Chandigarh

DF-I

CC/143/2014

Satyadev Kohli - Complainant(s)

Versus

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

Gaurav Chopra & Anurag Chopra

03 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

 

                

Consumer Complaint No.	:	CC/143/2014
Date  of  Institution	:	03/03/2014
Date  of  Decision	:	03/03/2015

 

 

1]      Satyadev Kohli son of Sh.Bishan Lal Kohli,

2]      Ujjawal Kohli son of Sh.Satyadev Kohli,

Both residents of H.No.1564, Pushpac Complex, Sector 49-B, Chandigarh 160047

…..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 110001 through its authorized representative.

2.      M/s Emaar MGF Land Limited, having its branch office at SCO No.120-122, First Floor, Sector 17-C, Chandigarh 160017 through its authorized representative.

 …..Opposite Parties

 

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

                                               

                                               

                       

For complainants	:	Sh. Gaurav Chopra, Advocate.
For OPs	:	Sh. Sanjeev Sharma, Advocate.

                                   

PER P.L.AHUJA, PRESIDENT

1.           Sarv Shri Satyadev Kohli and Ujjawal Kohli, 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).  Earlier this consumer complaint was dismissed vide order dated 11.9.2014 passed by this Forum on the ground that this Forum has no pecuniary jurisdiction to try the complaint.  The complainants preferred an appeal before the Hon’ble State Commission, UT, Chandigarh and the Hon’ble State Commission, UT, Chandigarh vide order dated 15.1.2015 accepted the appeal and the complaint was remanded back to this Forum with a direction to decide the same afresh on merits in accordance with the provisions of law. The allegations of the complainants in brief are as under :-
2.     Acting upon the information given by the OPs in leading newspapers, the complainants vide application dated 9.12.2008 (Annexure C-1) sought allotment of a residential unit in “The Terraces” in Sector 108, Mohali Hills, SAS Nagar, Mohali and deposited a cheque in favour of the OPs for an amount of Rs.2,50,000/-.  Thereafter, the OPs had issued a Provisional Allotment letter dated 13.4.2009 (Annexure C-2) in respect of Unit No.580/FF, Sector 108, “The Terraces”, Mohali Hills, having an approximate area of 1524 sq. ft.  Subsequently, the OPs also sent two copies of independent Floor Buyer’s agreement requiring the complainants to sign the same and return both the copies.  As per the Independent Floor Buyer’s Agreement executed between the parties on 26.5.2009 (Annexure C-3), the total sale consideration of the unit was Rs.39,89,631/- out of which the complainants paid an amount of Rs.15,48,155/- till 18.2.2010 through five installments Annexures C-4 (Colly.).  It has been averred that as per the Buyer’s Agreement, the possession of the allotted unit was to be handed over to the complainants within 36 months from the date of signing of the agreement dated 26.5.2009.  The OPs were also entitled to a grace period of 90 days for applying for and obtaining the Occupation Certificate in respect of the complex.  As such, the possession was to be handed over by the OPs on or before 26.8.2012, but they failed to do so.  The complainants also visited the office of the OPs but did not get any satisfactory reply.  Accordingly, the complainants vide letter dated 16.11.2012 (Annexure C-5) called upon the OPs to cancel the allotment and to refund the amount with interest, which was replied by the OPs vide letter dated 6.12.2012 (Annexure C-6) with a request to reconsider the decision of cancellation. The complainants subsequently vide e-mail dated 18.4.2013 once again sought cancellation and refund of an amount of Rs.15,48,155/- alongwith interest. However, the OPs vide email dated 24.4.2013, while acceding to the request for refund of the principal amount paid towards the allotted unit, declined the request for refund of the principal amount alongwith interest. Aggrieved by the highhandedness of the OPs, the complainants also got issued a legal notice dated 9.7.2013 (Annexure C-8) upon the OPs, but to no avail.  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. 
3.         In their joint written reply, the OPs have admitted the facts with regard to allotment of residential unit in question, execution of Buyer’s agreement, receipt of a total sum of Rs.15,48,155/- from the complainants and that the total cost of the unit was Rs.39,89,631/-.  It has been averred that on 10.7.2009 after signing of agreement on 26.9.2009 (?), the installment plan was changed from time linked to Construction linked and demands were raised in accordance with agreed Construction Linked Plan. It has been further averred that as per clause 20 of the Buyer’s agreement, the company (OPs) had to offer possession of the unit within 36 months from the date of signing of agreement with a grace period of 90 days after the expiry of 36 months, however, as the payment plan was changed from time linked to construction linked, so the time period is not applicable in the present case.  It has been pleaded that the agreement was executed on 26.5.2009 and accordingly the possession of the said unit was due on 26.8.2012 as per the earlier payment plan.  However, the possession of the unit has not been offered as the construction on the same has not started till date nor any further demands of payment have been raised upon the complainants. It has been contended that the complainants are not entitled to any refund as is being claimed by them now and in case of cancellation and seeking of refund, the forfeiture clause would come into play and money can be refunded after deducting the forfeiture amount as per the agreement.  The writing of letter dated 6.12.2012 and email dated 24.4.2014 have been admitted. It has been averred that the complainants were given option to explore a unit under construction in the same project wherein advance construction milestones had been achieved, but the complainants did not opt to explore the availability.  The remaining averments have been denied being wrong. Pleading that there is no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made.
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire record, written arguments of both the sides and have also heard the arguments addressed by the learned counsel for the complainants.
6.         It is the admitted case of the OPs that the complainants made an application dated 9.12.2008 seeking allotment of the residential unit in “The Terraces” situated in Sector 108, Mohali Hills, Mohali.  At the time of making advance registration application Annexure C-1, the complainants deposited a cheque of an amount of Rs.2,50,000/- with the OPs.  The OPs issued a provisional allotment letter dated 13.4.2009 Annexure C-2 in respect of the unit No.580/FF in the project “The Terraces” at Mohali Hills having an approximate area of 1524 sq. ft. in favour of the complainants.  Subsequently, the OPs sent two copies of The Independent Floor Buyer’s Agreement and the annexures attached thereto for signatures of the complainants.  As per the agreement Annexure C-3, the complainants were allotted unit No.580/FF in “The Terraces” having an approximate super area of 1520 sq. ft. for a total sale consideration of Rs.39,89,631/-.  It is also admitted case of the OPs that the complainants have made payment of the total amount of Rs.15,48,155/- from 9.12.2008 to 18.2.2010 through cheques as per details given below :-

Cheque No.	Dated	Amount
188518	9.12.2008	2,50,000/-
232650	15.5.2009	3,45,445/-
192539	30.7.2009	3,17,570/-
192545	30.10.2009	3,17,570/-
232006	18.2.2010	3,17,570/-
	Total	15,48,155/-

 

7.         It is also admitted that as per the terms and conditions incorporated in the Buyer’s Agreement, the possession of the allotted unit had to be handed over to the complainants within 36 months of the date of signing of the agreement dated 26.5.2009.  As per clause 20.1 of the agreement, upon the expiry of the period of 36 months, OPs were entitled to a grace period of 90 days for applying for and obtaining the Occupation Certificate in respect of the complex. Hence, as per the terms and conditions of the Buyer’s Agreement, OPs were required to hand over the possession of the flat in question to the complainants on or before 26.8.2012. 
8.         It has been urged by the learned counsel for the complainants that the OPs have failed to hand over the physical possession of the allotted unit within the time period stipulated in the Buyer’s Agreement which expired on 26.8.2012 and when the complainants approached the office of OP-2 about the status of construction, OPs did not give any satisfactory reply.  Subsequently, the complainants sent a letter dated 16.11.2012 (Annexure C-5) asking the OPs to cancel the allotment and to refund the amount of Rs.15,48,155/- alongwith interest. The learned counsel for the complainants has argued that the OPs in response to the aforementioned letter sent a reply dated 6.12.2012 (Annexure C-6) acknowledging that the construction of the allotted unit had not commenced and complainant No.1 was requested to reconsider his decision for the cancellation of the allotted unit. Thereafter, the complainants vide email dated 18.4.2013 sought refund of the amount of Rs.15,48,155/- alongwith interest and the OPs sent a reply vide email dated 25.5.2013 acceding  the request for refund of the principal amount but declining the request for refund of the principal amount alongwith interest. Copy of the exchanged email is at Annexure C-7.  The learned counsel for the complainants has argued that thereafter a legal notice dated 9.7.2013 (Annexure C-8) was served upon the OPs but to no effect.  The learned counsel for the complainants has vehemently contended that the complainants are entitled to the refund of the principal amount of Rs.15,48,155/- alongwith interest @ 18% per annum apart from compensation of Rs.2.00 lakhs and litigation expenses.
9.         On the other hand, it has been urged on behalf of the OPs that in case of seeking refund of the amount and cancellation by the complainants, the matter would be governed by the terms of the buyer’s agreement and the complainants would have to lose a considerable amount on account of the forfeiture.  It has been submitted in the written arguments of the OPs that the installment plan was subsequently changed from time linked to construction linked and the OPs have not asked for any payment after the payment of Rs.15,48,155/-.  It has been argued that the OPs are not liable to pay any interest on the amount paid by the complainants. It has also been submitted by the OPs that the complainants vide letter dated 7.12.2012 (Annexure R-2) were informed that the construction of the unit, which they had booked initially, had not yet commenced but they could seek relocation to a flat where possession could be delivered at an earlier stage.  It has been submitted that in view of the response in the email and the letter sent by the OPs, the request for refund of the amount with interest cannot be acceded to. It has been further submitted that as per clause 22.1 of the Buyer’s agreement, in the event of delay in giving possession of the unit within the specified time frame, the company is liable to pay compensation @ Rs.5/- per sq. ft. per month of the super area of the unit till the time the possession is offered to the consumer, therefore, the complainants are not entitled to get back the principal amount with interest.
10.         We have given our thoughtful consideration to the rival contentions.  The factual matrix of the case is not in dispute.  It is the admitted case of the parties that as per clause 20.1 of the Buyer’s agreement Annexure C-3, the possession of the allotted unit was to be handed over to the complainants within 36 months of the date of the signing of the agreement dated 26.5.2009.  After adding the grace period of 90 days for obtaining the occupation certificate in respect of the complex, the OPs were required to hand over the possession of the unit to the complainants on or before 26.8.2012. The copy of the letter dated 16.11.2012 (Annexure C-5) sent by the complainants to the OPs shows that the complainants have been repeatedly requesting the OPs to let them know when they would get the possession of the flat but they did not get any satisfactory answer.  Since the construction of flat had not yet started, the OPs were requested to refund the amount of Rs.15,48,155/- alongwith interest. In their reply dated 6.12.2012 (Annexure C-6), OPs admitted that the construction of the unit had not yet commenced. However, they were expediting the construction activity.  It is also pertinent to note that in reply to the email message sent by the complainants, the OPs vide email (Annexure C-7) informed the complainants that it would not be possible for them to consider their request for refund with interest.  However, they could take up their case for the refund of the principal amount paid towards the unit.  Since the complainants insisted for interest on the principal amount, the OPs vide letter dated 7.12.2012 (Annexure R-2) gave an option to the complainants for relocation to another unit but that option was not exercised by the complainants.  We are of the view that when the possession of the unit has not been handed over to the complainants within the stipulated period and the construction of the unit has not yet been completed, it is a clear case of deficiency in service on the part of the OPs.  This case is squarely covered by a decision in Complaint case No.40 of 2014 titled Seema Juneja Vs. M/s Emaar MGF Land Limited decided by our own Hon’ble State Commission, UT, Chandigarh on 20.6.2014 where the possession of the plot was not handed over to the complainant within the stipulated period.  It was held that the OP was not only deficient in rendering service but also indulged into unfair trade practice.  In that case, apart from refund the amount of Rs.40,50,354/- + the amount of Rs.97,642/- in respect of the delayed payments was ordered to be refunded with interest @ 12 % per annum  from the respective dates of the deposit.  In the instant case also, we are of the view that the complainants are entitled to the refund of the amount of Rs.15,48,155/- with interest @ 12% per annum from the respective dates of deposit. 
11.         As far as the contention of the OPs that in case of delay in delivery of the possession as per clause No.22.1 of the Buyer’s agreement, the complainants are entitled to get compensation @ Rs.5/- per sq. ft. per month of the super area is concerned, it is significant that in this case the complainants have not prayed for the possession of the unit in question. In similar circumstances in Seema Juneja Vs. M/s Emaar MGF Land Limited (supra) it was held that had the complainant prayed for possession of the residential plot, the matter would have been different.  The said clause could be invoked by the complainants only in the event if they had sought the relief of delivery of physical possession of the unit.  Hence, there cannot be any question of invoking clause 22.1 of the Buyer’s Agreement. We are of the opinion that the complainants have suffered ample of mental agony and physical harassment on account of delay on the part of the OPs in handing over the possession of the unit to them, therefore, they are entitled to compensation on that account. 
12.         For the reasons recorded above, we find merit in the complaint and the same is allowed partly.  The OPs are directed as under :-
    1. To refund the amount of Rs.15,48,155/- to the complainants alongwith interest @ 12% per annum from the respective dates of deposit till realization.
    2. To pay a compensation in the sum of Rs.1,00,000/- for causing mental agony and physical harassment to the complainants as also damages for escalation in the prices of the real estate.
    3. To pay an amount of Rs.11,000/- to the complainants as litigation costs.  
13.         This order shall be complied with by OPs within one month from the date of receipt of its certified copy; thereafter OPs shall pay the amount mentioned at Sr.No.(i) above with interest @ 15% per annum instead of 12% per annum from the respective dates of deposit and the amount mentioned at Sr.No.(ii) above with interest @ 12% per annum from the date of filing of the present complaint, till realization by the complainants, besides payment of litigation costs.
14.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
03/03/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President