Chandigarh

DF-I

CC/675/2015

Harjit Singh Sahdra - Complainant(s)

Versus

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

Vaneesh Khanna

30 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

                

Consumer Complaint No	:	675 of 2015
Date  of  Institution	:	06.10.2015
Date  of  Decision	:	30.09.2016

 

 

Harjit Singh Sahdra s/o Sh. Parkash Singh, resident of House No.2214/1, Sector 45-C, Chandigarh.

 

…..Complainant

                   V E R S U S

 

[1] M/s Emaar MGF Land Limited, through its Managing Director, having its Regd. Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.

 

[2] M/s EMAAR MGF Land Limited, through its Branch Manager, having its Branch Office at SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh.

  …..Opposite Parties

 

CORAM:   DR.MANJIT SINGH           PRESIDENT

                        MRS.SURJEET KAUR          MEMBER

         SH.S.K. SARDANA           MEMBER  

        

 

For complainant      :    Sh. Sanjay Verma, Advocate.

For Opposite Parties :    Sh. Sanjeev Sharma, Advocate

 

 

PER SURJEET KAUR, MEMBER

 

        Briefly stated, the complainant was allotted a resident unit bearing Apartment No.A3-F04-404 by the Opposite Parties in the residential project situated in ‘The Views’ at Mohali Hills in Sector 105, SAS Nagar, Mohali vide allotment letter dated 23.5.2008 (Annexure C-1). The total cost of the said unit was Rs.54,49,105/-, out of which Complainant had paid a sum of Rs.7,00,000/- as part payment and the balance amount was to be paid in installments as per the payment schedule. The Complainant opted for construction linked plan, meaning thereby that the balance amount was to be paid as per the construction raised at the site and the demand raised by the Opposite Parties. Since there was no construction activity going on, at the site in question, therefore, the Complainant vide his e-mail dated 9.6.2015, asked the Opposite Parties either to refund the amount deposited by him, with interest and compensation or to allot a flat in another tower which had already been construction, but to no avail. With the cup of woes brimming, the Complainant has filed the instant consumer complaint, alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

[2]      Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

[3]      The Opposite Parties have filed the reply, inter alia, pleading that the Complainant had not sent the signed copy of provisional allotment letter and nor had made the payment of 20% of basic price i.e. Rs.10,56,321/-. The Complainant had paid a sum of Rs.7,00,000/- only. Without payment of Rs.10,56,321/- the allotment was never confirmed in favour of the Complainant. The Complainant was a defaulter and has neither made the payment and nor accepted the provisional allotment. As the Complainant has not paid the due amounts so the allotment was cancelled and as per terms and conditions of the buyer agreement the amount paid by the Complainant was forfeited. Rest of the allegations have been denied with a prayer to dismiss the complaint.

 

[4]      Parties led evidence.

 

[5]      We have heard the ld. Counsel for the parties and have perused the record.

[6]      Annexure C-1 dated 23.5.2008 is an allotment letter issued by the OPs after receiving an amount of Rs.7 lac as part payment. The allegation of the complainant is that even after taking the consideration from him the OPs till today are not in a position to give him the possession of the aforesaid unit, as there is no construction over the site till date. Annexure C-3 to C-8 are various emails communication between the complainant and the OPs, which further corroborate this factum.   Therefore the complainant has prayed for refund of the amount paid by him alongwith interest and also compensation and litigation charges.

[7]     The stand taken by OPs is that the present complaint is time barred and also it does not have the territorial jurisdiction. It has also been contended that the complainant was defaulter in paying further installments. Hence, as per their terms and conditions the allotment is cancelled and the amount paid by the complainant is forfeited.

[8]      A perusal of allotment letter Annexure C-1 reveals that beneath the allotment letter address of Chandigarh Branch has been mentioned alongwith registered office of New Delhi.  It means the allotment letter was  issued from Chandigarh Branch by the OPs that’s, why they have mentioned the address of Chandigarh beneath the allotment letter, otherwise there was no need to mention the same as the project is located at  Mohali and the registered office is at New Delhi. Hence  as a part of cause of action arose to the complainant at Chandigarh therefore, the complaint is very well within the jurisdiction of this Forum. Hence the objection taken by the OPs with regard to territorial jurisdiction of the present complaint is not sustainable.

[9]      So far as the question of the present complaint being barred by time is concerned, Annexure C-8 dated 27.8.2015 an email from OPs to complainant informing him that the construction at the site in question is yet to be started. Hence, since no possession has been offered to the complainant by the OPs, therefore, there is continuous cause of action in favour of the complainant and as such the complaint is not barred by time. 

[10]     The next objection taken by the OPs is with regard to default of further payment by the complainant. But the OPs have failed to produce on record even a single  documentary evidence vide which it could be seen that the OPs had ever demanded any dues from the complainant as per construction linked plan and the complainant failed to comply with the same. Had there been any construction at the site the OPs would have demanded money from the complainant. But as this has been admitted by the OPs in Annexure C-8 that there is no construction at the site so the question of default of payment by the complainant does not arise. The OPs used the hard earned money of the complainant  approximately for 8 year but they failed start with construction  work at the site even till today.  Even there is no document on record,  vide which the OPs ever intimated the complainant that he is defaulter of payment therefore, his allotment is cancelled and the amount stands forfeited. Mere taking plea in the written statement does not prove their case. They have utterly failed to prove on record that  the complainant was ever asked to pay the due amount as per construction raised at the site. In our view  the OPs used the money of the complainant for more than 8 year and did not start construction at the site till date, what to talk of offering possession.  Hence, their plea of cancellation of allotment and forfeiture of amount paid by the complainant is arbitrary and illegal in the eye of law.  Therefore, we hold that the OPs are liable to refund the amount deposited by the complainant with interest besides compensating him for mental agony and physical harassment.   

 

11]     In view of the above discussion, facts & circumstances of the case, we are of the opinion that the complaint deserves to be allowed. Accordingly, the complaint is allowed.  The OPs are directed as under:-

(i)     To refund the amount of Rs.7.00 lacs to the complainant along with interest @9% p.a. from the date of deposit till realization.

 

(ii)    To pay Rs.50,000/- as compensation for causing mental and physical harassment

(iii)   To pay the complainant litigation expenses of Rs.10,000/-.

 

         This order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to refund the amount of Rs.7.00 lacs to the complainant along with interest @12% p.a. instead of 9% p.a. from the date of deposit till realization and also to pay interest on compensation amount of Rs.50,000/- at the rate of 12% p.a. from the date of filing of this complaint till its actual payment, apart from paying litigation cost.

         Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced

30^th September, 2016                                         

Sd/-

[DR.MANJIT SINGH]

PRESIDENT

                

                      Sd/-    

[SURJEET KAUR]

MEMBER   

 

Sd/-                    

[SURESH KUMAR SARDANA]                                                                                                  

                                                                      MEMBER