Chandigarh

StateCommission

CC/130/2016

Sh. Prem Kumar - Complainant(s)

Versus

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

Kabir Sarin, Adv.

02 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	130 of 2016
Date of Institution	:	06.04.2016
Date of Decision	:	02.08.2016

 

1. Sh. Prem Kumar s/o Late Sh.A.P.Sharma, r/o #2, Lily Avenue, Singapore - 277760.

 

2. Smt. Madhuli Kumar w/o Sh. Prem Kumar, r/o #2, Lily Avenue, Singapore - 277760.

 

……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 MGF House, 17-B, Asaf Ali Road, New Delhi – 110002.
2. M/s Emaar MGF Land Limited, SCO No.120-121, 1st Floor, Sector 17-C, Chandigarh.  

                                                    .... Opposite Parties

Argued by:      

 

Sh. Kabir Sarin, Advocate for the complainants.  

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	131 of 2016
Date of Institution	:	06.04.2016
Date of Decision	:	02.08.2016

 

Sh. Hemant Kumar Minocha s/o Late Sh. Ram Nath Minocha, r/o #1794, Clover Meadow Drive, Vienna VA 22182.

……Complainant

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 MGF House, 17-B, Asaf Ali Road, New Delhi – 110002.
2. M/s Emaar MGF Land Limited, SCO No.120-121, 1st Floor, Sector 17-C, Chandigarh. 

                                                     .... Opposite Parties

Argued by:      

 

Sh. Kabir Sarin, Advocate for the complainants.  

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

Complaint case No.	:	132 of 2016
Date of Institution	:	06.04.2016
Date of Decision	:	02.08.2016

 

Sh. Kuljit Singh Baweja s/o Late Sh. Harbans Singh r/o #1520, Estes Crescent, Mississauga, Ontario-L5V IM5, Canada.

……Complainant

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 MGF House, 17-B, Asaf Ali Road, New Delhi – 110002.
2. M/s Emaar MGF Land Limited, SCO No.120-121, 1st 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 complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                 By this order, we propose to dispose of, following cases:-

	CC/130/2016	Sh. Prem Kumar & Anr.	Vs.	M/s EMAAR MGF Land Private Ltd. & Anr.
	CC/131/2016	Sh.Hemant Kumar Minocha	Vs.	M/s EMAAR MGF Land Private Ltd. & Anr.
	CC/132/2016	Sh.Kuljit Singh Baweja	Vs.	M/s EMAAR MGF Land Private Ltd. & Anr.

2.           Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.           At the time of arguments, on 11.07.2016, it was agreed between Counsel for the parties, that facts involved in all the complaints, by and large, are the same, and therefore, these three complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 130 of 2016, titled as “Prem Kumar & Anr. Vs. M/s EMAAR MGF Land Private Limited & Anr.”

5.           The facts, in brief, are that the complainants being lured by the advertisements in the newspapers, had approached the office of Opposite Party No.2 and applied for allotment of a residential plot measuring 300 sq. yards vide application No.2596 in the proposed project of the Opposite Parties. Thereafter, the Opposite Parties provisionally allotted plot No.383 having an approximate area of 300 sq. yards in Augusta Park, Sector 109 vide letter dated 14.01.2008 (Annexure C-1).  It was stated that Plot Buyers Agreement dated 24.01.2009 was executed between the parties (Annexure C-2). It was further stated that the total cost of the plot was Rs.40,50,354/- including EDC and PLC, as per payment plan (at page No.46 of the file). The complainants paid the entire sale consideration of Rs.38,25,079/- because vide correspondence dated 21.01.2009 (Annexure C-3), they were granted a rebate of 12% upon their initial payment of Rs.13,76,604/- totaling an amount of Rs.52,775/- and further granted 5% waiver in the last payment to the tune of Rs.1,72,500/- on account of on time payment incentive scheme. As per Clause 8 of the Agreement, possession was to be delivered within a period of 2 years from the date of execution of the Agreement but not later than 3 years i.e. latest by 24.01.2012. It was further stated that the complainants were faced with utmost shock and dismay, as they would be facing huge financial loss and were constrained to approach the office of the Opposite Parties to seek clarification on the expected delay but the same remained futile as no logical or rational answer was ever provided. It was further stated that the Opposite Parties in November, 2015, after persistent follow ups by the complainants, admitted that they are not in a position to provide them actual physical and complete possession of the plot in the year 2016.   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.

6.           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 further stated that the complainants did not fall within the definition of “consumer”, as envisaged under the Consumer Protection Act, 1986, as they are residing at Singapore and failed to place on record any document to show that they are visiting Chandigarh time and again, as such, they purchased the plot for speculation purposes only. It was further stated that the complainants purchased two plots in Sector 109, Mohali and one plot bearing No.382 later they sold to Mr.Hemant Kumar Minocha, which proves that they are investors. It was further stated that the Opposite Parties offered relocation to the complainants, wherein, the construction was at advanced stage but they refused to accept it. It was further stated that as per the Agreement, the Opposite Parties proposed to handover possession of the unit within 36 months from the allotment and it is well settled principle of law that in case of sale of immovable property, time is never regarded as the essence of the contract. The term “proposes” duly indicates that there was no definitive commitment to hand over possession within 3 years, as time was not the essence of the contract and they voluntarily agreed/accepted the alleged delay, as their interest was safeguarded by the compensation clause in the Agreement and the Opposite Parties had committed to bear the penalty for delayed possession, if any, beyond the time frame stipulated under the Agreement, at the time of registration of the plot. It was further stated that the complaint is barred by limitation, as the consumer complaint can be filed within 2 years from the date of cause of action and in the present case, the cause of action, if any, arose to the complainants for seeking possession/refund arose after 3 years from the date of Buyer’s Agreement, as such, the cause of action arose in the year 2012 and the present complaint now being filed is barred by limitation. It was further stated that the complainants are bound by the terms and conditions of the Agreement and in case of seeking refund, forfeiture clause would be applicable. It was further stated that the Agreement was executed at Mohali, property is situated at Mohali and the registered office of the Opposite Parties is situated at Delhi, as such, this Commission has no territorial jurisdiction to try and entertain the complaint. It was admitted that the total sale consideration of the unit was Rs.40,50,354/- and the Company received an amount of Rs.38,25,079/- against the unit, as the Company agreed to waive off the last 5% as an exception and also offered rebate of Rs.52,775/- to the customer, as per mail dated 21.01.2009 (Annexure R-2). It was further stated that since the amenities are not completed in the area where the unit is located, therefore, possession has not been offered.  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.

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

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

9.           Admittedly, the plot bearing No.383 having approximate area of 300 sq. yards in Augusta Park, Sector 109, was provisionally allotted to the complainants vide provisional allotment letter dated 14.01.2008 (Annexure C-1). It is also evident from the Installment – Payment Plan (at page No.46 of the file) that the total cost of the plot was Rs.40,50,354/-, out of which, the complainants paid an amount of Rs.38,25,079/-, as is evident from statement of account (Annexure R-2). It is also the admitted fact that Plot Buyer’s Agreement was executed between the parties on 24.01.2009 (Annexure C-2) and as per Clause 8 of the Agreement, possession was to be delivered within a period of 2 years from the date of execution of the Agreement, but not later than 3 years i.e. latest by 23.01.2012 but despite repeated requests, the Opposite Parties failed to offer/deliver possession of the plot, in question, to the complainants.

10.          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.

11.        The next question, that falls for consideration is, as to whether, the complainants are speculators and purchased the said plot for speculation purposes? The Counsel for the Opposite Parties submitted that the complainants are speculators as they are residing at Singapore and earlier they purchased plot No.382 and, later on they sold the same, as such, they are investors/speculators.  After going through the record, we are not agreeing with the contention of the Counsel for the Opposite Parties because the complainants, in their complaint, had clearly stated that they are currently residing at Singapore for work related purposes and often visit the city of Chandigarh, as they have numerous relatives and friends in the tricity area, thus, required a permanent residence for the purpose of such visits.  It is, no doubt, true that the complainants are residing in Singapore but it does not mean that they have no authority to purchase the plot in Chandigarh. Moreover when they visit Chandigarh to meet their numerous friends and relatives in the tricity area, they (complainants) must require a permanent residence for the purpose of their visit. Even otherwise, the mere fact that it was a residential plot, which was allotted, in favour of the complainants, was sufficient to prove that it was to be used for the purpose of residence, by the complainants, during their visit to India. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. Moreover, with regard to the objection taken by the Opposite Parties that the complainants purchased another plot bearing No.382 in the project of the Opposite Parties, has no value, at all because they had already sold the said plot to some other person.  Not only this, even no law debars an NRI, who basically belonged to India, to purchase a residential property in India, as already held by the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016.

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. 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. 

12.          Another frivolous objection was taken by Counsel for the Opposite Parties, by stating that the Agreement is executed at Mohali ; property is also situated at Mohali and the registered office of the Opposite Parties at Delhi, as such, this Commission has not territorial Jurisdiction to entertain and decide the complaint.

              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, Plot Buyer’s Agreement, in respect of the unit, in question, was executed, between the parties, at Chandigarh on  24.01.2009 (Annexure C-2).  Not only this, perusal of record reveals that the provisional allotment letter dated 14.01.2008 (Annexure C-1) and payment plan (at page No.46 of the file), were sent by Chandigarh office of the Opposite Parties, as the same bore 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 Counsel for the Opposite Parties, also stands rejected.

13.          As regards objection raised by the Counsel for the Opposite Parties, that as per Clause 8 of the Plot Buyer’s Agreement, the Company shall make every endeavour to hand over possession within 2 years from the date of execution of the Agreement but not later than 3 years, meaning thereby, the Company had only proposed to hand over possession of the plot within a maximum period of 36 months and in case, the Company is unable to deliver possession then there is liability to pay penalty for period of delay beyond 36 months. It was further stated that the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within 36 months, as time was not the essence of the contract. It is evident from the record that Plot Buyer’s Agreement was also executed between the parties on 24.01.2009 (Annexure C-2) and as per Clause 8 of the Agreement,  the Opposite Parties were to hand over possession of the said unit, in favour of the complainant, within a period of 2 years from the date of execution of the Agreement but not later than 3 years and in the event of failure of the possession, the Company should be liable to pay to the complainants a penalty of Rs.50/- per sq. yards per month for such period of delay beyond 3 years from the date of execution of the Agreement. So, it is clearly proved that possession was to be delivered within a maximum period of 3 years from the date of execution of the Agreement i.e. latest by 23.01.2012. Thus, once a specific period of 3 years was mentioned in the Agreement, the Opposite Parties were bound to deliver possession within the maximum period of 3 years i.e. latest by 23.01.2012 and not beyond that.  It is not the case of the Opposite Parties that they encounted any force majeure circumstances, as no document has been placed on record in this regard. The time was, thus, unequivocally made the essence of contract. Therefore, the objection taken by the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

14.          The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was barred by time or not. The Counsel for the Opposite Parties stated that the complaint is time barred, having been filed beyond two years of alleged cause of action, which allegedly accrued to the complainants in the year 2012. After going through the record of the case, we are not impressed with the contention of the Counsel for the Opposite Parties. It may be stated here, that neither physical possession of the unit was offered nor delivered to the complainants, by the stipulated date, as mentioned in the Plot Buyer’s Agreement or not even in the current year 2016, after receipt of the entire sale consideration from them and never refunded the deposited amount to them, despite repeated requests. As such, there was, thus, a continuing cause of action, in favour of the complainants, to file the complaint.  In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing-fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon’ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection of  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.          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  complainants. According to Clause 8 of the Plot Buyer’s Agreement dated 24.01.2009 (Annexure C-2), 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 were required to deliver possession of the plot, in question, in favour of  the complainants,  within the maximum period of 3 years, from the date of execution of the Plot Buyer’s Agreement dated 24.01.2009, i.e. latest by 23.01.2012. Even, possession of the plot, in question, was neither offered nor delivered to the complainants, within the stipulated period, as contained in the terms and conditions of the Agreement nor when the complaint was filed i.e. in the current year 2016. On the other hand, the Opposite Parties have already received the entire sale consideration i.e. Rs.38,25,079/-, towards the said plot, as is evident from the statement of account (Annexure R-2). 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 (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

16.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.38,25,079/-, deposited by them, towards the price of the unit/plot, in question. The complainants, in their complaint have sought refund of the amount, deposited by them, towards the same. Under these circumstances, the complainants are entitled to refund of the amount, deposited by them, towards the said plot.  By not refunding the amount to the complainants, the Opposite Parties were deficient, in rendering service.

              At the time of arguments, Counsel for the Opposite Parties stated that when complainants sought refund of the amount, forfeiture clause is applicable upon the complainants. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. It is evident from the para aforesaid that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to offer possession of the plot/unit to the complainants, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount to the complainants. 

17.          The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount of Rs.38,25,079/-, if so, at what rate. The complainants were deprived of their hard earned money, to the tune of Rs.38,25,079/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the plot, in question, within a maximum period of 3 years from the date of execution of the Agreement i.e. by 23.01.2012, but they failed to do so. The complainants were, thus, caused financial loss.  Hard earned money, deposited by the complainants, towards price of plot, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither offered/delivered possession of the plot, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @15% per annum compounded from the complainants. Under these circumstances, in our considered opinion, if  interest  compounded @15% p.a., on the amount deposited by the complainants, from the respective dates of deposits, is granted, that will serve the ends of justice.  

18.          The next question, that falls for consideration, is, as to whether, the  complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of the Opposite Parties, for a number of years, as they failed to deliver physical possession of plot, in question, to them, by the promised date. The complainants purchased the plot, with the hope to have a roof over their head, when they visit to Chandigarh, by raising construction thereon, but their hopes were dashed to the ground. Till date, physical possession of the plot, has not yet been handed over, to the complainants, by the Opposite Parties. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

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

20.          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.38,25,079/-, to  the complainants, 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.3,00,000/- for causing mental agony and physical harassment, to the complainants, 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 complainants.
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 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.

 

Complaint Case No.131 of 2016 titled ‘Hemant Kumar Minocha Vs. M/s Emaar MGF Land Private Limited & Anr.’

 

              In view of reasons recorded above, the complaint bearing No.131 of 2016 is partly accepted with costs. The Opposite Parties are jointly and severally directed, as under:-

1.      To refund the amount Rs.38,77,854/-, 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.3,00,000/- for causing mental agony and physical 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 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.

 

Complaint Case No.132 of 2016 titled ‘Kuljit Singh Baweja Vs. M/s Emaar MGF Land Private Limited & Anr.’

 

21.          The Opposite Parties took two separate objections, in the instant case with regard to pecuniary jurisdiction and the complainant being a citizen of Canada is not a consumer, as defined under the Consumer Protection Act, 1986. 

22.          As regards objection raised by the Opposite Parties in their written statement, with regard to pecuniary jurisdiction, as the amount claimed by the complainant exceeds Rs.1 crore. It may be stated here, that the complainant has claimed refund of Rs.71,81,840/- alongwith interest @18% from the respective date of deposits besides compensation of Rs.3 lacs. Thus, the claim together with interest compensation claimed exceeds Rs.1 crore. It is, no doubt, true that the complainant deposited an amount of Rs.71,81,840/-, as is evident from the statement of account (Annexure C-2). It may be stated here the complainant also sought refund of the entire sale consideration amounting to Rs.71,81,840/- alongwith interest @18% p.a.  ; compensation of Rs.3 lacs and litigation expenses of Rs.85,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

              The question, that arises for consideration, is, as to whether, interest @18% p.a, claimed by the complainant, on the deposited amount of Rs.71,81,840/-aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

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

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

              Not only this, a similar question regarding pecuniary Jurisdiction, fell before this Commission, in a case titled as Karnail Singh  and another Vs. M/s Emaar MGF Land Limited, Consumer Complaint No.05 of 2014 decided on 09.04.2014. In that case also, an objection was raised by the Opposite Parties (Emaar MGF Land Limited) that since the complainants,  had sought refund of amount of Rs.62,60,750/- alongwith interest @24% P.A., from the respective dates of deposits, alongwith compensation and litigation costs, as such, if the reliefs are clubbed together alongwith interest claimed, the aggregate value therefore fell above Rs.1 crore, and as such, this Commission had no pecuniary Jurisdiction to entertain the complaint. In that case, while rejecting the said objection of the Opposite Parties, this Commission, while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’ case (supra),  came to the conclusion that it had pecuniary Jurisdiction to entertain the complaint, and ordered refund of the amount alongwith interest, compensation and litigation costs, vide order dated 09.04.2014. Appeal filed by the Opposite Parties (Emaar MGF Land Limited) against the order dated 09.04.2014, before the National Commission, was dismissed with punitive damages of Rs.5 lacs. Still feeling aggrieved, the Opposite Parties, filed Special Leave to Appeal (C) No.29392 of 2014, which was also dismissed by the Hon’ble Supreme Court of India, in limine, vide order dated 14.11.2014. In this manner, the findings given by this Commission in Karnail Singh and another’s case (supra), while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’s case (supra), to the effect that it has pecuniary Jurisdiction to entertain and decide the complaint, in the manner, referred to above, were upheld by the National Commission, and also the Hon’ble Supreme Court of India. Recently, in the case of Enis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held 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 of the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

23.          The next question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that the mere objection of Counsel for the Opposite Parties that since the complainant is a citizen and resident of Canada (NRI), as such he had purchased the unit, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. It has been mentioned by the complainant, in para no.2 (e) of his complaint that he had been working for gain in Canada in order to settle in his golden years alongwith his family and was keen to construct a two storied construction for independent floor wise residence, so that they could be settled in the proximity of Chandigarh at a reasonable price. Even otherwise, the mere fact that it was a residential unit, and it was to be used for the purpose of residence, by the complainant, might be on or off while he visits to India or his family. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. At the same time, no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that, being NRI, the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. 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, in their written reply, therefore, being devoid of merit, is rejected.  

24.          In view of reasons recorded above, the complaint bearing No.132 of 2016 is partly accepted with costs. The Opposite Parties are jointly and severally directed, as under:-

1.      To refund the amount Rs.71,81,840/-, 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.3,00,000/- for causing mental agony and physical 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 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.

 

25.          However, it is made clear that, if the  complainant(s), in all the aforesaid three cases, 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 the complainant(s).

26.          Certified copy of this order be placed in Consumer Complaint Nos.131 & 132 of 2016.

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

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

Pronounced.

August 2, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 [DEV RAJ]

MEMBER

 

 

 (PADMA PANDEY)

        MEMBER

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