STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 85 of 2013 |
Date of Institution | : | 14.11.2013 |
Date of Decision | : | 11.02.2014 |
Sudhir Kumar son of Shri Ved Prakash Upadhyaya, resident of House No.1573, Pushpac Complex, Sector 49-B, Chandigarh.
……Complainant
V e r s u s
M/s Emaar MGF Land Limited, through its Branch Head, Sh. Vikas Gupta, SCO No.120-122, 1stFloor, Sector 17-C, Chandigarh.
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
Argued by:Ms. Nandini, Advocate for the complainant.
PER
The facts, in brief, are that the complainant was looking for a decent residential accommodation/plot, at Mohali. Allured by the rosy picture, projected regarding
2. subject to force majeure conditions, and reasons beyond the control of the Company,the physical possession of fully developed residential plot, was to be handed over to the complainant, within a period of 12 (twelve months), but not later than 18 months, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in caseof delay, in handing over possession of the fully developed plot, within 18 (eighteen) months, the Opposite Party was liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
3. that there was no development, in the area, in which the same (plot) was allotted. Even there was no hope of delivery of possession of the plot, in question, in the near future. The complainant made a number of oral, as well as written requests, to the Opposite Party, to deliver legal physical possession of the plot, in question, complete in all respects, but it failed to do so, but, on the other hand, sent a vague email dated 11.07.2013 Annexure C-12, stating therein that all works towards the development of the Sector, where the plot,
4. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also 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 Party, to refund the amount of Rs.74,90,250/-, alongwith interest @24% P.A., from the respective dates of deposits, till realization, without deduction of TDS; pay penalty @ Rs.50/- per square yard, per month, for the period of delay, in handing over the possession of the fully developed plot, from 03.06.2013, till realization of amount of Rs.74,90,250/-; compensation, in the sum of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.35,000/-.
5. The Opposite Party, in its written version, pleadedprovisional allotment of the plot, aforesaid, and the issuance of provisional allotment letter dated 18.07.2011 Annexure C-2, in favour of the complainant was also admitted. It was also admitted that the complainant made payment ofRs.74,90,250/-,towards the part price of residential plot, in question. Execution of thePlot Buyer`s Agreement dated 02.12.2011, Annexure C-10, between the parties was also admitted.subject to force majeure conditions, and the reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 12 months, but not later than 18 months, from the date of execution thereof (Agreement),yet, at the same time, it was also mentioned therein, that, in case of delay, the Opposite Partydated 02.12.2011, Annexure C-10,neither they could go beyond the same, nor any relief, contrary to the same (Agreement), could be granted to the complainant.It was further stated that the complainant made default, in making payment of installments, and reminders were issued to him, to deposit the same, as and when, the same fell due. It was further stated that the development activity, in the Sector, in which the plot, in question, was allotted, in favour of the complainant, were in full swing,and the delivery of physical possession of plots, was likely to be given, in the near future, at the most by mid 2014.
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9. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint or not. According to Section 17 of the Act, a Consumer Complaint, could be filed, in the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainant, or the Party against which, the reliefs sought, was working for gain or residing. The perusal of the Plot Buyer’s Agreementdated 02.12.2011, Annexure C-10, reveals that the same was executed at Chandigarh, between the complainant, and the Opposite Party, 18.07.2011 Annexure C-2,dated 05.07.2011, 09.09.2011, 12.12.2011, 24.02.2012, 10.07.2012, 19.07.2012 and 18.03.2011 (infact 2012), that the same wereissued by the Opposite Party, in favour of the complainant, from its office, located at SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017. Since, as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
10. falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the plot, in question, was Rs.76,40,250/-. The complainant has only sought refund ofRs.74,90,250/-, paid by him,@ Rs.50/- per square yard, per month, for the period of delay i.e. from 03.06.2013,as per Clause 8 of the Agreement,), plus (+) compensation, to the tune of
11. The next question, that arises for consideration, is, as to whether, interest @24% P.A., claimed by the complainant, on the amount of Rs.74,90,250/-, aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission. In
“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period
Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.
The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the instant case. In the instant complaint, the interest, which was claimed by the complainant @24% P.A., on the amount of Rs.74,90,250/-thus, could not be added to the amount of refund, plus (+) compensation and penalty, plus (+) cost of litigation, sought by him, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above.
12. 02.12.2011. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons beyond the control of the Company, the Opposite Party was liable to deliver the possession of plot, within a period of 12 months, but not later than 18 months, from the date of execution of the same (Agreement). 02.12.2011, Annexure C-10Rs.74,90,250/-, i.e. more than 95%,towards the part price of plot, has already been paid by the complainant, by the stipulated date/time. Since, there was no development at the site, the Opposite Party was unable to handover the legal physical possession of the plot, in question, to the complainant, by 02.06.2013. Even, the development was not completed by the time, the complaint was filed. No documentary evidence was produced by the Opposite Party, by way of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, actually, there was development of the area, where the plot, in question, was allotted, in favour of the complainant. In the absence of production of such documentary evidence, which could be easily available with the Opposite Party, only one and the one inescapable conclusion, which can be arrived at, is that the version set up by the complainant, that there was no development at the site, where the plot was allotted to him, is correct. By not delivering the legal physical possession of the fully developed residential plot, to the complainant, by 02.06.2013, i.e. by the stipulated date, even after receipt of the more than 95% of the price thereof, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice.
13. Rs.74,90,250/-,deposited by him, towards the price of plot, in question, without rendering him, any service. Since, the plot, in question, had not been developed, even by the time, the complaint was filed, no alternative was left with the complainant, than to ask for the refund of amount, deposited by him. In our considered opinion, the complainant is entitled to the refund of amount ofRs.74,90,250/-,deposited by him. By not refunding the amount, deposited by the complainant, with interest, the Opposite Party was deficient, in rendering service.
14. Rs.74,90,250/-,towards more than 95% of the price of plot, in question, was deposited by the complainant, as is evident, from the receipts, and statement of account Annexure C-8, referred to above. The complainant was deprived of his hard earned money, on the basis of misleading information given by the Opposite Party, that he would be handed over the legal physical possession of the residential plot, in question, by 02.06.2013, but it failed to do so. The complainant was, thus, caused financial loss.
15. Counselfor the Opposite Party, that since the parties are governed, by the terms and conditions ofthePlot Buyer`s Agreement 02.12.2011, Annexure C-10, thePlot Buyer`s Agreement dated 02.12.2011, Annexure C-10. Had the complainant prayed for possession of the residential plot, in question, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount of Rs.74,90,250/-, alongwith interest @ 12 % P.A., from the respective dates of deposits.
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17. @ Rs.50/- per square yard, as per Clause 8 of the Agreement, referred to above, per month, for such period of delay, beyond 18 months, from the date of execution of the same. This submission of the Counsel for the complainant, does not appear to be correct. Such
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, the complaint is partly accepted, with cost, in the following manner:-
The Opposite Party is directed to The Opposite Party is further directed to pay compensation, in the sum of Rs.2,00,000/- (two lacs), for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
The Opposite Party is further directed to pay cost of litigation, to the tune of Rs.30,000/-, to the complainant.
In case the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12 % P.A., from the respective dates of deposits, till realization, and interest @ 12 % P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.30,000/-.
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Pronounced.
February 11, 2014
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
Sd/-
(PADMA PANDEY)
Rg.
