Ms. Manjit Kaur, wife of Sh. Shinder Pal Singh, resident of House No.211, Sector 16-A, Chandigarh.

……Complainant

V e r s u s

1.M/s Emaar MGF Land Limited, Registered Office, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001, through its General Manager/Authorized Representative.

2.M/s Emaar MGF Land Limited, Branch Office, SCO 120-122, 1^st

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

BEFORE:  

Argued by:Sh. Sandeep Bhardwaj, Advocate for the complainant.

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

             The facts, in brief, are that the complainant wanted to purchase an apartment, for her residential purpose. She came across a scheme floated by the Opposite Parties, for the allotment of flats/apartments, in their project known as “The Terraces”, at Mohali Hills, Mohali. The apartments were to be built in Sector 108, Mohali, by the Opposite Parties. The Opposite Parties assured the complainant, with regard to the start of construction, and handing over the possession of apartment, on time. The complainant was told that the proposed lay out plan, for Mohali Hills, was available with the Opposite Parties. The total sale price of the flat/apartment was told as Rs.39,89,631/-, which included Rs.38 lacs, as basic sale price, plus (+) Rs.1,69,631/- as External Development Charges plus (+) Rs.20,000/-, towards Interest Free Maintenance Charges. The complainant was asked to make payment, towards the flat/apartment, in advance, in order to avail discount, on the total cost of the same. Accordingly, an amount of Rs.32,12,400/-, was paid by the complainant, through demand draft Nos. 65342, 88403, 88405 drawn on Centurion Bank of Punjab Limited, 

2.             unit/ apartment no.732/FF, in the project aforesaid,   Since the possession of flat/apartment, by the agreed dated i.e. 02.06.2012, had not been handed over to the complainant, she made a request to the Opposite Parties, to relocate her, to some other sector, where the development was at advanced stage, but they did not do so. It was further stated that an email dated 28.10.2013, was also sent to the Opposite Parties, to provide the status of handing over the possession of apartment, in question. In reply to the said email, it was frankly admitted by the Opposite Parties, that the construction of apartments, had not even been started.

3.            

4.             dated 02.06.2009, Annexure C-4, in respect of the immoveable property, as such, the Consumer Complaint was not maintainable. It was further pleaded that time was not the essence of contract. The factum of booking of flat/apartment; allotment of the same, in favour of the complainant; payment of Rs.32,12,400/-, towards the price of flat, by the complainant; and execution of the Independent Floor Buyer`s Agreement, between the parties was admitted. It was also admitted that possession of the flat/apartment, in question, could not be handed over to the complainant, till the date of filing the complaint or even till today, as there was a delay in starting construction. It was stated that the complainant was offered relocation of flat/apartment, in the same sector, where possession was readily available, but she refused to accept the same. It was further stated that, no doubt, as per the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, subject to force majeure conditions and reasons beyond the control of the Company, physical possession of the flat/apartment, was to be handed over to the complainant, within a period of 36 months, from the date of execution thereof (Agreement), yet, at the same time, in Clause 22.1 thereof, it was also mentioned that, in case of delay, the Opposite Parties were liable to pay compensation @Rs.5/- (Rupees Five only) per square feet, per month, for such period of delay. 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.

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10.          With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under ;

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration Clause, in the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, 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 .In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

11.          sought enforcement of the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, in respect of the immoveable property, as such, the Consumer Complaint was not maintainable. The submission of the Counsel for the Opposite Parties, in this regard, also does not appear to be correct. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the residential flat/apartment, in question, and she was allotted the same for consideration. According to Clause 20.1 of the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, subject to force majeure conditions and reasons, beyond the control of the Company, the Opposite Parties were to deliver physical possession of the flat/apartment, within a period of 36 months, from the date of execution of the same (Agreement). It was not that the complainant purchased the flat/apartment, in an open auction, on “as is where is basis”, without any further promise of the Opposite Parties, of providing basic amenities/facilities, and developing the area, where the same (flat/apartment) is situated.   Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential  users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

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13.        , but they failed to abide by their promise and, thus, deprived the innocent consumers, of their hard earned money. By not delivering the physical possession of apartment, in question, to the complainant, by the stipulated date, even after receipt of more than 95% of the price thereof, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

14.        No doubt, the Counsel for the Opposite Parties,Hon’ble Supreme Court The facts of Smt. Chand Rani`s case (supra), are distinguishable, from the facts of the instant case. related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as stated above, as per Clause 20.1 of the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, the Opposite Parties were to hand over physical possession of theflat/apartmentment, within a period of 36 months, from the date of execution of the same (Agreement), i.e. latest by 02.06.2012. Even, it was clearly mentioned in Clause 18 of the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4, that time was the essence of contract, in respect of the unit, in question. Even after the expiry of more than about five years, from the date of allotment offlat/apartment, and more than about two years, from the stipulated date, the physical possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.

15.        

“Counsel for the complainant has submitted that the flat of 3 bed room offered by the Opposite Parties, by way of re-location, instead of 2 bed room earlier allotted to the complainant was not acceptable to her as the price thereof was about Rs.20 lacs more than the price of the earlier flat, and, as such, no amicable 

The Counsel for the Opposite Parties, has submitted that the complainant was offered three bed room flat instead of two bed room flat earlier allotted to her, and, therefore, the price thereof was about Rs.20 lacs more than the originally allotted flat of two bed room. He has further submitted that the Opposite Parties are unable to deliver possession of the flat as the same has not been constructed and they are ready to refund the price thereof”.

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17.         flat/apartment, in question, was deposited by the complainant, which fact is not disputed. The complainant was deprived of her hard earned money, on the basis of misleading information, given by the Opposite Parties, that they would hand over the legal physical possession of theflat/apartment, in question, by 02.06.2012, 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 longer period. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties were charging compound interest (quarterly) @24% P.A., as is evident from Clause 18.1 of the the Independent Floor Buyer`s Agreement dated 02.06.2009, Annexure C-4. The complainant is, thus, entitled to interest. Under these circumstances, in our considered opinion,  if  interest @ 12% P.A., on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.

18.        flat/apartmentor refunding the same (amount). The complainant purchased the apartment, by depositing a huge amount, with the Opposite Parties, in the hope to reside therein alongwith her family. Her hopes were, however, dashed to the ground, when there was no construction of the apartment, nor the question of delivery of possession thereof, arose. The complainant shall also not be able to purchase theflat/apartment, like the one, in question, at the same rate, at which it was allotted to her, due to escalation in prices. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to her, at the hands of the Opposite Parties, as also escalation in prices of the real estate, to the tune of Rs.1.5 lacs, which could be said to be adequate and reasonable.  

19.         flat/apartment