Chandigarh

StateCommission

CC/127/2019

Mrs. Chiterlekha - Complainant(s)

Versus

m/s Emaar MGF land Limited - Opp.Party(s)

Ramnik Gupta Adv.

06 Jan 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	127 of 2019
Date of Institution	:	16.05.2019
Date of Decision	:	06.01.2020

 

1. Smt.Chiterlekha Jindal w/o Sh. G.L. Jindal, resident of House No.3141, Sector 20-D, Chandigarh.
2. Mr.Rajiv Jindal son of Sh. G.L. Jindal, resident of House No.3141, Sector 20-D, Chandigarh.             

……Complainants

V e r s u s

1. M/s Emaar MGF Land Pvt. Limited, having its Regd. Office: 306-308, Square One, C-2, District Centre, Saket, New Delhi-110017 through Mr.Sharwan Gupta, its Director.
2. M/s Emm Aar MGF Land Pvt. Ltd., Office no.40, Central Plaza, Sector 105, Mohali-160062, through its Authorized Representative/Authorized Signatory.
3. Mr.Prashant Gupta, Director, M/s Emm Aar MGF Land Pvt. Ltd., New Delhi, r/o G-1, Fine Home Apartments, Mayur Vihar, Phase-1, Delhi 110092.
4. Hadi Mohd. Taher Badri, Director, M/s Emm Aar MGF Land Pvt. Ltd., New Delhi

….Opposite Parties

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

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

PRESENT:    Sh.Ramnik Gupta, Advocate for the complainants.

Sh.Survir Kumar, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.38,21,650/- paid by the complainants towards purchase of plot no.49, measuring 400 square yards, in the project named “Mohali Hills”,  Augusta Park, Sector 109, SAS Nagar, Mohali. Total sale consideration of the plot was fixed at Rs.54,00,472/-. It is the case of the complainants that despite making payment of substantial amount, referred to above, for the period from 23.09.2006 to 28.02.2014, the opposite parties failed to deliver possession of the plot in question, by 18.06.2010 i.e. within a maximum period of three years, as envisaged under Clause 8 of the agreement dated 19.06.2007, for dearth of basic amenities, development and also necessary approvals/sanctions from the competent authorities. During the period intervening, it was in a candid manner, admitted by the opposite parties vide letter dated 22.02.2014 (Annexure C-24) that they cannot provide any definite date of possession of the plot in question. Under those circumstances, the complainants sought refund of the amount paid but the opposite parties failed to do so.

                   By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainants have filed the present case seeking refund of amount paid alongwith interest, compensation etc.

2.           Their claim has been contested by the opposite parties, on numerous grounds, inter alia, that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary jurisdiction; that the complainants were defaulter in making payment, as a result whereof allotment of the plot in question is on the verge of cancellation; that because the project has been got registered under RERA, therefore, jurisdiction of this Commission to entertain and decide this complaint is barred; that only the Civil Court has jurisdiction to entertain this complaint, as the same cannot be adjudicated by this Commission under summary proceedings, rather, the complainants should have filed recovery suit.
3.           On merits, the facts that the complainants agreed to purchase plot in the aforesaid project; execution of agreement; payments made by them; and that possession of the plot in question has not been offered till date, have not been disputed. However, it has been contended that as on date, the complainants are liable to make remaining payment of Rs.19,51,322/-. Final notice dated 11.03.2014 (Annexure OP-1/7) was also sent to the complainants to make payment of the remaining amount but they failed to do so. Prayer was made to dismiss the complaint.
4.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
5.           We have heard the contesting parties and have carefully gone through record of the case, very carefully.
6.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether this Commission has pecuniary jurisdiction to entertain this complaint?
   2. Whether the complainants fall under the definition of consumers?
   3. Whether there is any deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties?
   4. Whether this complaint is maintainable before this Commission?
   5. Whether the complainants are entitled to get refund of the amount deposited and if yes, at what rate of interest?

 

7.           First of all, coming to the objection raised with regard to pecuniary jurisdiction of this Commission, it may be stated here that if the total value of the plot agreed to be purchased by the complainants; plus other reliefs claimed in the complaint are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
8.           Now coming to the objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the plot in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants are consumers as defined under Section 2(1)(d) of the Act. Objection taken in this regard is also rejected.
9.           There is no dispute with regard to the fact that the complainants agreed to purchase the plot in question in the aforesaid project of the opposite parties, for which, agreement was executed between the parties on 19.06.2007.  As per Clause 8 of the said agreement, the opposite parties committed to handover possession of the said plot within a maximum period of 3 years i.e. latest by 18.06.2010. It is also an admitted fact that by February 2014, out of the total sale consideration, the complainants had paid an amount of Rs.38,21,650/- to the opposite parties, yet, they are empty handed till date.

                   Now the moot question which falls for consideration is, as to whether, the opposite parties were in position to deliver possession of the plot in question by the committed date or even thereafter. Our answer is in the negative, for the reasons to be recorded hereinafter.  It may be stated here that the opposite parties, in their letter dated 22.02.2014 (Annexure C-24) have very candidly admitted that the basic amenities at the project site were yet to be made available, as such, they did not have any definite date of possession of the said plot. Relevant part of the said letter reads as under:-

“With regard to possession of your unit, we would like to inform that the basic amenities on the same are yet to be made available. Presently, we do not have a definite date for possession of your unit, however, taking your desire for an early possession into consideration we may offer you with an option to relocate to an alternate unit”

 

10.           The afore extracted contents of letter dated 22.02.2014, leaves no doubt for this Commission to say that deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties was writ large. The complainants had booked the plot in 2006 and started making payments, on the demands having been raised by the opposite parties, from time to time, with a hope to get possession of the plot by the promised date i.e. 18.06.2010. However, their hopes were dashed to ground when possession of the plot was not offered to them by the stipulated date i.e. 18.06.2010 and when persistent requests were made in the matter, salt was added to their miseries, when the opposite parties informed them vide letter dated 22.02.2014 that possession of the plot in question cannot be offered to them for want of basic amenities at the project site. One can really imagine the plight of the persons like the complainants. The opposite parties have adopted unfair trade practice with the opposite parties by usurping their hard earned money to the tune of Rs.38,21,650/- and on the other hand, did not provide them anything.  Not even a single word has been mentioned in the reply filed by the opposite parties, as to why, such an inordinate has taken place for non offering of possession of the plot to the complainants. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove that as to at what stage, the development activities have reached at the project site. In case, all the development/ construction activities are being undertaken and are about to complete then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and are about to complete but they failed to do so.  

                   As stated above, the complainants have booked the plot as far as back in 2006 and now it is January 2020, and still they are empty handed despite the fact that substantial amount of Rs.38,21,650/- stood paid to the opposite parties.  Under these circumstances, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. 

11.           The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a.
12.           Though, in view of principle of law laid down by the Hon`ble Supreme Court of India and also the National Commission, this Commission could have granted interest @12% p.a. to the complainants, yet, we cannot go beyond the interest sought for by them, in their complaint i.e. @10% p.a. As such, it is held that the complainants are entitled to get interest @10% p.a. from the respective dates of deposit on the amount of Rs.38,21,650/-, as prayed for by them in their complaint. At the same time, the opposite parties are also held liable to compensate the complainants for deficiency in providing service, negligence and adoption of unfair trade practice and also causing them mental agony and harassment.
13.           As far as objection taken by the opposite parties to the effect that this Commission has no jurisdiction to entertain this complaint, and the matter needs to be relegated to the civil court, it may be stated here that it is a simple case of non-delivery of actual physical possession of the plot to the complainants by the opposite parties by the promised date, referred to above; and also nonpayment of compensation for the period of delay, thereby causing financial loss, mental agony and harassment to the complainants. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, this complaint involves the consumer dispute and the same is maintainable before this Commission. Objection taken in this regard is rejected.
14.           The above objection taken by the opposite parties is also bereft of merit, in view of the judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016, decided on 3^rd March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

15.           As far as objection taken to the effect that in the face of registration of the project under RERA, jurisdiction of this Commission is barred, it may be stated here that the same does not hold field, in view of findings/observations made by the Hon’ble National Commission in Mohit Sharma & Anr. Vs. M/S. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon’ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016, decided on 30 Jul 2019.  
16.           As far as plea taken to the effect that the complainants were defaulter in making payment towards the plot, it may be stated here that it is settled law that the allottees of flats/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site.  It was so said by the Hon’ble National Commission in Rakesh Anand & Anr. Vs M/S. Royal Empires (Royal Minaar), First Appeal No. 1378 of 2016, decided on 09 Apr 2018. Furthermore, the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view has also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Under these circumstances, in no way, the complainants can be termed as defaulters, especially when it was admitted by the opposite parties in the year 2014 that they are not in a position to offer possession of the plot in question for dearth of basic amenities and development. Objection taken in this regard, therefore, stands rejected.  
17.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-

1. To refund the amount of Rs.38,21,650/- to the complainants, alongwith interest @10% p.a. (as prayed), from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.38,21,650/- shall carry 3% penal interest i.e. 13% p.a. (10% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment to the complainants; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order, till realization.

18.           However, it is made clear that if the complainants have availed loan facility from any Bank/Financial Institution, for making payment towards price of the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.
19.           Certified Copies of this order be sent to the parties, free of charge.
20.           The file be consigned to Record Room, after completion.

Pronounced

06.01.2020

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.