Chandigarh

StateCommission

CC/49/2015

Gurmit Singh Teja - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

08 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	49 of 2015
Date of Institution	:	12.03.2015
Date of Decision	:	08.06.2015

 

Gurmit Singh Teja son of S.Baldev Singh Teja, resident of C-53, Opposite Ranbaxy, Phase-III, Industrial Area, Mohali, Punjab.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, Registered Office, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its General Manager/Authorized Representative.
2. M/s Emaar MGF Land Limited, Branch Office S.C.O. 120-122, 1^st Floor, Sector 17-C, Chandigarh, through its Authorized Representative.

              ....  Opposite Parties

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

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

               

Argued by: Sh.Sandeep Bhardwaj, Advocate for the complainant.

                   Sh.Ashim Aggarwal, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that on the assurance given by the representative of the Opposite Parties, that the development activity, at the site was in full swing, and near completion, and on booking the plot, in the said project, possession thereof, complete in all respects, would be handed over to the purchasers/ investors, within a period of 3 years, from the date of execution of the Plot Buyer's Agreement, the complainant, applied to them, vide application No.2064, for the allotment of a residential plot, measuring 300 square yards, in their proposed township, and paid a sum of Rs.10,35,000/-, as booking amount. It was stated that the proposed lay out plans, including other permissions, in respect of the said project, were not shown to the  complainant, on the pretext that the same would be sent alongwith the allotment letter.

2.       The   complainant was allotted plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, @ Rs.11,500/- per square yard, vide provisional allotment letter dated 10.04.2007, Annexure C-1. The basic sale price of the said plot was Rs.34,50,000/-. Apart from this amount, the   complainant was also required to pay a sum of Rs.2,01,144/- towards External Development Charges. Thus, the total price, in the sum of Rs.36,51,144/-, was required to be paid, by the  complainant, towards the said plot. However, the proposed lay out plans, including other permissions, in respect of the said project, were not sent alongwith the allotment letter, despite assurance given by the Opposite Parties.
3.       It was further stated that the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, in respect of plot No.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, was executed between the parties, at Chandigarh. Thereafter, as per the installment payment plan, the complainant, in all, deposited an amount of Rs.34,80,877/-, as is evident from the statement of account dated 06.02.2015 Annexure C-13 at page 61 of the file, towards part price of the said plot. Since the complainant had made timely payment, he was given rebate of 5% of the basic sale price, vide letter dated 24.12.2009 Annexure C-5.
4.       It was further stated that according to Clause 8 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement). It was further stated that it was also mentioned in Clause 8 of the said Agreement, that, in case, the Opposite Parties, failed to deliver possession of the plot, in question, within the stipulated period, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. Thus, the Opposite Parties were to deliver possession of the residential plot, to the allottees, latest by 17.06.2010. The possession was not offered to the complainant by 17.06.2010.
5.       It was further stated that to the utter surprise of the complainant, the Opposite Parties vide letter dated 24.01.2014 Annexure C-6, made an illegal demand of Rs.10,73,557.14Ps., to which he objected vide letter dated 22.02.2014 Annexure C-7. It was further stated that, thereafter, vide letters dated 28.04.2014,  Annexure C-8 and 30.07.2014 Annexure C-9, the Opposite Parties, made a demand of Rs.9,93,129/-. It was further stated that, as such, the complainant approached the Office of the Opposite Parties and requested them to apprise him, as to how they had demanded the amount aforesaid, when he had already paid the entire sale consideration, to them, towards the said plot, in the manner, referred to above, but to no avail.
6.       It was further stated that not only this, thereafter, the Opposite Parties issued notices vide letters dated 22.08.2014 and 04.02.2015, whereby the complainant was asked to pay a sum of Rs.9,39,129/-, within a period of 30 days, failing which, it was made clear that they would cancel the allotment of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali.
7.       It was further stated that, thereafter, the complainant approached the Office of the Opposite Parties, a number of times, with a request to clarify him, regarding the illegal demands made by them, as also delivery of possession of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, but to no avail.  It was further stated that not only this, the Opposite Parties illegally and arbitrarily deducted the amount of rebate of 5% of the basic sale price, given by them to the complainant, vide letter dated 24.12.2009 Annexure C-5.
8.       It was further stated that, thereafter, the complainant approached the Opposite Parties, a number of times, with a request to deliver possession of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, to him, but they failed to give any positive reply. It was further stated that, not only this, by 2015, even necessary approvals/permissions had not been obtained by the Opposite Parties, from the Competent Authorities, in respect of the project, in question.
9.       It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 18.06.2007, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainant, towards the price of plot, in question, was utilized by the Opposite Parties, as a result whereof, he was caused huge financial loss.
10.       It was further stated that since the Opposite Parties had not offered physical possession of the plot, in question, complete in all respects, in favour of the  complainant, he was not able to construct house thereon, and reside therein. It was further stated that thus, 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, and also suffered further financial loss, on account of non-payment of compensation. It was further stated that neither possession of the plot, in question was offered, nor delivered, nor penalty/ compensation, as stipulated in the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, was paid.
11.       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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to withdraw the illegal demand/charges, if any, in respect of the unit, in question; to handover possession of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, after obtaining all the necessary certificates/permissions and approvals; get registered the sale deed and conveyance deed, in respect of the plot, in question; pay penalty/compensation, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay; compensation to the tune of Rs.5 lacs, on account of financial loss, mental agony and physical harassment; and  cost of litigation, to the tune of Rs.50,000/-.
12.       The Opposite Parties were served, and put in appearance, on 17.04.2015. They filed their written version, on 21.05.2015. In their written version, the Opposite Parties, pleaded that since the wife of the complainant- Ms.Baljeet Kaur Teja, had also purchased one residential plot bearing No.109-AP-281-300, in their project, for which she had filed a separate consumer complaint bearing No.48 of 2015, and he (complainant) too had purchased the plot, in question, as such, he (complainant) did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, meaning thereby that he (complainant) had purchased the same (unit), with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate. It was further pleaded that possession of the plot was offered to the complainant vide letter dated 17.05.2010, but he failed to take the same and, as such, the complaint having been filed by him on 12.03.2015, beyond 2 years, from the date of accrual of cause of action, was barred by time. It was further pleaded that since an arbitration Clause was incorporated, in the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, disputes, if any, between the parties, in respect of the unit, in question, could only be adjudicated upon, by the Arbitrator. It was further pleaded that the complaint was bad for non-joinder of LIC Housing Finance Limited, as necessary party, from which the complainant had obtained loan, in respect of payment of instalments of the plot, in question. The factum, with regard to the allotment of plot No.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, in favour of the complainant, and deposit of the amount, mentioned in the complaint, towards the price thereof, by him was admitted. It was also admitted that, as an exceptional case, the complainant was extended 5% incentive scheme, vide letter dated 24.12.2009. It was also admitted that Plot Buyer's Agreement dated Annexure C-2 was executed between the parties at Chandigarh, on 18.06.2007.  It was also admitted that, as per  Clause 8 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer's Agreement), failing which, they were liable to pay penalty/compensation, to the allottee, @Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay. It was stated that the complainant concealed the material facts that possession of the plot, in question,  was offered to him, vide letter dated 17.05.2010 Annexure OP/2, even prior to the agreed timeline, provided in the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, after providing the amenities, as per Clause 23 of the same (Agreement). It was further stated that the complainant was defaulter in making payments towards the said plot, as a result whereof, the Opposite Parties had to send numerous letters/reminders, for the same. It was denied that any arbitrary demand of amount, was made by the Opposite Parties, from 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 delivery possession of the plot. It was further stated that the Opposite Parties sent the settlement of final dues, vide various letters and requested the complainant to pay the amount of Rs.9,39,129/- on account of holding charges, due w.e.f 17.05.2010, when the offer of possession was sent to him, but he failed to do so. It was further stated that the amount demanded from the complainant, was legally due against him, towards final settlement. 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.       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.
14.       The complainant submitted his affidavit, in support of the averments, contained in the complaint, by way of evidence, alongwith which, a number of documents were attached.
15.       The Opposite Parties, in support of their case, submitted the affidavit of Mr.Sachin Kapoor, their Senior Manager (Legal) and Authorized Representative, by way of evidence, alongwith which, a number of documents were attached. 
16.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.   
17.       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. No doubt, it was submitted by the Counsel for the Opposite Parties that since the wife of the complainant-Ms. Baljeet Kaur Teja, had also purchased one residential plot bearing No.109-AG-281-300, in their project, for which she had filed a separate consumer complaint bearing No.48 of 2015,  before this Commission, and also he (complainant) had purchased the plot, in question, which meant that the husband and wife had purchased two units separately, for commercial purpose, i.e. to resell the same, as and when there was escalation in the prices of real estate. The submission of the Counsel for the Opposite Parties, in this regard, does not appear to be correct.  It may be stated here that, infact, the  complainant booked only one residential plot, in the project of the Opposite Parties. Whereas, on the other hand,   Ms. Baljeet Kaur Teja, wife of the complainant, in her own name, also booked one residential plot, in the project of the Opposite Parties.  It was not the case of the Opposite Parties, that both the residential plots, aforesaid, were booked by the complainant and his wife Ms. Baljeet Kaur Teja, in their joint names. It may be stated here that the husband and wife are separate legal entities. If, the complainant booked one residential plot, in his name, and Ms. Baljeet Kaur Teja, being her (complainant) wife, also booked one plot, separately, that did not mean that he (complainant) did not fall within the definition of a consumer. The parents always make an endeavour to settle their children, in a proper manner, by constructing houses for them. It was not that a number of units, were booked by the complainant, in his individual capacity. As stated above, the complainant only purchased the unit, in question, in his name. There is no reliable evidence, on the record, that the complainant has a number of other residential units and houses or commercial plots. Even no evidence, was produced by the Opposite Parties, that the complainant is the property dealer, and, as such, dealing in the sale and purchase of the property. Under these circumstances, by no stretch of imagination, it could be said that the plot, in question, was purchased by the  complainant, in the manner, referred to above, by way of investment, with a view to earn huge profits. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in its written statement, therefore, being devoid of merit, is rejected.
18.       The  next  question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was  within limitation or not. No doubt, it was submitted by the Counsel for the Opposite Parties, that the cause of action accrued to the complainant, when possession of the plot, in question, was offered to him, vide letter dated 17.05.2010 Annexure OP/2, but he failed to take the same, and, as such, the consumer complaint, having been filed in the year 2015, was clearly barred by time. The submission of the Counsel for the Opposite Parties, in this regard, does not merit acceptance. It may be stated here that there is nothing, on record, as to by which mode, letter dated 17.05.2010 Annexure OP/2, was sent to the complainant. No receipt duly signed by the complainant, in token of having received letter dated 17.05.2010 Annexure OP/2, was produced by the Opposite Parties. Thus, it was not proved that letter dated 17.05.2010 Annexure OP/2 was ever received by the complainant. The receipt of letter dated 17.05.2010 Annexure OP/2 has been specifically denied by the complainant. According to Clause 36 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2,  all notices, referred to therein (Agreement), were required to be, in writing, and deemed to be properly given and served upon the party(s), if sent either by registered A.D. or speed A.D., on his/her respective address.  Letter dated 17.05.2010 Annexure OP/2 was not sent through registered A.D. or speed A.D. Under these circumstances, this letter was allegedly sent in contravention of the provisions of Clause 36 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2. Since letter dated 17.05.2010 Annexure OP/2 was not received by the complainant, the question of accrual of cause of action, in favour of the latter, in 2010, did not at all arise. The Counsel for the Opposite Parties, no doubt, placed reliance on paragraphs 9 and 11 of the complaint, to contend that the complainant was very much in knowledge of the fact that he was offered possession vide letter dated 17.05.2010, Annexure OP/2, and, as such, he could not be heard to say that he never received the said letter. The careful perusal of the contents of paragraphs 9 and 11 of the complaint together, does not, in any way, indicate that the complainant had knowledge with regard to the alleged offer of possession of the plot vide letter dated 17.05.2010, by the Opposite Parties. Thus, the contention of the Counsel for the Opposite Parties, in this regard, is apparently devoid of any merit. Thus, in our considered opinion, neither the possession of plot No.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, was offered, nor delivered to the complainant, by the stipulated date, nor till the date of filing the complaint nor the penalty, as provided in the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, was paid 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.
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 Plot Buyer's Agreement dated 18.06.2007, Annexure C-2.  With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be 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 arbitration Clause, in the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, would not oust the Jurisdiction of this Commission, 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 III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected

20.       The next question, that falls for consideration, is, as to whether, the Opposite Parties were required to obtain the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995. Section 14 of the PAPRA 1995 reads as under:-

“14. Occupation and completion certificate:- (1) It is the responsibility of the promoter:-

(i)         in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii)       in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted, to him under section 5.

(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate”. 

21.      Section 44 of the PAPRA 1995 reads as under:-

“44. Exemption:- (1) Subject to the provisions of section 32, nothing in this Act shall apply if the promoter is:-

(a)      a local authority or statutory body constituted for the development of land or housing: or

(b)     a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government.

(2) If the State Government is of the opinion, that the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it my impose”.

22.       No doubt, in the normal course, the Opposite Parties were required to obtain occupation and completion certificates, under Section 14 of the PAPRA 1995. However, in exercise of the powers vested under Section 44(2) of the PAPRA 1995, and all other powers enabling him, to act in this behalf, the Governor of Punjab, was pleased to exempt the aforesaid Housing Project of M/s Emaar MGF Land Ltd/Opposite Parties, from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, which does not relate to the  subject matter, vide Notification Nos. 18/41/ 2006-5HG-II/7397 dated 11.08.2006, 18/41/2006-5HG-II/12790 dated 22.12.2006 and CTP (Pb) MPR.  2/594 dated 22.01.2008. Once the  exemption was granted, by the  State Government, vide the Notifications  aforesaid, to the project of the Opposite Parties, from the provisions  of the PAPRA 1995, it could not be said that, in the absence of occupation and completion certificates, legal possession of the plot, in question, could not be handed over to the complainant. Had vide these Notifications, the project of the Opposite Parties, been not exempted, from the provisions of the PAPRA 1995, the matter would have been different.  In that event, there would have been some merit, in the submission of the Counsel for the complainant. It is, therefore, held that obtaining of the occupation and completion certificates, as envisaged by Section 14 of the PAPRA 1995, was not necessary, by the Opposite Parties, in respect of its project, in view of the exemption, having been granted to it, vide the Notifications, aforesaid. The submission of the Counsel for the complainant, therefore, being devoid of merit, must fail, and the same stands rejected.
23.           The next question, that falls for consideration, is, as to within which period, delivery of possession of the unit, was to be given to the complainant. As stated above, according to Clause 8 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement), but not later than three years. 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 complainant, within the maximum period of three years, from the date of execution of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, i.e. latest by 17.06.2010. As held above, possession of the unit, in question, was neither offered nor delivered to the complainant, even by the time, the complaint was filed. Had complete development, in respect of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali been carried out and amenities been provided, as per the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that plot no.130 approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali was fully developed, and that possession thereof was offered to the complainant. By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of three years, from the  date of execution of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, 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. The complainant is certainly entitled to physical possession of the unit, in question.
24.           No doubt, the Counsel for the Opposite Parties, placed reliance on Ishwar Rawat Vs. Haryana Urban Development Authority and Ors., III (2008) 351 (NC), to contend that since the basic amenities as per the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, were complete, in the area where the plot, in question, was allotted to the complainant,  and possession thereof was offered to him, vide letter dated 17.05.2010 Annexure OP/2, it was for him (complainant), to prove, through cogent and convincing evidence, that the development  works, at the site, in question, had not taken place. The facts and circumstances of Ishwar Rawat's case (supra) are clearly distinguishable, from the facts of the instant case. In that case, the complainant was allotted booth No.48-P, Sector 17, Faridabad, measuring 27 sq. yards, in open auction, vide allotment letter dated 19.04.1996. After paying the requisite 25% of the bid amount, possession was given to the complainant, on 14.05.1996. Thereafter, the complainant did not pay the 10 equated installments, towards the price of booth and the same was resumed. The auction was made, on as-is-where-is basis. There was no agreement, between the parties, in the aforesaid case, that the provision of amenities shall be a pre-condition. In the instant case, there was an Agreement, executed between the parties, according to which, the amenities were required to be provided to the complainant, before handing over possession of the plot. Not only this, even the External Development Charges, had been deposited, by the complainant, and it was the duty of the Opposite Parties, to ensure that there was external development at the site, before possession of the plot, was handed over to him. Since, the External Development Charges, as stated above, were obtained by the Opposite Parties, it was their duty to get the external development made even before the scheme was actually launched and the plots were carved out. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from  Ishwar Rawat's case (supra), as the facts of the same are quite distinguishable, from the facts of the instant case.
25.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot, in question, by the Opposite Parties, by the promised date. According to Clause 8 of the Agreement, referred to above, the  Opposite Parties were  liable to pay to the complainant, penalty/compensation, in the sum of Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, beyond three years, from the date of execution of  the same. As held above, possession of the plot, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed.  The complainant is, thus,  entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 17.06.2010 (promised date) onwards, on account of delay, in delivery of possession of the fully developed plot, as per Clause 8 of the Agreement, referred to above.
26.           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, and injury caused to him, for a long number of years, by not delivering physical possession of the plot, to him, by the Opposite Parties, by the promised date i.e. 17.06.2010. The complainant purchased the plot, in question, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than about five years, from the promised date,  i.e. 17.06.2010, physical possession of the plot, in question, has not yet been handed over to the complainant, by the Opposite Parties. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation of Rs.1.50 lacs, if granted, on account of deficiency in rendering service and adoption of unfair trade practice by the Opposite Parties, as also mental agony and physical harassment, caused to the complainant, by them shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1.50 lacs.
27.           The next question, that falls for consideration, is, as to what amount is required to be paid by the complainant, at the time of taking over possession of the said plot. It may be stated here, that as per the statement of account dated 06.02.2015 Annexure C-13 at page 62 of the file, the amount of Rs.1,16,502/- i.e. Rs.7100/- towards water connection charges, Rs.30,000/- towards Interest Free Maintenance Security, Rs.40,956/- towards Enhanced EDC, Rs.14,250/- towards electrification charges and Rs.24,196/-, towards electricity connection charges, has been shown due against the complainant, to be paid to the Opposite Parties. It may be stated here, that the demand of Rs.1,16,502/-, made by the Opposite Parties,  vide  statement  dated 06.02.2015 Annexure C-13 at page 62 of file, sent alongwith notice dated 04.02.2015 Annexure C-12, was in accordance with Clauses 25, 26, 27 and 28, of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2. There is nothing on record, that the aforesaid amount was ever paid by the complainant. Payment of these amounts was also not shown, in any document, placed on record by the parties. However, as far as the demand of stamp duty charges and registration charges, to the tune of Rs.4,80,000/-, made by the Opposite Parties, vide statement dated 06.02.2015 Annexure C-13 at page 62 of file, is concerned, in our considered opinion, the same could be charged from the complainant, at the time of execution and registration of sale deed, as per law and the Rules applicable. Even otherwise, the stamp duty and registration charges, applicable at the time of execution and registration of the sale deed, shall have to be paid by the complainant. At this stage, it could not be said that the stamp duty, demanded by the Opposite Parties, to the tune of Rs.4,80,000/-, is in accordance with law and the Rules applicable. It is, therefore, held demand of Rs.1,16,502/- out of the total amount demanded vide statement Annexure C-13, sent alongwith letter dated 04.02.2015 Annexure C-12, is legal and valid. So far as the requisite stamp duty and registration charges are concerned, as stated above, those shall be paid by the complainant, at the time of execution and registration of the sale deed. It is therefore held that the demand raised by the Opposite Parties, is partially legal, as indicated above.
28.           The next question, that arises for consideration, is, as to whether, the Opposite Parties are entitled to the holding charges. In our considered opinion, the Opposite Parties are not entitled to holding charges, as it has been held above that they neither offered possession vide letter dated 17.05.2010 Annexure OP/2, nor by the time the complaint was filed. Had it been proved that the complainant was actually offered possession by the Opposite Parties, at any time, before filing the complaint, and he had failed to take the same, the matter would have been different. In that event, it would have been said that the Opposite Parties were entitled to the holding charges, after the expiry of 60 days, from such date @50/- per square yard P.M., as per Clause 9 of the Agreement. The demand of holding charges, by the Opposite Parties, is, thus, illegal and liable to be set at naught.  
29.           No other point, was urged, by the Counsel for the parties.
30.           For the reasons recorded above, the complaint is partly accepted, with costs and the Opposite Parties are jointly and severally held liable and directed as under:-
    1. To hand over physical possession of plot no.130, approximately measuring 300 square yards, in Central Park, Sector 105, Mohali Hills, Mohali, to the complainant, within 2 months, complete in all respects, as per the terms and conditions of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2, from the date of receipt of a certified copy of this order, on payment of  the amount, of Rs.1,16,502/- as indicated above, by him (complainant).
    2. To execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant, within one month, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities.
    3. To pay penalty/compensation @Rs.50/-, per square yard, per month,  from  17.06.2010 (the promised date of delivery of possession), onwards to the complainant, as per Clause 8 of the Plot Buyer's Agreement dated 18.06.2007, Annexure C-2.
    4. To pay compensation, in the sum of Rs.1.50 lacs, to the complainant on account of deficiency in rendering service, adoption of unfair trade practice, mental agony and physical harassment, caused to him (complainant), at their hands.
    5. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    6. Compensation, granted to the complainant, as mentioned in Clause (iii), which has fallen due upto 31.05.2015, shall be paid by the Opposite Parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 17.06.2010, till realization.
    7.  Compensation accruing due @Rs.50/-per square yard, per month,   w.e.f.  01.06.2015, onwards, shall be paid by the 10^th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.
    8.  Compensation granted, in favour of the complainant, on account of deficiency in service, unfair trade practice, mental agony and physical harassment, to the tune of Rs.1.50 lacs, as mentioned in Clause (iv),  shall be paid by the Opposite Parties, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
31.       Certified Copies of this order be sent to the parties, free of charge.
32.           The file be consigned to Record Room, after completion

Pronounced.

June 8, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

      MEMBER

 

Rg.