CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.      Raman Kochhar son of Sh. Nand Gopal

2.      Asha Rani w/o Sh. Raman Kochhar

          Both residents of #349, Phase I, Mohali.

.…Appellants/Complainants.

Versus

1.     M/s EMAAR MGF Land Limited having its registered      office at ECE House, 28, Kasturba Gandhi Marg, New Delhi through its Director.

2.      M/s EMAAR MGF Land Limited having its branch office        at SCO No.120-122, First Floor, Sector 17-C, Chandigarh through its Zonal/Branch Manager.

…..Respondents/Opposite Parties.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

Argued by:

Sh. Amit Arora, Advocate for the appellants.

Sh. Sanjeev Sharma, Advocate for the respondents.

PER DEV RAJ, MEMBER

              This appeal has been filed by the complainants (now appellants), against the order dated 09.10.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’), vide which, consumer complaint bearing No.47 of 2015 was partly allowed and the Opposite Parties (now respondents) were directed as under:-

“22.  Resultantly, we find merit in the complaint and the same is partly allowed.  OPs are directed :-

(i)     To withdraw the demand of Rs.10,82,452.67 (except the demand of Rs.94,851/- towards enhanced EDC) made vide letter dated 30.6.2014 and reduced demand of Rs.8,80,156/- made vide letter dated 11.8.2014 and Rs.8,67,796/- in email dated 12.9.2014. However, it is made clear that the complainants shall be liable to pay the Stamp Duty, Registration and other incidental charges at the time of registration of the Conveyance Deed and electricity connection charges, electrification charges, monthly maintenance charges, interest free maintenance security and water charges at the time of raising construction on the plot.

(ii)    To make payment of an amount of Rs.50,000/- to the complainants as compensation on account of harassment caused to them due to unfair trade practice and deficiency in service on the part of the OPs.

(iii)   To also pay an amount of Rs.10,000/- to the complainants towards litigation expenses.

23.   This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(i) & (iii) above.”

2.             The facts in brief are that the complainants entered into a Plot Buyer’s Agreement (Annexure C-1) with the Opposite Parties on 4.7.2007 for allotment of a plot in a housing project “Mohali Hills” situated at Sector 105, 108 and 109, Mohali. It was further stated that earlier Plot No.486 measuring 300 sq. yards in Sector 109 was allotted, which was subsequently changed to Plot No.157 in Sector 108 at a total sale consideration of Rs.34,50,000/-, besides External Development Charges (EDC) of Rs.1,47,249/- and, thus, in all the total amount to be paid by them as per the agreement was Rs.35,97,249/-. It was further stated that in pursuance to the agreement between the parties, the complainants paid the entire installments of Rs.34,24,750/- vide receipts (Annexure C-2) as per schedule Annexure A-I attached with the agreement and they were held entitled for 5% waiver on basic price. It was further stated that as per clause 8 of the Agreement, possession of the plot was to be delivered within 2 years, but, not later than 3 years i.e. by 3.7.2010 and penalty of Rs.50/- per sq. yard per month was stipulated for the delayed period.  It was further stated that Opposite Party No.2 offered possession vide letter dated 6.2.2012 (Annexure C-5) without basic amenities such as roads, sewerage, water and electricity connections etc. Upon assurance of the Opposite Parties to provide basic amenities at the site, the complainants accepted the possession vide possession certificate dated 31.7.2012 (Annexure C-7). It was further stated that subsequently, Opposite Party No.2 vide letter dated 30.6.2014 (Annexure C-8) illegally, arbitrarily and without any justification demanded Rs.10,82,458/-  from the complainants as settlement of final dues. Vide letter dated 11.8.2014 (Annexure C-9), demand was reduced to Rs.8,80,156/- and vide email dated 12.9.2014 (Annexure C-10), final notice was served upon the complainants to remit Rs.8,80,156/- (infact Rs.8,67,796/-). It was further stated that the complainants were rewarded with timely payment reward and the demand raised by the Opposite Parties was in utter violation of the terms and conditions of the agreement. It was further stated that the aforesaid acts 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 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed seeking various reliefs.

3.             The Opposite Parties, in their written statement, took number of preliminary objections to the effect that the complaint was time barred; that the complainants were not consumers; that the Forum did not have the pecuniary jurisdiction to try and entertain the present complaint; that the disputes raised by the complainants would require detailed evidence to be appreciated which could not be done in summary proceedings; the complainants ought to be relegated to the alternative remedy of Arbitration as provided for in clause 39 of the agreement.   On merits, it was stated that complainant No.1 alongwith the co-applicant Sh. Kulwant Rai was initially allotted unit No.109-AG-486-300. It was further stated that subsequently, the allottees requested for change to a non PLC unit vide letter dated 7.9.2007, which was accepted by the Opposite Parties.  It was further stated that the complainants only paid an amount of Rs.34,24,750/- towards the sale price of the plot excluding Rs.3,969/- towards the delayed payment charges.  It was further stated that the Opposite Parties waived off the last installment amount of Rs.1,72,500/- (5% OTPR) as an exception despite the default in timely remittance of the installments by the complainants. It was further stated that the complainants could not seek the waiver given as a matter of right. It was further stated that as per Clause 8 of the Agreement, the Opposite Parties had proposed to hand over possession of the unit within 3 years from the date of signing  of the Agreement and the compensation, if any, payable was to be adjusted/credited in the accounts of the complainants at the time of registration of the unit.  It was further stated that the Company handed over possession of the unit to the complainants through possession certificate dated 31.7.2012 on satisfaction of the complainants with the completion of amenities works and the same was duly accepted by them after initially protesting vide letter dated 4.4.2012. It was denied that the demands against the outstanding payments were illegal and arbitrary. It was further stated that club membership charges were optional and if the complainants did not wish to avail the same, they were required to furnish an indemnity regarding the non-use of club.  It was further stated that the complainants had been duly explained all the charges levied in the final statement of accounts. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

4.             The complainants filed replication wherein they reiterated all the averments contained in the complaint and repudiated those as contained in the written statement of the Opposite Parties.

5.             The parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the Forum, partly allowed the complaint, vide the impugned order, as stated above.

7.             Feeling aggrieved, the complainants have filed the instant appeal.

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

9.             The appellants/complainants in appeal have prayed for grant of penalty @Rs.50/- per Sq. Yard per month for the period of delay in offering possession. Clause 8 of the Plot Buyer’s Agreement relating to possession, being relevant, is extracted hereunder:-

“8. Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver possession of the  Plot to the Allottee within a period of 2 (Two) years from the date of execution of this Agreement, but not later than 3 (Three) years.  In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company exists.  In the event that the Company fails to deliver possession of the plot without existence of any force majeure event or reason beyond the control of the Company within a maximum  period of 3(Three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of the sum of Rs.50/- (Rupees Fifty only) per sq. yds per month for such period of delay beyond 3(Three) years from the date of execution of this Agreement.” 

10.           Computing maximum period of three years from the date of execution of Buyer’s Agreement on 04.07.2007, the respondents/Opposite Parties were to handover possession by 03.07.2010. Clearly, there was delay in offering possession, which was offered on 06.02.2012 (Annexure C-5). Though the appellants/complainants have averred that possession, so offered, on 6.2.2012 was not complete possession but the fact remains that while taking possession of the plot, in question, on 31.07.2012 (Annexure C-7), they did not point out any deficiency regarding lack of basic amenities. As such, possession offered vide letter dated 06.02.2012, cannot be termed to be possession without basic amenities. The appellants/complainants by way of additional evidence have brought, on record, letter dated 20.04.2012 (Annexure A-5) written by the respondents/Opposite Parties, Para 3 of which is extracted hereunder:-

“We would also like to confirm that in case of any delays in offering possession of the unit beyond the time frame mentioned in the Agreement; the Company stands committed to bear the penalty as per the terms and conditions mentioned therein; and the same shall be settled at the time of registration.”

11.           Apparently, the Forum did not grant relief qua penalty amount on the ground that the same was barred by limitation as the communication aforesaid i.e. letter dated 20.04.2012 was not brought on record of the Forum.

12.           In view of clear stipulation in the Plot Buyer’s Agreement and contents of communication dated 20.04.2012 of the respondents/Opposite Parties, the remedy cannot be said to be time-barred. The appellants/complainants are clearly entitled to penalty @Rs.50/- per Sq. Yard per month for the period of delay i.e. from 04.07.2010 till 06.02.2012 when possession was offered. The respondents/Opposite Parties in Para 19 of their written statement have stated that compensation payable, if any, as per Clause 8 of the Agreement shall be credited in the accounts of the complainants at the time of registration of the unit. As such, amount, so payable, towards penalty for the period of delay from 4.7.2010 till 6.2.2012 is required to be credited by the respondents/Opposite Parties in the account of the appellants/complainants and adjusted at the time of registration of the plot, in question, towards stamp duty and registration charges etc.  To this extent, the impugned order needs to be modified.

13.           No other point was urged by the Counsel for the parties.

14.           For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order passed by the Forum is upheld with modification that the respondents/Opposite Parties shall credit penalty @Rs.50/- per Sq. Yard per month for the period of delay i.e. from 04.07.2010 till 06.02.2012 in the account of the appellants/complainants and same (amount) shall be adjusted at the time of registration of the plot, in question, towards stamp duty and registration charges etc.

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

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

Pronounced

April 04, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 (DEV RAJ)

MEMBER 

(PADMA PANDEY)

      MEMBER

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STATE COMMISSION

(Appeal No.24 of 2016)

(Raman Kochhar & Anr. Vs. M/s Emaar MGF Land Ltd. & Anr.)

Argued by:

Sh. Amit Arora, Advocate for the appellants.

Sh. Sanjeev Sharma, Advocate for the respondents.

Dated the 4^th day of April, 2016

ORDER

                Alongwith the appeal, the appellants have moved an application under Order 41 Rule 27 CPC read with Section 151 of Civil Procedure Code for permission to place, on record, the letter dated 20.04.2012 by way of additional evidence.

                Heard.

                Since the document i.e. letter dated 20.04.2012, sought to be placed, on record, as Annexure A-5, by way of additional evidence, is necessary for the just decision of the appeal, the application is allowed. The letter dated 20.04.2012 (Annexure A-2) is taken on record.

                The application is disposed of accordingly.

                Arguments in the appeal have already been heard.

                Vide our detailed order of the even date, recorded separately, the appeal has been accepted, with no order as to costs. The impugned order passed by the Forum has been upheld with some modification.

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