Chandigarh

StateCommission

CC/346/2016

Tarikjot Singh - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

27 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	346 of 2016
Date of Institution	:	11.07.2016
Date of Decision	:	27.10.2016

 

1. Tarikjot Singh s/o Sh. Tejinder Singh.
2. Navneet Anand w/o Tarikjot Singh

Corresponding Address :-

House No.49-b, Vikas Colony, Near Rajpura Road, Patiala – 147001.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Private Limited (Mohali Hills), 1^st Floor, Sector 17-C, SCO No.120-122, Chandigarh – 160017, through its Managing Director/Director / Authorized Representative.  
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi - 110001, through its Managing Director/Director/ Authorized Representative.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Sandeep Bhardwaj, Advocate for the complainants.

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants approached the Opposite Parties for the purchase of residential plot in their project, who allured them about the salient features of the said project. Believing the assurances made by the Opposite Parties, the complainants moved an application for allotment of a plot measuring 250 sq. yards, Sector 104, Mohali Hills, Mohali and paid the booking amount of Rs.5 lacs vide receipt (Annexure C-1). Thereafter, provisional allotment letter dated 07.09.2010 (Annexure C-2) issued by the Opposite Parties, wherein, plot bearing No.19, Sector 104 was allotted to the complainants. The total sale consideration of the said unit was Rs.55,15,250/-.
The Plot Buyer’s Agreement was executed between the parties on 05.12.2011 (Annexure C-3) and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a maximum period of 18 months i.e. latest by 04.06.2013. The complainants made the payment of installments on time, as per the demand raised by the Opposite Parties vide receipts (Annexures C-4 to C-10). After making payment of 95% of the sale consideration, the complainants visited the site to see the development but they did not find any development there and even shocked to see that the basic amenities like roads, electricity, STP, parks etc. were not in existence at the site. It was further stated that the Opposite Parties did not have sactions/approvals from the competent authorities. The complainants also placed on record RTI informations/letters to prove the said fact (Annexures C-11 to C-19). It was further stated that when the complainants visited the office of the Opposite Parties on 11.05.2016 alongwith their family members, they were informed that the land where the plot is situated is in dispute, as such, they could have the alternative plot or seek refund. It was further stated that the complainants sought refund of the amount 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 complainants, 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 written version, have taken objection that the complainants did not fall within the definition of “Consumer” as envisaged in the Consumer Protection Act, 1996, as they purchased the plot for investment/speculative purposes.  It was stated that this Commission has got no territorial jurisdiction to entertain and decide the complaint as the plot is situated at Mohali and as per the Agreement, only the Courts at Mohali have the jurisdiction to try the complaint. It was further stated that this Commission has no pecuniary jurisdiction to entertain and try the complaint, as the claim amount together with reasonable interest and compensation would exceed Rs.1 crore. It was further stated that the complaint is time barred having been filed 2 years of alleged cause of action. It was further stated that as per Clause 8 of the Agreement, possession was endeavoured to be handed over within 18 months, else the Opposite Parties were to pay compensation to the complainants for any delay beyond the period of 18 months. It was further stated that time was not the essence of the Agreement and there was no definitive time period within which possession was to be handed over. 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. It was further stated that the complainants paid the total amount of Rs.52,90,250/- against the total consideration of Rs.55,15,250/-. It was further stated that the possession has not been offered since the amenities/services have not been completed on site and possession would be handed over to the complainants as soon as the amenities/services are completed on site together with penalty for delay. It was admitted regarding issuance of provisional allotment letter issued, execution of the Agreement and receipt of the amount of Rs.52,90,250/-. It was further stated that most of the units in Sector 104 have been offered possession, there are some units including the one allotted to the complainants from whom the services/amenities have not been completed and hence possession not offered. It was further stated that the Opposite Parties also obtained Partial Completion Certificate (Exhibit OP-3). It was denied that the complainants ever visited the office of the Opposite Parties for alternative plot or refund. 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 complainants filed rejoinder to the written statement of the Opposite Parties, wherein they 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, plot No.104-EP-19-250 was allotted to the complainants vide provisional allotment letter dated 07.09.2010 (Annexure C-1). It is also the admitted fact that Plot Buyer’s Agreement was executed between the parties on 05.12.2011 (Annexure C-3). It is also the admitted fact that the complainants paid the huge amount of Rs.52,90,250/- in respect of the plot, in question, as is evident from statement of account (Exhibit OP/2).

7.             The first objection taken by the Opposite Parties, to the effect that the complainants already have a residence at Patiala and they being investors, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion i.e. simply saying that the complainants being investors, as they already have a residence at Patiala, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘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.

8.            The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the provisional allotment letter dated 07.09.2010 (Annexure C-2) and receipts/acknowledgment-cum-receipts (Annexures C-1, C-4 to C-6, C-8 to C-10) were sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “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 complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.            Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of an amount of Rs.52,90,250/- paid by them, towards price of the plot, alongwith suitable interest from the respective dates of deposits, till realization;  compensation to the tune of Rs.5 lacs, for mental agony & physical harassment; and cost of litigation, to the tune of Rs.1 lac, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the suitable interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it has been frankly admitted by the Opposite Parties, in their joint written statement that offer of possession of the plot, in question, could not be made till date, for want of basic amenities at the site, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.          Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the plot within maximum period of 18 months, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 8 of the Agreement that possession of the plot will be delivered by the Opposite Parties, within a maximum period of 18 months, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 8 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 18 months from the date of execution of the same, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed/tentative was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

12.           The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.52,90,250/-, deposited by them. It is an admitted fact that the Opposite Parties are unable to deliver  possession of the plot/unit, in question, because the Opposite Parties clearly mentioned in para No.11 of their written statement that “Though most of the units in Sector 104 have been offered possession, there are some units including the one allotted to the complainants from whom the services/amenities have not been completed and hence possession not offered.” So, it is clearly proved that the Opposite Parties are not in a position to hand over possession of the unit to the complainants, complete in all respects. Now the Opposite Parties placed on record Partial Completion Certificate (Exhibit OP/3) with their written statement has no value at all because as per the Agreement dated 05.12.2011, possession of the unit was to be delivered within a maximum period of 18 months to the complainants i.e. latest by 04.06.2013 but the Opposite Parties applied for Partial Completion Certificate on 03.09.2015 i.e. more than two years of completion of the stipulated period of 18 months for possession. Even till the date of filing of the complaint i.e. 11.07.2016, the Opposite Parties were not in a position to hand over possession of the unit to the complainants, complete in all respects and firm date of delivery of possession of the unit, could not be given to them (complainants). It is well settled law that the purchaser/allottee cannot be forced for relocation to any other unit, unless and until the allottee wishes to do so. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot purchased by them. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

13.           It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.52,90,250/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded quarterly @24%) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with them, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.52,90,250/- alongwith interest @15% compounded quarterly, from the respective dates of deposits till realization. 

14.          Since, it has already been held that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the Opposite Parties to the effect that they are ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the Opposite Parties are allowed to invoke Clause 8 of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainants. The defence taken is accordingly rejected.

15.          No other point, was urged, by 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.52,90,250/-, to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

17.          However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

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

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

Pronounced.

27.10.2016                                                      Sd/-

 

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 

(DEV RAJ)

MEMBER

 

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(PADMA PANDEY)

        MEMBER

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