Chandigarh

StateCommission

CC/156/2015

Mr. Surjit Singh - Complainant(s)

Versus

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

Gaurav Bhardwaj,Adv.

22 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	156 of 2015
Date of Institution	:	28.07.2015
Date of Decision	:	22.09.2015

 

Mr. Surjit Singh S/o Late Sh. Jaswant Singh, Resident of House No.3125, Phase VII, Mohali (Pb.)

……Complainant.

Versus

1. M/s. Emaar MGF Land Limited through its Managing Direct,r having its registered office at ECE-House, 28, Kasturba Gandhi Marg, New Delhi – 110001.
2. M/s. Emaar MGF Land Limited through its Branch Head, Sh. Vikas Gupta, having its place of business at SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh.

              ....Opposite Parties.

 

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

               

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

 

Argued by:

 

Sh.  Gaurav Bhardwaj, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

              The facts, in brief, are that the complainant who was looking for a decent residential accommodation at Mohali, applied for a residential plot in the project “The Views”, Mohali Hills, Sector 99, Mohali with the Opposite Parties by paying the booking amount of Rs.7,00,000/- vide receipt (Annexure C-1). It was stated that the complainant was allotted Apartment No.TVM-H1-GF-GF-03 vide provisional allotment letter dated 29.08.2011 (Annexure C-2), measuring 125.42 Sq. ft. (1350 Sq. ft.), basic price whereof was Rs.41,17,500/- alongwith Rs.1,35,000/- towards preferential location charges. Vide letter dated 01.11.2011 (Annexure C-4), the Opposite Parties agreed to raise demand of payments as per the new payout plan after every 30 days from the date of 3^rd installment till 12^th installment. It was further stated that the complainant paid Rs.1,53,824/- on 12.12.2011 towards the balance booking amount and Rs.4,58,718/- on 9.12.2011 as 2^nd installment as per the demand raised. He further submitted that the complainant also availed housing loan of Rs.30 Lacs from HDFC Bank vide offer letter dated 22.02.2012. It was further stated that the complainant paid a sum of Rs.37,00,294/- against various receipts issued by the Opposite Parties from time to time.      It was further stated that the complainant thereafter paid Rs.2,19,817/- vide receipt dated 4.9.2012, as per the demand raised and, thus, the total amount of Rs.39,20,111/- was paid to the Opposite Parties.

2.         It was further stated that a Unit Buyer’s Agreement was executed between the parties on 05.01.2012, at Chandigarh and as per Clause 8 of the same, the Opposite Parties were duty bound to deliver possession of the allotted unit within a period of 12 months from 5.1.2012. The Opposite Parties have incorporated that Rs.50/- per sq. yard per month would be payable to the complainant for any delay beyond 18 months from the date of execution of the Agreement. It was further stated that the Opposite Parties neither handed over possession of the flat, in question nor paid ay interest or amount as assured by time @Rs.50/- per sq. yard per month till date. It was further stated that even after passage of nearly three years from signing the Agreement, neither possession has been delivered; sale deed executed nor the amount refunded, which was requested by the complainant. It was further stated that the Opposite Parties failed to develop the site, infrastructure, connecting roads from sector 109 to other sectors of Mohali and other amenities. 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.

3.         When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to refund the amount of Rs.39,20,111/- alongwith interest @24% per annum from the respective dates of deposit till realization; pay Rs.10,00,000/- as compensation for deficiency in service, unfair trade practice & mental harassment; penalty @Rs.50/- per sq. yard per month w.e.f 5.1.2013 till realisation and Rs.35,000/- as costs of litigation.

4.         The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that this Commission did not have the pecuniary and territorial jurisdiction to entertain the complaint; that the complainant did not affix the requisite court fee as his claim is beyond Rs.50 Lacs; that in view of existence of Arbitration Clause 43 in the Unit Buyer’s Agreement dated 05.01.2012; and that the complainant was not a consumer as he already has one plot/unit in his name as he has given his address as House No.3125, Phase 7, Mohali and that the time was not the essence of the contract as far as delivery of possession was concerned.

5.         On merits, it was admitted that the flat, in question, was located in Sector 105 and not in Sector 109. It was stated that the complainant paid Rs.39,20,111/- towards the price of the flat till date, as against the demand of Rs.40,24,471/- as per statement attached. It was further stated that there is an overdue amount of Rs.1,76,779/- still payable by the complainant. It was further stated that there was no clause in the Agreement, as per which, possession was to be handed over within 12 months to 18 months. It was further stated that the Buyer Agreement was executed between the parties on 5.1.2012 and as per Clause 21 thereof, possession was proposed to be offered within 36 months from the date of allotment plus a grace period of 90 days. It was further stated that in case of any delay, compensation payable, if any, was to be as per the terms of the Agreement. It was admitted that the complainant took a loan of Rs.30 Lacs from HDFC. It was further stated that Tripartite Agreement and Permission to Mortgage were executed/issued on 24.2.2012. It was further stated that compensation of Rs.5/- per sq. feet per month was to be considered at the time of final handing over of possession. It was further stated that there is no clause in the Agreement for refund of the amount. It was further stated that the work is being expedited on Tower H, wherein the unit of the complainant is located and possession of the same is expected to be offered by fourth quarter of Year 2016. It was further stated that since the complainant himself defaulted in payments, for which reminders/notices (Annexure R-3 colly.) were sent to him, he cannot claim possession in any time bound manner. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.         The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

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

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

9.         On 18.09.2015, the Counsel for the complainant stated at bar that due to some inadvertent mistake in the complaint filed, it was stated that the Opposite Parties were to deliver possession of the unit, in question, within 18 months, whereas in the Agreement, it is stated as 36 months. The Counsel further conceded that the said period for handing over possession of the unit, in question, be read as 36 months.

10.       The first objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.43 in the Unit Buyer’s Agreement dated 05.01.2012. Section 3 of the Act, is worded in widest terms, and leaving no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law. The mere existence of arbitration Clause in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law was laid down in   National Seeds Corporation Limited Vs. M. Madhusudhan  Reddy  and  another, I (2012) CPJ 1 (SC),  C.C.I  Chambers  Co-op. Housing   Society Ltd. Vs   Development   Credit Bank Ltd. III (2003) CPJ 9 (SC), M/s Fair Air Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC), and DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No. 412 of 2011, decided on 13.05.2013 by the National Commission (NC). Recently, the National Commission in Satish Kumar Pandey & Ors. Vs. Unitech Ltd., III (2015) CPJ 440 (NC), referring to National Seeds Corporation’s case (supra) and DLF Ltd.’s case (supra), in Para 18, rejected the contention of the Opposite Parties that since the Agreements between the parties contained arbitration clause, arbitration and not a complaint before this Commission is the appropriate remedy. In view of the above, the plea of the Opposite Parties, in this regard, being devoid of merit, stands rejected.

11.       The Counsel for the Opposite Parties specifically took up a legal objection that the complainant had filed a consumer complaint bearing No.79 of 2014 (R-1) in the District Consumer Disputes Redressal Forum, Mohali (in short Mohali District Forum) and, as such, the present complaint, now having been filed before this Commission, was not maintainable and the same could be filed before the State Consumer Disputes Redressal Commission, Punjab. The Opposite Parties also challenged the territorial jurisdiction He further submitted that the complainant was estopped from seeking refund by filing the complaint before this Commission. From perusal of the order passed by the Mohali District Forum in the aforesaid consumer complaint (Annexure C-10), it transpires from Para 2 thereof that the Opposite Parties in their preliminary objections had pleaded that the Mohali District Forum did not have the territorial jurisdiction to entertain the complaint as the application for allotment was signed by the complainant at Chandigarh and entire payments were also made at Chandigarh. The complaint before the Mohali District Forum was dismissed being premature. When the Opposite Parties had taken specific objection that the complaint can be filed before the State Consumer Disputes Redressal Commission, U.T., Chandigarh, they cannot be heard to say that the complainant is estopped from filing complaint before this Commission. According to Section 17 of the Act, a consumer complaint could 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 them. In the instant case, as already stated above, the Opposite Parties themselves admitted that the application for allotment was signed by the complainant at Chandigarh and entire payments were also made at Chandigarh. Even otherwise also, Unit Buyer’s Agreement dated 05.01.2012 was also executed at Chandigarh. Thus, definitely, cause of action had arisen at Chandigarh and, as such, the complaint, having been filed before this Commission, is maintainable. Therefore, this objection of the Opposite Parties, being unsustainable, is also rejected.

12.       The next objection  of the Opposite Parties is that the complainant is not a consumer within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, as he already owned House No.3125, Phase 7, Mohali and the unit, in question, was purchased by him for resale. It was a residential unit, which was purchased by the complainant. This mere objection of Opposite Parties, does not carry any weight and the same deserves to be rejected. The mere fact that it was a residential plot, which was purchased by the complainant, was sufficient to prove that it was to be used for the purpose of residence, by him. It is not the case of Opposite Parties that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Parties, to prove that House No.3125, Phase 7, Mohali is owned by the complainant or he owned a number of other residential properties and, as such, the residential 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, or to rent out the same. The complainant, thus, availed of the services of Opposite Parties, for consideration, for the purchase of a unit with a view to reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.

13.       Now coming to the objection of the Opposite Parties that this Commission has no pecuniary jurisdiction to entertain and decide the complaint as the complainant has sought refund of the amount of Rs.39,20,111/- paid by him, alongwith interest @24% per annum, from the respective dates of deposits; pay penalty @Rs.5/- per sq. feet per month from 5.1.2013 till payment; compensation to the tune of Rs.10 lacs, for deficiency in service, unfair trade practice, mental agony and cost of litigation, to the tune of Rs.35,000/-, total whereof exceeds the outer pecuniary limit of Rs.1 Crore of the State Commission, it may be stated here that in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors., II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a consumer complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/ appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“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.

 

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

 

14.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @24% P.A., claimed by the complainant, in the manner, referred to above, is not required to be added, for determining the pecuniary Jurisdiction of this Commission. Therefore, the sum total of the reliefs claimed by the complainant, excluding the interest part, does not exceed the maximum pecuniary limit of Rs.1 Crore of this Commission. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

15.       So far as the objection of the Opposite Parties that less court fee has been affixed alongwith the complaint, as the claim of the complainant exceeds Rs.50 lacs, is concerned, the same is too technical at this stage. It is stated that since this Commission has the pecuniary jurisdiction, as discussed above, this objection of the Opposite Parties being unsustainable, stands rejected.

16.       The objection raised by Counsel for the Opposite Parties, that time was not essence of the contract is also devoid of merit, in view of Clause 21.1 of the Unit Buyer’s Agreement dated 05.01.2012 (Annexure C-3), executed between the parties, according to which, possession of the unit was to be delivered in 36 months, from the date of allotment, failing which they were liable to pay compensation/penalty @ Rs.5/- per square feet per month of the super area as stipulated in Clause 23.1 of the Agreement. It, therefore, implies that time was unequivocally made the essence of contract. The plea of Counsel for the Opposite Parties, in this regard also stands rejected.

17.       The next question, that falls for consideration, is, as to whether, there was any deficiency or unfair trade practice on the part of the Opposite Parties, in offering possession of the plot, in question, to the complainant. It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of the Unit Buyer’s Agreement dated 05.01.2012, Annexure C-3, the Opposite Parties were to hand over physical possession of the said unit, in favour of the complainant, within a period of 36 months, from the date of allotment viz. 29.08.2011 (Annexure C-2). It was further mentioned in clause 23.1 that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty, to the complainant, @Rs.5/- (Rupees Five only), per square feet per month of the super area, for such period of delay till the date of notice offering possession. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 28.08.2014. The Opposite Parties in their written statement have admitted that though they have completed the structure works in Tower H wherein the apartment of the complainant is located, yet the final finishing works are going on and were expected to be completed by fourth quarter of 2016. The complainant cannot be made to wait any further for possession as already delay of more than one year has occurred and when possession is expected to be ready by fourth quarter of 2016. By making a misleading statement, that possession of the apartment, in question, would be delivered within three years, from the date of the allotment, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

18.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.39,20,111/-, deposited by him. The Opposite Parties, in Para 8 of their written statement, admitted the receipt of the aforesaid amount of Rs.39,20,111/- from the complainant towards the price of the unit till date. As already discussed above, the Opposite Parties failed to offer possession of the unit, in question, to the complainant, within the stipulated period of 36 months from the date of allotment or till the filing of the complaint, which as per the Opposite Parties, would be ready by fourth quarter of the year 2016. One can imagine the plight of the person, who has invested his hard earned money and despite promise/stipulation in the Unit Buyer’s Agreement (Exhibit C-3) that the possession would be delivered within 36 months from the date of allotment i.e. by 28.08.2014, there is no sign of offering the same, complete in all respects, even after lapse of more than one year of the stipulated period. The complainant was, thus, definitely entitled to the refund of amount, deposited by him, towards the price of the apartment, in question. 

19.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. The amount of Rs.39,20,111/-, towards the price of apartment, in question, was deposited by the complainant. The complainant was deprived of his hard earned money, on the basis of misleading information, given by the Opposite Parties, that they would be handing over the legal physical possession of the residential unit within a period of 36 months from the date of allotment i.e. by 28.08.2014, but they failed to do so. The complainant was, thus, caused financial loss. The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient long period. Had this amount been deposited by the complainant, in some bank, he would have earned handsome returns thereon. In case of delay, in deposit of any charges within the specified time, the Opposite Parties were charging interest @15% per annum, as is evident from Clause 20.1 of the Unit Buyer’s Agreement dated 05.01.2012 (Exhibit C-3). Under these circumstances, in  our  considered  opinion, if   interest @12% per annum, on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.

20.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to him, by not delivering physical legal possession of the unit, to him or by not refunding the amount deposited. The complainant underwent a lot of mental agony  and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, to the tune of Rs.1,50,000/- on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/- as indicated above.

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

 

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

(i)   To refund the amount of Rs.39,20,111/-, to  the complainant,  alongwith interest @12% per annum, from the respective  dates of deposits,  within three months, from  the    date of receipt of a certified copy of  this   order.

(ii)  To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only) for causing mental agony and physical harassment, to the complainant, within three months, from the date of receipt of a certified copy of this order.

(iii) Housing Development Finance Corporation Limited (HDFC) shall have the first charge, on the amount to be refunded, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against the complainant as it (HDFC) advanced loan in his (complainant) favour for part payment of the price of unit, in question.

(iv)  To pay cost of litigation, to the tune of Rs.30,000/- to the complainant.

(v)   In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15% per annum, instead of 12% per annum, from the respective dates of deposits, till realization, and interest @12% per annum, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.30,000/-.

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

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

Pronounced.

September  22, 2015.

 

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

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