have the completion certificate of the project from GMADA as per the Punjab Apartments & Properties Regulation Act, 1995 nor they have any valid exemption for the same as per Notification No.4966 (CTP) Pb/SP-458 dated 02.09.2014 (Annexure C-10).

6.         It was further stated that keeping in view the dilly dallying tactics of the Opposite Parties, the complainants issued a notice dated 03.09.2014 to the Opposite Parties through email as well as by hand (Annexures C-7 and C-8 respectively) but to no avail. It was further stated that instead of handing over the possession, the Opposite Parties vide their communication dated 26.09.2014 (Annexure C-9) admitted for the first time that they were expediting the development activity in the concerned area and may offer to relocate the plot to another site where the possession was expected much earlier than the present site.  It was further stated that it clearly showed that the infrastructure was neither complete at the site till 26.09.2014 nor at the other site, the plot was ready for handing over.

7.            It was further stated that the, aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to refund the amount of Rs.40,39,104/- alongwith interest @18% per annum from the respective dates of deposit till realization; pay Rs.4,00,000/- as compensation for deficiency in service, unfair trade practice & mental harassment, and Rs.44,000/- as costs of litigation.

8.         The Opposite Parties, were served and put in appearance on 09.04.2015. They filed their joint written statement on 13.05.2015. In the written statement, the Opposite Parties, took a preliminary objection that the complainants did not fall within the definition of “consumers” under Section 2(1)(d) of the Act as they purchased the plot, in question, for commercial purpose/speculation and they concealed the factum of their being residents of Canada since 15.09.1967 and they mentioned their address of House No.2093, Sector 15-C, Chandigarh in record of the Opposite Parties. It was pleaded that this Commission has no jurisdiction to entertain the complaint due to existence of Arbitration Clause No.39 in the Buyer’s Agreement.      It was further stated that the complainants concealed that the possession of the plot was offered on 12.02.2015. It was further stated that no cause of action arose to the complainants to file the present complaint for seeking refund. It was further pleaded that the complaint was barred by time as the complainants failed to file the complaint for refund of amount within 2 years from the date of accrual of cause of action.

9.         On merits, it was stated that the complainants never wrote any letter/mail asking for possession of the plot, in question. It was further stated that perusal of Annexures C-7 and C-8 clearly revealed that A. K. Ummat, the present SPA, who had been authorized vide SPA dated 18.12.2014,had on his own, forged the signatures of Dr. S.K. Ummat on Annexure C-8 and got copy of the letter dated 03.09.2014 from the Opposite Parties at Chandigarh Office. It was further stated that a perusal of the signatures of Dr. S. K. Ummat on SPA as well as the Buyer Agreement in comparison to letter dated 03.09.2014 clearly revealed that the signatures on letter dated 03.09.2014 were forged. It was further stated that in fact the SPA who had himself purchased a plot and had earlier himself filed a complaint against the Opposite Parties, had claimed that the present plot in this complaint also belonged to him and he had only purchased it in the name of his brother. It was further stated that the complainants be called upon to produce copy of their passports to ascertain the fact that they were in India at the time of handing over of letter dated 03.09.2014 in the office of the Opposite Parties. It was further stated that this Commission has got no territorial jurisdiction to try and entertain the complaint as the head office of the Opposite Parties is situated at Delhi and the plot, in question, is situated at Mohali.

10.       It was further stated that the complainants, on their own free will and volition approached for the purchase of a plot in their project at Mohali, which was launched in the year 2006. It was denied that the Opposite Parties allured or made any false promises to the customers much less to the complainants. It was further stated that the Opposite Parties are a reputed company and successfully developed many projects. It was further stated that the complainants accepted the payment plan as well as the allotment letter in their favour. It was further stated that the complainants were irregular in making payments. It was further stated that the complainants only placed, on record, the receipts of Rs.32,65,793/- including Rs.75,000/- paid as transfer charges. It was specifically denied that the complainants paid an amount of Rs.40,39,104/- to the Opposite Parties. It was further denied that the possession was to be delivered within a period of 2 years. It was further stated that the Buyer Agreement clearly stipulated that Opposite Parties shall “endeavor” to give possession of the plot within 3 years. However, either of the parties had duly envisaged the delay. The Opposite Parties safeguarded the interests of the customers by providing compensation for delay in delivery under clause 8. It was further stated that in a case of sale of immovable property and construction, time was never regarded as the essence of the contract.

11.       It was further stated that the complainants never asked for any information regarding delay in possession of plot and never did their SPA ask about possession of plot, nor was he authorised as SPA in the year 2011. It was further stated that as the possession of plot was never offered, the submission of the complainants as to asking for charges for registration were totally baseless and wrong. It was admitted that letter dated 10.03.2011 was sent by the Opposite Parties. It was further stated that the SPA of the complainants, who was having his own plot bearing No.109-AG-462-300 (Annexure C-6) in the project of the Opposite Parties was always made available all the relevant information as and when sought for. It was further stated that the Opposite Parties had earlier duly replied to the letter of the SPA on 18.01.2010. It was further stated that the attention of SPA was drawn to Clause 2(d) of the Buyer Agreement, which was duly signed and accepted by the complainants and further copy of the Notification was also forwarded to the complainants. It was further stated that as per Clause 2(d), EDC which was paid by the complainants was proportionate to the amount of EDC paid by the Opposite Parties till the time of issue of licence for the project and was agreed to between the parties that the complainants shall pay any amount as EDC charges as levied and increased by the Government. It was further stated that the Opposite Parties again vide letter dated 18.03.2010 explained the facts to the complainants and also asked to seek further clarification, if any, from the Department regarding the EDC.

12.       It was further stated that the Company offered possession of the plot on 12.02.2015 and demanded all the relevant charges, which were required to be paid. It was further stated that EDC was demanded taking into consideration the new rate applicable, which was Rs.807/- per sq. yard. It was further stated that the State Government revised EDC from time to time vide Notification(s) dated 12.07.2006, 17.08.2007, 19.09.2007, 11.01.2008, 22.06.2010 and lastly, vide notification dated 06.05.2013 (Annexure R-7). It was further stated that on account of changes in EDC rates, revised balance EDC calculated @Rs.243.32 per sq. yard (=Rs.72,996/-) was demanded from the complainants as per the Buyer’s Agreement. It was further stated that it was not the case of the Opposite Parties that execution of sale deed was a pre-condition for taking possession. It was further stated that in order to take possession, the complainants were required to pay the outstanding dues against their account. It was further stated that as per letter dated 12.02.2015, the complainants were required to pay all the relevant charges before the possession could be handed over to them. It was further stated that the Opposite Parties were granted exemption vide Notification dated 22.12.2006 (Annexure R-6). It was further stated that the Notification dated 02.09.2014 was not binding on the Opposite Parties as no retrospective effect could be given to such Notification. It was further stated that since the amenities were not complete, the same was the sole reason for not offering the plot to the complainants. However, the possession was offered on 12.02.2015. It was further stated that the complainants were not interested in taking physical possession and sought the refund of amount, for which the complaint was time barred. 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.

13.       The complainants, in support of their case, submitted the affidavit, of Sh. A. K. Ummat, their Special Power of Attorney Holder, by way of evidence, alongwith which a number of documents were attached.

14.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 

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

16.       The objection of the Opposite Parties that the complainants being citizens of Canada are not consumers, as they purchased the property for commercial purpose, is not on sound footing. No provision under which the complainants are debarred, from owning a house in India has been cited. The objection being devoid of merit is not sustainable and the same is rejected.

17.       The objection of the Opposite Parties that Sh. A. K. Ummat, Special Power of Attorney of the complainants, signed as S. K. Ummat, and forged the signatures on letter dated 03.09.2014 (Annexure C-8), vide which the complainants sought refund of the deposited amount with the Opposite Parties also does not carry any weight. It may be stated here, that no reliable evidence in support of their assertion has been produced by the Opposite Parties. As such, this objection of the Opposite Parties, being devoid of merit, also stands rejected.

18.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. The Opposite Parties specifically stated that possession of the plot was offered on 12.02.2015 and there was no cause of action to file the present complaint for seeking refund. Undoubtedly, possession of the plot, in question, was offered to the complainants on 12.02.2015. Evidently, the complainants sought refund of their amount on 03.09.2014 vide letter (Annexure C-7) and subsequent to that, the Opposite Parties vide email dated 26.09.2014 (Annexure C-9) offered relocation to another unit, to them (complainants) as the development activity in the area, where their unit was located, was still not complete. Thus, the cause of action accrued to the complainants on 26.09.2014, which was a continuing one, from the date of default of handing over the possession. Under these circumstances, it is held that the complaint was not at all barred by time. Therefore, the plea of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

19.       The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.39 in the Plot Buyer’s Agreement (Annexure C-4). With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

 

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996)6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

20.       It is evident that the complainants, who are senior citizens, residing in Canada, applied for a residential plot measuring 300 sq. yards, in the project of the Opposite Parties, Plot Buyer Agreement for which was executed between the parties at Chandigarh and possession was to be delivered within three years i.e. by 30.08.2010. It is also evident from receipts regarding payment annexed with the complaint and account statement (Annexure R-4) that the complainants paid an amount of Rs.39,55,793/- against the total sale price of Rs.39,64,104/-. Admittedly, there was undue delay in offering possession of the plot, in question. The possession which was due on 30.08.2010, was offered only on 12.02.2015 (Annexure R-1) and the Opposite Parties also sent a reminder on 23.03.2015 (Annexure R-2) through speed post. The site where the plot of the complainants is located, was not developed by the Opposite Parties as admitted in their email dated 26.09.2014 (Annexure C-9).

21.       It is also established from the record that the complainants wrote to the Opposite Parties vide letter dated 03.09.2014 (Annexure C-7) that in case they (Opposite Parties) were not in a position to deliver possession, they (complainants) be refunded the whole amount deposited by them with the Opposite Parties, alongwith interest @18% per annum from the date of deposit till the date of payment. However, the Opposite Parties vide letter/email dated 26.09.2014 (Annexure C-9), offered the complainants relocation to another unit, where possession was expected much earlier than the allotted unit. Email dated 26.09.2014, being relevant, is extracted hereunder:-

“Dear Mr. Ummat

Greetings from Emaar MGF.

At the onset we would like to apologize for delay in response.

We would like to inform that considerable infrastructure work has been accompalished in all sectors at Mohali Hills. With regard to your unit, we are expediting the development activity in the concerned area and shall keep you updated on the status. In case of any delays in possession beyond the timeframe mentioned in the Buyer’s Agreement, your interests are best protected as per the clauses mentioned therein. That is our commitment to you.

Sir, we may offer you relocation to another unit where possession is expected much earlier than the subject mentioned unit allotted in your favour. Kindly confirm your decision for us to take further action at our end.

With regard to EDC, please be informed the EDC has been revised to Rs.807/- per sq. yd in consultation with the government authorities and the same is being charged from all customers. Cases wherein the said amount has been received in excess shall be refunded/adjusted at the time of final possession/registration.

Should you require any further assistance, please feel free to email us at

We again thank you for being a valued customer of Emaar MGF.

Warm regards,

Aditi Sharma/Executive-Customer Services/ Emaar MGF Land Limited.

Email us at: feedback@emaarmgf.com/

Domestic customers Call (toll free):”

It is, thus, clear from the afore-extracted letter/email dated 26.09.2014 (Annexure C-9) that the site where the unit was allotted to the complainants was not developed. When an email dated 26.09.2014 was received by the complainants, they did not make any further response/communication to the Opposite Parties, which meant that they (complainants) agreed to the position stated in the said email by them (Opposite Parties). When possession of the plot, in question, was offered to them on 12.02.2015 vide Annexure R-1,, regarding which they (Opposite Parties) have enclosed the postal receipt of having sent the same (communication) through registered/speed post, the complainants refused to accept the same, which amounted to the rescinding of contract.

22.       The objection of the complainants that the Opposite Parties did not obtain the completion and occupation certificates is also not tenable. It is evident that they (Opposite Parties) were granted exemption vide Notification dated 22.12.2006 (page 90-92). A perusal of Notification dated 02.09.2014 (Annexure C-10 colly.) (page 64)  reveals that the same was not in supersession of the notification dated 22.12.2006, under which, the Opposite Parties were granted exemption under Section 44(2) of the Punjab Apartment & Property Regulation Act, 1995. As such, this objection of the complainants, being bereft of merit, stands rejected.

23.       The next objection of the complainants that the Opposite Parties are charging EDC @Rs.807/- per sq. ft. is also not tenable. It is clearly stipulated in Clause 2(d)  of the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4) that  the allottee agreed to pay to the Company any further amount levied as EDC or any increase thereto by the Competent Authority and the Government of Punjab. Any such increase, in the EDC was to be borne and paid by the allottee in proportion to the area of the project directly to the Company within 30 days of the receipt of a communication. In view of this specific clause in the Plot Buyer’s Agreement (Annexure C-4), to which, the complainants agreed to by accepting the terms and conditions thereof, they (complainants) were bound to pay the EDC or any increase therein, from time to time by the Competent Authority and they cannot not be heard to say that the EDC charged was not tenable or arbitrary. As such, this objection of the complainants also stands rejected, being devoid of any merit.

24.       The Counsel for the Opposite Parties, submitted that since the complainants sought refund of the amount deposited, Clause 2(f) of the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4) shall be attracted and, in terms thereof, 30% of the total sale consideration was forfeitable. Clause 2(f) of the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4), reads as under:-

“2(f) The Allottee(s) has entered into this Agreement on the condition that out of the amounts paid/payable by the Allottee towards the Sale Price, the Company shall treat 30% of the Sale Price as Earnest Money (hereinafter referred to as “the Earnest Money”). However, if the Allottee chooses not to sign this Agreement and further chooses to forfeit his allotment, then 20% of the amount paid by the Allottee at the time of the Expression of Interest shall stand forfeited and the rest of the amount (if any) shall be refunded to the Allottee. However, after signing this Agreement, in order to ensure the fulfillment, by the Allottee, of all the terms and conditions as contained in the application and this Agreement and in the event of the failure of the Allottee to perform all obligations set out in this Agreement or fulfill all the terms and conditions of this Agreement or in the event of failure of the Allottee to sign and return this Agreement in its original form to the Company within 30 (Thirty) days from its date of Receipt by the Company, the Allottee hereby authorizes the Company at its sole option and discretion, to forfeit out of the amounts paid by the Allottee, the Earnest money as aforementioned together with any interest paid, due or payable, any other amount of a non-refundable nature. The Allottee further agrees that the condition of forfeiture of Earnest Money shall remain valid and effective till the execution and registration of the Conveyance Deed for the Plot and the Allottee hereby authorizes the Company to resort to such forfeiture after considering the above mentioned 30 (Thirty) days as notice period to the Allottee and the Allottee has agreed to this condition to indicate the Allottee’s commitment to faithfully fulfill all the terms and conditions contained in the Allottee’s application and this Agreement.”

 

No doubt, as per the afore-extracted Clause 2(f) of the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4), in case the allottee failed to perform all obligations set out in this Agreement or fulfill all the terms and conditions of the same, the Opposite Parties were at liberty, to forfeit the Earnest money viz. 30%, out of the amounts paid by the complainants together with any interest paid, due or payable, and any other amount of a non-refundable nature. It was also made clear in the afore-extracted clause that if the complainants chose not to sign the Agreement and further chose to forfeit his allotment, then 20% of the amount paid by them at the time of the Expression of Interest was to be forfeited and the rest of the amount was refundable to them. As stated above, the complainants sought refund of the amount vide letter dated 03.09.2014 (Annexure C-7). This amounted to surrender of the plot, in question, and, as already observed above, the Agreement between the parties, stood rescinded. However, in our considered opinion, fixing 30% of the sale consideration, as earnest money, and forfeiture thereof, can be said to be unreasonable and unconscionable. Since such a condition in the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4) is unilateral, unreasonable and unconscionable, it can be said that by incorporating the same, the Opposite Parties indulged into unfair trade practice. A similar question arose for decision in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.01.2015, by the National Consumer Disputes Redressal Commission, New Delhi, wherein as per the Agreement, 20% of the sale price of the premises was to collectively constitute the earnest money, which was to be forfeited, in case, the allottee made a default in payment of instalments(s) and asked for refund of the amount deposited. Such Clause came up for interpretation, before the National Commission, in the aforesaid case. The National Commission, ultimately, held that an Agreement having forfeiture Clause of more than 10% of the sale consideration, would be invalid, as it would be contrary to the established legal principle, that only a reasonable amount could be forfeited, in the event of default, on the part of the buyer. In the aforesaid case, the National Commission placed reliance on Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704, wherein the Hon’ble Supreme Court of India accepted the contention that, in appropriate case, the Consumer Forum, without trenching upon acute disputed questions of fact, may decide the validity of the terms of the contract, based upon the fact situation and may grant relief, though, each case depends upon its own facts. Ultimately, the National Commission, in the aforesaid case, held that the amount exceeding 10% of the total sale price, could not be forfeited, by the seller. Relying upon, what has been held above, in DLF Ltd.’s case (supra), in our considered opinion, Clause 2(f) contained in Annexure C-2 providing for forfeiture of 30% of the sale consideration, being unreasonable and unconscionable, amounted to unfair trade practice. It is, therefore, held that the Opposite Parties are only entitled to forfeit 10% of the sale consideration of the plot, and not 30% of the same.

25.              The next question, that falls for consideration, is, as to what amount the complainants would be entitled, in such circumstances. Thus, as held above, only 10% of the sale consideration could be forfeited. The total sale consideration as per the Plot Buyer’s Agreement (Annexure C-2) was Rs.39,64,104/- including External Development Charges (EDC) and Preferential Location Charges (PLC). The complainants, in their complaint, have sought refund of the aforesaid amount of Rs.40,39,104/- apart from other reliefs. It is pertinent to mention here that to know the factual position, vide order dated 18.05.2015, the Reader of the Commission was directed to calculate the amount as per the receipts placed by the complainants, on record, as also the statement of account submitted by the Opposite Parties and furnish her report, as to what was the actual amount of these receipts vis-à-vis the statement of account referred to above. As per the report submitted by the Reader on 18.05.2015 itself, according to the said receipts, the total amount of the receipts attached by the complainants came to be Rs.29,20,793/-, apart from which, they (complainants) had paid Rs.10,35,000/- as booking amount, totaling Rs.39,55,793/-. As per the statement of account placed, at page 137 of the file, as on 27.04.2015 (Annexure R-4), the amount received had been shown to be Rs.39,55,793/-. On rechecking the receipts, the amount arrived at by the Reader viz. Rs.39,55,793/-, was found to be correct.  Since the amount paid by the complainants came to be Rs.39,55,793/- as also admitted by the Opposite Parties as per the statement of account, the refund in the sum of Rs.40,39,104/- as sought by the complainants, is an afterthought. Thus, in our considered opinion, the complainants deposited only an amount of Rs.39,55,793/- with the Opposite Parties and not Rs.40,39,104/-. The Opposite Parties could forfeit only 10% of the total sale consideration viz. Rs.39,64,104/-. Therefore, the amount of forfeiture shall come to be Rs.3,96,410/-. The complainants are, thus, entitled to Rs.35,59,383/- i.e. (Rs.39,55,793.00 minus (-) Rs.3,96,410.00). By not refunding this amount, the Opposite Parties were deficient in rendering service.

26.       The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation or not. As per Clause 8 of the Plot Buyer’s Agreement dated 31.08.2007 (Annexure C-4), possession was to be delivered within 3 years i.e. by 30.08.2010, but the same was offered to them vide letter dated 12.02.2015 (Annexure R-1) i.e. after a delay of 4 Years 5 Months 13 Days. The fact of undue delay in offering possession was clearly admitted by the Opposite Parties, in their letter dated 26.09.2014 (Annexure C-9). The complainants had made payments in the sum of Rs.39,55,793/-, which was, undoubtedly, their hard earned money. For rescinding the contract, the complainants stand penalized by forfeiting 10% of the total sale price in the sum of Rs.3,96,410/-. They cannot be penalized twice by disallowing them compensation for mental agony and physical harassment. The complainants have certainly suffered physical harassment and mental agony at the hands of the Opposite Parties, for which, they need to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,50,000/-, would be just and adequate, to meet the ends of justice.     

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

28.        For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally held liable and directed in the following manner:-

(i)   To refund the amount of Rs.35,59,383/-  i.e. [Rs.39,55,793.00 (amount paid) minus (-) Rs.3,96,410.00 being 10% of Rs.39,64,104.00], to the complainants, alongwith interest @9% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.

(ii)  To pay an amount of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), to the complainants, as compensation for mental agony and physical harassment, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii) To pay cost of litigation, to the tune of Rs.15,000/- to the complainants.

 (iv) 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) above, with interest @12% per annum, instead of 9% P.A., from the respective dates of deposits, till realization, and amount mentioned in Clause (ii) above, with interest @12% per annum from the date of default, besides payment of costs, to the tune of Rs.15,000/-.

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

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

Pronounced

May  22, 2015.

 

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

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