PER HON’BLE M. SHREESHA, MEMBER

Challenge in these Revision Petitions under section 21 (b) of the Consumer Protection Act 1986 (in short “the Act”) is to the orders dated 24.04.2017 and 07.04.2017 in Firs Appeal No. 253 of 2016 and FAIA No. 22/2017 in FASR No. 63/2017 respectively,  passed by the Telangana State Consumer Disputes Redressal Commission, Hyderabad (in short “the State Commission”). By the impugned order, the State Commission has dismissed the Appeals preferred by the Emaar Hills Township Private Limited and Emaar MGF Land Limited and concurred with the finding of the Ranga Reddy District Consumer Disputes Redressal Forum (in short “the District forum”) .

Revision Petition No. 1427 of 2017

2.       In this Revision Petition preferred by M/s. Emaar Hills Township Private Limited, the brief point that falls for consideration is whether the Petitioner namely, M/s. Emaar Hills Township Private Limited arrayed as the first Opposite Party in the Consumer Complaint No. 26 of 2015, can be held liable to pay the amounts. The State Commission while concurring with the finding of the District Forum observed as follows:

    “11. The opposite parties resisted the claim of the complainant on various grounds.  Among them, the opposite party no.1 denied the liability as an owner of the land and stated that as the land owner, it did not have any other obligation except as an owner of the land.  The opposite party no.1 did not receive any amount towards consideration from the complainants and it is under no obligation to construct flat or refund the amounts and hence the complainants cannot be said to be its consumers. We however, find no merit in this contention. Admittedly, both the opposite parties were parties to the construction agreement executed with the complainants. Therefore, both of them are bound by the terms and conditions of the said agreement and accordingly, under a contractual obligation, to deliver possession of the flat to the complainants.  Article 11.1 reads as under:

11.1  The Developer cum General Power of Attorney undertakes that if they fail to comply with any rules and/or terms of license granted for development, or due to any act of omission or commission, any loss or harm is caused to the Purchaser then the Developer cum General Power of Attorney shall be fully liable to bear such losses and/or damages. The Developer cum General Power of Attorney shall keep the Purchaser fully indemnified in respect thereof. However, if as a result of any legislative order or regulation or directions of the Government or any Public Authority, the Owner and/or Developer cum General Power of Attorney is unable to complete the construction of the Apartment, the only responsibility of the Owner and/or Developer cum General Power of Attorney will be to return to the Purchaser the amount received from the Purchaser.

 12.  From the above, it is clear that if as a result of any legislative order or regulation  or directions of the Government or any Public Authority, the owner and/or developer cum GPA is unable to complete the construction, the only responsibility of the owner and/or developer cum GPA will be to return to the purchaser the amount received from the purchaser.   The complainants hired or availed the services of both the opposite parties for a consideration, though the said consideration was paid only to opposite party no. 2. We therefore, have no hesitation in holding that the complainants were the consumers of both the opposite parties and they are jointly and severally liable to refund the amounts paid by the complainants.” 

3.       Learned counsel appearing for the Revision Petitioner vehemently contended that both the fora  below have erred in making the Petitioner herein as jointly liable though M/s. Emaar Hills Township Private Limited did not receive any consideration; that the Complainants are not Consumers of the Petitioner and that there is no deficiency of service on their behalf. He further contended that the State Commission has failed to appreciate the fact that during the continuance of force majeure events, the obligations of the Petitioner stands suspended and that as the Petitioner is only the owner of the land which was given to M/s. Emaar MGF Land Limited for constructing the project, they have no obligation either to complete the construction or to refund the amounts to the Complainants herein.

4.       The main point that falls for consideration is whether the Petitioner herein can also be held jointly liable to pay the amounts.

5.       Learned counsel appearing for the Respondents/Complainants filed the Written Submissions and also vehemently contended that the State Commission has rightly relied on article 11.1 of the Agreement  which stipulates that though the consideration was paid only to the second Opposite Party, the responsibility of the  owner and / or developer cum General Power of Attorney would be to return the purchaser the amount received from the purchaser and therefore M/s. Emaar Hills Township Private Limited cannot shirk their liability.

6.       We address ourselves to the contention raised by the learned counsel for the Petitioner that the Complainants are consumers of only the second Opposite  Party and not the Petitioner herein. Admittedly both the Opposite Parties were parties to the Agreement executed with the Complainants which is evidenced in clause 11.1 of the Agreement. In a case where two service providers enter into an Agreement with the consumer, it is not necessary that the sale consideration should flow to both of them, what is essential is that consideration ought to be paid for the services hired by the Complainants and if this is done, it is immaterial whether the consideration is paid to one or both the service providers, therefore I am of the view that the Complainants are Consumers vis-a-vis both the Opposite Parties.

6.       Next I address myself to the contention whether the force majeure clause 28.2 of the Agreement is attracted. For better understanding of the case said clause relied upon by the learned counsel for the Petitioner is reproduced as hereunder:

“28.2 Force Majeure

    28.2.1 the Owner and Developer cum General Power of Attorney shall not be liable for any failure to perform its obligations hereunder to the extent that such performance has been delayed, hindered or prevented due to circumstances beyond the control of Owner and Developer cum General Power of Attorney, its contractors and subcontractors, including but not limited to war, civil war, armed conflict (whether, in all cases declared or undeclared and including the serious threat of same), invasion and acts of foreign enemies; riots, sabotage, blockades and embargoes; civil unrest, commotion or rebellion;  any act or credible threat of terrorism; any act of God, lighting, earthquake, flood, storm; nuclear, chemical or biological contamination or explosion; plague, epidemic; theft, malicious damage, strikes, lock-outs, shortage of steel, cement etc. or other industrial action of general application; any act of any authority (including refusal or revocation of a license or consent or repossession of part or whole of the Project Land); compliance with any law or governmental order, rule regulation or direction; shortage of components, explosion, fire, destruction of machines, equipment, factories and of any kind of installation, break-down of transport, telecommunication or electric current.

28.2.2 If at any time during the continuance of this Construction Agreement, the performance in whole or in part by Owner and Developer cum General Power of Attorney of any obligation is prevented or delayed by reasons of force majeure events, notice of the happening of any such event will be given by them to the purchaser within 5 (five) days from the date of occurrence thereof.

28.2.3 The “force Majeure Period” as determined by the Parties herein shall commence from the date of occurrence of a Force Majeure Event and ending on (i)  the date on which the Parties, action in accordance with the Good Industry Practice resumes or should have resumed such of its obligations the performance of which was excused or (ii) the Termination Date, as applicable.

28.2.4 During operation of force majeure events, the obligations of Owner and Developer cum General Power of Attorney hereunder shall be suspended until the termination of such force majeure events.

28.2.5 The Purchaser shall not be entitled to terminate this Agreement if there is default/delay by owner and Developer cum General Power of Attorney due to any force majeure events. The Purchaser shall also not have any claim for damages against the Owner and Developer cum General Power of Attorney in respect of such non-performance.”

7.       Learned counsel for the Petitioner contended that the construction was stopped by an order of the Civil Court and registration of the deeds were suspended by the Government of Andhra Pradesh, the Opposite Parties are not liable to make any refund or pay any compensation. It is significant to mention that the Opposite Parties were not willing to commit any particular time frame for completing construction and delivering possession to the Complainants. We find it relevant case to peruse the order passed by the Civil Court on 15.12.2010  in I.A in O.S. No. 655 of 2010, which shows that the said court directed maintenance of status qua with respect to the title suit property. This suit filed by APIIC, was challenged  by way of CRP No. 5786 of 2010 filed in Andhra Pradesh High court, which vide order dated 16.12.2010 stayed the proceeding in O.S. No. 655 of 2010. Vide G.O. MS. NO.1279 dated 08.10.2010 the Government of Andhra Pradesh banned further registration in respect of the land in question and in view of the order passed by the  division bench of the High Court, it is pertinent to mention that the G.O. continues to remain in force. As per the G.O. it was not possible for the Petitioner to execute the title deed of the said flat in favour of the Complainants, but be that as it may, it does not come in the way of the Opposite Parties in completing the construction of the flats and I am of the view that the G.O. does not justify or explain or give any substantial reasons to the Opposite Parties for the delay in the constructions of the flats. Though, I am in agreement that considering the order passed by the Civil Court on 15.12.2010, M/s. Emaar Hills Township Private Limited could not have gone ahead with the construction of the said flat, as can be seen from clause 28.2.2 of the construction agreement, the Opposite Parties were required to give notice of the passing of the said order to the Complainants within 5 days from the date of order i.e. by 20.10.2010. By not bringing the aforesaid order to the Complainants’ notice, the Opposite Parties had committed breach of the Construction Agreement. The Complainants are not bound by clause 28.2.5 of the Construction Agreement, which takes away their right to claim damages against Opposite Parties on account of non-performance due to reasons beyond their control.

8.       This Commission while dealing with the similar principle in Consumer Complaint No. 355 of 2014 has laid down that the Complainants are seriously prejudiced due to failure of the Opposite Parties, to intimate the order of the Civil Court to them. Had such intimation been given, it could have been possible for the Complainants to apply to the Civil Court to implead them in the suit and vacate the status qua order. In Consumer Complaint No. 355 of 2014, the second Opposite Party i.e. M/s. Emaar MGF Land Limited alone was directed to refund the entire amount paid along with simple interest @ 10% p.a.

9.       Keeping in view the aforentoed judgement and also the submission of the learned counsel for the Petitioner, I am  of the view that there is deficiency of service on behalf of the Opposite Parties for which act of bordering unfair trade practice, they are not entitled to forfeit 10% of the amount and both the fora  have rightly concurred with the finding of deficiency of service and directed the Opposite Parties to refund the 10% amount which has been forfeited by them. However, having regard to the submission of the counsel that no amount was paid to the first Opposite Party that is the Petitioner herein M/s. Emaar Hills Township Private Limited and also that the first half of the clause 11.1 essentially fastened the liability on the Developer and the later part of the said clause fastened the responsibility of the owner/ and or developer and as it is an admitted  fact that the developer alone has received the entire consideration and further keeping in view the judgement of this Commission in Consumer Complaint No. 355 of 2014 which has fastened the liability only on M/s. Emaar MGF Land Limited, I am  of the view that the order of the State Commission is to be modified only to the extent that the entire liability is to be fastened on M/s. Emaar MGF Land Limited, who is arrayed as Opposite Party No. 2 in the original Complaint.

10.     For all the aforenoted reasons, Revision Petition No. 1427 of 2017 is allowed and the order of the State Commission is modified to the extent indicated above.

Revision Petition No. 2244 of 2017

11.     Learned counsel appearing for the Revision Petitioner namely, M/s. Emaar MGF Land Limited vehemently contended that the State Commission has erred in dismissing the Appeal on limitation on the ground that there was no sufficient cause for condoning the delay of 61 days in filing the Appeal. He argued that the certified copy of the order dated 29.09.2016 passed by the District Forum was dispatched on 05.10.2016 to the registered office of the Petitioner herein at 28, Kasturba Gandhi Marg, New Delhi. He further submitted that the State Commission has erred that the copy was received by the office on a very same day i.e. on 05.10.2016. He argued that the State Commission has committed a procedural error by holding that the Petitioner is deemed to have received a free certified copy of the order since it applied after a month of being aware of the same. A brief perusal of the stamp shows that the order of the District forum was pronounced on 29.09.2016, the order was made ready on 05.10.2016 and delivered on 05.10.2016. Apart from the evidence of the dispatch No. 10297 dated 05.10.2016, it is also evidenced that the certified copy was made ready on 17.11.2016 and delivered on the same date. It is more than a month after the free copy was given. There is no affidavit filed by the counsel that the free copy was not handed over to him. Be that as it may, had there been substantial grounds even on merits, the question of condoning the delay could have been taken into consideration.  

12.     It is pertinent to note that the Appeals preferred by this Petitioner M/s. Emaar MGF Land Limited and also the Petitioner in Revision Petition No. 1427 of 2017 namely, M/s. Emaar Hills Township Private Limited arise out of the common order of the District Forum in Consumer Complaint No. 26 of 2015, hence the facts of the case and also the facts of Written Version filed by both the Petitioners herein before the District Forum are all common.  Hence, keeping in view  that all the contentions of the Petitioner herein with respect to force majeure  and also the question of the Complainants being ‘Consumers’ and all the orders passed by the Andhra Pradesh Government have already been dealt with in detail in Revision Petition No. 1427 of 2017, wherein it was held that the builder failed to intimate the order of the Civil Court to the Complainants within 5 days from the date on which the said order was passed thereby committing a breach of contractual obligation; that the Developer cannot rely on Clause 28.2 dealing with force majeure  clause and also the fact that they are not willing to commit any particular time frame for delivery of legal possession, it would not be in the interest of justice to condone the delay and remand the matter back to the State Commission to hear it afresh. It is also relevant to mention here that this Commission has dealt with the same principle dealing with the same facts and Opposite Parties in Consumer Complaint NO. 355 of 2014, and has laid down the ratio that the Petitioner herein M/s. Emaar MGF Land Limited, who has received the sale consideration is liable to refund the amounts. It is pertinent to note here that the Hon’ble Apex Court in Civil Appeal No. 6502 of 2016 preferred by M/s. Emaar MGF Land Limited against the order of this Commission in Consumer Complaint No. 355 of 2014 has directed M/s. Emaar MGF Land Limited to deposit an amount of ₹2,00,00,000/- vide order dated 16.07.2016 and also directed the release of the principal amount of ₹1,52,26,426/- to the Complainants vide order dated 28.04.2017.    This instant case dealing with the same project and the forfeiture of the booking amount paid by the Complainant is totally unjustified and I do not see any valid ground to interfere with the order of the State Commission.

13.     In the result Revision Petition No. 2244 of 2017 fails and is dismissed accordingly. However, no order as to costs.

14.     The Petitioner herein namely, M/s. Emaar MGF Land Limited is directed to comply with the order of the District Forum within four weeks from the receipt of a copy of this order, failing which the decretal amount shall carry interest @ 12% p.a. for the same period. Needless to add, the amount deposited by the Petitioner namely, M/s. Emaar MGF Land Limited in this Commission in compliance of the order dated 01.08.2017, shall be refunded to the Complainants with the accrued interest, if any and the same shall be adjusted in the decretal amount to be paid to the Complainants.