Chandigarh

StateCommission

CC/254/2017

Kamraj Singh Toor - Complainant(s)

Versus

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

Gaurav Chopra, Adv.

18 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	254 of 2017
Date of Institution	:	24.03.2017
Date of Decision	:	18.09.2017

 

1. Kamraj Singh Toor son of Late Surjit Singh resident of 7 The Vale Heston, Hounslow (UK) TW59HT, Middlesex, United Kingdom.
2. Tejpal Toor wife of Late Surjit Singh resident of 7 The Vale Heston, Hounslow (UK) TW59HT, Middlesex, United Kingdom.

……Complainants

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 case No.	:	255 of 2017
Date of Institution	:	24.03.2017
Date of Decision	:	18.09.2017

 

1. Gagandeep Singh Toor son of Late Surjit Singh resident of 7 The Vale Heston, Hounslow (UK) TW59HT, Middlesex, United Kingdom.
2. Tejpal Toor wife of Late Surjit Singh resident of 7 The Vale Heston, Hounslow (UK) TW59HT, Middlesex, United Kingdom.

……Complainants

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

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

Argued by:      

 

Ms. Kashika Kaur, Advocate for the complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

              By this order, we propose to dispose of, following cases:-

1.	CC/254/2017	Kamraj Singh Toor & Anr.	Vs.	M/s Emaar MGF Land Ltd. & Anr.
2.	CC/255/2017	Gagandeep Singh Toor & Anr.	Vs.	M/s Emaar MGF Land Ltd. & Anr.

2.           Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.           At the time of arguments, on 22.08.2017, it was agreed between Counsel for the parties, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 254 of 2017, titled as “Kamraj Singh Toor & Anr.  Vs. M/s Emaar MGF Land Ltd. & Anr.”

5.           The facts, in brief, are that the complainants while acting upon the information given by the Opposite Parties in various advertisements in the newspapers, applied for residential apartment in the project of the Opposite Parties vide application dated 12.03.2012 and deposited an amount of Rs.7 lacs. The Opposite Parties allotted apartment No.TVM H2-F07-701 having an approximate super area of 125.42 sq. mts (1350 sq. feet) in “The Views”, Mohali Hills, Mohali vide provisional allotment letter dated 20.04.2012 (Annexure C-2). The complainants opted Down Payment Plan. Subsequently, Apartment Buyer’s Agreement dated 07.05.2012 (Annexure C-4) was executed between the parties. The total sale consideration was ascertained as Rs.40,88,429.26. As per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment and further grace period of 90 days after the expiry of 36 months for applying and obtaining the occupation certificate in respect of the complex. As such, possession of the unit was to be given on or before 20.07.2015. The complainants visited the site to verify the status of construction but the Opposite Parties were not in a position to deliver possession, complete in all respects, after finishing the development work and providing the basic infrastructure facilities. Thereafter, the complainants wrote emails dated 04.03.2017 & 17.03.2017 (Annexures C-5 & C-6) to the Opposite Parties requesting refund of the amount alongwith interest but they did not pay any heed.  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 (in short the ‘Act’ only), was filed.

6.           The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also, they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that the complainants did not fall within the definition of “Consumer” as envisaged under the Consumer Protection Act, 1986, as they are british citizens and residing in UK, which is clear from the documents submitted with the application form and address provided in the Agreement and, as such, they had no intention to reside in the said unit. Further, complainant No.2 had purchased two units in the project of the Opposite Parties and the second unit TVM H2-F06-601 has been jointly purchased in the name of Tejpal Toor and Gagandeep Toor and the same is subject matter of CC/255/2017. Hence, having purchased two units, the complainants are not consumers and purchased the units for investment/commercial purposes. It was further stated that this Commission has no territorial jurisdiction to entertain and decide the complaint, as the impugned property is located at Mohali and registered office of the Opposite Parties is at New Delhi. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint. It was further stated that the Opposite Parties have all the requisite approvals and license for developing and constructing a Group Housing Complex. The complainants had purchased the unit without any allurement from the Opposite Parties. It was further stated that as per the Agreement, the Opposite Parties “proposed” to handover possession of the unit within 36 months from the allotment alongwith a grace period of 90 days. It is well settled law that in cases of sale of immovable property, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. The term “proposes” duly indicated that there was no definitive commitment to hand over possession within 36 months, as the clause for delayed penalty in handing over of possession is duly stipulated in the Agreement. It was admitted regarding allotment of the unit and execution of the Agreement. It was further stated that the Opposite Parties already offered possession in two of the towers in the project and work is being expedited to hand over balance towers at the earliest. The works upto external plaster on tower H2 have already been completed and flooring work is under progress and possession would be offered shortly. It was denied that the complainants visited the office of the Opposite Parties and assurance was given to hand over possession by 20.07.2015. It was denied regarding receipt of email dated 04.03.2017. It was admitted that email dated 17.03.2017 has been duly received and responded on 19.03.2017 (Exhibit OP/4). It was further stated that the complainants have been given option to relocate the unit, where possession was readily available but they refused to take relocation. 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.

7.           The complainants filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.

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

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

10.          The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled Mrs.Anjani Dass Vs. DLF Universal Limited, Complaint Case No.295 of 2017, decided on 19.07.2017. Para No.12 of the said order, inter-alia, being relevant, is extracted hereunder:-

“12.  At the time of arguments, it was also argued by Counsel for the opposite parties that in view of Section 8 of the Arbitration and Conciliation Act, 1996, this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitrator for adjudication.

                We are not going to agree with the argument raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel.  In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors.  (Supra) still holds good, no fault can be found with the view taken by the State Commission. 

Consequently, the Appeal fails and is dismissed accordingly.”

                Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

                In view of the above, argument raised by Counsel for the opposite parties, in this regard, being devoid of merit is rejected.”

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

11.          The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Unit Buyer’s Agreement was executed between the allottee(s) and the Opposite Parties at Chandigarh on 07.05.2012 (Annexure C-4). Since, as per the document, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial 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. 

12.          Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection.  This issue has already been decided by this Commission in the case of Surjit Singh Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, which reads thus:-

“13.        Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.        In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. 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.”

15.       It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 (2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

              However, in the present case, keeping in mind, the prevalent rate of interest, even if the interest component is added to the amount claimed, the case is well within the pecuniary jurisdiction. In view of above, this objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, fails and the same stands rejected.

13.          The next question, that falls for consideration, is, as to whether, the complainants 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 complainants are resident of UK, as such they purchased the unit for speculation, does not carry any weight and is liable to be rejected. It has been mentioned by the complainants, in para no.3 of their complaint that the deceased husband of complainant No.2 belonged to Village Sherpur Kalan, Tehsil Jagraon, District Ludhiana, who shifted to United Kingdom in the year 1976 after getting marriage to complainant No.2. The complainants often used to accompany husband of complainant No.2 to the aforesaid ancestral home. It is further stated that the complainants have their roots in Punjab and since the entire paternal side of the family lives in District Ludhiana apart from various other family members, relatives and friends, who are also based in various Districts of Punjab, when the complainants, on account of their desire to shift permanently to India to the country of their origin. It was further stated that both sons of complainant No.2 had made her a co-applicant in the residential apartment booked by them for their own use, occupation and accommodation. Not only this, the complainants also mentioned in para No.4 of the complaint that vide application dated 12.3.2012, the complainants sought the allotment of a residential apartment in Mohali Hills for the purpose of their residence and self occupation. With regard to multiple properties in the name of the complainants is concerned, the complainants in their rejoinder have clearly denied owning any other residential unit/flat/plot/house anywhere in India except the allotted unit and another residential unit, which had been booked by complainant No.2 as a joint allottee alongwith her other son in the project being developed by the Opposite Parties at Mohali Hills, SAS Nagar, District Mohali.  Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants, might be on or off while the complainants visits to India (their motherland) or their family. There is nothing, on the record, that the complainants are property dealers. Thus, in the absence of any cogent evidence, in support of the objection raised by the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainants being investors because they are residents of UK, or complainant No.2 had purchased another property in the project of the Opposite Parties, as such, they did not fall within the definition of a consumer, cannot be taken into consideration. At the same time, even no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

       

                Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

14.          Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall “propose” to deliver possession of the unit within maximum period of 36 months from the date of allotment, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that possession of the unit will be delivered by the Opposite Parties, within a maximum period of 36 months from the date of allotment i.e. latest by 19.04.2015, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of allotment, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

15.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.40,51,166/-, as claimed by them. It is not disputed regarding the deposit of an amount of Rs.40,51,166/- in respect of the unit, in question and after receipt of the aforesaid huge amount, the Opposite Parties failed to deliver  actual physical possession of the unit, complete in all respects, to the complainants, within the stipulated period, as mentioned in the Agreement or even by the time when the complaint was filed. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

16.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.40,51,166/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15% p.a.) as per Clause 20.1 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.40,51,166/- alongwith interest @11% p.a., from the respective dates of deposit, till realization. 

17.         As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that it was ready with possession of the unit, complete in all respects, to be delivered to the complainants, by the stipulated date or even by the time when the complaint was filed but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

19.         For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount of Rs.40,51,166/- to  the  complainants, alongwith interest @11% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @13% p.a.,  instead of @11% p.a. from the respective dates of deposits onward, and interest @11% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

Complaint Case No.255 of 2017 titled ‘Gagandeep Singh Toor Vs. M/s Emaar MGF Land Ltd. & Anr.’

20.         The facts, in brief, are that the complainants applied for residential apartment in the project of the Opposite Parties vide application dated 12.03.2012 and deposited an amount of Rs.7 lacs. The Opposite Parties allotted apartment No.TVM H2-F06-601 having an approximate super area of 125.42 sq. mts (1350 sq. feet) in “The Views”, Mohali Hills, Mohali vide provisional allotment letter dated 20.04.2012 (Annexure C-2). The complainants opted Down Payment Plan. Subsequently, Apartment Buyer’s Agreement dated 07.05.2012 (Annexure C-4) was executed between the parties. The total sale consideration was ascertained as Rs.40,88,429.26. As per Clause 21.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment and further grace period of 90 days after the expiry of 36 months for applying and obtaining the occupation certificate in respect of the complex. However, the Opposite Parties despite receipt of the huge amount of Rs.40,51,166/- from the complainants, failed to offer possession of the unit within the stipulated time frame as mentioned in the Agreement or even by the time when the complaint was filed, which amounted to deficiency, in rendering service, and indulgence into unfair trade practice.

21.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount of Rs.40,51,166/- to  the  complainants, alongwith interest @11% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @13% p.a.,  instead of @11% p.a. from the respective dates of deposits onward, and interest @11% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

22.         However, it is made clear that, if the  complainant(s), in both the aforesaid cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant(s).

23.         Certified copy of this order be placed in Consumer Complaint No.255 of 2017.

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

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

Pronounced.

September  18^th, 2017.                     Sd/-             

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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                           STATE COMMISSION

(Complaint Case No.255 of 2017)

[Gagandeep Singh Toor & Anr. Vs.   M/s Emaar MGF Land Ltd. & Anr.]

 

Argued by:      

 

Ms. Kashika Kaur, Advocate for the complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

Dated the 18^th day of September, 2017

 

ORDER

 

            Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs.

 

(DEV RAJ) MEMBER

(JUSTICE  JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

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