Mr. Praduman Kumar Taneja, Flat No.B-10/302, Nirmal Chhaya Towers, VIP Road, Zirakpur.

……Complainant

V e r s u s

1.M/s Emaar MGF Land Private Ltd., 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, 1^st

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

BEFORE:  

Argued by:Sh. Kabir Sarin, Advocate for the complainant,Mr.Praduman Kumar Taneja,                             

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.    

             The facts, in brief, are that, according to the complainant, the Opposite Parties made a number of assurances, through various newspapers, marketing emails and telemarketing, with regard to launching of their integrated residential township, under the name and style of Mohali Hills, Mohali, in Sectors 105, 108 and 109, Punjab, having salient features. 

2.           The complainant, was allotted plot no.224, approximately measuringPlot Buyer`s Agreement dated 20.06.2007(though only June 2007, was mentioned, in the said Agreement, yet, the date of execution of the same mentioned as 20.06.2007,

3.           Thereafter, as per the installment payment plan, the complainant, in all, deposited an amount of Rs.64,63,090/-. He, thus, qualified for waiver of

4.           It was further stated that the Opposite Parties collected the huge amount, towards the price of plot, in question, by making a false promise, that physical possession thereof, shall be handed over within the maximum period of 3 years, from struct house thereon, and reside therein. It was further stated that besides that, the complainant, underwent a lot of mental agony and physical harassment, on account of non-delivery of physical possession of the fully developed plot, to him, and also suffered further financial loss, on account of non-payment of compensation.

5.           iled, directing the Opposite Parties to handover physical possession of the fully developed plot no.224, approximately measuring 

6.           The Opposite Parties, in their joint written version, pleaded that since the complaint, had not been signed by the complainant, it was not legally maintainable, and, as such, on this ground alone, it was liable to be rejected.It was further pleaded that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, as no cause of action arose to the complainant, within the territory of Chandigarh. It was further pleaded that the complaint was barred by time. It was further pleaded that since, an arbitration Clause was incorporated, in the

7.           The factum of and the delivery of physical possession thereof, was likely to be given, in the near future, on completion of internal services, as specified in Clause 23 of thePlot Buyer`s Agreement dated 20.06.2007.It was further stated that time was not the essence of contract. It was further stated that, as per the Agreement, referred to above, in case, the possession of fully developed residential plot was delayed, on account of the reasons, beyond the control of the Opposite Parties, they were only liable to pay penalty/compensation @Rs.50/- (Rupees Fifty only) per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same (Agreement), and, as such, the complainant was not entitled to any additional compensation, for mental agony and physical harassment, or interest, on the amount aforesaid, deposited towards the price of the plot, in question.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. The remaining averments, were denied, being wrong.

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12.        The first question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. According to the Plot Buyer`s Agreement dated 20.06.2007, the possession was to be delivered, in respect of the plot, in question, within a period of three years, from the date of signing the same, in favour of the complainant. Neither the possession of plot, was handed over to the complainant, by the stipulated date i.e. 20.06.2010, nor the penalty, as provided in the Plot Buyer`s Agreement dated 20.06.2007 was paid to him.

13.        next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, the Consumer Complaint could be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof a part of cause of action arose to him. In the instant case, the Plot Buyer`s Agreement, in respect of the plot, in question, was executed, between the parties, at Chandigarh. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.

14.        The next question, that falls for consideration, is, as to whether, the Consumer Complaint under Section 17 of the Act, was not maintainable, before this Commission, on account of the reason, that an arbitration Clause existed, in the Plot Buyer`s Agreement dated 20.06.2007.

 “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.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Plot Buyer`s Agreement dated 20.06.2007, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. . In this view of the matter, the submission of the Counsel for the 

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 “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 

17.        . Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided underSection 3 of the Act, can be availed of by him, as he fell within the definition of a consumer, as stated above. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

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20.        Hon’ble Supreme Court The facts of Smt. Chand Rani`s case (supra), are distinguishable, from the facts of the instant case. related to the specific performance of contract. It was held that intention to make time, as the essence of contract, must be expressed in unequivocal terms, in the Agreement. It was, under these circumstances, held, in the said case that time was not the essence of contract. Whereas, in the instant case, as per Clause 8 of theEven after the expiry of more than six years from the date of allotment of plot, and more than three and a half years, from the stipulated date, the possession thereof, was not delivered to the complainant. The time was, thus, unequivocally made the essence of contract. Therefore, no help, from the aforesaid case, can be drawn, by the Counsel for the Opposite Parties. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.

21.        Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd., a case decided by a three Judge Bench of the Hon`ble Supreme Court, a question arose, that when the parties had contracted and limited their liabilities, whether the State/National Commission could go beyond the terms of the contract and give relief for damages, in excess of the limit, prescribed under the same (contract) or not. It was held that when there is a specific term, in the contract, signed by the parties, they are bound by the same, and relief for damages, in excess of the limit, prescribed under the same (contract), cannot be given. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Under these circumstances, as stated above, the complainant is only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 20.06.2010 (promised date of delivery of possession of the unit, in question) onwards, on account of delay, in delivery of possession of the plot, as per Clause 8 of the Agreement, referred to above. The complainant is, thus, not entitled to interest, claimed by him, @18% P.A., on the amount of Rs.64,63,090/-, deposited towards the price of the plot, in question. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.

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