1.Sh. Karnail Singh, S/o Late Sh. Inder Singh, resident of House No.2857/1, Sector 49-D, Chandigarh.

2.Harmeek Singh, S/o Sh. Karnail Singh, resident of House No.2857/1, Sector 49-D, Chandigarh.

……Complainants

V e r s u s

M/s Emaar MGF Land Limited,

Through its Managing Directors/Directors, SCO 120-122, First Floor, Sector 17-C, Chandigarh.

2^nd:-

Corporate Office: M/s Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi.

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:Sh. Lakhbir Singh, Advocate for the complainants.

                 Sh. Sanjeev Sharma, Advocate for the Opposite Party.

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

             The facts, in brief, are that allured by the assurances of the representative of the Opposite Party, with regard to the salient features, like 100 ft wide road connected with Chandigarh, high security, black-topped wide internal roads, drainage, sewerage, 24 hours water and electricity supply, street lighting, green belts, shopping complex etc. etc., in its (Opposite Party), project, under the name and style of “Mohali Plots at Mohali Hills”, Sector 104, Mohali, Punjab, the complainants decided to purchase a plot therein (project of the Opposite Party). It was stated that the representative of the Opposite Party, also assured the complainants that the development activity, at the site was in full swing, and if they booked the plot, the possession thereof, complete in all respects, would be handed over to them, within a period of 18 months, from the date of execution of the Plot Buyer`s Agreement. It was further stated that it was also assured by the representative of the Opposite Party, that 

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5.           subject to force majeure conditions, and reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainants, 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, from the date of execution thereof.

6.           that there was no development, in the area, in which the same (plot) was allotted. The complainants 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 letter dated 21.08.2013 Annexure C-15, stating therein that the compensation/penalty, would be adjusted against the remaining payment, to be paid by them, at the time of registration of the plot, in question, in their favour. It was further stated that the Opposite Party coined lame excuse of inclement weather for delay, in handing over physical possession of the plot, in question, in favour of the complainants. It was further stated that, later on, the complainants also came to know that the Opposite Party had allotted at least 19 plots, adjoining their plot, in the same project, at lesser rate i.e. @Rs.20,000/- per square yard, whereas, on the other hand, two years earlier, at the same location, the plot was allotted to them @Rs.22,000/- per square yard. 

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8.           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 complainants, 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.62,60,750/-, alongwith interest @24% P.A., from the respective dates of deposits, till realization; pay/reimburse the amount of rent, paid by them, to the landlords @ Rs.14,520/- per month, for the year 2012 and @ Rs.15,000/- per month, for the year 2013 w.e.f. 25.08.2012@Rs.50/- (Rupees Fifty only)]per square yard, per month, for the period of delay, in handing over possession of the fully developed plot, calculated @24% P.A.; compensation, in the sum of Rs.15 lacs, for mental agony, physical harassment and deficiency, in rendering service; and cost of litigation, to the tune of Rs.33,000/-, alongwith interest @24% P.A.

9.           The Opposite Party, in its written version, pleadedprovisional allotment of the plot, aforesaid, and the issuance of provisional allotment letter dated 25.02.2011 Annexure C-2, in favour of the complainants was admitted. It was also admitted that the complainants made payment ofRs.62,60,750/-,towards the part price of residential plot, in question. Execution of thePlot Buyer`s Agreement dated 22.11.2011, Annexure C-9, between the parties was also admitted. It was also admitted that there was some delay, on the part of the Opposite Party, in execution of the said Agreement. It was stated that, no doubt, as per the Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9,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 complainants, 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 Party, was liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9,neither they could go beyond the same, nor any relief, contrary to the same (Agreement), could be granted to the complainants.It was further stated that the complainants made default, in making payment of installments, and reminders were issued to them, to deposit the same, as and when, the same fell due. It was further stated that, interest on delayed payments, which was due to be paid by the complainants, was waived off, by the Opposite Party, as an exceptional case, under special approval. It was further stated that development activities, in the Sector, in which the plot, in question, was allotted, in favour of the complainants, 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 middle of the year 2014.

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14.        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 complainants, or the Party against which, the reliefs sought, was working for gain or residing. The perusal of thePlot Buyer`s Agreement dated 22.11.2011, Annexure C-9,reveals that the same was executed at Chandigarh, between the complainants, and the Opposite Party, Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9,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 Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

15.          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,after discount of Rs.1,10,000/-, was Rs.65,30,250/-.The complainants have only sought refund ofRs.62,60,750/-, paid by them, as part price towards the said plot, alongwith interest @24% P.A., from the respective dates of deposits, till realization; pay/reimburse the amount of rent, paid by them, to the landlord @ Rs.14,520/- per month, for the year 2012 and @ Rs.15,000/- per month, for the year 2013, w.e.f. 25.08.2012(the stipulated date of possession), with future rent, alongwith interest @24% P.A.; pay penalty @Rs.500/-[(infact@Rs.50/- (Rupees Fifty only)]per square yard, per month, for the period of delay, in handing over possession of the fully developed plot, calculated @24% P.A.; compensation, in the sum of Rs.15 lacs, for mental agony, physical harassment and deficiency, in rendering service; and cost of litigation, to the tune of Rs.33,000/-, alongwith interest @24% P.A. The aggregate value of the services plus (+) compensation, rent and cost, claimed by the complainants, in the complaint, [excluding the interest claimed], came to be around Rs.84,03,570/-, and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary 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.

16.           Shahbad Cooperative Sugar Mills Ltd. Appellant Vs. National Insurance Co. Ltd. & Ors. Respondents II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-, it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

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 @24% P.A., claimed by the complainants, on the amounts, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question thus stands answered, in the manner, referred to above. 

17.            is a beneficial legislation, the main object whereof, is to provide speedy, affordable and hassle-free redressal of the grievances of the consumers. The Consumer Foras are not required to be too rigid, to deny the substantial relief, by resorting to hyper-technicalities. The objection taken by the Counsel for the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

18.             Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9 and delivery of physical possession thereof, was expected to be given, in the middle of year 2014. The Opposite Party, thus, misled the complainants that they would be given the legal physical possession of the plot, in question, within 18 months, from the date of execution of the Plot Buyer`s Agreement, but it failed to abide by its promise and, thus, deprived the innocent consumers, of their hard earned money. By not delivering the legal physical possession of the fully developed residential plot, to the complainants, by 21.05.2013, i.e. by the stipulated date, even after receipt of more than 95% of the price thereof, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice.

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20.            Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9. Under these circumstances, in 

21.           Plot Buyer`s Agreement dated 22.11.2011, Annexure C-9,  as per Clause 8 of the same (Plot Buyer’s Agreement), in case of delay, in the delivery of physical possession of residential plot, it (Opposite Party), was only liable to make payment of penalty, in the sum of Rs.50/- (Rupees Fifty only) per sq.yd, per month, for such period of delay, beyond 18 months, from the date of execution of the same. He further submitted that the Opposite Party was ready to pay this amount, for the period of delay, in delivery of possession of the residential plot. It may be stated here, that such a submission of the Counsel for the Opposite Party, would have been considered to be correct, had the complainants, prayed for the delivery of physical possession of the residential plot. In the instant case, as stated above, prayer for the refund of amount, was made by the complainants, in the complaint, as there was no progress, in development of the area, where the plot, in question, was allotted to them. This Clause could be invoked, by the Opposite Party, only, in the event, the complainants, in the complaint, had sought the relief of delivery of physical possession of the residential plot. As stated above, the hard earned money of the complainants was used by the Opposite Party, for investment, for a long time. They were neither given the physical possession of residential plot, nor refund of the amount. If the Opposite Party is allowed to invoke Clause 8 of the Agreement, in the instant case, that would amount to enriching it, at the cost of the complainants. Under these circumstances, shelter cannot be taken by the Opposite Party, under Clause 8 of thePlot Buyer`s Agreement dated 22.11.2011, Annexure C-9. Had the complainants prayed for possession of the residential plot, in question, in the complaint, the matter would have been different. The complainants, in our considered opinion, as stated above, are entitled to the refund of amount of Rs.62,60,750/-, alongwith interest @ 12% P.A., from the respective dates of deposits.     

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24.           Rs.14,520/- per month, for the year 2012 and @ Rs.15,000/- per month, for the year 2013, from 21.05.2013 (the stipulated date of delivery of possession), alleged to have been paid by them, to the landlord, with future rent. The complainants only produced, on record, copies of the rent deeds, for the years 2012 and 2013, Annexures C-17 and C-18, respectively, executed between Lt. Col. S.K. Nagpal (landlord) and complainant No.2. In case, the amounts ofRs.14,520/- per month, for the year 2012 and Rs.15,000/- per month, for the year 2013, as rent, had been paid by the complainants, to the landlord aforesaid, they could produce the receipts showing payment of the same. There is no tangible evidence, on record, to prove that the complainants had actually taken on rent, the accommodation and paid the rent. Copies of the rent deeds/agreements, mentioning therein the figures of monthly lease to the tune of Rs.14,520/- and Rs.15,000/-, for the years 2012 and 2013, respectively, without the production of actual receipts regarding payment of rent, do not carry any weight. Under these circumstances, the claim of the complainants, for the payment of amount of rent, cannot be said to be justified. The complainants are not entitled to the amount of rent, claimed by them.

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                            The Opposite Rs.62,60,750/-, to the complainants, alongwith interest @12% per annum, from the respective dates of deposits, within 45 days, from the

                           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 complainants, 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.20,000/-, to the complainants.

                          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 

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Pronounced.

April 9, 2014                                                               [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

 [DEV RAJ]

MEMBER

Sd/-

 (PADMA PANDEY)

Rg.