Chandigarh

StateCommission

CC/167/2014

Sandeep Kapoor - Complainant(s)

Versus

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

Sandeep Bhardwaj,

03 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	167 of 2014
Date of Institution	:	27.11.2014
Date of Decision	:	03.03.2015

 

Sh. Sandeep Kapoor son of Sh. Vinod Kapoor R/o Flat No.207, New Generations Apartment, Zirakpur, Punjab.

……Complainant.

Versus

1.   M/s Emaar MGF Land Limited, having its Corporate Office at 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 No.120-122, 1^st Floor, Sector 17-C, Chandigarh 160017, through its Authorized Representative.

              ....Opposite Parties.

 

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

                  

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                    SH. DEV RAJ, MEMBER.

                    MRS. PADMA PANDEY, MEMBER.

                  

 

Argued by:

 

Sh.  Sandeep Bhardwaj, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

 

 

2.            It was further stated that the perusal of statement of account (Annexure C-5) showed waiver of the last installment of Rs.1,72,500/-, whereas the principal overdue was Rs.301/- and delayed charges were Rs.20,657/- on 03.03.2011. It was further stated that the complainant paid the amount on 07.03.2011 in excess of the actual payable amount towards the plot. It was further stated that vide letter/email dated 24.06.2014, the Opposite Parties asked the complainant to submit one indemnity-cum-undertaking for incorporation of onetime payment rebate i.e. 5% incentive in the account (Annexure C-6), which was with the sole motive to get the same signed from the complainant to escape their liability to pay future compensation as per Clause 8 of the Agreement. It was further stated that the Opposite Parties issued letter dated 01.07.2014 (Annexure C-7) and demanded Rs.11,36,287/- in order to hand over the possession of the plot, which were totally illegal. It was further stated that the complainant immediately approached the Opposite Parties and requested for a complete account statement. It was further stated that the Opposite Parties again issued letter dated 09.07.2014 (Annexure C-8) to remit the demanded amount to schedule the physical possession of the plot.

 

3.            It was further stated that the complainant sent an email to supply the statement of account, which was replied by the Opposite Parties, and statement of account was provided (Annexure C-9). It was further stated that the account statement was totally in contravention to the earlier statement of account and the charges were added without any justification. It was further stated that the complainant sent an email to the Opposite Parties and requested to pay him the credit of amount in his account and supply the updated statement of account. Copy of letter dated 31.07.2014 was annexed as Annexure C-10 by the complainant. It was further stated that the Opposite Parties rectified the mistake and reduced an amount of Rs.1,72,500/- from the alleged demand vide letter dated 11.08.2014 (Annexure C-11). It was further stated that the Opposite Parties told to recover Rs.1,31,386.97 towards the delayed charges at the later stage. It was further stated that there were no delayed charges in the account of the complainant and the alleged demand was totally illegal.
4.            It was further stated that the complainant wrote detailed letter dated 13.08.2014 (Annexure C-12) to the Opposite Parties, followed by reminders dated 20.08.2014, 26.08.2014 and 28.08.2014 (Annexures C-13 to C-15 respectively) disputing the aforesaid charges and also requested to pay the compensation. It was further stated that the Opposite Parties sent letter dated 12.09.2014 (Annexure C-15A) and told the complainant to pay the amount within 30 days else the Buyers Agreement dated 11.07.2007 was automatically to be terminated/cancelled without any further notice. It was further stated that as per the information obtained by some of the allottees under Right to Information Act (Annexure C-16), the Opposite Parties had neither applied till date, for the commissioning of sewerage treatment plant, water supply electricity supply, electric grid station etc. nor obtained the approvals/sanctions in order to complete the basic infrastructure. It was further stated that, as such, the contention of the Opposite Parties regarding basic infrastructure and offer of possession in 2010 was false.
5.            It was further stated that as per another information obtained under R.T.I (Annexure C-17), the Opposite Parties had not applied for occupation and completion certificate till April 2014 and GMADA specifically informed about all the statutory clearances were required before giving the possession. It was further stated that GMADA also informed that the Opposite Parties had no connectivity to the main city through connecting sector due to the Court case. It was further stated that as per further information obtained under RTI (Annexure C-19), the Opposite Parties had not applied for completion certificate and the same had not been issued to them till 11.04.2014. It was further stated that the Opposite Parties have not applied and obtained the completion certificate till date, which could authorize them to handover possession to the complainant and other allottees. It was further stated that the Opposite Parties applied for approval of revised layout plan a number of times on 21.1.2008, 22.02.2011, 26.11.2011 and 16.04.2012, which was granted to them on 29.02.2008, 21.10.2011, 13.02.2012 and 31.01.2013 (Annexures C-21 to C-24 respectively).
6.            It was further stated that as per Section 14 of Punjab Apartment and Property Regulation Act, 1995, the Opposite Parties were required to obtain the completion certificate from the Competent Authority to the effect that the development works had been completed in all respects as per the terms and conditions of the licence granted to them under Section 5 of PAPRA 1995. It was further stated that non-issuance of completion certificate itself proved that the development had not been completed and the Opposite Parties offered illegal possession without completing the project and without completing the development work in order to escape their liability to pay compensation in accordance with Clause 8 of the Agreement. It was further stated that the Opposite Parties kept the money of the complainant and used the same for their own benefits without informing the complainant about the false status of the plot ignoring the Buyer’s Agreement.

7.            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. 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 handover the legal physical possession of plot no.267, to the complainant, immediately, complete in all respects after obtaining necessary certificates/permission/approvals, like occupation, completion etc. etc. and get the sale deed and conveyance deed executed in respect of the same in his favour; pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard per month from 10.07.2010 till realization; withdraw the illegal demand/charges; pay compensation to the tune of Rs.5 lacs on account of mental agony, financial loss and physical harassment, and cost of litigation to the tune of Rs.50,000/-.

8.           The Opposite Parties, were served and put in appearance on 06.01.2015. They filed their joint written statement on 16.02.2015. In the written statement, the Opposite Parties, pleaded that the complaint was time barred as the same was filed more than two years after accrual of the cause of action. It was stated that possession was offered to the original allottee Ms. Krishna Vir on 30.01.2010 (Exhibit OP/2) upon completion of amenities as mentioned in Clause 23 of the Agreement dated 11.07.2007 and the reminder was sent to the complainant on 16.12.2011 (Exhibit OP/3) to take possession and initiate construction, which he failed to do till date. It was further stated the complaint was not maintainable as there existed an arbitration clause no.39 in the Plot Buyer’s Agreement, as per which, all the disputes were to be referred to an Arbitrator.

9.           It was further stated that endorsement in favour of the complainant was made on 08.06.2011 and he was handed over all other documents endorsed in his favour including the receipts and Agreement. It was further stated that the Company issued the settlement of final dues letter dated 01.07.2014 asking the complainant to remit the payments due and get the plot registered. It was further stated that development of the plot was completed in 2010 and as such, letter dated 01.07.2014, in no manner, extended the period of limitation. It was further stated that on failure of the complainant to remit the amount, the Opposite Parties issued notice dated 12.09.2014, which also did not extend the period of limitation. It was further stated that the plot was in possessionable state, when the same was purchased by the complainant and all amenities in terms of Clause 23 of the Agreement were complete. It was denied that the complainant purchased the plot from the Opposite Parties. It was further stated that the complainant entered into agreement to sell with the original allottee on 31.01.2011, which stated that the plot was sold at a profit of Rs.1,72,500/- (Exhibit OP/5 colly.). It was denied that any assurances were given to the complainant by the Opposite Parties beyond those mentioned in the Agreement. It was further stated that the complainant was fully conversant with the approvals being available with the Opposite Parties and he never objected to anything. It was admitted that the complainant had paid Rs.34.24 Lacs till date. It was further stated that the earlier allottees were given benefit under the Emaar MGF Cares for You Program as an exception even though there were delays in remitting various installments as is evident from Statement of Account (Exhibit OP/6), which was subject to terms and submission of Indemnity.

10.         It was further stated that since there was delay in remitting various installments, the Opposite Parties agreed to consider the case for 5% incentive as an exception and the complainant was asked to submit the Indemnity, as procedural requirement. It was further stated that since the possession had already been offered, the complainant was not entitled to any compensation. It was further stated that there was no correlation between the indemnity and compensation. It was further stated that the amount demanded vide letter dated 1.7.2014 was towards the settlement of final dues and subsequent reminder email dated 9.7.2014, which was not a letter, was sent to the complainant informing that failure to take over possession would entail holding charges. It was further stated that there was no reduction of Rs.1,72,500/- from the payable amount as it would be waived off subject to furnishing of Indemnity by the complainant. It was further stated that since the complainant failed to remit the amount demanded, the Company issued notice dated 12.09.2014. It was denied that no facilities were in existence when possession was offered to the original allottees/complainant in 2010. It was further stated that many other allottees have already taken possession in Sector 108 and some of them have even started construction activity on their plots.

11.         It was further stated that the information provided under RTI was incomplete and sent in ignorance of vital facts and law. It was further stated that the Opposite Parties were exempted from obtaining completion certificate under the PAPRA 1995 and, therefore, no reliance could be placed on the information obtained under RTI. It was further reiterated that  Govt. of Punjab had granted exemption to the Opposite Parties from the provisions of PAPRA 1995 vide Notification 18/41/2006-5HG-II/12790 dated 22.12.2006 (Exhibit OP/4). It was further stated that as per reply on behalf of Chief Administrator, PUDA, bearing No.PUDA-STP/2013/4848 dated 10.06.2013 sent to the Opposite Parties, they (Opposite Parties) had been granted exemption under PAPRA 1995. It was further stated Notification (Annexure C-20) being per se inapplicable to the Opposite Parties as also contrary to the PAPRA 1995, hence as per Section 43 of PAPRA 1995, the provisions of PAPRA 1995 would override such Notifications. It was further stated that layout plans were subject to revision and the same was told to the allottees. It was further stated that till date the complainant did not take possession for the reasons best known to him. 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.

12.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

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

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

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

16.         The Counsel for the complainant submitted that Plot No.267 measuring approximately 300 Sq. Yards in Sector 108, Mohali was allotted to the previous allottee vide allotment letter dated 5.5.2007 and Plot Buyer’s Agreement dated 11.7.2007 was also executed with the previous allottees. He further submitted that total price of the plot, in question, was Rs.35,97,249/- including EDC. He further submitted that as per Clause 6 of the Plot Buyer’s Agreement, sale deed was to be executed and got registered in favour of the allottee within six months from the date of intimation after the plot was finally demarcated at the site and after receipt of full sale consideration, EDC, late payment charges, interest and other charges and compliance of all other terms and conditions. He further submitted that as per Clause 8 of the Plot Buyer’s Agreement, possession was to be handed over within a period of two years but not later than three years from the date of execution of the aforesaid Agreement but the possession was not offered within the stipulated period. He further submitted that as per Clause 9, offer was to be given in writing to the allottee to take over possession of the plot within 60 days from the date of such offer and Company was to handover the possession of the plot to the allottee and in the event of failure to take possession of the plot within the aforesaid period of 60 days, the allottee was deemed to have taken the possession of the plot on expiry of 60 days of offer of possession. He further submitted that vide letter dated 8.6.2011 (Annexure C-4), the nomination/confirmation in favour of the complainant was issued by the Opposite Parties confirming therein that they had received a total sum of Rs.34,24,750/- and mentioning therein endorsement on copy of the Plot Buyer’s Agreement and original receipts. He further submitted that except the documents mentioned in the aforesaid nomination letter, no other documents were provided to the complainant. He further submitted that as per statement of account (Annexure C-5) as on 3.3.2011, against the due amount of Rs.34,24,449/-, the amount received was Rs.35,97,249/-. He further submitted that as per this statement of account, the complainant had qualified for 5% waiver amount of Rs.1,72,500/-. He further submitted that a sum of Rs.75,000/- and Rs.301/- were also paid vide cheques dated 7.3.2001. He further submitted that vide letter dated 1.7.2014, the Opposite Parties while informing regarding commencement of process of execution and registration of conveyance deed, sought total payment of Rs.11,36,287.61, which surprisingly included a sum of Rs.1,72,500/-, which was on account of 5% rebate allowed by the Opposite Parties. He further submitted that delayed payment charges in the sum of Rs.1,28,579/- were also unnecessarily raised when contents of statement of accounts (Annexure C-5) are looked into. He further submitted that club membership charges in the sum of Rs.1,12,360/- were also not payable as the complainant did not opt for the same. He further submitted that vide email dated 9.7.2014 (Annexure C-8), the Opposite Parties demanded the amount by the due date mentioned in letter dated 1.7.2014 (Annexure C-7) to schedule the physical possession. He further submitted that the complainant sent email dated 18.7.2014 (Annexure C-9) seeking updated statement of account and as per updated statement of account  as on 18.7.2014, the total outstanding was Rs.3,02,285/- and the amount payable as per current payment schedule was in the sum of Rs.7,55,657/-, which included club membership charges. He further submitted that the complainant took up with the Opposite Parties vide emails/letters dated 31.7.2014, 11.8.2014 and 13.8.2014 seeking justification of the amount. He further submitted that vide letters (Annexures C-13 to C-14), the Opposite Parties were again asked to reply to the letters dated 31.7.2014 and 13.8.2014 but the Opposite Parties vide email dated 28.8.2014, again asked the complainant to pay the amount of Rs.9,28,156/-. He further submitted that the Opposite Parties vide letter dated 12.09.2014 (Annexure C-15A) gave notice to the complainant to remit the amount of Rs.9,15,796/- within a period of 30 days, failing which the Buyer’s Agreement was to get terminated/cancelled without any further notice. He further submitted that as per Clause 36 of the Plot Buyer’s Agreement, the Opposite Parties, did not adduce any evidence about alleged sending of offer of possession. He further submitted that there was continuing cause of action till the execution of sale deed. He further submitted that Sr. No.26 of Exhibit OP/6, which is account statement, clearly indicated that intimation of possession was given on 7.8.2014. He further submitted that the Opposite Parties did not produce any document regarding exemption granted to them under PAPRA 1995.

17.         On the other hand, the Counsel for the Opposite Parties, submitted that offer of possession of Plot No.267 to the previous allottee Ms. Krishna Vir was given vide letter dated 30.1.2010 (Annexure OP/2) and the same was duly endorsed in favour of the complainant Sh. Sandeep Kapoor vide endorsement dated 8.6.2011. He further submitted that the aforesaid document was handed over to the complainant by hand alongwith Annexure C-1. He further submitted that since possession was offered on 30.1.2010, the cause of action accrued to the complainant for filing the present complaint on 30.1.2010 and the complaint, having been filed on 27.11.2014 was time barred. He further submitted that even reminder letter dated 16.12.2011 (Exhibit OP/3) was sent to the complainant. He further submitted that the Opposite Parties were exempted from the provisions of Section 44(2) and Section 14 of PAPRA 1995 vide Notification dated 22.12.2006 (Exhibit OP/4) read with letter No.PUDA-STP/2013/4848 dated 10.6.2013 (Exhibit OP/8). He further submitted that information obtained under RTI and relied upon was incomplete and in ignorance of vital facts. He further submitted that there was no deficiency on the part of the Opposite Parties.

18.         It is evident that Plot No.267, measuring 300 square yards in Pinewood Park, Sector 108, Mohali Hills, SAS Nagar, was originally allotted to  Ms.Krishna Vir and Ms. Renu Bhatia vide allotment letter dated 05.05.2007(Annexure C-1).  Vide letter dated 8.6.2011 (Annexure C-4), the Opposite Parties in pursuance of the documents submitted by the previous owners Ms. Krishna Vir & Ms. Renu Bhatia, confirmed receipt of a total sum of Rs.34,24,750/- towards the plot, in question, and property stood transferred in the name of the complainant. Vide Annexure C-4, endorsed set of original documents i.e. copy of the Buyers Agreement and receipts were also enclosed. Plot Buyer’s Agreement dated 11.07.2007 (Annexure C-2) was endorsed in favour of the complainant. As per Clause 8 of Plot Buyer’s Agreement, possession was to be handed over within two years but not later than three years. Since the agreement was executed on 11.7.2007, the possession was to be offered latest by 10.07.2010. 

19.         Against the total sale consideration of Rs.35,97,249/-, payment made to Opposite Parties was Rs.34,24,449/- (Annexure C-5). The complainant qualified for 5% waiver in the sum of Rs.1,72,500/-.

20.         An objection was raised by the Opposite Parties as regards the existence of arbitration clause in the Buyer’s Agreement. With a view to appreciate the controversy, in   its proper perspective, reference to Section 3 of the Act is 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.”

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 document, aforesaid, would not oust the jurisdiction of the Consumer Fora, 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 (1996)6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

21.         The question, that falls for consideration, is, as to whether the complaint filed by the complainant, was barred by limitation or not.  While the Opposite Parties have averred that possession was offered to Ms. Krishna Vir, previous allottee, vide letter dated 30.01.2010 (Annexure OP/2), the complainant has stated that the same was not received by him. The Counsel for the complainant has specifically submitted that while confirming transfer of property in favour of complainant vide Annexure C-4, only receipts and Buyer’s Agreement duly endorsed in favour of the complainant were given. He further submitted that had the intimation of possession been sent, the Opposite Parties could bring in evidence proof of mode of communication viz. speed or registered A.D. post in terms of Clause 36 of Plot Buyer’s Agreement. In the absence of production of any cogent evidence of the nature aforesaid, it cannot be accepted that possession was offered to the complainant on 30.01.2010. Consequently the contention of the Opposite Parties that possession having been offered on 30.01.2010, the complainant was barred by limitation, is not sustainable, being devoid of merit, and the same stands rejected.

22.         The next question that falls for consideration, is, as to whether the Opposite Parties, were deficient, in rendering service, in delivering possession, as per the terms and conditions of the Plot Buyer’s Agreement.  Clause 8 of the Plot Buyer’s Agreement dated 11.7.2007, endorsed in favour of complainant vide endorsement on 08.06.2011, is extracted below:-      

“8. Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver the  possession of the  Plot to the Allottee within a period of 2 (Two) years from the date of execution of this Agreement, but not later than 3 (Three) years.  In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company exists.  In the event that the Company fails to deliver possession of the plot without existence of any force majeure event or reason beyond the control of the Company within a maximum  period of 3(Three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of the sum of Rs.50/- (Rupees Fifty only) per sq. yds per month for such period of delay beyond 3(Three) years from the date of execution of this Agreement.” 

23.         Though the Opposite Parties claim that possession was offered vide letter dated 30.01.2010, yet the complainant has asserted that the same was never received by him.  The Opposite Parties have also not adduced any evidence in terms of Clause 36 of Plot Buyer’s Agreement, if the letter dated 30.01.2010 was sent to the previous allottees. The complainant has also stated that Opposite Parties could not offer possession on 30.01.2010 as  approval of revised lay out plan of Sectors 98, 99, 104, 105, 106, 108 and 109 sought vide applications dated 21.01.2008, 22.02.2011, 26.11.2011, and 16.04.2012 was granted on 29.2.2008, 21.10.2011, 13.02.2012 and 31.01.2013 (Annexure C-21 to C-24) respectively.

24.         The Plot Buyer’s Agreement was executed on 11.7.2007 and computing maximum period of three years therefrom, the Opposite Parties were required to deliver possession by 10.07.2010 but the same was offered to the complainant on 01.07.2014, after the delay of more than 47 months. No doubt on receipt of letter dated 01.07.2014, the complainant disputed the demand of the Opposite parties on account of 5% waiver, delayed payment and club membership charges but he failed to remit the payment in respect of the remaining charges demanded vide letter dated 1.7.2014. Effectively, the complainant did not point out any deficiency in the possession so offered. Therefore, the possession offered was legal and proper and after expiry of 30 days therefrom, no liability for payment of penalty in the sum of Rs.50/- per sq. yard per month could be fastened upon the Opposite Parties. The complainant is, therefore, entitled to penalty in the sum of Rs.50/- (Rupees Fifty only) per sq. yard per month for such period of delay beyond 3(Three) years i.e. beyond 10.07.2010 till 31.7.2014 as the possession offered on 1.7.2014, which offer was to be complied within 30 days, was legal and proper.

25.          As regards non-obtaining of completion certificate by the Opposite Parties and exemption from PAPRA 1995, the Opposite Parties have placed, on record, copy of letter bearing No.PUDA-STP/2013/4848 dated 10.06.2013 which states that EMAAR MGF had been granted exemption under the PAPRA including exemption under Section 14 of the PAPRA,1995.  It is clearly evident from the Notification bearing endorsement No.18/41/2006-5HG-II/122790 dated 22.12.2006, that the Opposite Parties (M/s EMAAR MGF Land Private Limited) have been exempted from all the provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995) for its Housing Project in an area of 390.71 acres in Sectors 108 and 109, SAS Nagar, except Section 32, subject to the terms and conditions specified in the said Notification. Section 14 of the Act is reproduced hereunder:-

 

14.(1) It is the responsibility of the promoter:-

 

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority, and

 

(ii)   in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under Section 5.

 

(2)   The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.

In view of the exemption aforesaid, the Opposite Parties were not required to obtain completion certificate. The documents placed by the complainant, on record,  by way of Exhibits C-16 to C-19 and C-21 to C-26, pertained to the period much earlier to 1.7.2014, when possession was offered and the same do not, in any way, depict the status of permissions/approvals on the date of offer of possession. The reliance on the cabinet meeting note (Annexure C-29) is also of no help to the complainant as the amendments were suggested to be incorporated in the overall procedure notified by the Deptt. of Industries & Commerce vide memo No.4146 dated 29.10.2007. Nothing has been brought, on record, as to what was the follow-up action pursuant to the aforesaid meeting note. In the absence of any documents showing that the amendment was effected in the project of the Opposite Parties, no deficiency can be attributed to the Opposite Parties. On the other hand, the Opposite Parties have produced, on record, the Notification dated 22.12.2006 (Exhibit OP/4) and letter dated 10.6.2013 (Exhibit OP/8). Thus, the contention of the complainant that the Opposite Parties did not have necessary approvals, permission is clearly an afterthought and without any basis.

26.         The next question, which falls for consideration, is, as to the payments made by the complainant and due to be paid before execution of the sale deed. As per evidence, on record, against the total sale consideration of Rs.33,50,000/- + Rs.1,47,249/- (EDC) = Rs.35,97,249/-, the complainant has made payment in the sum of Rs.34,24,750/-. The complainant qualified for 5% waiver in the sum of Rs.1,72,500/- and this fact is duly admitted by the Opposite Parties in Para 12 of their written statement. A sum of Rs.75,000/- paid by the complainant was on account of transfer charges.

27.         The Opposite Parties, in their letter dated 01.07.2014 (Annexure C-7) informed the complainant regarding the commencement of process of execution and registration of conveyance deed and sought payment as per following break-up within 30 days to enable them to hand over the possession of the Plot:

Sr.No.	PAYABLE COMPONENTS.	Amount Payable (Rs.)
1.	Over-dues (if  any) including applicable Service Tax as on date	1,72,500.00
2.	Delayed Payment Charges as applicable	1,28,579.97
3.	Electrification Charges @ 47.5 per SYD	14,250.00
4.	Interest Free Maintenance Security @ 100 per SYD	30,000.00
5.	Electricity Connection Charges Rs.24,196.00	24,196.00
6.	Club Membership charges Rs.100000/-	1,12,360.00
7.	Enhanced EDC Rs.94,851/-	94,851.00
8.	Registration Charges Rs.54000/-	54,000.00
9.	Stamp Duty Charges Rs.4,86,000/-	4,86,000.00
10.	Monthly Maintenance Charges from 01-AUG-14 to 31-JUL-15 @3.25 Per SYD + Service Tax @ 12.36%	13,146.00
11.	Water Charges @1500/- Fixed plus 350/- Pm/Sq.yds from 01-AUG-14 to 31-JUL-15 including Service Tax @12.36%	6,405.00
	Total	11,36,287.61

             

28.         The complainant has disputed payment at Sr. Nos.1, 2 and 6 i.e. (Rs.1,72,500.00 on account of 5% waiver; Rs.1,28,579.97 on account of delayed payment charges and Rs.1,12,360.00 as club membership charges). Insofar as sum of Rs.1,72,500/- is concerned, since the Opposite Parties in Para 12 of the written statement have stated that there is no reduction of Rs.1,72,500/- from payable amount as it would be waived off subject to furnishing of indemnity by the complainant, therefore, to seek waiver, the complainant should furnish indemnity bond.

29.        As regards delayed payment charges, the Opposite Parties in Para 8 of the written statement have stated that earlier allottees were given benefit under ‘Emaar MGF Cares for You Program’ as an exception even though there were delays in remitting various installments, and the same was subject to terms and submission of indemnity. It may be stated here that plot was transferred in favour of the complainant after realizing transfer fee of Rs.75,000/- and Plot Buyer’s Agreement was endorsed in favour of the complainant. The benefit which was extended to the previous allottees cannot, thus, be denied to the complainant. Therefore, demand of delayed payment charges in the sum of Rs.1,28,579.97 is not justified. Not only this, when the Opposite Parties, while confirming nomination in favour of the complainant admitted receipt of Rs.34,24,750/- and also endorsed the receipts in favour of the complainant, the question of payment of any delayed interest when no amount was due, did not arise. The amount of Rs.34,24,750/- was apparently arrived at by deducting Rs.1,72,500/- on account of 5% waiver from the total sale consideration of Rs.35,97,249/-.

30.         As regards demand of Rs.1,12,360/- towards club membership charges, as per Clause 20 of Plot Buyer’s Agreement, membership of club was optional. In view of submission of the Counsel during arguments that the complainant did not wish to avail of the benefit of club membership, charges for the same are not payable by the complainant.

31.         In view of above discussion, against the demand of Rs.11,36,287.61 raised by the Opposite Parties in Annexure C-7, the following amounts are not payable by the complainant:-

Over Due:                          Rs.1,72,500.00

Delayed payment charges    Rs.1,28,579.97

Club membership charges   Rs.1,12,360.00

                     Total      :      Rs.4,13,439.97

 

Therefore, the payable amount by the complainant comes to (Rs.11,36,287.61 – Rs.4,13,439.97) = Rs.7,22,847.64.

32.         In view of the above discussion, it is held that the complainant suffered physical harassment and mental agony, at the hands of the Opposite Parties, for which, he is, entitled to compensation in the sum of Rs.1,00,000/- (Rupees One Lac only).

33.         The Opposite Parties were, thus, deficient in rendering service and indulged into unfair trade practice by not handing over the actual physical possession of the plot by the stipulated date to the complainant and by not paying compensation as provided for in the Agreement.

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

35.          For the reasons recorded above, the complaint is partly accepted, with costs, directing the Opposite Parties, jointly and severally, in the following manner:-

(i)  The complainant shall make the payment of Rs.7,22,847.64 as against the demand of Rs.11,36,287.61, to the Opposite Parties, within a period of one month from the date of receipt of a certified copy of the order.

(ii) The Opposite Parties shall hand over the legal physical possession of plot No.267 measuring 300 Square yards in the project “Pinewood Park”, Sector 108, SAS Nagar Mohali, Punjab, 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.

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

(iv)  The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 11.07.2010, till 31.07.2014 (30 days after offer of possession on 01.07.2014 of plot No.267 measuring 300 Square yards in the project “Pinewood Park”, Sector 108, SAS Nagar Mohali, Punjab), to the complainant, as per Clause 8 of the Plot Buyer’s Agreement (Annexure C-2), within a period of one month from the date of receipt of a certified copy of the order.

             (v)  The Opposite Parties, are 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 their hands, within a period of two months from the date of receipt of a certified copy of the order.

             (vi)  The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

              (vii)In case, the 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) and Clause (v), above, shall be paid by the Opposite Parties alongwith penal interest @12% per annum from the date of filing the complaint, till the date of actual payment and delivery of possession, besides payment of costs of litigation.

 

36.        Certified copies of this order, be sent to the parties, free of charge.

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

Pronounced.

March  03,  2015.

 

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

  

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