Chandigarh

StateCommission

CC/879/2016

Sh. B.S. Kapur - Complainant(s)

Versus

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

Kabir Sarin, Adv.

23 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	879 of 2016
Date of Institution	:	02.12.2016
Date of Decision	:	23.05.2017

 

1. Sh. B.S.Kapur s/o Late H.S.Kapur r/o D-6/8, Vasant Vihar (GF), New Delhi – 110057.
2. Smt. Kulvinder Kapur w/o Sh. B.S.Kapur r/o D-6/8, Vasant Vihar (GF), New Delhi – 110057.

……Complainants

V e r s u s

1. M/s Emaar MGF Land Private Limited through its Managing Director/Principal Officer having its Registered Office at ECE House # 28, Kasturba Gandhi Marg, New Delhi - 110001.
2. M/s Emaar MGF Land Limited, SCO No.120-121, 1^st Floor, Sector 17-C, Chandigarh.

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Kabir Sarin, Advocate for the complainants.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainants were lured by the proclamation through publication in the newspapers and various advertisements regarding the project of the Opposite Parties, as such, they approached the office of the Opposite Parties and showed their willingness to register for allotment of a residential apartment/penthouse. The complainants were convinced by tall claims and marketing strategy of the Opposite Parties at the time of registration vide application dated 29.08.2006. The complainants were provisionally allotted apartment No.G3/301 having an approximate area of 1750 sq. feet situated in “The Views” at Mohali Hills located in Sector 105, SAS Nagar, District Mohali, Punjab (Annexure C-1). As per the allotment letter, the total sale consideration was Rs.53,17,750/-, which included PLC and car parking. Thereafter, Apartment Buyer’s Agreement was executed between the parties on 07.03.2008 (Annexure C-2). The complainants duly paid an amount of Rs.50,85,001/- in respect of the unit, in question. It was further stated that the last installment and delayed payments had already been waived unilaterally by the Opposite Parties and the same has never been demanded vide any written correspondence. As per Clause 21 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of allotment i.e. not later than 07.03.2011 positively. It was further stated that the complainants approached the office of the Opposite Parties to seek clarifications on the expected delay but they failed to issue any reasonable clarification or correspondence qua the delay. Copies of correspondence exchanged between the parties at Annexure C-3. It was further stated that the Opposite Parties issued an intimation of possession vide letter dated 03.08.2016 (Annexure C-4), in which, they entirely evaded the point of delay of approximately half a decade but also called upon the complainants to clear an amount of Rs.15,45,638/-. It was further stated that the Opposite Parties have increased the floor area and have not found it necessary to amend the demand note.  It was further stated that the Opposite Parties have not determined any compensation qua the grave delay in offer of possession of the residential unit and in order to cover up their illegal and deficient services, the Opposite Parties are now serving intimation of possession letter, which is neither acceptable nor compensatory in view of prevalent law.   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 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 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 the complainants purchased two flats i.e. TVM G3-F03-301 and TVM F1-FPH-PH04 in Sector 105 at Mohali and, as such, they purchased the said units for investment/speculation purposes and they did not fall within the definition of consumer under the Consumer Protection Act, 1986. It was further stated that as per the Agreement, the Opposite Parties proposed to endeavor and try to handover possession of the unit within 36 months from the allotment alongwith a grace period of 90 days for applying and obtaining the completion/occupation certificate. It is well settled law that in cases of sale of immovable property, time is never regarded as the essence of the contract. The term “proposes” duly indicated that there was no definitive commitment to hand over possession within 3 years, as time was not the essence of the contract and the complainants have voluntarily agreed the alleged delay, as their interest was safeguarded by the compensation clause in the Agreement. It was further stated that in case of seeking refund by the complainants, the forfeiture clause would be applicable. The Opposite Parties also took objections regarding territorial jurisdiction and the complaint is time barred. It was admitted regarding booking of the unit, execution of the Agreement and receipt of the amount of Rs.50,85,001/- from the complainants in respect of the unit, in question. It was further stated that the last installment and delayed payment charges have been duly demanded in intimation of possession letter dated 03.08.2016 and has never been communicated to the complainants to be waived off. Copies of the statement of account and demands/reminders are Annexures R-2 & R-3 (colly.). It was further stated that as per Clause 1.2 of the Agreement, the super area of the unit is tentative in nature and subject to change. It was further stated that all the amenities have been completed in the Views tower G, where the unit is located. It was further stated that the Opposite Parties have earlier not offered possession as the amenities have not been completed for the unit allotted and now after completion of the amenities, they offered possession of the unit but they failed to come forward to take possession. 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 complainants filed rejoinder to the written statement of the Opposite Parties, wherein they 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.           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 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

25.        The next 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  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

26.        To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, 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.”

35.     In  view of the above, the plea taken by the opposite party, that 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 no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

            In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

7.           The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that Apartment Buyer’s Agreement (Annexure C-2) was executed between the parties, at Chandigarh. Not only this, intimation of possession letter dated 03.08.2016 (Annexure C-4) was sent by the Opposite Parties from their Chandigarh Office, as the same bore the address of the Company as “SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

9.             The objection taken by the Opposite Parties, to the effect that the complainants purchased two units i.e. TVM G3-F03-301 and TVM F1-FPH-PH04 in Sector 105 at Mohali, as such, they purchased the said units for investment/speculation purposes and did not fall within the definition of a consumer, as defined in Section 2 (1) (d) (ii) of the Act, also deserves rejection. It is pertinent to note that the complainants in their rejoinder have specifically stated that they are the original allottees of unit No.TVM G3-F03-301 only and have no intention of selling the same in the open market either for profit or for any such gain, as alleged by the Opposite Parties. It was further stated that the complainants have waited for possession for almost a decade and have cleared all payments diligently, as demanded by the Opposite Parties. Qua unit No. TVM F1-FPH-PH04 is concerned, it is stated by the complainants in their rejoinder that primary allottee of the said unit i.e. TVM F1-FPH-PH04 was mother of complainant No.1 (Smt.Raj Rani). Unfortunately, Smt.Raj Rani had expired on 11.12.2010 leaving behind complainant No.1 and his brother Sh.Gurdip S. Kapur as legal heirs. It is also relevant to note that complainant No.2 is not party to the said allotment. Copy of Death Certificate of Smt.Raj Rani is Annexure C-5 and copy of letter dated 16.11.2016, whereby, the name of late Smt.Raj Rani has been deleted from the recod is Annexure C-6. Even complainant No.1 has also sent a letter vide email dated 20.10.2016 to the Opposite Parties. The relevant portion of the said letter reads thus :-

“It seems that my mail has not been properly understood whereby you have sent detailed instructions qua disposal of the property. It is not my intention to sell the same in the open market as understood by yourself. I have applied for the said property in the year 2006 with the intention of residing with my family therein. X x x x x x”

It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, 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. 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  complainants being investors, 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  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 Parties, in their written reply, therefore, being devoid of merit, is rejected.

10.         The next question, that falls for consideration, is, as to within which period the delivery of possession was given to the complainants. It is clearly proved from Clause 21.1 of the Agreement that possession of the unit was to be delivered to the complainants maximum within a period of 36 months from the date of allotment. In the present case, provisional allotment letter was issued on 26.10.2006, as such, possession was to be delivered to the complainants latest by 25.10.2009 but they failed to deliver the same within the stipulated period, as per the Agreement.

11.          The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit, in question, to the complainants, complete in all respects or not. As per Clause 21.1 of the Agreement, possession of the unit was to be delivered to the complainants within a maximum period of 36 months from the date of allotment i.e. latest by 25.10.2009 but the Opposite Parties failed to deliver possession of the unit, complete in all respects, to the complainants within the stipulated time frame, as mentioned in the Agreement. Even the complainants also exchanged certain correspondence with the Opposite Parties regarding delivery of possession. The complainants sent an email in the year 2015 (Annexure C-3) to the Opposite Parties regarding giving intimation about the present status and date for taking possession. The Opposite Parties also sent email dated 03.09.2015 (at page No.93 of the file) to the complainant(s), vide which, they informed that “final finishing work is in progress and the same is expected to be completed in Sep 2015 x x x”  A bare perusal of the afore-extracted email clearly shows that the Opposite Parties were not able to deliver possession of the unit to the complainants till September, 2015.  Not only this, the Opposite Parties sent intimation of possession letter dated 03.08.2016 (Annexure C-4) to the complainants i.e. after about 11 months from September, 2015, as assured by the Opposite Parties vide email dated 03.09.2015. It is pertinent to note that the said intimation of possession letter sent by the Opposite Parties to the complainants after a huge delay of about 7 years from the stipulated date of delivery. The relevant portion of the said letter dated 03.08.2016 reads thus :-

“This is in reference to the captioned Unit allotted in your favour. We are pleased to inform you that the Company has received the occupation certificate for tower No. TVM G3 dated 04-AUG-14 and the process of handing over physical possession of the Units in this tower will commence shortly.”

 

In view of the afore-extracted letter, it clearly reveals that the Opposite Parties sent only intimation regarding process of handing over of possession shall commence shortly and increased the area but it is not actual possession letter. It is also relevant to note that vide the abovesaid letter, the Opposite Parties informed that they received Occupation Certificate for tower No.TVM G3 dated 04.08.2014 but they failed to place on record the said certificate. The Opposite Parties have also failed to place on record completion certificate to prove that the said project is complete in all respects.

              It is also significant to add here that in respect of the same Sector (105), the Opposite Parties, on 14.09.2016, has very candidly admitted before the National Commission in FIRST APPEAL NO. 708 OF 2016 that their entry points have been sealed by the Forest Department, and as such, the same may be treated as force majeure circumstances. The National Commission has negated the plea raised by the Opposite Parties and ordered refund of the amount paid to the complainants. Relevant portion of the said order is reproduced below:-

“It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flat in Sector 105 is directly attributed to the sealing of the main access road to the Sector by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flat in question by the committed time.  He thus prays that ex parte ad interim stay may to be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flat with proper access, to the Complainant, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainant with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainant to withdraw the said amount, on filing affidavits, undertaking to this Commission that he will refund the amount withdrawn, if so directed at the time of final disposal of the Appeal.  Subject to the said deposit, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.”

                   If it is so, then it remained unclarified by the Opposite Parties, as to when entry points of the project were sealed, how could they offer possession of the units, to the allottees, including the complainants, on 03.08.2016. In view of above, it is held that the Opposite Parties only offered paper possession and not more than that.

12.          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 letter of intimation of possession dated 03.08.2016 (Annexure C-4), i.e. after a long delay of 7 years from the stipulated period and that too, in the absence of any force majeure circumstances. It is pertinent to note that possession of the unit was to be delivered to the complainants within a maximum period of 36 months from the date of allotment i.e. latest by 25.10.2009. However, the Opposite Parties sent letter of intimation of possession only vide letter dated 03.08.2016 to the complainants i.e. about 7 years  after the completion of the stipulated period. 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.

 

Moreover, 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.

                   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, within the stipulated date, as mentioned in the Agreement, the complainants were 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.

8.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it has been frankly admitted by the Opposite Parties, in number their joint written statement that earlier offer of possession of the unit, in question, could not be made because the amenities have not been completed. It is the admitted fact that after the huge delay, the Opposite Parties only intimated the complainants regarding offer of possession vide letter dated 03.08.2016. Even the Opposite Parties failed to refund the amount, as demanded by the complainants, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.          Another objection raised by Counsel for the Opposite Parties 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 Parties, within a maximum period of 36 months from the date of allotment, subject to force majeure circumstances or reason beyond the control of the Opposite Parties. In the instant case, the Opposite Parties 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 Parties or any other valid and legal reason beyond their control, the stand taken by them, 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 Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of allotment, as such, time was,  unequivocally made the essence of contract.

              Even otherwise, the Opposite Parties cannot evade their 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 Parties in this regard also stands rejected.

14.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.50,85,001/-, deposited by them. It is, no doubt, true that the complainants deposited the total amount of Rs.50,85,001/- in respect of the unit, in question, as is evident from statement of account (Annexure R-2). It is an admitted fact that the Opposite Parties are unable to deliver  possession of the unit, in question, to the complainants within the stipulated period, as mentioned in the Agreement because the Opposite Parties clearly admitted in para No.4 (c) of their written statement that possession has not been offered since the amenities have not been completed for the unit allotted. So, it is clearly proved that the Opposite Parties were not in a position to hand over possession of the unit to the complainants, complete in all respects, within the stipulated time frame, as mentioned in the Agreement. Even the Opposite Parties offered possession of the unit to the complainants vide letter dated 03.08.2016 i.e. after a huge delay of more than 7 years and that too only a paper possession, which was not acceptable to the complainants and firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by them. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

15.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.50,85,001/-, was paid by the complainants, as is evident from statement of account (Annexure R-2), 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% p.a.) as per Clause 20.1 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 them, 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  complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.50,85,001/- alongwith interest @15% p.a. compounded from the respective dates of deposits till realization. 

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

17.          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.50,85,001/-, to  the  complainants, alongwith interest @15% p.a. compounded,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% p.a. compounded, instead of @15% p.a. compounded, from the date of default onwards, and interest @15% p.a. compounded, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

18.          However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

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.

23.05.2017                                                              Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

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