Chandigarh

DF-II

CC/417/2014

Sofi Zahoor - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

02 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	417 of 2014
Date  of  Institution	:	13.08.2014
Date   of   Decision	:	02.05.2016

 

 

 

 

 

Sofi Zahoor s/o Sh.Ghulam Hassan Sofi, resident of House No.2659, FF, Sector 69, Mohali, Punjab.

 

             …..Complainant

Versus

 

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

 

2]  M/s Emaar MGF Land Limited, Branch Office - SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh through its Authorised Representative.

  

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh.Sandeep Bhardwaj, Advocate.

 

For Opposite Party(s)   :     Sh.Ashim Aggarwal, Advocate

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the Complainant had entered into a Plot Buyer’s Agreement (Ann.C-4) with the Opposite Parties on 4.7.2007 for allotment of plot and paid an amount of Rs.11,10,000/- on 6.11.2006 as registration amount and Rs.7,24,500/- after getting loan from Bank (Ann.C-1 & C-2).  It is averred that the complainant also paid an amount of Rs.28,35,750/- being loan sought from bank.  It is also averred that the total cost of the plot including external development charges and professional location charges was Rs.40,82,394/- whereas the basic price was Rs.34.50 lacs.  Accordingly, the Opposite Parties allotted 300 sq. yard plot in Central Park, Sector 105, Mohali vide Ann.C-3 dated 15.5.2007. It is averred that the complainant had opted for Time Linked Payment Plan attached with the Agreement and paid all installments in time, copies of receipts are annexed collectively as Ann.C-5.  On being clearing the payments in time, the complainant qualified for reward for Pay On time, which means waiver of last installment 5% basic price.  It is also averred that the OPs also gave rebate of Rs.1,72,500/- to the complainant as all payment were made on time by him.

         It is stated that possession was to be delivered on 3.7.2010 as per the agreement, failing which the OPs shall pay a penalty of Rs.50/- per sq. yards per month for such period of delay beyond three years from the date of execution of agreement. It is also stated that the complainant did not receive any letter of offer of possession from the OPs and as such approached the OPs, who sent letter dated 12.9.2011 (Ann.C-7) and on perusing it, the complainant raised suspicious about the progress of the project.  As such, the complainant visited the site and shocked to see that there was no such progress at the site as was being projected by the OPs in their letters.  Thereafter, the OPs vide their reply through e-mail dated 12.3.2012 admitted about non-issuance of completion certificate (Ann.C-8) and the OPs agreed to pay the penalty from 3.7.2010 to 12.9.2011, however they did not make such payment.  Further, from reply of the Opposite Parties through e-mail dated 10.2.2014 (Ann.C-15) it became clear that there were no permission with them nor the development activities were complete at the site, hence the demand of any charges by the OPs were illegal.  It is pleaded that on 17.5.2010, the OPs have issued letter, received by the complainant on 12.9.2011, asking for consent to take the possession.  That the Opposite Parties were asked to deposit the delayed interest and additional amount of EDC. However, in the year 2014, the OPs have asked to pay the enhanced EDC, Club Membership, Electricity connection charges, stamp duty charges, monthly maintenance charges, which clearly proves that the project was not complete in the year 2010.  It is also pleaded that the demand of charges itself proves that electricity, club, external development was not complete in the year 2010 and asking for the consent is only to deprive the complainant to ask for compensation in accordance with Clause No.8 of the agreement.  It is further pleaded that since the delay in completing the project is on the part of the Opposite Parties and since they have used the money of the complainant, they are also liable to pay penalty along with interest on the deposited amount to the complainant, apart from compensation. Hence, this complaint has been filed alleging the above acts & conducts of the OPs as gross deficiency in service and unfair trade practice.

 

2]       Opposite Parties in their joint reply have taken the preliminary objection that all contentions of the Complainant are baseless and that the complaint is time barred by time and the same is not maintainable beyond the pecuniary jurisdiction of this Forum. On merits, Opposite Parties have denied the allegations of unfair trade practice. The allotment of plot in question, execution of agreement between the parties and payment made by the complainant, as alleged, are admitted. It is asserted that though there were certain delays in remitting the installments by the complainant, the Opposite Parties as an exception offered to extend the 5% incentive scheme to the complainant. It is stated that there was no promise that possession would definitely be delivered within 3 years which is highlighted by the fact that there was a clause providing for penalty in case there was any delay beyond 24 months.  It is also stated that the possession was offered to the complainant well in time period i.e. in the year 2010, which he has failed to take citing extraneous reasons.  It is further stated that the penalty clause is not attracted to the Opposite Parties as the possession was offered to the complainant within the time period endeavored.  It is pleaded that the complainant has not led any evidence to prove that the area was not developed in 2010.  It is stated that all amenities, as per Clause 23 of the agreement, have been completed and internal roads, water, sewerage and electrical lines have been laid, in the area, where the plot of the complainant is situated, and such amenities were complete in the year 2010 when the possession was offered. All other allegations of the Complainant have been denied, while Opposite Parties have reiterated that the Agreement has been terminated after issuing various notices to the Complainant. Opposite Parties have therefore prayed for dismissal of the complaint with exemplary costs.

 

3]       The Complainant also filed rejoinder wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted.

 

4]       Parties led evidence in support of their contentions.

 

5]      We have heard the learned counsel for the parties and have perused the record and written arguments.

 

6]       The allotment of the plot in question, execution of agreement between the parties and payment made by the complainant are admitted between the parties. Further, admittedly the complainant was rewarded for paying all the installments in due time and were given 5% waiver on basic price on last installment for the timely payment of installments.

 

7]       It is objected on the part of the OPs that the present complaint is time barred as the cause of action accrued in favour of the complainant on 17.5.2010 when the possession was offered for the first time or at best 16.12.2011 when reminder was sent to take over the possession and initiate construction. This objection is not sustainable for the reasons that the cause of action in the present complaint is continuous one and it further continued when OPs raised the alleged demand vide  Annexure C-11 i.e. Settlement of Final Dues, letter dated 08.01.2014.

 

8]       It is the grouse of the complainant that the OPs were supposed to deliver the possession of the said unit within three from the date of execution of agreement (4.7.2007) i.e. by 3.7.2010 and as per the terms of the said agreement, the OPs are liable to pay penalty of Rs.50/- per sq. yard per month for the delayed period of delivering the possession of the plot, till the date of issuance of completion certificate by the competent authority i.e. GMADA and thus, the complainant is entitled for the stipulated amount. 

 

9] The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. According to Clause 8 of the Plot Buyer’s Agreement, which was executed between the parties, on 4.7.2007 (Annexure C-4), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the unit, in question, within a period of 2 years from the date of execution of the Agreement, but not later than 3 years. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of the complainants,  within the maximum period of 36 months, from the date of execution of the  Agreement i.e. latest by 3.7.2010 but the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainants, within the stipulated period, as contained in the terms and conditions of the Agreement, even when the Opposite Parties have already received the entire amount towards the said unit, from the complainant. Thus by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.        

10]      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 caused to him. While placing reliance on the judgment - Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65, since in the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a number of years, as they failed to deliver the actual physical possession of unit, in question, to him, by the promised date i.e. in the year 2010 and having complete basic amenities. The complainant, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant is thus held entitled to compensation, in the sum of Rs.3,00,000/-.

11]           Furthermore, as per the clause of the agreement (An.C-4) the complainants is clearly entitled to the compensation @ Rs.50/- per sq. yard per month for the period starting from 3.7.2010 till the delivery of actual physical possession of the plot in question.  Not only this, since the complainant had already made entire payment of the plot in question, which is undisputed and has been admitted rewarded with 5% rebate by the complainant on account of making timely payment, therefore, any other demand raised by the OPs amounts to illegal and unreasonable. Hence, the OPs are not entitled to claim any further demand or collect any additional charges from the complainant being illegal.

12]      In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs. The Opposite parties are jointly & severally directed as under:-

 

[a]      To make payment of cumulated penalty, as is calculated till date, along with 9% interest p.a., as per Clause 8 of the Agreement (ann.C-4), at the rate of Rs.50/- per sq. yard per month, to the complainant, from 3.7.2010.

[b]      To further make payment of penalty as per Clause 8 of the Agreement (Ann.C-4), at the rate of Rs.50/- per sq. yard per month, to the complainant, from the date of this order till actual the possession of the plot is physically handed over to the complainant, after providing the internal services, regularly each month.  

 

[c]      To pay Rs.3,00,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service.

[d]     To pay Rs.15,000/- towards litigation expenses to the complainant.  

         The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be jointly & severally liable to pay an interest @18% per annum, on amount of compensation amount, from the date of filing of the complaint till it is paid, apart from complying with directions as at sub-para [a] [b] & [d] above.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

2^nd May, 2016                                                               Sd/-

                                                                (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

                                                                                                                       

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.175 OF 2016

PRESENT:   None   Dated the 2nd day of May, 2016

O R D E R                        Vide our detailed order of even date, recorded separately, the complaint has been allowed against the Opposite Parties.                     After compliance, file be consigned to record room.

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member