Seema Juneja, wife of S.Gurvinder Singh Juneja, resident of House No.125, Sector 70, SAS Nagar, Mohali.

……Complainant

V e r s u s

M/s Emaar MGF Land Limited, through its Managing Director, SCO No.120-122, First Floor, Sector 17-C, Chandigarh,.

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

BEFORE:  

Argued by:Sh. Mashwinder Singh, Advocate for the complainant.

                  , Advocate for the Opposite 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

      The facts, in brief, are that, in the year 2006, the complainant, vide application form No.562, booked a residential plot, measuring 300 square yards, with the Opposite Party, in its project, under the name and style of Mohali Hills, Mohali, for which, she paid a sum of Rs.6 lacs (infact as booking amount.

2.           The complainant was allotted plot no.270, approximately measuring 300 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, @Rs.11,500/-  per square yard. The basic price of the said plot was to the tune of Rs.34,50,000/-. Apart from this amount, the complainant was also required to pay a sum of Rs.4,31,250/- towards Preferential Location Charges plus (+) Rs.1,69,104/-, towards External Development Charges. Thus, the total sale consideration, in the sum of Rs.40,50,354/-, was required to be paid by the complainant, towards the said plot. Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, in respect of the said plot, was executed, between the parties, at Chandigarh. Installment payment plan/payment schedule was also attached with the said Plot Buyer`s Agreement.

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6.           was further stated that the Opposite Party collected the huge amount, towards the price of plot, in question, including interest, on delayed payments, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from 04.07.2007, but it did not abide by its commitment. It was further stated that, as such, the amount of Rs.40,50,354/-, deposited by the complainant, towards the sale price of plot, plus interest paid on delayed payment, was utilized by the Opposite Party, as a result whereof, she was caused huge financial loss. It was further stated that since the Opposite Party had not offered physical possession of the plot, in Mohali Hills, Mohali, in favour of the complainant, she was not able to construct house thereon, and reside therein. It was further stated that besides that, the complainant, underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, in Mohali Hills, Mohali, to her, and also suffered further financial loss, on account of non-payment of compensation. A legal notice dated 05.03.2013, was also served upon the Opposite Party, in the matter, but to no avail.

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

13.         the definition of a ‘consumer’, as per Section 2(1)(d)(ii) of the Act. This submission of the Counsel for the Opposite Party, does not appear to be correct. It may be stated here, that no evidence was produced by the Opposite Party, that the complainant purchased the plot, for resale thereof, as and when there was escalation, in prices. No evidence was also produced by the Opposite Party, that the complainant is a property dealer, dealing in the sale and purchase of real estate. No evidence was also produced, by the Opposite Party, that the complainant owns so many other residential properties, and, as such, she purchased the plot, in question, by way of investment, so as to earn profit, by selling the same, when there was boom, in the prices of real estate. We are of the considered opinion that the complainant falls within the definition of a consumer. The submission of the Counsel for the Opposite Party,   must fail, and the same stands rejected.  

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15.          With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under ;

“3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in . In this view of the matter, the submission of the Counsel for the Opposite Party, being devoid of merit, must fail, and the same stands rejected.

16.          plot, within a period of 2 years, and not later than three years, from the date of execution of the same (Plot Buyer`s Agreement). i.e. latest by 04.07.2010. Even, after the expiry of more than about six years, from the date of allotment of plot, and more than about three and a half years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Party, thus, being devoid of merit, must fail, and the same stands rejected.

17.           The total sale consideration of the plot, as per the Plot Buyer`s Agreement, was Rs.40,50,354/-. The    deposited the amount of Rs.40,50,354/-, plus interest, to the tune of Rs.97,642/-, on delayed payments. The entire sale consideration of the plot, in question, Rs.40,50,354/-, plus interest, to the tune of Rs.97,642/-, on delayed payments, had already been paid, by the time of filing the complaint, but possession of the plot, was not delivered in favour of the complainant, as the same had not been developed.  By making a misleading statement, that possession of the plot, would be delivered within three years, from the date of execution of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, and by not abiding by the commitments, made by the Opposite Party, it

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19.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, if so, at what rate. The amount of Rs.40,50,354/-, towards the price of plot, plus Rs.97,642/-, as interest on delayed payments, was deposited by the complainant, which fact is not disputed. The complainant was deprived of her hard earned money, on the basis of misleading information, given by the Opposite Party, that she would be handed over legal physical possession of the residential plot, in question, by 04.07.2010, but it failed to do so. The complainant was, thus, caused financial loss.  The hard earned money of the complainant was utilized by the Opposite Party, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had she invested the same, in some business, she would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Party had charged compound interest @15% P.A., from the complainant, as per Clause 3 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1. Under these circumstances, in  our  considered  opinion,  if  interest @ 12% P.A., on the amounts, referred to above,

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