Chandigarh

StateCommission

CC/130/2014

Narinder Mehta - Complainant(s)

Versus

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

In Person

04 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

                       

Consumer Complaint No.	130 of 2014
Date of Institution	15.10.2014
Date of Decision	04/02/2015

 

Narinder Mehta, H.No.203, Sector 15, Panchkula (Haryana).

….…Complainant

 

V E R S U S

 

M/s Emaar MGF Land Limited, SCO No.120-122, 1st Floor, Sector  17-C, Chandigarh.

 

                                                        .….. Opposite Party

 

 

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH.DEV RAJ, MEMBER

                SMT.PADMA PANDEY, MEMBER 

                                                                       

Argued by:   

 

Sh.Narinder Mehta, complainant in person.

Sh.Sanjeev Sharma, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

                In brief, the facts of the case, are that the complainant vide application dated 10.11.2010 (Annexure A) booked the plot bearing No.68 measuring 250 sq. yards in Sector 104 in the upcoming project of the Opposite Party, after making payment of the booking amount of Rs.5 lacs to it. He chose the Installment Payment Plan. It was stated that price of the plot was Rs.55,15,250/- and, as such, the complainant was interested in buying the same only in case the loan was available. Plot No.68, Sector 104, Mohali was allotted to the complainant. It was further stated that Plot Buyer’s Agreement dated 13.12.2011 (Annexure I) was executed between the parties at Chandigarh. According to Clause 8 of the Agreement, the possession was to be delivered within 18 months from the date of execution thereof, failing which, the Opposite Party was to pay compensation @Rs.50/- per sq. yard per month.  The complainant in all deposited a sum of Rs.52,90,250/- towards the price of plot, as per the details of payment made in Annexure N. The possession was not offered to the complainant by 12.06.2013, the stipulated date.

2.             It was further stated that intimation of possession of plot No.104-EP-68-250 in Sector 104, Mohali Hills was given to the complainant by the Opposite Party vide letter dated 15.10.2014 but when he visited the site, he found that the same (possession) being offered was not as per what the representative of the Opposite Party told before selling the plot. There was no 100 ft. wide straight road connecting Chandigarh from Landra-Banur highway, which was to pass behind the plot of the complainant, as promised by the Opposite Party. It was further stated that the Opposite Party did not have any No Objection Certificate from Punjab State Power Corporation Limited for Sector 104 for getting electricity connection and the pillar boxes were not energized at all. It was further stated that the Opposite Party had hoodwinked the complainant and conveyed intimation of possession letter just to avoid penalties for further delayed possession. It was further stated, that it was offered by the Opposite Party that there would be a green park opposite the plot and green belt would be there, but it was found that in front of the plot, nothing green had grown and the condition of the park was pathetic. It was further stated that in the letter, Club Membership charges of Rs.1,12,360/- were demanded but no club was found established and the same was to be developed in Sector 109, far from Sector 104. It was further stated that sewerage treatment plant installed was only enough to cater to the demand of 1 or 2 nearby sectors and that too was not fully operational. It was further stated that an amount of Rs.1,52,638/- was shown as delayed payment surcharge, which was not leviable as the complainant had made timely payments and charges for delayed payment, if any, were because of delayed submission/signing of Buyer’s Agreement by the Opposite Party and the same (charges) were waived off by the Opposite Party.

3.             It was further stated that physical possession was now being offered, after an inordinate delay of approximately 2 ½ years. The complainant underwent a lot of mental agony and physical harassment on account of non-delivery of possession of the fully developed plot.  It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged 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 (hereinafter to be called as the “Act” only), was filed.

4.             The Opposite Party put in appearance on 21.11.2014. In its written statement, the Opposite Party stated in the preliminary objections that the complaint was not maintainable before this Commission as the relief claimed by the complainant for possession of the plot, was not to be added for determining the pecuniary jurisdiction and the interest, as claimed, could not be awarded to him. It was further stated that the only relief claimed by the complainant, to the tune of Rs.10 lacs, as compensation, which is below Rs.20 lacs and, as such, the District Forum had pecuniary jurisdiction to entertain and decide the complaint. It was further stated that the complainant had already offered possession of the plot, in question, and he ought to have taken the same after making payment of the due charges. It was further stated that the complainant never disclosed the fact earlier that he would be availing loan for making payment towards the price of the plot. It was further stated that the complainant himself defaulted in making payment of agreed amount towards the price of the plot, as per the terms and conditions of the Agreement and when he failed to pay the same, he was bound to pay delayed charges, as per the terms and conditions.

5.             It was further stated that the complainant did not fall within the ambit of definition of a “consumer” as defined by Section 2(d) of the Consumer Protection Act, 1986. It was further stated that the complainant himself being a resident of the tricity (Panchkula) had purchased the plot for commercial/speculation purposes. It was further stated that this Commission has no jurisdiction to entertain and decide the present complaint, as it is specifically mentioned in Clause No.42 of the Agreement that all the disputes are to be referred to an Arbitrator to be appointed, as per provisions of Arbitration and Conciliation Act, 1996.        

6.             On merits, it was admitted that the complainant was allotted plot No.104-EP-68-250 vide letter dated 29.11.2010. It was further stated that Buyer Agreement was signed on 13.12.2011 and, accordingly, 18 months period had expired on 13.06.2013. It was further stated that as per the terms and conditions of the Agreement, the complainant was not entitled to any interest whatsoever on the amount paid by him and in case of delay, if any, Clause 8 of the Buyer Agreement duly provided the payment of compensation @Rs.50/- per sq. yard per month. It was further stated that all the basic amenities as enshrined in the Buyer Agreement were made available and, accordingly, intimation of possession was sent to the complainant vide letter dated 15.10.2014. It was further stated that after intimation of possession, the complainant moved an application for placing, on record, Annexures P and Q vide application dated 10.11.2014, perusal of which, clearly revealed that even in the letter dated 07.11.2014 (Annexure Q), the complainant mentioned that he would take possession of the plot subject to outcome of the complaint filed. It was further stated that in Annexure Q, the complainant did not mention anything about permissions/approvals/100 feet wide road/STP not functional. It was further stated that possession was offered on 15.10.2014 and the application was moved by the complainant on 10.11.2014, and the averments of the complainant were clearly an afterthought.

7.             It was further stated that in the complaint, the complainant was crying hoarse of possession being not offered and now when the same (possession) was offered, he was seeking refund. It was denied that the existence of 100 feet wide road was a prerequisite to sale or possession, as projected by the complainant. It was further stated that after the offer of possession, the allegation regarding 100 feet wide road was clearly an afterthought and just to mislead the Commission. It was further stated that the complainant made baseless allegations just to avoid possession and the due charges, outstanding against him. It was further stated that, in fact, in the offer of possession letter dated 15.10.2014, it was clearly mentioned that the temporary electricity and water connections had already been obtained and the complainant could commence construction.  It was further stated that as per the Agreement, the plot, in question, was park facing and it was not the case of the complainant that his plot was not park facing. It was further stated that it was nowhere mentioned that a developed green park would be provided before offering possession and all the submissions were figment of his own imagination so as to make good his feeble plea for refund of amount. It was further stated that the complainant was nowhere promised that Club was to be developed in Sector 104 and the allegations were wrong and baseless. It was further stated that the Opposite Party was well within its right to collect the club charges, which were payable as per Clause 22 of the Buyer Agreement, which was duly signed by both the parties.      It was further stated that the complainant himself admitted that sewerage treatment plant was operational. It was further stated that sewerage treatment plant for Sector 105 was to cater to Sector 104 also.   It was further stated that the Opposite Party had already offered possession of the plot, to the complainant, vide letter dated 15.10.2014, and if he was seeking refund, the forfeiture clause would come into operation, as a result whereof, money would be refunded without interest only after forfeiting the amount as per the terms and conditions of the Buyer Agreement. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

8.             The complainant, filed replication, to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in written version of the Opposite Party. 

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

10.           We have heard the complainant in person the Counsel for the Opposite Party, and have gone through the evidence and record of the case, carefully. 

11.           The Complainant, submitted that he booked the residential plot bearing No.68, measuring 250 sq. yards in Sector 104, Mohali Hills. He further submitted  that the Plot Buyer’s Agreement was executed between the parties on 13.12.2011 and the total consideration of plot No.104-EP-68-250 was Rs.55,15,250/-, out of which, Rs.52,90,250/- were paid by him.  He further submitted that as per Clause 8 of the Agreement, the possession was to be delivered within 18 months from the date of execution thereof, failing which, the Opposite Party was to pay compensation @Rs.50/- per sq. yard per month. He further submitted that intimation of offer of possession was given by the Opposite Party vide letter dated 15.10.2014 (Annexure P), which was received on 27.10.2014 (tentatively) after the filng of complaint. He further submitted that when the complainant visited the site, he was shocked to see that the plot was offered without development. He further submitted that regarding the payment of delayed charges, the same were waived off vide Annexure F. The complainant further submitted that he was seeking interest on his money for the period of delay beyond the scheduled date of possession only because the Opposite Party utilized his hard earned money for more than two and a half years beyond the scheduled date of possession. The complainant further submitted that he is a consumer because he is not the owner of the house where he is residing and he purchased the plot for his residential purpose only. He further submitted that the Opposite Party had not even obtained NOC, which was a prerequisite for release of electricity connection. He further submitted that vide notice dated 15.10.2014, the Opposite Party demanded for Rs1,12,360/- towards club charges, whereas, there was no club in the project. He further submitted that legal possession could only be offered after complete development at the site, as per the terms and conditions of the Agreement. He further submitted that he underwent a lot of mental agony and physical harassment on account of non-delivery of possession of the fully developed plot and, as such, he was entitled to the refund of amount. 

12.           The Counsel for the Opposite Party, submitted that the complainant ought to have taken possession of the plot after payment of the due charges. He further submitted that the Opposite Party was committed to adjust the delayed compensation charges accrued due to the complainant. He further submitted that the complainant himself defaulted in making payment of the agreed amount towards the price of the plot, as per the terms and conditions of the Agreement. He further submitted that when he failed to pay the same, he was bound to pay delayed charges. He further submitted that as per the agreed terms and conditions of the Buyer Agreement, a sum of Rs.1,53,600/- was due against the complainant, as delayed payment charges. He further submitted that when possession of the plot was offered to the complainant on 15.10.2014, he started raising vague averments, which was never his case/pleadings in this case. He further submitted that the complainant did not fall within the ambit of the definition of a “consumer” as defined by Section 2(d) of the Consumer Protection Act, 1986 as he purchased the plot for commercial/speculation purposes. He further submitted that this Commission has no jurisdiction to entertain the present complaint, as according to Clause No.42 of the Agreement all the disputes  were to be referred to the Arbitrator. He further submitted that the complainant made baseless allegations just to avoid possession and the due charges, outstanding against him. He further submitted  that in the offer of possession letter dated 15.10.2014, it was clearly mentioned that the temporary electricity and water connection had already been obtained and the complainant could commence construction.  He further submitted that the Opposite Party was well within its right to collect the club charges, as per Clause 22 of the Buyer Agreement.        

13.           Admittedly, the Opposite Party floated a scheme under the name and style of “Mohali Hills” at S.A.S. Nagar, District Mohali, Punjab and the complainant vide application dated 10.11.2010 (Annexure A) booked the plot bearing No.68, measuring 250 sq. yards in Sector 104 in the upcoming project of the Opposite Party. It is also the admitted fact that the complainant chose the Installment Payment Plan. It is also the admitted fact that vide letter dated 31.01.2012 (Annexure F) the Opposite Party waived off INR.94,639/- towards delayed interest. It is also the admitted fact that the Plot Buyer’s Agreement was executed between the parties on 13.12.2011 and the total consideration of plot No.104-EP-68-250 was Rs.55,15,250/-, out of which, Rs.52,90,250/- was paid by the complainant. It is also the admitted fact that the Opposite Party gave the intimation of offer of possession of plot No.104-EP-68-250 in Block EP situated in Sector 104, Mohali Hills to the complainant vide letter dated 15.10.2014 (Annexure P) i.e. after the delay of 16 months and as per the said letter, a sum of Rs.8,23,729/- was due against the complainant.  

14.           The first question, that falls for consideration is, as to whether the complainant fell within the definition of a consumer or not? The Counsel for the Opposite Party submitted that the complainant being a resident of the tricity (Panchkula) had purchased the plot for commercial / speculation purposes.  On the other hand, the complainant submitted in his replication that the complainant is not the owner of the house where he is residing and will be using the plot for his residence purpose only. The plot which was allotted, in favour of the complainant, is a residential one and the Opposite Party did not allot the booth, where the complainant was to run commercial activity.  No evidence was produced by the Opposite Party, that the complainant is property dealer, who deals in the sale  and purchase of the property, and, as such, he purchased the plot, in question, for the purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. Under these circumstances, it is held that the complainant availed of the services of the Opposite Party, for consideration, for the purpose of allotment of the residential plot, in question, and therefore, he fell within the definition of a consumer. The submission of the Counsel for the Opposite Party, therefore, being without merit must fail and the same stands rejected.

15.           The next question, that falls for consideration, is, as to whether, the consumer complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the existence of an arbitration Clause in the Plot Buyer s Agreement dated 13.12.2011 (Annexure- I).  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 ;

“3.Act not in derogation of any other law.—

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.”

16.           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 Plot Buyer s Agreement dated 13.12.2011, Annexure I, 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  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.

17.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot, in question, by the Opposite Party, by the promised date. According to Clause 8 of the Agreement, referred to above, the Opposite Party was liable to pay to the complainant, penalty/ compensation, in the sum of Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, beyond 18 months, from the date of execution of  the Agreement. Possession of the plot, in question, was not delivered to the allottee, by the stipulated date, or even by the time, the complaint was filed. The complainant is, thus, entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 13.06.2013 (promised date) onwards, on account of delay, in the delivery of possession of the fully developed plot, as per Clause 8 of the Agreement, referred to above.

18.           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, for a long period, by not delivering physical possession of the plot, to him, by the Opposite Party, by the promised date i.e. 13.06.2013. The complainant purchased the plot, with the hope to have a roof over his head alongwith with his family members, by raising construction thereon, but his hopes were dashed to the ground. The complainant booked the plot in the year 2010, Plot Buyer’s Agreement was executed between the parties on 13.12.2011 (Annexure I) and intimation of offer of possession was given to the complainant vide letter dated 15.10.2014 (Annexure P), after the expiry of a maximum period of about 16 months, as per the Agreement and due to this act, the complainant underwent a lot of mental agony and physical harassment. Compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Party, if granted, to the tune of Rs.1 lac, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1 lac.

19.           The next question, that falls for consideration, is, as to whether, the Opposite Party provided all the amenities, as per the Agreement, at the time of offer of possession of the plot, to the complainant. It may be stated here, that the intimation of possession of plot No.104-EP-68-250 at Sector 104, Mohali Hills given by the Opposite Party to the complainant vide letter dated 15.10.2014 (Annexure P) but according to the complainant when he visited the site he found that possession being offered was not as per what the representative of the Opposite Party told before selling the plot. This version of the complainant is from the evidence produced by the Opposite Party. In the offer of possession letter dated 15.10.2014, it was clearly mentioned that the temporary electricity and water connection had already been obtained and the complainant could commence construction.  Admittedly the plot, in question, is park facing.  The Opposite Party filed a Certificate dated 01.03.2014 issued by Eco Paryavaran Engineers & Consultants Pvt. Ltd., which reads as under :-

“This is to certify that we have successfully completed the work of Design, Supply, Installation, Testing of skid mounted Sewage Treatment Plan of capacity 100KLD x 2 Nos. based on Moving Bed Bioreactor (MBBR) at your site Emaar MGF Land Limited, Mohali Hills, Sector – 105 & 108, Mohali (Punjab) vide Work Order dated 20^th February, 2013. The plant is running satisfactory.”

 

From this Certificate dated 01.03.2014 issued by Eco Paryavaran Engineers & Consultants Pvt. Ltd. it is proved that they have successfully completed the work of design, supply, installation, testing of skid mounted sewerage treatment plant at the site of Opposite Party, Sectors 105 & 108, Mohali Hills, vide work order dated 20.02.2013. So, we are of the considered opinion that the work, at the site, has been completed and if the complainant found that something was missing, he could approach the Opposite Party and it was its duty to handover physical possession of the plot to the complainant, complete in all respects, as per the Agreement, executed between the parties.

20.           It may be stated here, that the Opposite Party demanded an amount of Rs.8,23,729/-, as per the letter of intimation of possession dated 15.10.2014 (Annexure P), from the complainant. The Schedule of Payment (Annexure B) and Plot Buyer’s Agreement dated 13.12.2011 (Annexure I) clearly show that the total cost of the plot was Rs.55,15,250/-, out of which, the complainant paid 95% of the amount i.e.  Rs.52,90,250/- to the Opposite Party and Rs.2,25,000/- is due against the complainant, as shown in the chart mentioned in the letter dated 15.10.2014 (Annexure P) against the basic sale price (BSP). However, the delayed payment charges were waived off by the Opposite Party vide letter dated 31.01.2012 (Annexure F) and, as such, the complainant is not liable to pay the said charges of Rs.1,52,638/- to the Opposite Party. With regard to club charges, the Opposite Party has rightly charged an amount of Rs.1,12,360/- from the complainant, as per Clause 22 of the Plot Buyer’s Agreement. So, it is proved that the amount of Rs.6,71,091/- (Rs.8,23,729/-, as demanded by the Opposite Party vide letter dated 15.10.2014 - Rs.1,52,638/-, as delayed payment charges) is still due against the complainant.  

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

22.        For the reasons recorded above, the complaint is partly accepted, with cost, in the following manner:-

               

1.   The complainant shall make the payment of Rs.6,71,091/-, to the Opposite Party, within a period of one month from the date of receipt of a certified copy of the order. No other amount on account of stamp duty and registration charges etc. shall be payable by the complainant.

 

1.   The Opposite Party shall hand over legal physical possession of the plot No.104-EP-68-250 in Sector 104, Mohali Hills, complete in all respects, as per the terms and conditions of the Agreement, within a period of two months, to the complainant, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainant as indicated in Clause (i) above.

 

1.   The Opposite Party shall execute the sale deed/conveyance and get it registered in the name of the complainant after handing over the actual physical possession of the unit, in question, as per direction in Clause (ii), above, within a period of one month thereafter.

 

1.   The Opposite Party, is further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month of the super area, from 13.06.2013 (the promised date of delivery of possession), till delivery of possession, to the complainant, as per Clause 8 of the Plot Buyer’s Agreement (Annexure I).

 

 

1.   The Opposite Party, is further directed to pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac only), on account of mental agony and physical harassment, caused to the complainant, at its hands, within a period of two months from the date of receipt of a certified copy of the order.

 

1.   The Opposite Party, is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

 

1. In case, the physical possession is not handed over within the stipulated period of two months, as indicated in Clause (ii), above, compensation granted to the complainant, as mentioned in Clause (iv) above shall be paid with interest @12% p.a. from the date of filing the complaint till delivery of possession and the compensation mentioned in Clause (v), above, shall be paid by the Opposite Party alongwith interest @12% per annum from the date of filing the complaint, till the date of actual payment, besides payment of costs of litigation.

 

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.                                                                                              

04.02.2015                                                   Sd/-           

[JUSTICE SHAM SUNDER [RETD.]

                                                                                 PRESIDENT

 

                                                                                                            Sd/-                                 [DEV RAJ]

                                                                                                MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER

rb