Chandigarh
StateCommission
CC/397/2016
Mr. Sumeet Rana - Complainant(s)
Versus
M/s Emaar MGF Land Limited - Opp.Party(s)
Gaurav Mankotia, Adv.
18 Jan 2017
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 397 of 2016 |
Date of Institution | : | 26.07.2016 |
Date of Decision | : | 18.01.2017 |
Sumeet Rana s/o Sh. B.S.Rana, c/o VPO Babehar, Tehsil AMB, Distt. Una, Himachal Pradesh.
……Complainant
V e r s u s
M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director.
.... Opposite Party
Argued by:
Sh. Gaurav Mankotia, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Party.
Complaint case No. | : | 449 of 2016 |
Date of Institution | : | 10.08.2016 |
Date of Decision | : | 18.01.2017 |
Amit Rana s/o Sh. B.S.Rana, c/o VPO Daulat Pur Chowk, Tehsil AMB, Distt. Una, Himachal Pradesh.
……Complainant
V e r s u s
M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director.
.... Opposite Party
Argued by:
Sh. Gaurav Mankotia, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Party.
Complaint case No. | : | 450 of 2016 |
Date of Institution | : | 10.08.2016 |
Date of Decision | : | 18.01.2017 |
Amit Rana s/o Sh. B.S.Rana, c/o VPO Daulat Pur Chowk, Tehsil AMB, Distt. Una, Himachal Pradesh.
……Complainant
V e r s u s
M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director.
.... Opposite Party
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER
Argued by:
Sh. Gaurav Mankotia, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Party.
PER PADMA PANDEY, MEMBER
By this order, we propose to dispose of, following cases:-
| CC/397/2016 | Sumeet Rana | Vs. | M/s Emaar MGF Land Ltd. |
| CC/449/2016 | Amit Rana | Vs. | M/s Emaar MGF Land Ltd. |
| CC/450/2016 | Amit Rana | Vs. | M/s Emaar MGF Land Ltd. |
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 22.12.2016, it was agreed between Counsel for the parties, that facts involved in all the complaints, by and large, are the same, and therefore, these three 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. 397 of 2016, titled as “Sumeet Rana Vs. M/s Emaar MGF Land Limited”
5. The facts, in brief, are that the Opposite Party floated a scheme for allotment of residential plots and apartments under the name and style of “Mohali Hills – inspired living” and it started promoting the scheme much before even the actual drawings were made and even before the actual grant of licence to develop the land was granted. The complainant booked one unit of 1350 sq. ft. in Tower H2 of the project of the Opposite Party and paid the amount of Rs.7 lacs. Thereafter, Buyer’s Agreement was executed between the parties on 16.04.2008 for a sale price of Rs.44,32,619/-, out of which, the complainant paid the total amount of Rs.38,16,989/- in respect of the unit, in question, as is evident from statement of account (Annexure C-2). It was further stated that as per Clause 21 of the Agreement, possession of the unit was to be handed over to the complainant within a period of 36 months i.e. latest by April, 2011 but despite repeated requests through various emails/correspondence (Annexure C-3), the Opposite Party is unable to deliver possession of the unit, even after the period of 8 years and even it offered relocation of the unit, which means that the Opposite Party was unable to deliver possession of the unit. It was further stated that the Opposite Party committed to pay penalty per month for delay in delivering possession but it failed to honour its commitment. It was further stated that the aforesaid acts, on the part of the Opposite Party, 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 (in short the ‘Act’ only), was filed.
6. The Opposite Party, in its written version, has stated that the time is not the essence of the contract because as per Clause 21.1 of the Agreement, the Opposite Party had “proposed” to hand over possession of the unit within 36 months from the date of allotment. Thus, there was no definitive agreement stating that possession would definitely be delivered within a period of 36 months. It was further stated that it is well settled principle of 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. It was further stated that the complaint is time barred, as possession, according to the complainant, was to be handed over in 2011 and the present case was filed in 2016, which is barred by time. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as value of the claim + compensation including interest claimed exceeds Rs.1 crore. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint. It was further stated that this Commission has no jurisdiction to entertain the complaint, as it has been specifically mentioned in Clause 43 of the Agreement that all the disputes shall be referred to an Arbitrator to be appointed, as per Section 8 of the Arbitration and Conciliation Act, 1996. It was admitted regarding booking of the unit ; execution of the agreement and receipt of the amount of Rs.38,16,989/- vide statement of account (Exhibit OP/2). It was further stated that the structure work on Tower H has already been completed and finishing work is going on. It was further stated that offer to relocate was given only to facilitate the complainant in getting a unit where possession would be offered earlier. It was further stated that all the relevant approvals and building plans of Tower H was duly approved by the competent authority. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.
7. The complainant filed rejoinder to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party.
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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, 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. Relevant portion of the said case, reads thus:-
“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.”
In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Party, stands rejected.
11. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here that since it has been frankly admitted by the Opposite Party, in para No.5 of its written statement that structure work of Tower H has been completed and finishing works are going on and even tried to relocate the unit, where the possession could be readily offered. So, it is clear that Opposite Party neither delivered physical possession of the unit, complete in all respects to the complainant, within stipulated time frame nor till the date of filing of the complaint and never refunded the deposited amount to the complainant, despite receipt of the number of emails and, as such, there is a continuing cause of action, in his favour, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
12. 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 complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident from the record, that Apartment Buyer’s Agreement was executed between the allottee and the Opposite Party at Chandigarh. Since, as per the document, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
13. Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of the deposited amount of Rs.38,16,989/- alongwith interest @18% p.a. from the respective dates of deposits, till realization; compensation to the tune of Rs.5 lacs, for physical and mental harassment; Rs.1 lac for deterrent damages ; Rs.1 lac as punitive damages and Rs.55,000/- as legal costs, aggregate value whereof [excluding the interest claimed] fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.
As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment 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.
- 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.”
- 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.”
- 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.”
The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
14. Another objection raised by Counsel for the Opposite Party that since it was mentioned in the Agreement that the Company “proposes” to deliver possession of the unit within a 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 subject to force majeure conditions and reasons beyond the control of the Company, the Company proposes to hand over possession of the unit within a period of 36 month and further, the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex. In the instant case, the Opposite Party did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, the Opposite Party was 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/tentative 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:-
In view of above, the plea of the Opposite Party in this regard also stands rejected.
15. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. In this regard Clause 21.1 of the Agreement reads thus :-
“21.1 Subject to Force Majeure conditions and reasons beyond the control of the Company and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the Apartment within a period of 36 months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.”
In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainant within a period of 36 months from the date of allotment. The grace period of 90 days mentioned in the aforesaid clause is after the expiry of three months for applying and obtaining the occupation certificate. As such, possession was to be delivered within a maximum period of 36 months from the date of allotment. It is pertinent to note that neither the complainant nor the Opposite Parties placed on record allotment letter and even not a single word regarding the date of the allotment letter was mentioned in the complaint as well as in the written statement. In the instant case, as per the statement of account (Annexure C-2), the complainant paid an amount of Rs.7 lacs towards the booking amount vide receipt dated 16.01.2008. Thereafter, Apartment Buyer’s Agreement was executed between the parties on 16.04.2008 (Annexure C-2). So, it is presumed that the allotment was made between the date of booking amount paid by the complainant i.e. on 16.01.2008 and Agreement was executed on 16.04.2008 i.e. in February or March, 2008 and, as such, when 36 months counted from the aforesaid period, possession was to be delivered latest by February or March, 2011 and not more than that. However, the Opposite Party failed to offer/deliver possession of the unit to the complainant within the stipulated time frame, as mentioned in the Agreement or by the time, when the complaint was filed. Moreover, the Opposite Party already received a huge amount of Rs.38,16,989/-, towards the said unit, as is evident from statement of account (Annexure C-2). By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of allotment, the Opposite Party failed to abide by the commitments, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.
16. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.38,16,989/-, as claimed by him. It is an admitted fact that the complainant deposited an amount of Rs.38,16,989/-, as is evident from statement of account (Annexure C-2) and after receipt of the aforesaid huge amount, the Opposite Party failed to deliver possession of the unit, in question, and firm date of delivery of possession of the unit, could not be given to him (complainant). It is well settled law that the purchaser/allottee cannot be forced for relocation to any other unit, unless and until the allottee(s) wishes to do so. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.
17. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.38,16,989/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the Opposite Party was 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 complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.38,16,989/- alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization.
18. As far as the plea taken by the Counsel for the Opposite Party, 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 its (Opposite Party) case, that it was ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Party or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Party, that he was willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is 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 Party, in this regard, has no legs to stand and is accordingly rejected.
19. No other point, was urged, by the Counsel for the parties.
20. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
- To refund the amount of Rs.38,16,989/-, to the complainant, alongwith interest @ 15% p.a. compounded, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
- To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
- To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
- In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @18% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits, till realization, and interest @15% p.a. compounded, on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
Complaint Case No.449 of 2016 titled ‘Amit Rana Vs. M/s Emaar MGF Land Limited’
21. In the present complaint, the complainant booked one unit of 1350 sq. ft. in Tower H of The Views @ Mohali Hills by depositing the booking amount of Rs.7 lacs on 04.01.2008. Thereafter, Buyer Agreement was executed between the parties on 26.02.2008 (Annexure C-1). The complainant deposited the total amount of Rs.38,14,424/-, as is evident from statement of account (Annexure C-2) but the Opposite Party neither delivered possession of the unit nor refund the amount to the complainant, despite repeated requests.
22. The Opposite Party in its written statement took one separate objection that the complainant did not fall within the definition of “Consumer” as prescribed under Section 2(d) of the Consumer Protection Act, as he purchased another unit in Tower H i.e. TVM H3-F04-404, as is evident from another complaint bearing No.450 of 2016, filed in this Commission. It was further stated that the complainant is resident of Himachal Pradesh and has a house there, so the two units purchased by the complainant is only for speculation/commercial purposes.
23. The objection taken by the Opposite Party, to the effect that the complainant purchased two units in the project of the Opposite Party for speculation/commercial purposes and, as such, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, has no force at all. It is pertinent to note that the complainant in his rejoinder has specifically written that he purchased two flats from his hard earned income and had all the intention to live there with his brother and family. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion i.e. simply saying that the complainant purchased two units for speculation/commercial purposes, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.
24. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
- To refund the amount of Rs.38,14,424/-, to the complainant, alongwith interest @ 15% p.a. compounded, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
- To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
- To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
- In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @18% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits, till realization, and interest @15% p.a. compounded, on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
Complaint Case No.450 of 2016 titled ‘Amit Rana Vs. M/s Emaar MGF Land Limited’
25. In the present complaint, the complainant booked one unit of 1550 sq. ft. in Tower H of The Views @ Mohali Hills by depositing the booking amount of Rs.7 lacs. Thereafter, Buyer Agreement was executed between the parties on 17.03.2008 (Annexure C-1). The complainant deposited the total amount of Rs.43,57,299/-, as is evident from statement of account (Annexure C-2) but the Opposite Party neither delivered possession of the unit nor refund the amount to the complainant.
26. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
- To refund the amount of Rs.43,57,299/-, to the complainant, alongwith interest @ 15% p.a. compounded, from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
- To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
- To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
- In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @18% p.a. compounded, instead of @15% p.a. compounded, from the respective dates of deposits, till realization, and interest @15% p.a. compounded, on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
27. The Opposite Party filed application under Section 8 of the Arbitration and Conciliation Act, 1996 in both connected cases i.e. CC/449/2016 & 450/2016 stands dismissed, as per the issue of arbitration already decided in main Consumer Complaint No.397 of 2016.
28. However, it is made clear that, if the complainant(s), in all the aforesaid three 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).
29. Certified copy of this order be placed in Consumer Complaint Nos.449 & 450 of 2016.
30. Certified Copies of this order be sent to the parties, free of charge.
31. The file be consigned to Record Room, after completion.
Pronounced.
January 18, 2017.
[JUSTICE JASBIR SINGH (RETD.)]
[PRESIDENT]
[DEV RAJ]
MEMBER
(PADMA PANDEY)
MEMBER
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