Supneet Kaur Khurana, wife of Late Mr. Harbir Singh Khurana, House No.108, Sector 36A, Chandigarh.

……Complainant

V e r s u s

1.M/s Emaar MGF Land Private Ltd., through its Managing Director/Principal Officer, having its Registered Office at MGF House 17-B, Asaf Ali Road, New Delhi-110002.

2.M/s Emaar MGF Land Limited, SCO No.120-121, 1^st

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

BEFORE:  

Argued by:Sh. Kabir Sarin, Advocate for the complainant,                             

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

             The facts, in brief, are that, according to the complainant, the Opposite Parties made various assurances, through various newspapers, marketing emails and telemarketing, with regard to launching of their integrated residential township, under the name and style of Mohali Hills, Mohali, in Sectors 105, 108 and 109, Punjab, having salient features. 

2.           Mr. Harbir Singh Khurana (now deceased), husband of the complainant, was allotted plot no.234, measuring approximate areaPlot Buyer`s Agreement dated 20.06.2007, in respect of the said plot was executed between Mr. Harbir Singh Khurana (now deceased) and the Opposite Parties, at Chandigarh. Installment payment plan/payment schedule was also attached with the Plot Buyer`s Agreement.

3.           Thereafter, as per the installment payment plan, Mr. Harbir Singh Khurana (now deceased), in all, deposited an amount of Rs.64,63,091/-. He, thus, qualified for waiver of 

4.           It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from deposited by Harbir Singh (now deceased), towards the sale price of plot, was utilized by the Opposite Parties, as a result whereof, the complainant, who stepped into his shoes, was caused huge financial loss. It was further stated that since the Opposite Parties had not offered physical possession of the plot, in question, 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, being a widow, underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to her, and also suffered further financial loss, on account of non-payment of compensation. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, 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 Parties to handover physical possession of the fully developed plot no.234, measuring approximate area  

5.           The Opposite Parties, in their joint written version, pleaded that since the complaint, had not been signed by the complainant, it was not legally maintainable, and, as such, on this ground alone, it was liable to be rejected.pleaded that the complainant and her husband (now deceased), had purchased two units, from the Opposite Parties, in the same project, and, as such, she (complainant) did not fall within the definition of a consumer, as defined under Section 2(d) of the Act. It was further pleaded that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, as no cause of action arose to the complainant, within the territory of Chandigarh. It was further pleaded that the complaint was barred by time. It was further pleaded that since, an arbitration Clause was incorporated, in the

6.           The factum ofand the delivery of physical possession thereof, was likely to be given, in the near future, on completion of internal services, as specified in Clause 23 of thePlot Buyer`s Agreement dated 20.06.2007.It was further stated that time was not the essence of contract. It was further stated that, by way of the Agreement, referred to above, in case, the possession of fully developed residential plot was delayed, on account of the reasons, beyond the control of the Opposite Parties, they were only liable to pay penalty/compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same (Agreement), and, as such, the complainant was not entitled to any additional compensation, for mental agony and physical harassment, or interest, on the amount aforesaid, deposited towards the price of the plot, in question.It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

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11.        The first question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. According to the Plot Buyer`s Agreement dated 20.06.2007, the possession was to be delivered, in respect of the plot, in question, within a period of three years, from the date of signing the same, in favour of the complainant. Neither the possession of plot, was handed over to the complainant, by the stipulated dated i.e. 20.06.2010, nor the penalty, as provided in the Plot Buyer`s Agreement dated 20.06.2007 was paid to her.

12.        next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain the complaint, or not. According to Section 17 of the Act, the Consumer Complaint could 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 her. In the instant case, the Plot Buyer`s Agreement dated 20.06.2007, in respect of the plot, in question, was executed, between Mr. Harbir Singh Khurana (now deceased) and the Opposite Parties, at Chandigarh. Admittedly, after the death of Mr. Harbir Singh Khurana, husband of the complainant, the plot, in question, was transferred/endorsed, in her name, being his legal heir, vide application dated 29.08.2011, whereafter, she (complainant), was vested with all the rights, accrued in his [(Mr. Harbir Singh Khurana, her husband, (now deceased)] favour. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.

13.        The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Plot Buyer`s Agreement dated 20.06.2007.

 “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 20.06.2007, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. . In this view of the matter, the submission of the Counsel for the 

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 “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 

17.        . Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided underSection 3 of the Act, can be availed of by her, as she fell within the definition of a consumer, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

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20.        Hon’ble Supreme Court The facts of Smt. Chand Rani`s case (supra), are distinguishable, from the facts of the instant case. related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms in the Agreement. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of theEven after the expiry of more than six years of the allotment of plot, and more than three and a half years, from the stipulated period, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.

21.        Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd., a case decided by a three Judge Bench of the Hon`ble Supreme Court, a question arose, that when the parties had contracted and limited their liabilities, whether the State/National Commission could go beyond the terms of the contract and give relief for damages, in excess of the limit, prescribed under the same (contract) or not. It was held that when there is a specific term, in the contract, signed by the parties, they are bound by the same, and relief for damages, in excess of the limit, prescribed under the same (contract), cannot be given. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Under these circumstances, as stated above, the complainant is only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 20.06.2010 (promised date of delivery of possession of the unit, in question) onwards, on account of delay, in delivery of possession of the plot, as per Clause 8 of the Agreement, referred to above. The complainant is thus not entitled to interest, claimed by her, @18% P.A., on the amount of Rs.64,63,091/-, deposited towards the price of the plot, in question. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.

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

24.         For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:_

                         The Opposite Parties, are directed to handover physical possession of the to the complainant, within 3 (three) months, complete in all respects, from the date of receipt of a certified copy of this order, on payment of amount, if any, legally due against her (complainant).

                        The Opposite Parties, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 20.06.2010 (the promised date of delivery of possession), till the delivery of possession ofplot no.234, measuring approximate area 500 square yards, in Augusta Park, Sector 109, Mohali Hills, Mohali, to the complainant, as per Clause 8 of the Plot Buyer`s Agreement dated 20.06.2007.

                      The Opposite Parties, are further directed to pay compensation, in the sum of Rs.1.5 lacs, (Rs.One lac and fifty thousand only), on account of mental agony and physical harassment, caused to the complainant, at their hands.

                                        The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

                                          Compensation, granted to the complainant, as mentioned in Clause (ii), which has fallen due upto 30.04.2014, shall be paid by the Opposite Parties, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 20.06.2010, till the delivery of possession ofplot no.234, measuring approximate area .

                                        Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yard, w.e.f. 01.05.2014, per month, onwards, shall be paid by the 10^th

                                       Compensation granted, in favour of the complainant, on account of mental agony and physical harassment, to the tune of Rs.1.5 lacs, as mentioned in Clause (iii),

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Pronounced.

May 1, 2014

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Sd/-

(PADMA PANDEY)