Chandigarh

StateCommission

CC/236/2018

Mr. Partha Sarathi Bagchi - Complainant(s)

Versus

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

Deepak Aggarwal, Adv.

30 Oct 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	236 of 2018
Date of Institution	:	23.05.2018
Date of Decision	:	30.10.2018

 

Mr. Partha Sarathi Bagchi son of Sh.Alok Kumar Bagchi

Communication Address :- Himalaya House, 23, Kasturba Gandhi Marg, 3^rd Floor, New Delhi – 110001.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab, through its Managing Director/Director/Authorized Signatory.

Registered Office at :- 306-308, Square One, C-2, District Centre, Saket New Delhi South Delhi DL 110017.

2. Sh.Shravan Gupta, Director of M/s Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali, Punjab.

                                ….. Opposite Parties No.1 and 2.

3. HDFC Limited, SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh – 160008, through its Authorized Signatory (No relief pressed against it).

                                           

                                          .... Proforma Opposite Party No.3

 

Argued by:      

 

Sh. Deepak Aggarwal, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for Opposite Parties No.1 and 2. ==================================================

 

Complaint case No.	:	254 of 2018
Date of Institution	:	01.06.2018
Date of Decision	:	30.10.2018

 

Dolly Bhatia aged about 69 years W/o Sh.Satish Bhatia, resident of 3 Malka Ganj, Opposite Hansraj College Delhi – 110007.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh – 160017, through its Managing Director/Authorized Signatory.
2. M/s Emaar MGF Land Limited, Registered Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001, through its Managing Director/Authorised Signatory.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

 

Sh. Amandeep Singh Nirmaan, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

              By this order, we propose to dispose of, following cases:-

1.	CC/236/2018	Partha Sarathi Bagchi	Vs.	Emaar MGF Land Ltd.
2.	CC/254/2018	Dolly Bhatia	Vs.	Emaar MGF Land Ltd.

2.             Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.             At the time of arguments, on 10.10.2018, it was agreed between the parties/their Counsel, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.             Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 236 of 2018, titled as “Partha Sarathi Bagchi Vs.  M/s Emaar MGF Land Ltd.”

5.            The facts, in brief, are that the complainant vide application dated 10.12.2010 applied to Opposite Parties No.1 and 2 for allotment of a flat in their project, namely, “The Views”, Mohali Hills, Sector 105, SAS Nagar, Mohali by paying booking amount of Rs.7 lakhs. Thereafter, the complainant was allotted flat No.TVM H1-F11-1104 vide provisional allotment letter dated 18.12.2010 (Annexure C-3). Alongwith the said letter, Construction Linked/Installment Payment Plan (2010) was also attached, according to which, total sale consideration of the unit was fixed at Rs.52,00,787.40. The complainant also took housing loan to the tune of Rs.40 lacs from Opposite Party No.3, for which, Tripartite Agreement (Annexure C-9) was executed between the parties. It was further stated that vide letter dated 11.01.2011 (Annexure C-7) the complainant was extended pay on-time reward @5% of basic sale price of the unit i.e. last installment was to be waived off on intimation of possession of the unit, in case payments are made in time. Thereafter, Buyer’s Agreement dated 28.02.2011 (Annexure C-12) was also executed between the parties. As per Clause 21.1 of the Agreement, possession was to be delivered within a maximum period of 36 months from the date of allotment plus 90 days for applying and obtaining occupation certificate from the competent authority i.e. latest by 17.12.2013, subject to force majeure circumstances.  It was further stated that the complainant paid the total amount of Rs.44,55,849/-, detail of which is given in para No.14 of the complaint. It was further stated that the complainant went to Delhi office of Opposite Parties No.1 and 2 with a request to take necessary steps to offer possession of the unit, in question, but they lingering on the matter on one pretext or the other. Thereafter, the complainant visited the project site in 2014 & 2015 and was shocked to see that the entrance of the project was changed and it came to the knowledge that Opposite Parties No.1 & 2 are not in a position to deliver possession of the unit, in question, for want of construction, as the issue is pending with regard to land with the Forest Department. However, it was promised by General Manager of the Company that possession of the unit would be delivered by July, 2016 complete in all respects. It was further stated that the complainant was in dire need of a house, as such, he vide email dated 27.01.2016  (Annexure C-22) requested for relocation but to no avail. It was further stated that the authorized representative of Opposite Parties No.1 and 2 informed the complainant that he is not eligible for delayed compensation, as he was in debt of Rs.175/- towards delayed interest. Thereafter emails (Annexure C-28 colly.) were exchanged between the complainant and Opposite Parties No.1 & 2, in which, it has been admitted that the complainant is eligible for delayed compensation. It was further stated that against the amount of Rs.175/-, the complainant made the payment of Rs.210/- through NEFT in the account of Opposite Parties No.1 & 2. However, they were silent on completion of construction and exact date/period of handing over possession of the unit to the complainant. Thereafter, a lot of emails/letters were exchanged between the complainant and Opposite Parties No.1 & 2 regarding possession of the unit, in question but the Company failed to deliver possession complete in all respects to him. It was further stated that the complainant sought refund of the amount paid alongwith interest but it was flatly refused. It was further stated that now about more than 7 years have lapsed but still Opposite Parties No.1 & 2 failed to give actual date/period for possession of the unit, in question. It was further stated that there was a grave violation on the part of Opposite Parties No.1 & 2 in selling the project without obtaining necessary permissions from the competent authorities including the Forest Department. It was further stated that the aforesaid acts, on the part of Opposite Parties No.1 & 2, 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.

6.             Opposite Parties No.1 & 2, in their 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 is time barred, as it has been filed more than two years after accrual of alleged cause of action i.e. 18.12.2010 when possession was allegedly to be offered. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the impugned property is located at Mohali and registered office of the Company is at New Delhi and as per settled law, a company can be sued at the place its registered office is located. It was further stated that the complainant did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986, as the complainant has a house at Barnala and Hoshiarpur while communication address is given of New Delhi, therefore, purchase of the subject property in this case is purely for commercial/ investment purposes. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as the claim value together with reasonable interest and compensation exceeds Rs.1 crore.  It was admitted regarding allotment of the flat and execution of the Agreement. It was further stated that the complainant made the total payment of Rs.44,55,639/- in respect of the unit, in question, as is evident from the statement (Exhibit OP/2).  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 complainant was well aware of status of construction, yet, never sought cancellation or refund, as such, cancellation at this stage when possession is going to be offered shortly would attract forfeiture clause. It was further stated that the Company has already offered possession in three of the towers J, G & K in the project and work is being expedited to hand over the balance towers at the earliest. The structure works on Tower H (where the unit is located) have already been completed and works upto external paint work is in progress and possession is likely to be offered shortly. It was further stated that there is no sealing and no issue relating to alleged sealing is pending. It was further stated that as per Clause 21.1 of the Agreement, possession was “proposed” to be handed over within 36 months from the date of allotment else the Company was to pay compensation to the complainant for any delay. Thus, there was no definitive commitment to hand over possession within 36 months from the date of allotment. It was further stated that the complainant is safeguarded by the penalty clause under the Agreement and possession would be offered shortly. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

7.             The complainant, filed rejoinder to the written statement of Opposite Parties No.1 & 2, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 & 2. 

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

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

10.           First, we will deal with an objection, raised by Opposite Parties No.1 & 2, that in the face of existence of provision 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 this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

                In view of above, the objection raised by Opposite Parties No.1 & 2, in this regard, being devoid of merit is rejected.

11.           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 complainant, 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 Unit Buyer’s Agreement was executed between the parties at Chandigarh on 28.02.2011. Not only this, the complainant has also annexed application form (Annexure C-2), provisional allotment letter, Schedule of Payment (Annexures C-3 & C-4), letters (Annexures C-6, C-7 & C-11) and receipt/acknowledgment cum receipts  & other letters (Annexure C-46 colly.) were sent by Opposite Parties No.1 & 2 from their Chandigarh Office, as the aforesaid documents bore the address 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 complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by Opposite Parties No.1 & 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

12.           The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. After going through the record, we are of the view that the objection taken by Opposite Parties No.1 & 2 does not carry any weight and is liable to be rejected. The complainant has mentioned in his complaint that he purchased the flat in dispute exclusively for his residential purpose. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is a property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 2, mere bald assertion i.e. simply saying that the complainant purchased the property for speculation purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  Opposite Parties No.1 & 2, in their written reply, therefore, being devoid of merit, is rejected.

13.           Another objection taken by Opposite Parties No.1 & 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case, if total sale consideration of the unit, in question i.e. Rs.52,00,787.40 plus compensation claimed by way of interest @13% p.a. on the amount deposited to the tune of Rs.44,55,849/; compensation to the tune of Rs.2 lacs claimed for mental agony and physical harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs  and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. The objection taken by Opposite Parties No.1 and 2 that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

14.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it has been frankly admitted by Opposite Parties No.1 & 2, in their joint written statement that offer of possession of the unit, in question, could not be made till date and on the other hand, amount deposited was also not refunded to the complainant alongwith interest and, as such, there is continuing cause of action, in his 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   Opposite Parties No.1 & 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by Opposite Parties No.1 & 2 that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, has no legs to stand and, is accordingly rejected. 

15.           Another objection raised by Counsel for Opposite Parties No.1 & 2 that since it was mentioned in the Agreement that the Company only proposes to deliver possession of the unit within maximum period of 36 months, from the date of allotment thereof and, as such, no definite assurance was given and, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 21.1 of the Agreement that possession of the unit will be delivered by Opposite Parties No.1 & 2, within a period of maximum 36 months, from the date of allotment, subject to force majeure circumstances or reason beyond the control of Opposite Parties No.1 & 2. In the instant case, Opposite Parties No.1 & 2 did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by Opposite Parties No.1 & 2 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 complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 21.1 of the Agreement, Opposite Parties No.1 & 2 were bound to deliver possession of the unit, within a maximum period of 36 months, from the date of allotment of the unit, as such, time was, unequivocally made the essence of contract.

                At the same time, Opposite Parties No.1 & 2, also cannot evade their liability, merely by saying that since the words “shall endeavor/try/propose etc.” 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. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, 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 plots/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 Opposite Parties No.1 & 2 in this regard also stands rejected.

16.           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. In this regard Clause 21.1 of the  Unit Buyer’s Agreement (Annexure C-12) reads thus :-

 

“21.1 Subject to Force Majeure conditions and reasons beyond the control of the Company and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the unit within a period of 36 months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.”

 

In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainant within a maximum period of 36 months from the date of allotment. In the instant case, the allotment was made vide provisional allotment letter dated 18.12.2010 (Annexure C-3) and, as such, possession was to be delivered to the complainant latest by 17.12.2013 and not more than that.  However, Opposite Parties No.1 & 2 failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame, as mentioned in the Agreement or even the time when the complaint was filed.

17.           Opposite Parties No.1 & 2 stated in their written reply that possession of the flat will be offered shortly. Now the question arises for consideration is as to whether the complainant will be bound to take possession of the flat, in question, if possession of the same is offered in near future. It is submitted here that already there has been a huge delay in the matter. There is a material violation on the part of Opposite Parties No.1 and 2, in not delivering possession of the flat by the stipulated date. The complainant cannot be made to wait for an indefinite period at the whims and fancies of Opposite Parties No.1 and 2. As such, in our considered opinion, the complainant is not bound to the statement of Opposite Parties No.1 and 2, as far as taking of offer of possession in the near future is concerned. Our view is supported by the law laid down by the National Commission, in the case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016,wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. &Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018.Relevant part of the said order reads thus: -

“This Commission in Emaar MGF Land Ltd. &Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment”.

18.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is pertinent to note that the complainant in his complaint sought refund of the amount of Rs.44,55,849/-. On the other hand, Opposite Parties No.1 & 2 stated that the complainant deposited the total amount of Rs.44,55,639/-. The complainant has mentioned the payment chart in para No.14 of the complaint, in which, it has been mentioned that the complainant also deposited an amount of Rs.210/-. To prove this fact, the complainant has also placed on record copy of bank statement issued by SBI (at page No.245 of the complaint file). From this document, it is clearly proved that the complainant had transferred an amount of Rs.210/- through NEFT. If we calculate the amount of Rs.44,55,639/- + Rs.210/- then the amount comes to Rs.44,55,849/-. It is the admitted fact that Opposite Parties No.1 & 2 failed to deliver possession of the unit, complete in all respects, to the complainant, within the stipulated time frame as mentioned in the Agreement or even the time, when the complaint was filed. So, the complainant is thus, entitled to get refund of amount of Rs.44,55,849/-. In view of above facts of the case, Opposite Parties No.1 & 2 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

19.           It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is clearly proved that an amount of Rs.44,55,849/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 & 2, for their own benefit. Opposite Parties No.1 & 2 were charging rate of interest @15% p.a. compounded, as per Clause 20.1 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 it, the said right. In the facts and circumstances of the case, the  complainant is held entitled to get refund of the amount deposited by him, to the tune of Rs.44,55,849/- alongwith simple interest @13% p.a., from the respective dates of deposits till realization. 

20.           As far as the plea taken by Counsel for Opposite Parties No.1 & 2 at the time of arguments, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 & 2) case, that they were ready with possession of the unit, to be delivered to the complainant, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of Opposite Parties No.1 & 2, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties No.1 & 2, in this regard, have no legs to stand and are accordingly rejected.

21.           Since, it has already been held that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by Opposite Parties No.1 & 2 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 Opposite Parties No.1 & 2 are allowed to invoke this Clause of the Agreement, in the instant case, regarding payment of penalty, that would amount to enriching them, at the cost of the complainant. The defence taken is accordingly rejected.

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

23.           For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 & 2 are jointly and severally directed, as under:-

1. To refund the amount Rs.44,55,849/-, to  the  complainant, alongwith interest @13% p.a.,  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 complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
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) thereafter shall carry penal interest @15% p.a., instead of 13% p.a. from the date of default, and interest @13% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

In Consumer Complaint No.254 of 2018 titled as “Dolly Bhatia Vs. M/s Emaar MGF Land Ltd. & anr.”

 

24.           It is the admitted fact that the complainant booked a flat in the project of the Opposite Parties, namely, “The Views at Mohali Hills” for an amount of Rs.40,01,550/-. Thereafter, unit No.F3/104 on first floor was allotted to the complainant vide provisional allotment letter dated 26.10.2006 (Annexure C-2). Apartment Buyer’s Agreement was executed between the parties on 02.02.2008 (Annexure C-5). As per Clause 21.1 of the Agreement, possession was to be delivered to the complainant within a period of 36 months from the date of allotment i.e. latest by 25.10.2009 and not more than that. It is also the admitted fact that the complainant paid the total amount of Rs.34,63,969/-, as is evident from statement of account (Annexure C-7). After receipt of the huge amount from the complainant, the Opposite Parties failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed, which amounted to deficiency in service and indulgence into unfair trade practice. Therefore, the complainant is certainly entitled to refund of the deposited amount alongwith interest, compensation & litigation expenses.

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

1. To refund the amount Rs.34,63,969/-, to  the  complainant, alongwith interest @13% p.a.,  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 complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
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) thereafter shall carry penal interest @15% p.a., instead of 13% p.a. from the date of default, and interest @13% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

26.           However, it is made clear that, if the complainant in the aforesaid cases 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 (complainant).

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

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

Pronounced.

October  30^th, 2018.                                      

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 (PADMA PANDEY)

        MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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