Chandigarh
StateCommission
CC/281/2018
Mrs. Rajinder Kaur Sethi - Complainant(s)
Versus
M/s Emaar MGF Land Ltd. - Opp.Party(s)
Satinder Singh Randhawa, Adv.
28 Feb 2019
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 281 of 2018 |
Date of Institution | : | 06.07.2019 |
Date of Decision | : | 28.02.2019 |
- Mrs. Rajinder Kaur Sethi w/o Mr. Harbans Singh Sethi r/o H.No.81, Sector 2, Chandigarh 160011.
- Mr. Harbans Singh Sethi s/o Late S. Gursharan Singh Sethi r/o H.No.81, Sector 2, Chandigarh 160011.
……Complainants
V e r s u s
M/s EMAAR MGF Land Ltd. having its Registered Office at ECE House, #28, Kasturba Gandhi Marg, New Delhi – 110001.
ALSO AT
M/s EMAAR MGF Land Limited, SCO No.120-121, 1st Floor, Sector 17-C, Chanidgarh through its Director Mr. Shravan Gupta.
.... Opposite Party
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT
MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER
Argued by:
Sh. Satinder S. Randhawa, Advocate for the complainants.
Sh. Sanjeev Sharma, Advocate for the Opposite Party.
PER PADMA PANDEY, MEMBER
The facts, in brief, are that the complainants vide application dated 06.07.2011 applied to the Opposite Party for allotment of a flat in their project, namely, “The Views”, Mohali Hills, Sector 105, SAS Nagar, Mohali by paying an amount of Rs.7 lakhs. The complainants were allotted flat No.H3/F01-103 having area of 1350 sq. ft. vide provisional allotment letter dated 25.07.2011 (Annexure C-1). Thereafter, Buyer’s Agreement dated 05.08.2011 (wrongly written 08.08.2011) (Annexure C-6) 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 24.07.2014, subject to force majeure circumstances. It was further stated that the complainants paid the total amount of Rs.38,32,015/-, out of the total sale consideration of Rs.40,57,937,30. It was further stated that despite receipt of the huge amount from the complainants, the Opposite Party failed to offer/deliver possession of the unit, in question. It was further stated that the aforesaid acts, on the part of the Opposite Party, 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 Party, in its written version, has 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 complainants did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986, as the complainants are residing at their own house at Chandigarh, therefore, purchase of the subject property in this case is purely for investment/speculation purposes. It was further stated that the Opposite Party had invested the money of the complainants in the project and the flat is nearing completion and possession is going to be offered soon as the construction was at advanced stage, as such, possession could be handed over at the earliest. 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. 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, there was no definitive commitment to hand over possession within 36 months from the date of allotment. It was further stated that the complainants are safeguarded by the compensation clause under the Agreement. It was stated that the complaint is time barred, as it has been filed more than two years after accrual of alleged cause of action. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the Agreement was executed at Mohali, impugned property is located at Mohali and registered office of the Company is at New Delhi. It was further stated that the complainants were bound by the terms and conditions of the Agreement and in case of seeking refund, in contravention of the Agreement, forfeiture clause would be applicable. It was admitted regarding allotment of the flat and execution of the Agreement. It was further stated that the complainants made the total payment of Rs.38,32,015/- in respect of the unit, in question, as is evident from the statement of accounts (Annexure R-3). It was further stated that the total sale consideration of the unit was Rs.40,57,937/- and for opting down payment plan, a rebate of 3% was granted to the complainants. It was further stated that the construction was delayed due to unforeseen circumstances and beyond the control of the Opposite Party and, therefore, the possession has not been offered. It was further stated that the Company has already offered possession in three of the towers J, G, L & K in the project “the Views” 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 internal & external paint work is in progress and possession is likely to be offered shortly. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.
3. The Parties led evidence, in support of their case.
4. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
5. First, we will deal with an objection, raised by the Opposite Parties , 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.
6. Further the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in its recent judgment in the case of Puma Realtors Pvt. Ltd. Vs. Abha Arora, First Appeal No.531 of 2016 decided on 11.10.2018, while endorsing the view held by this Commission in Consumer Complaint bearing No.170 of 2015 decided on 01.04.2016, held in Para 10 as under:-
10. The State Commission, while allowing the Complaint in part dealt extensively with the question as to whether the Complaint should be referred to an Arbitrator and has given elaborate findings. This Commission in Consumer Complaint No. 701 of 2015, Aftab Singh Vs. EMAAR MGF Land Limited & Anr., has laid down that though there is a clause of Arbitration in the Agreement it is not a bar for the Consumer Fora to adjudicate the issue and the same has attained finality as the Hon’ble Supreme Court has confirmed this principle vide order dated 13.02.2008 in Civil Appeal No.(s). 23512-23513 of 2017.”
7. In Aftab Singh’s case (supra), the matter qua arbitration went up to the Hon’ble Supreme Court of India in Civil Appeal No.23512-23513 of 2017, which were dismissed on 13.02.2018. Thereafter, EMAAR MGF Land Limited & Anr. filed review petitions to review judgment dated 13.02.2018 before the Hon’ble Apex Court. In the review petitions, following prayers have been made by the appellant:-
“(1) Allow the present review petition and review the Order dated 13.02.2018 passed by this Hon’ble Court in Civil Appeal No. 23512-23513 of 2017;
(2) Set aside the Order dated 13.07.2017 passed by the Larger Bench of the Hon’ble National Commission in C.C. 701/2015 holding consumer disputes to be non-arbitrable amongst other similar erroneous findings;
(3) Set aside the Order dated 28.08.2017 passed by the Single Judge of the Hon’ble National Commission in C.C. 701/2015 dismissing the Application u/S. 8 of the Arbitration and Conciliation Act, 1996;
(4) And pass such other or further order or orders as the Hon’ble Court may deem fit and proper in the interest of justice.”
8. The Hon’ble Supreme Court, after detailed discussion and referring to various case laws, dismissed the review petitions vide order dated 10.12.2018, by observing in Paras 55 and 56 as under:-
“55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.
56. We, thus, do not find that any error has been committed by the NCDRC in rejecting the application filed by the appellant under Section 8. No exception can be taken to the dismissal of the appeals by this Court against the judgment of NCDRC. No ground is made out to review the order dated 13.02.2018. The review petitions are dismissed.”
In view of above, the objection raised by the Opposite Party, in this regard, being devoid of merit is rejected.
9. 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 Unit Buyer’s Agreement was executed between the parties at Chandigarh on 05.08.2011 (Annexure C-6). Not only this, the complainants have also annexed provisional allotment letter, receipt(s)/acknowledgment-cum-receipt(s) (Annexures C-1 to C-5) were sent by the Opposite Party from its 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 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.
10. The next question, that falls for consideration, is, as to whether, the complainants fall 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 the Opposite Party does not carry any weight and is liable to be rejected. The complainants have mentioned in their complaint that being a senior citizens they purchased the apartment for their own personal use and for the benefit of their children. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants. There is nothing, on the record, that the complainants are property dealers. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion i.e. simply saying that the complainants purchased the property for speculation purposes and, as such, they 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 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 Party, in its written reply, therefore, being devoid of merit, is rejected.
11. 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 Party, in its 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 complainants alongwith interest and, 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 Party, 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 the Opposite Party 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.
12. Another objection raised by Counsel for the Opposite Party 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 the Opposite Party, within a period of maximum 36 months, from the date of allotment, subject to force majeure circumstances or reason beyond the control of the Opposite Party. In the instant case, the Opposite Party did not raise any force majeure circumstances, if any, encountered by it. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond its control, the stand taken by it, 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 21.1 of the Agreement, the Opposite Party was 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, the Opposite Party, 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:-
In view of above, the plea of the Opposite Party in this regard also stands rejected.
13. 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 complainants. In this regard Clause 21.1 of the Unit Buyer’s Agreement (Annexure C-6) 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 complainants 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 25.07.2011 (Annexure C-1) and, as such, possession was to be delivered to the complainants latest by 24.07.2014 and not more than that. However, the Opposite Party failed to deliver possession of the unit, in question, to the complainants within the stipulated time frame, as mentioned in the Agreement or even the time when the complaint was filed.
14. The Opposite Party stated in its written statement that possession of the flat will be offered shortly. Now the question arises for consideration is as to whether the complainants will be bound to take possession of the unit, 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 the Opposite Party, in not delivering possession of the flat by the stipulated date. The complainants cannot be made to wait for an indefinite period at the whims and fancies of the Opposite Party. As such, in our considered opinion, the complainants are not bound to the statement of the Opposite Parties, 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”.
15. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the deposited amount. It is the admitted fact that the complainants deposited the total amount of Rs.38,32,015/- with the Opposite Party in respect of the unit, in question, as is evident from statement of account (Annexure R-4). It is also the admitted fact that the Opposite Party failed to deliver possession of the unit, complete in all respects, to the complainants, within the stipulated time frame as mentioned in the Agreement or even the time, when the complaint was filed. So, the complainants are thus, entitled to get refund of amount of Rs.38,32,015/-. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.
16. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is clearly proved that an amount of Rs.38,32,015/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for their own benefit. The Opposite Party was 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 complainants are held entitled to get refund of the amount deposited by them, to the tune of Rs.38,32,015/- alongwith simple interest @10% p.a., from the respective dates of deposits till realization.
17. As far as the plea taken by Counsel for the Opposite Party at the time of arguments, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party) case, that it was ready with possession of the unit, to be delivered to the complainants, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was they (complainants) 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 the Opposite Party, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are 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 the Opposite Party in this regard, have no legs to stand and are accordingly rejected.
18. 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 Party to the effect that it is ready to pay penalty amount for the period of delay, in delivery of possession cannot be considered, at this stage. If the Opposite Party is 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 complainants. The defence taken is accordingly rejected.
19. No other point, was urged, by the Counsel for the parties.
20. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
- To refund the amount Rs.38,32,015/-, to the complainants, alongwith interest @10% p.a., from the respective dates of deposits onwards.
- To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
- To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
- 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 @12% p.a., instead of 10% p.a. from the date of default, and interest @10% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
21. However, it is made clear that, if the complainants 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 (complainants).
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced.
February 28th, 2019.
[JUSTICE JASBIR SINGH (RETD.)]
[PRESIDENT]
(PADMA PANDEY)
MEMBER
(RAJESH K. ARYA)
MEMBER
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