Chandigarh

StateCommission

CC/261/2016

Ms.Pooja Jain - Complainant(s)

Versus

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

Sandeep Bhardwaj, Adv.

30 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	261 of 2016
Date of Institution	:	10.06.2016
Date of Decision	:	30.09.2016

 

Ms. Pooja Jain w/o Akhil Jain r/o House no.334, Sector 9-D, Chandigarh.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Private Limited, (Mohali Hills), 1^st Floor, Sector 17-C, SCO No. 120-122, Chandigarh – 160017, through its Managing Director/Director/ Authorized Representative.  
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through its Managing Director/Director/ Authorized Representative.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Sandeep Bhardwaj, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant had a dream to have a residential house for her own use and for the use of her family members and, as such, she decided to purchase independent residential plot. The representative of the Opposite Parties allured the complainant about the salient features of their project and alleged to be in possession of all necessary approvals/sanctions, and that possession of the same would be delivered within two years from the date of booking. On believing the assurances made by the Opposite Parties, the complainant moved an application for allotment of a plot measuring 500 sq. yards, Sector 109, Mohali Hills, Mohali, Punjab and paid the amount of Rs.27,79,118/- vide receipt (Annexure C-1). Thereafter, the Opposite Parties issued a provisional allotment letter dated 18.10.2007 (Annexure C-3), wherein, plot No.230 in Augusta Park, Sector 109 was allotted. The total sale consideration of the unit, in question, was Rs.67,50,590/- including EDC and PLC. It was further stated that the Agreement was executed between the parties on 22.10.2007 (Annexure C-4/1) and as per Clause 8 of the Agreement, the possession was to be delivered within a period of 2 years i.e. by 21.10.2009. It was further stated that the complainant paid the total amount of Rs.64,65,444/- in respect of the plot, in question, and she paid the payment on time, as such, she was qualified to “pay on time” reward vide letter dated 04.02.2009. Thereafter, the complainant kept on visiting the site but she did not find any development there and was shocked to see that even basic amenities such as roads, electricity, STP, parks, rain harvesting system etc. were not in existence at the site. It was further stated that the Opposite Parties instead of completing the basic amenities, sent a letter dated 11.05.2016 (Annexure C-15), wherein, an illegal demand of Rs.11,13,904/- was raised by them under various heads and the complainant was directed to make the said payment so that the Opposite Parties are able to deliver possession of the plot. It was further stated that the Opposite Parties increased the area of the plot from 512.85 sq. yards against the allotted area of 500 sq. yards without her consent and knowledge. On receipt of the letter dated 11.05.2016, the complainant again visited the site to see the progress of development but she was surprised to see that still there was no development, at all and even basic amenities were not in existence there, as such, the demand raised by the Opposite Parties was illegal due to lack of basic amenities. It was further stated that the complainant asked the Opposite Parties to show completion certificate as also other sanctions/approvals but they failed to show the same. The complainant got the photographs at the site  dated 30.05.2016 (Annexure C-16). It was further stated that the complainant came to know from the similar located allottees that the entry points of the said Sector 109, in which, the plot is located, were sealed/fenced by the Government of Punjab, Forest Department, which fact was never disclosed by the Opposite Parties. The complainant has also placed on record RTI Informations and letters to prove the fact regarding lack of approvals, basic amenities and sealed of the project. 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 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have 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 this Commission has no pecuniary jurisdiction to entertain and try the complaint because the cost price of the plot is Rs.64,63,090/- and the complainant claimed refund of price of the plot alongwith interest and costs, which exceeds the valuation of one crore. It was further stated that as per the Agreement, the complainant was to get possession of the unit in the year 2010 and the possession of the plot was offered to the complainant in May, 2016 but she herself failed to take possession of the same and neither cleared their dues. Copy of the letter of possession is Annexure R-1. It was further stated that the complainant did not fall within the definition of “Consumer” as prescribed under Section 2(d) of the Consumer Protection Act as the complainant purchased the plot, in question, for speculation purposes. It was further stated that possession of the unit was offered to the complainant after completion of the amenities, as per the terms and conditions of the Agreement. It was further stated that the complainant is also liable to pay holding charges, as per the Agreement, for not taking over possession. It was further stated that the possession of the plot has already been offered to the complainant after obtaining Partial Completion Certificate (Annexure R-3) and she is disputing the amounts, which she is required to pay, as per the letter for settlement of final dues.  It was further stated that this Commission has got no territorial jurisdiction to entertain and decide the complaint as the registered office of the Opposite Parties at Delhi and property is situated at Mohali. It was further stated that all the necessary approvals were obtained by the Company when the unit was allotted to the complainant. It was further stated that the Opposite Parties issued the provisional allotment letter dated 18.10.2007 to the complainant. It was further stated that the Agreement was executed between the parties but there is no date mentioned in the same. It was further stated that as per Clause 8 of the Agreement, the Company was supposed to hand over possession of the unit within 3 years from the date of execution of the Agreement and in case of delay, the Company was liable to pay compensation. It was further stated that the complainant has paid an amount of Rs.64,63,090/- towards the principal amount for the unit and an amount of Rs.2354/- against the delayed payment charges. It was further stated that the complainant was qualified for the waiver of the last 5% of the total BSP and, as such, letter was issued in this regard. It was denied that the complainant visited the site for any query regarding development or possession. It was further stated that the consent of the complainant is not required, as it has been mentioned in the Agreement that the areas are tentative and subject to change. It was further stated that vide letter dated 11.02.2010, GMADA granted permission to the Opposite Parties for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of the Opposite Parties and relevant fee was deposited by them (Annexure R-4). It was further stated that the responsibility of obtaining all statutory permissions for development of the Kharar-Banur-Tepla road is of the state authorities. It was further stated that vide letter dated 15.04.2015 the Chief Administrator, GMADA was requested by the Opposite Parties to take up issue with Forest Department to provide connectivity vide letter (Annexure R-5). It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainant i.e. through a motorable road and stand of the complainant that all entry points are sealed is malafide and without any basis. It was further stated that the Opposite Parties also obtained Partial Completion Certificate vide letter dated 16.10.2015. It was further stated that if the complainant seek refund then forfeiture clause would be applicable. 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.

3.           The complainant, filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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.           Admittedly, plot No.230 in Augusta Park, Sector 109, SAS Nagar, Mohali was allotted to the complainant vide provisional allotment letter (Annexure C-3) and Plot Buyer’s Agreement (Annexure C-4/1) was executed between the parties.  It is also the admitted fact that letter of intimation of possession was given to the complainant vide letter dated 11.05.2016 and the complainant deposited the total amount of Rs.64,65,444/- in respect of the unit, in question, as is evident from Annexure R-1.

7.             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 Parties, 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 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 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 Counsel for the Opposite Parties, stands rejected.

8.           Another frivolous objection was taken by the Opposite Parties, by stating that this Commission has got no territorial jurisdiction to entertain and decide the complaint as the registered office of the Opposite Parties at Delhi and property is situated at Mohali.

              According to Section 17 of the Act, a consumer complaint can 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 perusal of record reveals that provisional allotment letter dated 18.10.2007 (Annexure C-3), receipts (Annexures C-2, C-5 to C-8, C-12 and C-14), letters dated 22.10.2007 (Annexure C-4), 04.02.2009 (Annexure C-13) and letter of intimation of possession dated 11.05.2016 (Annexure C-15), were sent by Chandigarh office of the Opposite Parties, as the same had the address “Emaar MGF Land Limited, SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainant, 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 Parties, also stands rejected.

9.           Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainant has sought refund of an amount of Rs.64,65,444/- paid by her, towards price of the plot, alongwith suitable interest from the respective dates of deposits, till realization;  compensation to the tune of Rs.5 lacs, for mental agony & physical harassment; and cost of litigation, to the tune of Rs.1,00,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

                As far as the interest claimed by the complainant, 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 Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.           The objection taken by the Opposite Parties, to the effect that the complainant being speculator, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. The complainant in her rejoinder has clearly stated that she has two minor daughters and the plot was purchased for self-use and for the use of her daughters. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant being speculator, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, therefore, being devoid of merit, is rejected.

11.          The next question, that falls for consideration, is, as to whether,  offer of possession made by the Opposite Parties, to the complainant, vide letter dated 11.05.2016 (Annexure C-15), in respect of plot bearing No.109-AP-230-500 in Block AP situated at Sector 109,  Mohali Hills (Project), could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by the Opposite Parties, to prove that development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for Opposite Parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so.

              However, the main grouse of the complainant is that, despite receipt of the huge amount from her, actual physical possession thereof, was not offered to her, whereas, on the other hand, paper offer was made to her, vide letter of intimation of possession dated 11.05.2016 (Annexure C-15). According to the complainant, vide the aforesaid letter dated 11.05.2016, the Opposite Parties illegally demanded an amount of Rs.11,13,904/- under various heads and unilaterally increased the area of the plot from 512.85 sq. yards against the allotted area of 500 sq. yards, without her consent and knowledge. After the receipt of the aforesaid letter dated 11.05.2016, when the complainant visited the site, she was shocked to see that still there was no development, at all and even basic amenities were not in existence there. Even the complainant has placed on record photographs dated 30.05.2016 (Annexure C-16) of the project to prove the fact. The Opposite Parties in their intimation of possession letter dated 11.05.2016 (Annexure C-15) informed the complainant that “process of handing over of the plots in Sector 109, Mohali Hills shall commence within 60 days of this letter, as your plot is ready to be handed over for possession.” A bare perusal of the aforesaid letter clearly reveals that the Opposite Parties only intimated the complainant regarding process of handing over of possession shall start within 60 days of this letter. The Opposite Parties have also placed on record  Partial Completion Certificate dated 16.10.2015 (Annexure R-3) to prove regarding the completion of the amenities at the site. It may be stated here that perusal of Partial Completion Certificate dated 16.10.2015 (Annexure R-3)  clearly goes to show that the same was issued subject to certain conditions i.e. the Opposite Parties shall abide by all the necessary permissions/sanctions/approvals from the PSPCL, PPCB, etc.   It is the duty of the Opposite Parties to comply with all the conditions, mentioned in the Partial Completion Certificate, before seeking final completion certificate. It is pertinent to note that a bare perusal of Partial Completion Certificate shows that the Opposite Party had applied for Partial Completion Certificate with the competent authority on 03.09.2015 and the said Partial Completion Certificate was issued by Greater Mohali Area Development Authority vide memo dated 16.10.2015. In the present case, according to the Agreement, the possession was to be delivered to the complainant within a maximum period of three years from the date of execution of the Agreement i.e. latest by October, 2010 but the Opposite Parties applied for Partial Completion Certificate on 03.09.2015 i.e. after the period of about five years stipulated. Even the complainant has drawn our attention to this Commission that the entry points of the said Sector i.e. Sector 109, in which, the plot is located, were sealed/fenced by the Govt. of Punjab, Forest Department, which fact was never disclosed to the complainant by the Opposite Parties. This fact is further fortified from the information obtained by similar located allottees under the Right to Information Act, 2005, from the Government of Punjab, Forest Department, in the matter, vide letter dated 05.05.2015 (Annexure C-17), which reads thus :-

“1.   The entry points of the project M/s Emaar MGF Land Ltd. (Mohali Hills) for Sector 109, 108 and 105 have been closed by the Forest Department by thorny fencing wire and digging the trenches.

2.     The above mentioned paths has been closed due to the reason that user agency has not obtained the requisite permission from Government of India for the use of land of Forest Department under FCA 1980 for the paths.

3.     The paths will be opened only after obtaining the final approval from Government of India.

4.     The Case for the paths of Sector 109 is pending adjudication since 03.07.2012 before the Civil Court, Kharar x x x x x”

This fact is further fortified from a letter dated 15.04.2015 (Annexure C-18) sent by the Opposite Parties to the Chief Administrator, GMADA, PUDA to take up the matter of sealing of entries of the project, in question, with the Govt. of Punjab i.e. regarding “illegal access” to their projects.Under these circumstances, a similar question, in a similar project Mohali Hills, Sector 109 came up for consideration before this Commission in the case titled as “Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited, Complaint case No.43 of 2016, decided on 29.06.2016, this Commission held as under :-

“31.        However, the main grouse of the complainant is that, despite relocation to the said units, even then, actual physical possession thereof, was not offered to him, whereas, on the other hand, paper offer was made to him, vide letters dated 25.08.2014 and 07.11.2014, because when he visited the site after receiving the said letters, to see development and basic amenities, the same were found missing and besides  that, all entry points of the project, had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/sanction from it. Thus, in these circumstances, the principal question, which goes to the root of the case, and falls for consideration, is, as to whether, offer of possession made by opposite parties no.1 and 2, to the complainant, vide letters dated 25.08.2014 and 07.11.2014, in respect of the relocated units, could be said to be genuine offer or not. It is well settled law that the onus to prove that the project had been completed and the area/site, in question, is fully developed is on the builder/opposite parties no.1 and 2. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that not even an iota of evidence has been placed, on record, by opposite parties no.1 and 2, to prove that when offer was made to the complainant, in respect of the units, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said dates, then it was for opposite parties no.1 and 2, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not, but they failed to do so. Opposite parties no.1 and 2 were also required to produce on record, a copy of the Completion Certificate (if obtained), having been issued by the Competent Authority, which could be said to be best evidence, to prove their case, but they miserably failed to do so. It is well settled law that before offering/delivery of possession of unit, in a project, it is mandatory to obtain completion certificate, from the Competent Authority(s), failing which the purchaser is at liberty to say no, to such an offer.

                Secondly, the complainant has placed on record, copies of the RTI Information, relating to the said project, in question. Vide RTI Information dated 29.04.2014 Annexure C-31, it was clearly intimated by Greater Mohali Area Development Authority (GMADA), that opposite parties no.1 and 2, had not even applied to them for commission of sewerage treatment plant, water supply, electricity etc. Not only this, it is further evident from  RTI Information dated 26.02.2015 Annexure C-30, issued by the Punjab State Power Corporation Limited (PSPCL), that no regular electricity connection has been released in the sector, in question, wherein the plots are situated. The said RTI Information goes unrebutted by opposite parties no.1 and 2. Not even a single document has been brought on record to prove that the information relating to non-existence of basic amenities, mentioned in the said RTI Information is false, or that the said information was fabricated by the complainant. Had the said information been false or fabricated, opposite parties no.1 and 2, could have obtained certificate from the said Authorities, to say that the same had not been supplied from their Department, but they (opposite parties no.1 and 2) failed to do so. Thus, it could safely be said that the complainant has proved his case, that opposite parties no.1 and 2 did not even obtain permission to provide basic amenities such as water, electricity etc., till  29.04.2014 or 26.02.2015, the dates when RTI information aforesaid, was issued by the Authorities concerned.

                Not only this, it is also an admitted case, that entry points of the project had been sealed by the Forest Department, as opposite parties no.1 and 2, failed to take requisite permissions/ sanction from it, which fact has also been admitted by them (Opposite Parties no.1 and 2), in paragraph No.26 of their written version. Not only this, the said fact is further corroborated from the letter dated 15.04.2015 Annexure-4 (at page 190 of the file), sent by opposite parties no.1 and 2, to the Chief Administrator, GMADA, requesting it to take up the matter with the Forest Department, regarding sealing of entry points of the project, in question, as the same had been stated to be “illegal access”. It has been clearly mentioned by opposite parties no.1 and 2, in the said letter that “…….we are bound by the agreement to give delivery within time bound manner to our various restive customers, we had applied for grant of access with your good self”. This admission of the opposite parties no.1 and 2, in the letter dated 15.04.2015 written to the Chief Administrator, GAMDA, itself clearly goes to prove that even till that date (15.04.2015), they  were not in a position, to deliver possession of the plot(s) to their customers, including the complainant, in the said project, on account of reason that the entries thereof  had been sealed by the Forest Department, stating it to be an “illegal access through the Forest Strip”, permissions/sanction, whereof has not been obtained by them. Not even a single piece of evidence has been brought on record, to prove that the said entry points have been got reopened by opposite parties no.1 and 2, after having obtained permission from the Authorities concerned. If it is so, then it remained unclarified by opposite parties no.1 and 2, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainant, in the year 2014.

                A plea was also taken by opposite parties no.1 and 2 that only recently the Forest Department has served notice on them, alleging illegal access created by them, through the Forest land. To the contrary, perusal of RTI Information dated 05.05.2015 Annexure C-28 (colly.) (at pages 120 to 127 of the file) issued by the Government of Punjab, reveals that a court case with regard to dispute between the Forest Department and opposite parties no.1 and 2, is pending litigation before the Civil Court Kharar, since 03.07.2012, as opposite parties no.1 and 2 have violated Sections 29,33 and 63 of the Indian Forest Act 1927 and have also violated the directions passed by the Hon'ble Supreme Court of India, vide order dated 12.12.1996. The said RTI Information also goes unrebutted by opposite parties no.1 and 2. Thus, the matter with regard to entry points aforesaid, in respect of the said sector, in dispute, was an old dispute, between the Forest Department and opposite parties no.1 and 2, as they had not taken permission from the Competent Authorities, which fact was not disclosed by them, in their written version, filed before this Commission. 

                In view of above, it is held that the act of opposite parties no.1 and 2, in offering paper possession of the units, in question, vide letters 25.08.2014 and 07.11.2014, in the absence of development work; basic amenities at the site; non-obtaining of completion certificate, and also entry points of the project being sealed/closed by the Forest Department, amounted to deficiency in providing service and also adoption of unfair trade practice. It is therefore held that the offer of possession made by opposite parties no.1 and 2, vide letters dated 25.08.2014 and 07.11.2014 is nothing, but a paper possession, which is not sustainable, in the eyes of law.”

Thus, in view of the RTI informations annexed by the complainant, it is proved that the Opposite Parties have not obtained certain permissions from the Government and their project is sealed and still under litigation in Civil Court, Kharar.  So, the intimation of possession made by the Opposite Parties is nothing, but a paper possession, which is not sustainable, in the eyes of law.

12.          The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to her vide letter of intimation of possession dated 11.05.2016 (Annexure C-15), i.e. after long delay of more than 5 years, and that too, in the absence of any force majeure circumstances. 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 Parties that the said delay occurred, on account of force majeure circumstances, met by them, 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.

 

In the case titled as ‘Emaar MGF Land Ltd. & Anr. Vs. Dyal Singh, First Appeal No.462 of 2014, decided by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi 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.

                   In view of the above, it is held that since there was a material violation on the part of the Opposite Parties, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.

13.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the complainant. According to the Counsel for the Opposite Parties, no date was mentioned on the Agreement to show that on which date, the Agreement was executed between the parties.  It is relevant to mention here that the Opposite Parties sent a letter dated 22.10.2007 (Annexure C-4), in which, it has been mentioned “please accept the final copy of the Agreement duly processed and signed by us for your records.” It is evident that the Opposite Parties cleverly not mentioned the date on the Agreement. So, it is presumed that the Agreement was executed between the parties on 22.10.2007. According to Clause 8 of the Plot Buyer’s Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the plot, in question, within a period of 2 years, from the date of execution of the Agreement, but not later than 3 years. It is, thus, evident, from this Clause, that the Opposite Parties was required to deliver possession of the plot, in question, in favour of  the complainant,  within the maximum period of 3 years, from the date of execution of the  Agreement i.e. latest by October, 2010. So, it is clearly proved that the Opposite Parties failed to deliver possession of the plot to the complainant, within the stipulated period, as mentioned in the Agreement. On the other hand, the Opposite Parties have already received the huge amount of Rs.64,65,444/-, towards the said plot, as is evident from the statement of account (at page No.35 of the Opposite Parties documents). By making a misleading statement, that possession of the plot, was to be delivered within a maximum period of 3 years, from the  date of execution of the Agreement, and by not abiding by the commitments, made by the Opposite Parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice.

14.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.64,65,444/-, deposited by her. It is an admitted fact that the  Opposite Parties are unable to deliver  possession of the unit, in question, complete in all respects, within the stipulated timeframe, as mentioned in the Agreement and firm date of delivery of possession of the unit, could not be given to her (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the plot, in question. The  Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by her. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.

15.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.64,65,444/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest (compounded @15%) as per Clause 3 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.64,65,444/-alongwith interest @15% p.a. compounded, from the respective dates of deposits till realization. 

16.          As far as the plea taken by the Opposite Parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the plot, to be delivered to the complainant, by the stipulated date but it was she (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant herself is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

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

18.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To  refund   the  amount Rs.64,65,444/-, to  the complainant, alongwith interest compounded @ 15% p.a., from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.2,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest compounded     @18% p.a., instead of interest compounded @ 15% p.a., from the respective dates of deposits, till realization, and interest compounded @15% p.a., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

19.          Certified Copies of this order be sent to the parties, free of charge.

20.          The file be consigned to Record Room, after completion.

Pronounced.

September  30, 2016.                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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