Chandigarh

StateCommission

CC/277/2015

Tanu Batra - Complainant(s)

Versus

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

Rohit Sud & Maninder Singh Dhindsa, Adv.

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	277 of 2015
Date of Institution	:	18.11.2015
Date of Decision	:	26.04.2016

 

Tanu Batra W/o Mr. Jaswinder Singh Batra, resident of 509, Sector 8-B, Chandigarh.

                                                       ……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited through its Managing Director, having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi.
2. M/s Emaar MGF Limited through its Branch Head, Sh. Vikas Gupta, having its place of business at SCO No.120-122, 1st Floor, Sector 17-C, Chandigarh.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh. Rohit Sud, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                 The facts, in brief, are that the complainant was looking for a decent residential accommodation at Mohali in the year 2010 and came across a residential project namely ‘Mohali Plots’ situated at Mohali Hills in Sector 104, SAS Nagar, District Mohali, Punjab. After due consideration of the prospects of the project, as advertised by the Opposite Parties, the complainant made an investment in plot No.104-EP-49-250  measuring 250 sq. yards situated in the aforesaid project of the Opposite Parties. Thereafter, on 29.10.2010 the complainant made the payment of Rs.5,00,000/- vide receipt dated 30.10.2010 (Annexure C-1). The aforesaid payment was duly acknowledged by the Opposite Parties in the provisional allotment letter dated 09.11.2010 (Annexure C-2). It was stated that the complainant again made the payments of Rs.4,00,000/- on 29.11.2010 vide receipt (Annexure C-3) and Rs.11,81,250/- vide receipt (Annexure C-4). It was further stated that Plot Buyer’s Agreement was executed between the parties  on 18.01.2012 (Annexure C–5).  As per Clause 8 of the Agreement, possession of the unit was to be delivered by the Opposite Parties within a period of 12 months from the date of execution of the Agreement and further made the Opposite Parties liable to pay to the allottee, a penalty of Rs.50/- per sq. yard per month for such period of delay beyond 18 months from the date of execution of the Agreement. It was further stated that the complainant made the payment of Rs.57,40,250/- vide statement of account dated 16.10.2015 (Annexure C-6).  It was further stated that period of delivery of possession within 12 months from the execution of the Agreement had already expired on 18.01.2013.  It was further stated that neither the  Opposite Parties handed over possession of the unit, executed the sale deed, refunded the amount nor they paid any penalty to the complainant, as agreed in the Agreement.  Thereafter, the complainant served a legal notice dated 10.09.2015 (Annexure C-7)  upon the Opposite Parties but to no avail.  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 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement.  It was stated that the complainant did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, as she purchased the unit for purposes of investment and not for residing.  Further, the complainant also has another unit in “The Villas” with the Opposite Parties and had entered into an Agreement on 12.08.2009 and amended Agreement dated 15.02.2011 for total consideration of Rs.1,27,63,300/- (Exhibit OP/2). It was further stated that as evident from the Buyer’s Agreement at page no.15 of the complaint, the complainant has a house in Sector 8, Chandigarh and, as such, purchase of 2 other residential properties from the Opposite Parties is definitely for investment/speculative purposes and, as such, the complainant is not a consumer as defined under the Consumer Protection Act, 1986.  It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, complainant is not entitled to claim possession within any time bound manner as same would amount to specific performance of the contract.  It was further stated that possession was offered to the complainant vide letter dated 15.10.2014, after completion of all amenities, as per terms of Agreement and the complainant was requested to remit payments, which was received by her on 16.10.2014 (Exhibits OP/3 and OP/4) respectively.  It was further stated that the complainant was also requested telephonically and by way of reminder letters, to complete the requisite formalities and take possession of the unit (Exhibits OP/5 and OP/6). It was further stated that the complainant was also reminded vide letters dated 24.11.2014, 10.12.2014 and 12.06.2015 (Exhibit OP/9 colly.) to make payments and take over possession but she failed to do so. Therefore, the complainant has failed to remit payments or take over possession.  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.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

4.           The Parties led evidence, in support of their case.

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

6.           Admittedly, the complainant booked a unit bearing No.104-EP-49-250 in the project of the Opposite Parties and provisional allotment of the aforesaid unit was also issued by the Opposite Parties (Annexure C-2). It is also the admitted fact that Plot Buyer’s Agreement was also executed between the parties on 18.01.2012 (Annexure C-5). It is also the admitted fact that the complainant made the payment of Rs.57,40,250/-, as stipulated from statement of account (Annexure C-6). 

7.           The principal question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that under similar circumstances, in the cases titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016 and Praveen Kumar Arora & Anr. Vs. Emaar MGF Land Limited, Complaint case No.198 of 2015, decided on 04.04.2016 decided alongwith other connected cases, the issue regarding the applicability of the arbitration clause has been dealt with in detail by this Commission and after giving detailed findings, the argument raised on behalf of the Builder that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, the State Commission has no jurisdiction to entertain the consumer complaint, has been rejected. In view of the above, it is held that this Commission has jurisdiction to entertain this complaint. 

8.           To defeat claim of the complainant, another objection was raised by the Opposite Parties that the complainant is not a consumer, as she purchased the unit for purposes of investment and she has another unit in “The Villas” with the Opposite Parties and entered into an Agreement on 12.08.2009 & Amended Agreement (Exhibit OP/2). The Opposite Parties further objected that as evident from the Buyer’s Agreement (at page no.15 of the complaint), the complainant has a house in Sector 8, Chandigarh and, as such, purchase of 2 other residential properties from the Opposite Parties is definitely for investment/speculative purposes and, as such, she would not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986. On the other hand, the complainant, in her replication, has stated that the other property applied for by the complainant was being purchased for her parents to be used as their residence. The same can be easily made out by perusing front page of the Agreement dated 12.08.2009 (Exhibit OP/2), which was executed between Ms.Gursharan Kaur, Mr. Jasjeet Singh Raheja and Ms.Tanu Batra  with the Opposite Parties. So, it is clearly proved that initially the Villa was applied in the name of mother, brother and complainant herself. Thereafter, it was transferred in the name of the complainant, as she had to secure a loan, which could have been done only by possessing the property in her name only. Therefore, the complainant got transferred the property to her name. The objection of the Opposite Parties with regard to that the complainant owns a property at 509, Sector 8-B, Chandigarh, has no value, at all because the Opposite Parties failed to produce any evidence in this regard. 

            It may be stated here that there is nothing, on the record to show, that the complainant is property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant for investment/speculative purposes, with a view to earn profit, in future. The complainant, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

9.           The next question, that falls for consideration, is, whether the Opposite Parties rightly intimated about offer of possession to the complainant. According to the Opposite Parties, possession has been offered to the complainant vide letter dated 15.10.2014, after completion of all the amenities, as per terms of the Agreement, which was sent through courier and the same was received by her on 16.10.2014. The Opposite Parties have also placed on record copy of letter dated 15.10.2014 and courier receipt dated 16.10.2014 (Exhibits OP/3 and OP/4). Even the Opposite Parties also placed on record copy of possession reminder letter dated 12.06.2015 alongwith proof of delivery as Exhibits OP/5 and OP/6.  

              No doubt, the courier receipts (Exhibits OP/4 and OP/6), placed on record by the Opposite Parties, to prove that offer of possession, vide letter dated 15.10.2014 (Exhibit OP/3) and possession reminder letter dated 12.06.2015 (Exhibit OP/5) in respect of unit No.104-EP-49-250 in Block EP situated at Sector 104, Mohali Hills (Project) was sent to the complainant through Overnite Express Limited. It may be stated here, that both the aforesaid receipts (Exhibit OP/4 and OP/6), nor the signatures of the complainant, acknowledging receipt of the documents sent through it (courier receipt). Even the date of the said courier receipt (Exhibit OP/4) is mentioned as 16/10, from which, it is not established, as to in which year, the same had been sent. On the other hand, in the rejoinder, filed by the complainant, she, in clear-cut terms stated that both the aforesaid letters dated 15.10.2014 and 12.06.2015 (Exhibits OP/3 and OP/5) was never served upon her. Even the Opposite Parties have placed on record payment request reminder dated 24.11.2014, 10.12.2014 and possession reminder dated 12.06.2015 (Exhibit OP/9 colly.) but the Opposite Parties did not place on record any registered cover A.D or any courier receipt, which could show that from which mode they sent the aforesaid letters to the complainant. It  pertinent to mention here that in Clause 38 and 39 of the Plot Buyer’s Agreement dated 18.01.2012 (Annexure C-5), specified the mode of service of notice to each other has been mentioned, which is reproduced thus :-

“38.    All notices referred to in this Agreement shall be in writing and shall be deemed to be properly given and served on the party to whom such notice is to be given if sent either by registered A.D. post or speed A.D. post to the Party at their respective addresses specified below : …..”

39.     It shall be the duty of the Allottee(s) to inform the Company of any change subsequent to the execution of this Agreement in the above address by registered/speed post A.D. failing which all communications and letters posted at the above address shall be deemed to have been received by the Allottee(s).”

Therefore, as per the specific clauses, reproduced above, of the Agreement clearly indicated that courier receipts do not hold any evidentiary value. So, it is clearly proved that the plea of the Opposite Parties regarding intimation of offering of possession, has no force, at all, and thus, rejected.

10.          No doubt, the Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held, in the said case, that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of the Buyer's Agreement dated 18.01.2012 (Annexure C-5),  the Opposite Parties were to hand over physical possession of the said unit, in favour of the complainant, within a period of 12 months, from the date of execution of the Agreement and in the event the Company fails to deliver possession of the unit within 18 months from the date of execution of the Agreement, the Company shall be liable to pay the penalty for such period of delay beyond 18 months from the date of execution of the Agreement.  Even after the expiry of more than about 4 years from the execution of the Agreement, possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Opposite Parties. The plea taken by the Opposite Parties, in their written statement, thus, being devoid of merit, must fail, and the same stands rejected.

11.          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 dated 18.01.2012 (Annexure C-5), 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 12 months, from the date of execution of the Agreement but not later than 18 months i.e. maximum by July, 2013. 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 complainant,  within the maximum period of 18 months, from the date of execution of the  Agreement dated 18.01.2012, i.e. latest by July, 2013. However, the Opposite Parties failed to give physical possession of the unit, in question, to the complainant, despite repeated requests. Even the intimation of offer of possession, as alleged by the Opposite Parties, was not sent in right mode of delivery to the complainant.  Moreover,  the Opposite Parties already received a huge amount of Rs.57,40,250/-, towards the said unit, as is evident from the statement of account (Annexure C-6), out of the total consideration of Rs.59,65,250/-. By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 18 months, from the date of execution of the  Agreement, the Opposite Parties failed to abide the commitments, as such, they were not only deficient, in rendering service, but also indulged into unfair trade practice.

12.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.57,40,250/-, deposited by her, towards the price of the unit, in question. The complainant, in her complaint has sought refund of the amount, deposited by her, towards the same. Under these circumstances, the complainant is entitled to refund of the amount, deposited by her, towards the said unit.  By not refunding the amount to the complainant, the Opposite Parties were deficient, in rendering service.

              At the time of arguments, Counsel for the Opposite Parties submitted that if the complainant sought refund of the amount, forfeiture clause is applicable upon the complainant. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Even letter of offer of possession, as alleged by the Opposite Parties, was not sent to the complainant in a right mode. It is made clear that the Opposite Parties have not fulfilled their part of the Agreement and nor given physical possession of the unit to the complainant. So, there was no fault on the part of the complainant and the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount, as prayed by the complainant.  

13.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount of Rs.57,40,250/-, if so, at what rate. The complainant was deprived of her hard earned money, to the tune of Rs.57,40,250/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the unit, in question, after the maximum period of 18 months from the Agreement. However, the Opposite Parties failed to deliver physical possession of the unit to the complainant, after completion of more than 4 years from the execution of the Agreement. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @24% per annum compounded quarterly from the complainant. Under these circumstances, in our considered opinion, if  interest  compounded quarterly @15%, on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

14.          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 her. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as they neither delivered physical possession of unit nor refunded the amount to the complainant. The complainant purchased the unit, with the hope to have a roof over her head, by raising construction thereon, but her hopes were dashed to the ground. Till date, physical possession of the alternate unit, has not yet been given, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and 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/-.

15.          No other point, was urged, by the Counsel for the parties.

16.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.57,40,250/-, to  the complainant, alongwith interest compounded quarterly @ 15%, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded quarterly @18 %, instead of interest compounded quarterly @ 15%, from the respective dates of deposits, till realization, and interest compounded quarterly @15%, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

17.          Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

April  26, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

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