DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Amandeep Arora s/o late Sh. Bhagwan Dass Arora, resident of H.No.104, Sector 18-A, Chandigarh.

---Complainant.

Versus

1.                 M/s Emaar MGF Land (P) Limited, through its Managing Director/Authorised Representative, ETC House, 28, Kasturba Gandhi Marg, New Delhi-110001

2.                 M/s Emaar MGF Land (P) Limited, through its Managing Director/Authorised Representative, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. Vishal Bali, Counsel for the complainant

                        Sh. Sanjeev Sharma, Counsel for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Amandeep Arora has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :-

i)                   to pay the amount deposited i.e. Rs.13,21,995/-

ii)                to pay Rs.3,00,000/- for mental harassment

iii)              to pay Rs.2,00,000/- for physical harassment

iv)              to pay Rs.1,00,000/- for carrying unfair trade practice.

v)                 To pay Rs.25,000/- as litigation expenses.

2.                           In brief, the case of the complainant is that the opposite parties floated its project known as ‘The Views’ at Mohali Hills, Sector 105, SAS Nagar, Mohali.  In pursuance to the scheme/advertisement, the complainant applied and deposited a sum of Rs.7,00,000/-. The opposite parties provisionally allotted flat No.E-1/602 on 6^th Floor for a total consideration of Rs.45,56,650/- vide allotment letter (C-2).  Thereafter the opposite parties issued letter dated 20.4.2007 to the complainant whereby they provisionally allotted him flat No.C1-F06-602 having total price of Rs.45,72,150/- and cancelled the earlier flat.  The opposite parties also demanded Rs.6,21,995/- from the complainant which was paid by him vide receipt (C-5).

According to the complainant, thereafter a Flat Buyer’s Agreement was executed at Chandigarh.  As per letter dated 17.6.2008 (C-7), nothing was due from the complainant.  However, when the complainant visited the site he saw that there was no construction whereas the opposite parties were to hand over possession within 36 months from the date of allotment i.e. upto August, 2009.   It has been averred that the opposite parties demanded further amount of Rs.4,40,665/- vide their letters dated 5.9.2009 and 18.11.2009.  However, seeing the conduct of the opposite parties, the complainant sought refund of the amount alongwith interest vide letter dated 14.3.2011 (C-10).  The complainant also served a legal notice dated 17.4.2012 (C-11) but the opposite parties failed to refund the amount with interest which amounts to deficiency in service.

In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           In their joint written statement the opposite parties have admitted that the complainant approached them for purchase of an apartment.  It has also been admitted that he paid Rs.7.00 lacs and that he was provisionally allotted unit No.E-I/602 in their project.  The receipt of total sum of Rs.13,21,995/- from the complainant has also been admitted.  It has also been admitted that subsequently the complainant was allotted unit no.C1-F06-602 and the previous allotment was cancelled.  It has, however, been averred that the opposite parties were well within their right to change the unit.  It has been denied that the buyer’s agreement was executed at Chandigarh.  It has been averred that the payment was construction linked and the same was to be demanded on achieving the milestone.  As no construction was started, so no further demands were raised.  It has further been averred that upon receipt of letter from the complainant he was informed that the opposite parties are ready to refund the amount paid towards the unit without any interest.  The remaining averments have been denied being wrong.  Pleading that there is no deficiency in service on their part, prayer for dismissal of the complaint has been made.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           At the outset it has been argued by the ld. Counsel for the opposite parties that this Forum does not have the territorial jurisdiction to entertain and decide this complaint.  However, perusal of the Buyer’s Agreement (C-2) reveals that the same was made at Chandigarh. Hence, a part of cause of action has accrued at Chandigarh and this Forum does have the territorial jurisdiction to entertain and decide this complaint. 

6.                           Admittedly, the complainant applied for an apartment in the project of the opposite parties known as “The Views” at Mohali Hills, Sector 105, SAS Nagar, Mohali.  It is also the admitted case of the parties that initially the complainant was allotted flat No.E-1/602 which subsequently was changed to C1-F06-602.  It is also the admitted case of the parties that the complainant in all deposited a total sum of Rs.13,21,995/- towards the purchase of the unit. 

7.                           It has been argued by the ld. Counsel for the complainant that the possession of the apartment was to be handed over within a period 36 months from the date of allotment.            Annexure C-2 is the Buyer’s Agreement. Clause 21.1 of the said agreement reads as under :-

“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 Apartment 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.”

From the bare perusal of this clause it is apparent that the possession of the apartment was to be delivered by the opposite parties within 36 months from the date of allotment.  The first allotment was made on 30.11.2006 vide letter (C-2) which was subsequently changed vide letter dated 20.4.2007 (C-3).  Therefore, the apartment was to be handed over by 30.11.2009.  If we count the period of 36 months from 20.4.2007, even then the possession was to be handed over by 20.4.2010.

8.                           According to the complainant when he visited the site of the opposite parties he saw that there was no construction.  In such circumstances he requested the opposite parties for refund of the amount.

9.                           There is no averment on behalf of the opposite parties that the construction has been completed or as to when the same will be completed. Onus to prove the fact regarding start/completion of construction was upon the opposite parties which they have failed to discharge.  In these circumstances, the complainant was fully justified in seeking refund of his amount with interest. The opposite parties kept the amounts with them since August 2006 and 2007.  Had the complainant invested the amount in some fixed deposit the same would have earned handsome returns.  The complainant cannot be made to suffer for the wrongs done by the opposite parties.  Hence, the opposite parties are liable to refund the amount deposited with interest. 

10.                       In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

i)                   to refund the amounts of Rs.7,00,000/-  and Rs.6,21,995/- to the complainant  with interest @  9% per annum from the respective dates of deposit.

ii)                to pay Rs.10,000/- as litigation costs.

11.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) shall carry interest @18% per annum from the respective dates of deposit till payment, besides payment of litigation costs.

12.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

19.2.2013.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER