Mr. Girdhari Lal Gupta, s/o Late Sh. G.R. Gupta, House No.13C, Green View Enclave, Lohgarh, Zirakpur.

……Complainant

V e r s u s

M/s Emaar MGF Land Private Limited, SCO 120-122, First Floor, Sector 17C, Chandigarh-160017, through its Managing Director.

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

BEFORE:  

Argued by:Sh. Pankaj Chandgothia, Advocate for the complainant.

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

              Rs.59,75,472/-.The complainant paid the transfer fee, and, as such, the transfer of plot, in question, was effected in favour of the complainant, vide nomination letter/endorsement letter dated 06.06.2011 Annexure C-2.It was further stated that, the entire sale consideration of Rs.59,75,472/-, in respect of the plot, in question, had been received by the Opposite Party, as was admitted by it, videnomination letter/endorsement letter dated 06.06.2011 Annexure C-2.Endorsement dated 06.06.2011, in this regard was made, by the Opposite Party, on all the documents, such as Provisional Allotment Letter Annexure C-1, Plot Buyer`s Agreement dated 04.07.2007, receipts etc etc., in respect of the plot, in question. It was further stated that, in this manner, theright and interest, in the plot, in question, were transferred, in favour of the complainant, by the Opposite Party, as he stepped into the shoes ofMr. Rishab Soni.

2.           It was further stated that, as per Clause 8 ofthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3,subject to force majeure conditions, and reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement), failing which, it wasliable to pay compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.Thus, the Opposite Party was to deliver possession of the residential plot, to the complainant, latest by 04.07.2010. The possession was not even offered to the complainant by 04.07.2010. Even till the date of filing the complaint, possession of plot, in question, was not offered to the complainant. It was further stated that the complainant approached the Opposite Party, through every possible means, with a request to apprise him, with regard to the delivery of possession of the plot, in question, and, if it was not possible, in the near future, to refund the amount thereof, but it failed to do so, and lingered on the matter, on one pretext of the other.

3.           t was further stated that the Opposite Party 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, fromstruct house thereon, and reside therein. It was further stated 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, to him, and also suffered further financial loss, on account of non-payment of compensation.

4.           iled, directing the Opposite Party to handover physical possession of the fully developed plotbearing No.3, having approximate area of 400 square yards, Augusta Greens, Sector 109, in Mohali Hills, Mohali,@ Rs.11,500/- per square yard,or in the alternative to refund the entire amount of Rs.59,75,472/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation to the tune of Rs.35 lacs, on account of financial loss, damages, mental agony and physical harassment; and

5.           Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, but he filed the Consumer Complaint, in the year 2014, and, as such, the same was barred by time. It was further pleaded that this Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint. It was further pleaded that the requisite fee, had not been paid by the complainant, and, as such, the complaint was liable to be dismissed. It was stated that the complainant, by not seeking possession of the plot, or compensation, as provided in the Agreement aforesaid, in the year 2010, waived off his right to seek refund, in the year 2014.thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3,subject to force majeure conditions and reasons beyond the control of the Company,physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement),yet, at the same time, it was also mentioned therein, that, in case of delay, the Opposite Party was liable to pay compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite

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10.        The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. According tothePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, the possession was to be delivered, in respect of the plot, in question, within a period of three years, from the date of execution of the same. Neither the possession of plot, was handed over to the complainant, by the stipulated date i.e. 04.07.2010, nor the penalty, as provided inthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, was paid to him.

11.        The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide 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 him. In the instant case,thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, in respect of the plot, in question, was executed, between Mr. Rishab Soni, the original allottee and the Opposite Party, at Chandigarh. Admittedly, the plot, in question, was transferred/endorsed, in the name of the complainant, videnomination letter/endorsement letter dated 06.06.2011 Annexure C-2, whereafter, he (complainant), was vested with all the rights, accrued in his [Mr. Rishab Soni] favour. It is further evident, from the receipts dated 03.09.2008 and 06.02.2009, at pages 37 

12.        The next question, that  falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the basic price of the plot, in question, was Rs.59,75,472/-. The complainant, has sought physical possession of the fully developed plotbearing No.3, @ Rs.11,500/- per square yards, having approximate area of 400 square yards, Augusta Greens, Sector 109, in Mohali Hills, Mohali,  cost of litigation, to the tune of Rs.33,000/-. The aggregate value of the services/goods plus (+) compensation, and cost, claimed by the complainant, in the complaint, [excluding the interest claimed], came to be around Rs.95,08,472/-, and, as such, fell below Rs.1 crore. Thus, this Commission has got pecuniary 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.

13.        The next question, that arises for consideration, is, as to whether, interest @18% P.A., claimed by the complainant, on the amount of Rs.59,75,472/-  aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/-, it (amount) will exceed Rs.20 lakhs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

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15.        No doubt, an objection was also taken by the Opposite Party, in paragraph number 21 of its written version/reply on merits, that since the requisite Court fees, has not been paid by the complainant, the complaint is liable to be dismissed, on this ground alone. The objection taken by the Opposite Party, in this regard, does not merit acceptance. It may be stated here, that according to Rule 9A (2) of the Consumer Protection Rules, 1987, if the total value of goods or services and the compensation claimed, is above fifty lacs and upto one crore rupees, the amount of fee payable is Rs.4000/-. As stated above,theaggregate value of the services plus (+) compensation, and cost, claimed by the complainant, in the instant complaint, came to be around Rs.95,08,472/-, and, as such, fell below Rs.1 crore, meaning thereby that the complainant was required to pay a sum of Rs.4,000/-, as fees. It is evident, from the record, that a sum of Rs.4000/-, vide Demand Draft No.005918 dated 19.03.2014, was deposited by the complainant, as fees, as the relief claimed was above Rs.50 lacs and below Rs.1 crore. The correct fee was, thus, paid by the complainant. The objection taken by the Opposite Party, in this regard, therefore, being devoid of merit, is rejected.

16.        The next question, that falls for consideration, is, as to within which period, delivery of possession of the plot, was to be given to the complainant. According to Clause 8 ofthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, subject to force majeure conditions and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Party was required to deliver possession of the plot, in question, in favour of the complainant, within a period of three years, from the date of execution ofthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3. Admittedly, the possession of plot, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. The Counsel for the Opposite Party, frankly admitted, in paragraph number 9 of its written statement/reply on merits, that it was not able to deliver possession of the plot, in question, to the complainant, till the date of filing the complaint, and even till date, as mentioned in the said Agreement.thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, was Rs.59,75,472/-. The complainant, as per the admission of the Opposite Party in Annexure C-2, copy of thenomination letter/endorsement letter dated 06.06.2011 Annexure C-2,thePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3, and by not abiding by the commitments, made by the Opposite Party, it (Opposite Party) was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the plot.

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18.         @Rs.50/-, per square yard, per month of the super area, as provided in Clause 8 of the same (Agreement). InBharathi 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 04.07.2010 (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 him @18% P.A., on the amount of Rs.59,75,472/-, deposited towards the sale consideration 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.

19.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account   

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

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

                         The Opposite Party, is directed to handover physical possession of the, in question, having approximate area of 400 square yards, Augusta Greens, Sector 109, in Mohali Hills, Mohali,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 him.

                        The Opposite Party, is further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 04.07.2010 (the promised date of delivery of possession), till the delivery of possession of plot, as per Clause 8 ofthePlot Buyer`s Agreement dated 04.07.2007, Annexure C-3.

                      The Opposite Party, is further directed to pay compensation, in the sum of Rs.2 lacs,(Rs.Two Lacs),on account of mental agony and physical harassment, caused to the complainant, at its hands.

                                        The Opposite Party, is further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant, within a period of two months, from the date of receipt of a certified copy of the order.

                                          Compensation, granted to the complainant, as mentioned in Clause (ii), which has fallen due upto 31.05.2014, shall be paid by the Opposite Party, 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 04.07.2010, till the delivery of possession of the plot, in question.

                                        Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yard, w.e.f. 01.06.2014, 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.2 lacs(Rs.Two Lacs), as mentioned in Clause (iii), shall be paid to him by the Opposite Party, within a period of two months, from the date of receipt of a certified copy of the order, failing which it shall pay interest @9% P.A., from the date of filing the complaint, till realization.

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Pronounced.

June 2, 2014                          Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[DEV RAJ]

MEMBER

Rg.