Chandigarh

DF-I

CC/47/2015

Raman Kochhar - Complainant(s)

Versus

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

Amit Arora

09 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

 

                                     

Consumer Complaint No.	:	CC/47/2015
Date of Institution	:	28/01/2015
Date of Decision	:	09/10/2015

 

 

1.      Raman Kochhar son of Sh. Nand Gopal

2.      Asha Rani w/o Sh. Raman Kochhar

          Both residents of #349, Phase I, Mohali.

…..Complainants

V E R S U S

1.      M/s EMAAR MGF Land Limited having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi through its Director.

2.      M/s EMAAR MGF Land Limited having its branch office at SCO No.120-122, First Floor, Sector 17-C, Chandigarh through its Zonal/Branch Manager.

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                       

                       

For complainants	:	Sh. Amit Arora, Advocate
For OPs	:	Sh. Sanjeev Sharma, Advocate

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Raman Kochhar (husband) and Smt. Asha Rani (wife), complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Emaar MGF Land Limited and another, Opposite Parties (hereinafter called the OPs), alleging that the OPs introduced a housing project “Mohali Hills” situated at Sector 105, 108 and 109, Mohali. The complainants entered into a plot buyer’s agreement (Annexure C-1) with the OPs on 4.7.2007 for allotment of a plot. Earlier plot No.486 measuring 300 sq. yards in Sector 109 was allotted which was subsequently changed to plot No.157 in Sector 108 at a total sale consideration of Rs.34,50,000/-. Complainants were also required to pay External Development Charges (EDC) of Rs.1,47,249/- and thus in all the total amount to be paid by them as per the agreement was Rs.35,97,249/-. In pursuance to the agreement between the parties, the complainants paid the entire installments of Rs.34,24,750/- vide receipts (Annexure C-2) as per schedule Annexure A-I attached with the agreement and they were held entitled for 5% waiver on basic price.

                According to the complainants, as per clause 8 of the agreement, possession of the plot was to be delivered within 2 years, but, not later than 3 years i.e. by 3.7.2010 and penalty of Rs.50/- per sq. yard per month was stipulated for the delayed period.  The complainants have averred that OP-2 offered possession vide letter dated 6.2.2012 (Annexure C-5), but, upon verification they came to know that the basic amenities such as roads, sewerage, water and electricity connections etc. had not been provided at the site.  However, upon assurance of the OPs to provide basic amenities at the site, the complainants accepted the possession and the OPs gave the possession certificate dated 31.7.2012 (Annexure C-7). Subsequently, OP-2 vide letter dated 30.6.2014 (Annexure C-8) illegally, arbitrarily and without any justification demanded Rs.10,82,458/- from the complainants as settlement of final dues. Thereafter, vide letter dated 11.8.2014 (Annexure C-9), the demand was reduced to Rs.8,80,156/- and vide email dated 12.9.2014 (Annexure C-10), final notice was served upon the complainants to remit Rs.8,80,156/-. The complainants have contended that they were rewarded with timely payment reward and the demand raised by the OPs is in utter violation of the terms and conditions of the agreement. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainants have filed the instant complaint. 

2.         In their joint written statement, the OPs have taken a number preliminary objections including that the complaint is time barred; that the complainants are not consumers; that this Forum does not have pecuniary jurisdiction to try and entertain the present complaint; that the disputes raised by the complainants would require detailed evidence to be appreciated which cannot be done in summary proceedings and, therefore, the complainants ought to be relegated to the alternative remedy of Arbitration as provided for in clause 39 of the agreement.   It has been averred that the complainant No.1 alongwith the co-applicant Sh. Kulwant Rai was initially allotted unit No.109-AG-486-300. Subsequently the allottees requested for change to a non PLC unit vide letter dated 7.9.2007 which was accepted by the OPs.  It has been stated that the complainants only paid an amount of Rs.34,24,750/- towards the sale price of the plot excluding Rs.3,969/- towards the delayed payment charges.  The OPs waived off the last installment amount of Rs.1,72,500/- (5% OTPR) as an exception despite the default in timely remittance of the installments by the complainants. It has been pleaded that the complainants cannot seek the waiver given as a matter of right. It has been contended that as per clause 8 of the agreement, the OPs had proposed to hand over the possession of the unit within 3 years from the date of signing  of the agreement and the compensation, if any, payable shall be adjusted/credited in the accounts of the complainants at the time of registration of the unit.  It has been admitted that the possession was offered on 6.2.2012 and the same was accepted by the complainants.  It has been pleaded that the company handed over possession of the unit to the complainants through possession certificate dated 31.7.2012 on satisfaction of the complainants with the completion of amenities works and the same was duly accepted by them after initially protesting vide letter dated 4.4.2012. It has been denied that the demands against the outstanding payments were illegal and arbitrary. It has been pleaded that club membership charges were optional and if the complainants do not wish to avail the same, they have to furnish an indemnity regarding the non-use of club.  It has been contended that the complainants had been duly explained all the charges levied in the final statement of accounts.  Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         In their rejoinder, the complainants have controverted the stand of the OPs and reiterated their own. The complainants have denied that they bought the present plot for any investment/speculative purposes. It has been contended that the OPs issued the letter dated 30.6.2014 illegally, arbitrarily and against the terms and conditions of plot buyer’s agreement executed between the parties. 
4.         The parties led evidence in support of their contentions.
5.         We have appraised the entire evidence and written arguments submitted by both sides.
6.         The first material point for determination in this case is whether the complaint filed by the complainants is within the period of limitation or not?  It has been urged on behalf of the OPs that the complainants had obtained the possession of the plot in dispute on 31.7.2012 and filed the present complaint on 28.1.2015 and they cannot claim that the possession offered to them is not complete.  It has been argued that the cause of action accrued to the complainants in the year 2012, when the possession was offered to them, and the complaint could be filed within two years as per mandate under Section 24A of the Consumer Protection Act, therefore, the present complaint is barred by limitation.
7.         We have carefully considered the above arguments, but, we are not impressed with the same.  It is true that the complainants were offered possession by the OPs on 6.2.2012 and the possession certificate (Annexure
   C-7) shows that the possession of the plot was taken over by the complainants on 31.7.2012. We find that though a few of the reliefs mentioned by the complainants in the relief clause have been claimed after two years of the accrual of the cause of action, yet, it is pertinent that the complainants in this case have also sought withdrawal of the letter dated 30.6.2014, vide which demand of Rs.10,82,458/- was made and which was later on reduced vide letter dated 11.8.2014 to Rs.8,80,156/-. The complainants have also made a prayer for withdrawal of the email dated 12.9.2014 wherein the final notice of cancellation/termination of plot buyers agreement dated 4.7.2007 was served upon the complainants in the event of non-payment of Rs.8,80,156/-.  Since the present complaint filed by the complainants on 28.1.2015 is within two years of 30.6.2014, 11.8.2014 and 12.9.2014, therefore, it is not time barred in respect of reliefs which are within two years of filing of the complaint.  
8.         The next contention of the OPs is that the complainants are not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 because they have another house at Mohali. It has been urged that there is no averment in the complaint that the complainants have no other residence or that they have purchased the plot in dispute with an intent to settle there, therefore, it could be inferred that the present unit was purchased by the complainants for investment/speculative purposes and as such, the complainants are not consumers.
9.         We have given our thoughtful consideration to the above arguments, but, we are not impressed with the same.  If the complainants have alleged in para 1 of the complaint that they are residents of House No.349, Phase I, Mohali, it does not mean that they are owners of the said house and they do not intend to settle in the plot in dispute.  The OPs have not produced any such evidence which could show that the complainants are property dealers and they have been investing amount in the purchase of the property.  The complainants have strongly denied in their rejoinder that they have bought the present plot for any investment/ speculative purposes.  Consequently, we are not impressed with this contention that the complainants, who have purchased one plot No.157, Sector 108 with the OPs, do not fall within the definition of “consumer” under the Consumer Protection Act, 1986.
10.          The OPs have further argued that as per Clause No.39 of the Agreement (Annexure C-1), all the disputes between the parties are to be referred to an Arbitrator, to be appointed as per the provisions of the Arbitration and Conciliation Act, 1996. However, we regret our inability to accept the above arguments. Since the remedy provided to the consumers under the Consumer Protection Act, 1986, is an additional remedy under Section 3 of the Act, therefore, it is immaterial if the complainants instead of getting the dispute referred to the Arbitrator have filed the present Complaint.
11.         The OPs have further argued that this Forum has no pecuniary jurisdiction to try and entertain the present complaint because the value of the plot in question is more than Rs.20.00 lacs. It has been submitted that since the value of the plot alongwith the reliefs claimed in the prayer clause exceeds well beyond Rs.20.00 lacs, this Forum has no pecuniary jurisdiction to try the complaint. 
12.         It is important to note that though initially the complainants in para 28 (e) sought a relief for execution and registration of the conveyance deed in their favour yet, when they were confronted that the sale consideration of the plot was Rs.34,50,000/-, the learned counsel for the complainants withdrew the prayer clause (e).  If the prayer clause (e) claiming the relief of execution and registration of the conveyance deed in respect of the plot of Rs.34,50,000/- is excluded then the remaining reliefs claimed by the complainants are within the amount of Rs.20.00 lacs, therefore, the complaint is very well within the pecuniary jurisdiction of this Forum.
13.         The next point for determination is whether the complainants are entitled to penalty amount of Rs.50/- per sq. yard per month for the period of delayed possession and whether basic amenities as per terms and conditions of the agreement dated 4.7.2007 were not provided?  It has been urged by the complainants that as per clause 8 of the agreement (Annexure C-1), the possession of the plot was to be delivered to them within two years from the date of the agreement i.e. 4.7.2007, but, not later than three years i.e. 3.7.2010.  However, the possession was offered by OP-2 only on 6.2.2012, therefore, as per the terms and conditions, the complainants are entitled to the penalty of Rs.50/- per sq. yard per month for the delayed period in delivering the possession of the plot.  It has also been urged that after the offer of possession, the complainants came to know that no basic amenities such as roads, sewerage, water and electricity connection were provided at the site.  It has been submitted that a case is made out for issuance of a direction to the OPs to provide all these basic necessities as per the terms and conditions of the agreement dated 4.7.2007.
14.         We have given our anxious consideration to the above arguments, but, we find that the above reliefs claimed by the complainants are time barred.  No doubt, as per clause 8 of the agreement (Annexure C-1), the OPs were required to hand over possession at least by 3.7.2010 and OP-2 offered the possession of the said plot vide letter dated 6.2.2012 (Annexure C-5) to the complainants. The possession of the plot was certainly delayed, but, while signing on the possession certificate dated 31.7.2012 (Annexure C-7) the complainants took over the possession of the plot No.157 as per dimensions allotted to them vide agreement dated 30.6.2007 without raising any protest.  It was also not mentioned below the signatures of the complainants that the roads and other amenities were not available at the site and the area was not feasible for construction of house.  Hence, we are of the view that since the complainants obtained the possession of plot No.157 vide possession certificate dated 31.7.2012 without any protest, therefore, the reliefs of payment of penalty amount of Rs.50/- per sq. yard per month for the period of delayed possession and provision of basic amenities as per terms and conditions of the agreement in the consumer complaint filed on 28.1.2015 are patently barred by limitation.
15.         Now the most vital question for determination is whether the amount demanded by the OPs vide letters dated 30.6.2014 (Annexure C-8), 11.8.2014 (Annexure C-9) and email dated 12.9.2014 (Annexure C-10) is recoverable from the complainants or not?  It is important to note that after handing over the possession vide possession certificate dated 31.7.2012, on 30.6.2014 the OPs sent a letter of settlement of final dues (Annexure C-8) wherein an amount of Rs.10,82,458.67 was demanded from the complainants as per details given below :-

 

“Payable Components	Amount Payable (Rs.)
Over dues (if any) including applicable Service Tax as on date	172,500.00
Delayed Payment Charges, as applicable	128,751.03
Interest Free Maintenance Security @ 100 per SYD.	30,000.00
Club Membership Charges Rs.100000/-	112,360.00
Electrification charges @ 47.5 per SYD	14,250.00
Registration charges Rs.54000/-	54,000.00
Electricity Connection Charges Rs.24196/-	24,196.00
Enhanced EDC Rs.94851/-	94,851.00
Stamp Duty charge Rs.432000/-	432,000.00
Monthly Maintenance Charges from 01-Aug-14 to 31-JUL-15 @ 3.25 per SYD + Service Tax @ 12.36%.	13,146
Water charges @ 1500/- Fixed plus 350/- pm/Sq. yds from 01-AUG-14 to 31-JUL-15 including Service Tax @ 12.36%	6,405
Total	1,082,458.67”

 

Later on, vide letter dated 11.8.2014 (Annexure C-9), an amount of Rs.8,80,156/- was demanded stating that that amount was still outstanding and over due and need to be remitted by the complainants immediately.  Vide email dated 12.9.2014 (Annexure C-10), the complainants were called upon to pay a sum of Rs.8,67,796/- within 30 days.

16.         So far as the question of over dues amounting to Rs.1,72,500/- and delayed payment charges amounting to Rs.1,28,751/- are concerned, we feel that the demands in this respect are totally unjustified.  It is the admitted case of the OPs that they had received an amount of Rs.34,24,750/- from the complainants against receipts at annexure C-2 (Colly.). It is pertinent that the OPs vide letter dated 4.2.2009 (Annexure C-3) congratulated complainant No.1 on qualifying for the “Pay on time” reward as a part of the ‘Emaar MGF Cares for You Program’ for their existing plot buyers of the Mohali Hills project wherein they had communicated that if all his instalments were received on or before due date, he would become eligible for last instalment 5% basic price waived off. Thereafter, vide letter dated 6.7.2009 (Annexure C-4), complainant No.1 was confirmed that he had qualified for 5% incentive under the said programme. In this view of the matter, there was no outstanding amount towards the complainants on 6.7.2009. It has been contended by the OPs that the delayed payment charges levied in the account of the complainants were for the prior period.  It is the admitted case of the OPs that the waiver had been granted in respect of the 5% basic price of the plot of the complainants. We fail to understand that when the complainants had already made payment of Rs.34,24,750/- and the last instalment of 5% basic price was waived off as they had qualified for 5% incentive under the scheme of the OPs, how the question of recovery of Rs.1,72,500/- towards over dues and Rs.1,28,751/- towards the delayed payment charges arises.  It has been urged by the OPs that the complainants cannot  seek the wavier as a matter of right and in order to have the waiver of 5% of BSP incorporated in their account, they are required to provide indemnity on the format already shared by the OPs.  However, the above objection of the OPs is also devoid of any merit. When the OPs vide letter dated 6.7.2009 themselves confirmed that the complainants had qualified for the 5% incentive under their scheme, it is beyond comprehension as to why the complainants are required to provide any indemnity on the format given by the OPs. We are of the opinion that the demands of Rs.1,72,500/- and Rs.1,28,751/- are totally unjustified and the complainants are not required to provide any indemnity bond.
17.         In the letter dated 30.6.2014 (Annexure C-8), the OPs have also claimed an amount of Rs.30,000/- towards interest free maintenance security, Rs.1,12,360/- towards club membership charges, Rs.14,250/- towards electrification charges, Rs.54,000/- towards registration charges, Rs.24,196/- towards electricity connection charges, Rs.4,32,000/- towards stamp duty charges apart from monthly maintenance charges and water charges of Rs.13,140/- and Rs.6,405/- respectively. The OPs are admitting that the amount towards club membership is optional, but, subject to the allottees submitting indemnity.  We feel that this demand of indemnity bond is unwarranted. When the club membership charges are optional, there cannot be any question of furnishing of any indemnity bond by the complainants. The OPs are not entitled to the demand Rs.1,12,360/- towards club membership charges.
18.         As far as the demand of Rs.54,000/- towards stamp duty and registration charges is concerned, it is pertinent that the complainants are ready to pay the stamp duty and registration charges to the Govt. Since the complainants are ready to pay the stamp duty charges, registration charges and other incidental charges to the Govt. directly, the demand made in the letter dated 30.6.2014 (Annexure C-8) in respect of the above charges cannot be forced upon the complainants.
19.         So far as the demands in respect of electricity connection charges, electrification charges, monthly maintenance charges and water charges made in letter Annexure C-8 are concerned, it is important to note that the OPs have provided no electricity connection to the complainants. According to the complainants, they would deposit the amount as and when they require the electricity connection. As per the complainants, no electricity connection in the said area has been provided by the PSPCL to any person.  Significantly, the OPs have not produced any such documentary proof that any permanent electricity connection has been provided to any consumer in the said project. The question of payment of monthly maintenance charges, water charges and maintenance security also does not arise at this stage, because the complainants have not raised any construction on the plot. Accordingly, we feel that the demand of electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges is illegal, at this stage, and the complainants cannot be forced to make the payment of the above said charges. In this context, attention can be had to Sh. Vivek Malik Vs. M/s Emaar MGF Land Pvt. Ltd., Consumer Complaint No.69 of 2014 decided on 23.9.2014 by the Hon’ble State Commission, UT, Chandigarh wherein it was held that the above said demands did not arise.
20.         The last point that remains to be considered is whether the OPs are entitled to the enhanced EDC of Rs.94,851/- or not?  The OPs in para 16 of their written statement have pleaded that on account of relocation from earlier plot to plot No.157, EDC was recalculated and accounted @ Rs.490.83 per sq. yard (Rs.490.83 x 300 = Rs.1,47,249/-). Further the State Govt. revised EDC from time to time vide notifications dated 12.7.2006, 17.8.2007, 19.9.2007, 11.1.2008, 22.6.2010 and lastly vide notification dated 6.5.2013.  Since any increase or decrease in the Govt. levy has to be borne by the allottee as per the agreement, EDC was calculated Rs.807/- per sq. yard due to revision in the rates of EDC. Accordingly, vide letter dated 30.6.2014 the balance EDC calculated @Rs.316.17 per sq. yard (807 – 490.83 = 316.17 x 300 = Rs.94,851/-) has been demanded from the complainants as per the terms of the buyer’s agreement. The complainants in their rejoinder have not denied the increase in the EDC as per the notifications mentioned in the para 16 of the written statement of the OPs.  It is true that the EDC already demanded was paid by the complainants.  However, when there was revision in the rate of EDC, we find that the demand of Rs.94,851/- is quite justified and the complainants are liable to make payment of the same.
21.         In view of the above discussion, the demands in respect of the various charges (except EDC) in the letters dated 30.6.2014 and 11.8.2014 and email dated 12.9.2014 are illegal. Accordingly, the complainants have been harassed on account of the demands (except EDC) made in the said letters. The OPs indulged in unfair trade practice and are also deficient in rendering service while demanding the above said amounts.
22.         Resultantly, we find merit in the complaint and the same is partly allowed.  OPs are directed :-

 

(i)     To withdraw the demand of Rs.10,82,452.67 (except the demand of Rs.94,851/- towards enhanced EDC) made vide letter dated 30.6.2014 and reduced demand of Rs.8,80,156/- made vide letter dated 11.8.2014 and Rs.8,67,796/- in email dated 12.9.2014. However, it is made clear that the complainants shall be liable to pay the Stamp Duty, Registration and other incidental charges at the time of registration of the Conveyance Deed and electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges at the time of raising construction on the plot.

(ii)    To make payment of an amount of Rs.50,000/- to the complainants as compensation on account of harassment caused to them due to unfair trade practice and deficiency in service on the part of the OPs.

(iii)   To also pay an amount of Rs.10,000/- to the complainants towards litigation expenses.

23.         This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(i) & (iii) above.
24.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
09/10/2015		[Surjeet Kaur]	[P. L. Ahuja]
hg		Member	President