Chandigarh

StateCommission

CC/321/2016

Mr. Sukhminder Singh - Complainant(s)

Versus

M/s Emaar MGF Land Private Limited - Opp.Party(s)

Sh. Sandeep Bhardwaj, Adv.

12 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	321 of 2016
Date of Institution	:	05.07.2016
Date of Decision	:	12.01.2017

Mr.Sukhminder Singh s/o S. Jagir Singh, House No.2010, Sector 15-C, Chandigarh.

Now at :

House No.2155, Old Sunny Enclave, Sector 125, Mohali (Pb.).

Mrs. Saroj Kanta w/o Mr.Sukhminder Singh, House No.2010, Sector 15-C, Chandigarh.

Now at :

House No.2155, Old Sunny Enclave, Sector 125, Mohali (Pb.).

……Complainants

V e r s u s

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

.... Opposite Party

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by:

Sh. Sandeep Bhardwaj, Advocate for the complainants.

Sh. Gurdeep Singh, Senior Manager (Legal) of the Opposite Party.

PER PADMA PANDEY, MEMBER

The facts, in brief, are that the Opposite Party floated a scheme for allotment of units under the name and style of “Central Plaza”. Since the complainants were in urgent requirement of a shop in a developed area for carrying on their own work for the purpose of earning their livelihood, they booked the unit in the project of the Opposite Party and paid the booking amount. The Opposite Party also issued a provisional allotment of Unit No.17SF in Central Plaza, Mohali Hills (Annexure C-1) for the total consideration of Rs.49,52,314/-. It was further stated that the Opposite Party inspite of receipt of payment towards registration, delayed in sending the Agreement and the said fact was admitted in its letter (Annexure C-2). Copy of Buyer’s Agreement, which was executed between the parties, is Annexure C-3. It was further stated that the Opposite Party was only interested in receipt of money and payments and not interested in the development and construction of the unit. However, the complainants continued to deposit the installments towards the unit vide receipts (Annexure C-4). It was further stated that the total amount of over Rs.48.40 lacs was paid by the complainants to the Opposite Party. It was further stated that the complainants continued to take up the issue of development and construction of the unit with the Opposite Party orally as well as in writing (Annexure C-5). It was further stated that earlier the son of the complainants was also an allottee but his name was deleted, as per letter dated 29.02.2012 (Annexure C-6) issued by the Opposite Party. It was further stated that Opposite Party promised to give possession of the unit to the complainants within 3 years at the most, as per Clause 22 of the Agreement and also committed to pay Rs.50/- per sq. feet per month for delay in delivering possession, but it failed to honour its commitment. It was further stated that the Opposite Party was not in a position to deliver possession of the unit. The representative of the complainants visited the office of the Opposite Party several times but to no avail. 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 plot was earlier allotted in favour of the complainants alongwith Mr.Paramvir Jaura, however, the said Mr.Paramvir Jaura shifted to Canada and asked for deletion of his name. After deletion of the name, the unit was endorsed in favour of the complainants alone in 2012. It was further stated that the complainants did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986, as they purchased Shop No.17 (Commercial Unit), in question, at Central Park, Sector 105, Mohali for commercial purposes. It was further stated that the Opposite Party could offer possession of the unit only on completion of internal services, as specified in Clause 23 of the Agreement, which would enable the complainants to initiate construction on the plot. The complainants having accepted the alleged delay and being duly protected by penalty clause under the Agreement, would not seek specific performance and seek possession immediately. It was further stated that it is well settled principle of law that in cases of sale of immovable property, time is never regarded as the essence of the contract. Thus, the complainants are not entitled to claim possession within any time bound manner, as the same would amount to specific performance of the contract. It was further stated that this Commission has no pecuniary as well as territorial jurisdiction to try and entertain the complaint. It was further stated that both the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that in case of failure of the allottee to perform all obligations as set out in the Agreement, the allottee has authorized the Company to forfeit the earnest money alongwith any interest paid, due or payable, any amount of non refundable nature. It was further stated that the complainants have concealed the material point that intimation of possession letter was sent to the complainants on 30.05.2016, after the receipt of Occupation Certificate on 22.03.2016 from the competent authorities and subsequently reminders were also sent to the complainants on 01.08.2016, 16.08.2016 and 15.09.2016. Copies of the possession letter and receipts are Annexure R-1 Colly. It was further stated that the Opposite Party issued Occupation Certificate only after completion of the unit, in question. It was further stated that in case of seeking of refund, the forfeiture clause would be applicable. It was admitted regarding booking of the unit; issuance of provisional allotment letter and execution of the Agreement. It was further stated that as per terms of allotment, possession of the unit was “proposed” to be handed over within 36 months from the date of execution of the Agreement and in case of any delay, the Company would be liable to pay penalty. It was further stated that the payment schedule was restructured from time linked to construction linked scheme in order to facilitate the customers in making the payments smoothly. It was further stated that the complainants have paid an amount of Rs.48,45,396/- against the unit, in question, however, with delay. It was further stated that as per Buyer Agreement, the Company was not under obligation to send reminders for payment of installments and when no payments were made, cancellation letter dated 30.06.2011 was sent to the complainants (Annexure R-7 colly.). It was further stated that the Opposite Party has got all the necessary permissions and approvals and even partial completion certificate has been obtained from the competent authorities (Annexure R-9). It was further stated that the area of shop was increased from 1282 to 1349.87 and now the total cost, as per revised area of the unit presently is Rs.62,33,160/-. It was further stated that the complainants have paid a sum of Rs.47,14,803/- out of the total amount of Rs.62,33,160/- and a sum of Rs.15,18,357/- is still outstanding against the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3. The complainants filed rejoinder to the written statement of the Opposite Party, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party.

4. The Parties led evidence, in support of their case.

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

6. The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even i n the face of existence of arbitration clause in the Agreement, 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. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Senior Manager (Legal) of the Opposite Party, stands rejected.

7. Another frivolous objection was taken by the Opposite Party, by stating that the unit, in question, is situated at Mohali, Punjab, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint. In the instant case, letter (Annexure C-2), acknowledgment-cum-receipts (Annexure C-4), letter dated 07.02.2012 (at page no.70 of the file) and letter dated 29.02.2012 (Annexure C-6), were sent by Chandigarh office of the Opposite Party, as the same had the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, also stands rejected.

8. Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants have sought refund of the entire deposited amount, towards price of the unit, alongwith interest @18% p.a. from the respective dates of deposits, till realization; to pay Rs.10,00,000/- to compensate the complainants for the opportunity cost, which will occur to them if they had to buy the similar size unit today from some other source ; compensation to the tune of Rs.10 lacs, for mental agony & physical harassment; Rs.5 lacs as deterrent charges for adopting various unfair trade practices ; Rs.5 lacs as punitive damages and cost of litigation, to the tune of Rs.55,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore because the Opposite Party admitted in its written statement that the complainants deposited an amount of Rs.48,45,396/-, as is evident from statement of account (Annexure R-6). Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

As far as the interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9. It has vehemently been contended by the Opposite Party that the dispute is qua a shop, purchased by the complainants in the project of the Opposite Party and there is nothing on record to prove that the shop was purchased by the complainants to earn their livelihood, through self-employment, as such, they would not fall within the definition of consumer, in terms of Section 2 (1) (d) of the Act.

We are not going to agree with the contention raised. There is nothing on record to show that the shop was purchased by the complainants to earn profits, in future, by selling it at a higher premium. The complainants are not the property dealers and deal in the sale and purchase of property, on regular basis, and as such, there is no evidence to show that the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Similar controversy, as to whether the complainant(s) on purchase of a shop/unit would fall within the definition of consumer complaint, came up for consideration, before this Commission, in a case titled as M/s Chandigarh Overseas Private Limited Vs. Easow Mathew, First Appeal No.284 of 2015, decided on 25.01.2016. Taking note of similar contentions, this Commission, gave findings as under:-

On interpreting provisions of application form for allotment/agreements, and other documents on record, the Forum came to the conclusion that construction at the project, was to be completed by 18.01.2010, however, it was not done and possession of the unit, was not delivered, as per promise made by the opposite parties. Defence taken by the appellant that the respondent was not a consumer was righty rejected, by observing as under:-

“As we have already observed, the complainant has specifically pleaded in his complaint that he wanted to settle a business for himself for earning his livelihood and to become an independent business owner, he agreed to purchase the said unit of 100 sq. ft. in Design Studio No.12. The complainant has also pleaded that he is a consumer as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood. The allegations of the complainant are supported by his own affidavit. The OPs have not produced any such evidence that the complainant is a property dealer dealing in the sale and purchase of real estate. The total area of the unit purchased by the complainant from the OPs is only 100 sq. ft. which is for small investors. Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits. As far as the contention of the learned counsel for the OPs that the complainant is not qualified to run his unit in the project is concerned, it was the duty of the OPs to verify the same before accepting the application for allotment of the unit whether he was eligible under “Small Investor Scheme” or not. At this stage, such an objection is not tenable. In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon’ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of consumer.”

Contention of Counsel for the appellant that the respondent was not a consumer also needs to be rejected, taking note of ratio of the judgement of the National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.

By noting ratio of the judgment of the Hon'ble Supreme Court of India, titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, it was stated by the National Commission in that case that the word commercial purpose is a question of fact to be decided in the facts of each case. It is not value of the goods, which matters, but the purpose, for which the goods bought are put to, needs to be noted. Same would be clearly applicable to, for hiring or availing services. In the present case, application to purchase a unit, was moved in the year 2006. Out of Rs.5 lacs, an amount of Rs.4,75,000/- stood paid, for purchase of the built-up unit. Rest of the amount was to be paid, at the time of possession of the unit. In the year 2009, when completion of the project was not visible, under above circumstances, when buyback offer was made by the appellant on 22.06.2009, may be on account of frustration in not getting possession of the unit, in time, it was accepted by the respondent, on 04.08.2009 vide letter Annexure C-7. On account of that act, the respondent cannot be excluded from the definition of a consumer. Even otherwise, as has been observed by the National Commission, in the case of Kavit Ahuja's case (supra), that surplus funds can be invested, in such a manner, in purchasing property/unit(s), to earn better returns, in future and unless there is evidence on record that the purchaser thereof, was indulging into sale and purchase of unit(s), on regular basis, he would fall within the definition of a consumer.”

10. In the instant case, in para no.3 of the complaint, it is specifically stated that the complainants, who are husband and wife, were in urgent requirement of a shop unit in a developed area, for carrying on their own work for the purpose of earning their livelihood. When objections, as referred to above, were raised by the Opposite Party in its written version; by filing rejoinder, in reply to para no.3, it was specifically stated by the complainants that they were earlier running the business of jewellary under the name and style of Gulmour Jewellers. In the year 1994, complainant No.1 started the business of jewellery and also entered into a partnership deed dated 07.04.1994, copy of which is Annexure C-7 and, thereafter, the complainants started the cloth business at Sunny Enclave, Mohali and Rent Agreement dated 20.06.2013 is also placed on record (Annexure C-8). It was further stated by the complainants that they were not able to earn proper source of livelihood as they do not have any space to run their business, as such, they purchased the unit in order to start their gold or cloth business by means of self-employment and to earn source of their livelihood by running their own business. Had the complainants purchased two shops, in the project of the Opposite Party, in that event, it would have been said that the same had been purchased by them, for commercial purpose, with a view to gain huge profits and, as such, they did not fall within the definition of consumer. There is nothing, on record, that the complainants owned any other shop, in the tricity, in their names. On the other hand, the Opposite Party failed to produce on record any evidence that the complainants were property dealers or they intended to purchase the commercial space/shop, by way of investment, with a view to sell the same, in the event of escalation in prices or to rent out the same. 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. Another objection raised by the Opposite Party that since it was mentioned in the Agreement that the Company shall endeavour to deliver possession of the unit within maximum period of 36 months, as such, time was not 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 maximum period of 36 months from the date of signing of the Agreement, 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 them. 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 signing of the Agreement, as such, time was, unequivocally made the essence of contract.

Even otherwise, the Opposite Party cannot evade its liability, merely by saying that since the word tentative/ proposed/tentative 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. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, 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 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:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Party in this regard also stands rejected.

12. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the shop/unit, was to be given to the complainants. In this regard Clause 22.1 of the Central Plaza Premises Buyer’s Agreement (Annexure C-2) reads thus :-

“22.1 Subject to Force Majeure conditions and reasons beyond the control of the Developer 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 Developer proposes to hand over the possession of the premises within a period of thirty-six (36) months from the date of signing of this Agreement. The Allottee agrees and understands that the Developer shall be entitled to a grace period of ninety (90) days, after the expiry of thirty-six (36) months for applying and obtaining the occupation certificate in respect of the CENTRAL PLAZA.”

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 signing of the Agreement. In the instant case, the Agreement was executed between the parties on 25.03.2008 and, as such, possession was to be delivered to the complainants latest by 24.03.2011. However, the Opposite Party sent letter of intimation of possession dated 30.05.2016 (Annexure R-1 colly.) i.e. after a delay of more than five years.

13. The next question that falls for consideration, is, as to whether, the complainants were bound to accept offer of possession, in respect of the unit, in question, when the same was offered to them vide intimation of possession letter dated 30.05.2016 (Annexure R-1 colly.), i.e. after a huge delay of more than five years and that too, in the absence of any force majeure circumstances. Since, in the instant case, the Agreement was executed between the parties on 25.03.2008 and the Opposite Party was bound to give possession within a maximum period of 36 months, which was expired on 24.03.2011. The Opposite Party offered intimation of possession only vide letter dated 30.05.2016 i.e. after a huge delay of more than five years. No doubt, a plea is taken by Senior Manager (Legal) of the Opposite Party that since the Opposite Party has already obtained Partial Completion Certificate (Annexure R-9) in respect of the project, in question, as such, it could very well be said that the development at site was complete and that the Opposite Party was in possession of all the necessary approvals/sanctions and was ready to offer/deliver possession of the unit to the complainants. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Annexure R-9) clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Party shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc. It is the duty of the Opposite Party to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Party that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. Under similar circumstances, this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon`ble National Commission, held 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. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the Complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

Even the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided on 03.07.2015.’ The relevant portion of the judgment reads thus :-

“16. Admittedly, appellants did not offer possession of the apartment within the prescribed period, in terms of Clause 21 of the “Apartment Buyer’s Agreement”, Moreover, no explanation has been given by the appellants as to why they did not offer the possession of the apartment by the stipulated period, though respondents had paid substantial amount. As per copy of the Statement of Account filed by the appellants, as on 04-Sep-2012 (Page No.133 of Paper Book of F.A. No.462 of 2014), the respondent has paid a sum of Rs.41,45,068/- out of the total sale price of the apartment, which was Rs.48,65,580.50. Thus, deficiency on the part of the appellants started right from that very moment. It is an admitted fact, that as per the agreement possession of the apartment was to be handed over latest by 23.8.2011. But the appellants admittedly offered the possession of the apartment for the first time only in the year 2013. When the appellants did not offer the possession of the apartment in question within the specified period, under these circumstances, the respondents were fully justified to refuse the offer of possession, as late as in the year 2013. Thus, appellants themselves have violated the relevant terms and conditions with regard to handing over of the possession. Now it does not lie in their mouth to blame the respondents for their own negligence (i.e. of the appellants). Therefore, appellants by not delivering the legal physical possession of the apartment within the prescribed period, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. The appellants in the present case are enjoying the hard earned money of the respondents since 2008. Now on one pretext or the other, appellants do not want to refund the same, though negligence on the part of the appellants, is writ large in this case.”

The aforesaid appeal was dismissed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi with punitive damages. Aggrieved against the aforesaid order, Emaar MGF Land Limited filed Special Leave to Appeal (C) No(s). 32492/2015 before the Hon’ble Supreme Court of India and the same was also dismissed.