Chandigarh

StateCommission

A/184/2015

Emaar MGF Land Ltd. - Complainant(s)

Versus

Ram Niwas Bansal - Opp.Party(s)

Sanjeev Sharma,Adv.

14 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	184 of 2015
Date of Institution	:	10.08.2015
Date of Decision	:	14.09.2015

1. Emaar MGF Land Ltd., SCO No.120-122, First Floor, Sector 17-C, Chandigarh through its Manager.
2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through Managing Director.

……Appellants/Opposite Parties

 

V e r s u s

Ram Niwas Bansal, House No.32 N.A.C. Mani Majra, Chandigarh.

              ....Respondent/Complainant

 

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

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Sanjeev Sharma, Advocate for the appellants.

                        Sh.Gaurav Bhardwaj, Advocate for the respondent.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            This appeal has been filed against an order dated 01.07.2015, passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum) vide which, it allowed the consumer complaint bearing No.574 of 2014, filed by the complainant (now respondent).

2.       As per facts on record, the respondent, vide application dated 05.09.2006 Annexure C-2, (at page 14 of the Forum file), applied for booking of a residential plot, measuring 300 sq. yards, in the project launched by the appellants, under the name and style of Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab. It was stated that alongwith the said  application form, the respondent  deposited an amount of Rs.10,35,000/-, vide cheque No.625593 dated 05.09.2006 towards booking amount, in respect of the said plot. Receipt dated 23.09.2006 Annexure C-1, (at page 13 of the Forum file), in this regard was issued by the appellants. It was further stated that the application dated 05.09.2006 Annexure C-2 was accepted, as a result whereof, the respondent  was provisionally allotted plot No.470, in Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab, @ Rs.11,500/- per square yard, vide provisional allotment letter dated 11.05.2007 Annexure C-3. The total sale price of plot No.470 was Rs.36,19,104/-, which included Rs.34,50,000/- towards basic sale price and of Rs.1,69,104/- towards External Development Charges.
3.       It was further stated that, thereafter, Plot Buyers Agreement Annexure C-4 (colly.) was executed between the parties on 04.07.2007. Plot No.470, which was allotted in favour of the complainant, vide provisional allotment letter dated 11.05.2007 Annexure C-3 was changed to plot No.412. It was further stated that, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, the Opposite Parties were to hand over physical possession of the residential plot, in favour of the complainant,  within a period of 2 years, and not later than three years, from the date of execution of the agreement, after completion of the development works, so as to make the site, where the plot in question was carved out, in a habitable condition, as per Clause 23 of the said Agreement. Contents whereof are reproduced hereunder:-

“The Company shall be responsible to provide internal services within the Project, which, inter alia, includes laying of roads, water lines, sewer lines, electric lines etc. However, it is understood that the external or peripheral services such as water lines, sewer lines, storm water drains, roads, electricity, horticulture and other such services integral to the infrastructure are to be provided by the State Government Authorities or the Local Authorities”.

4.       Thus, it is envisaged from the afore-extracted contents of Clause 23 of the Plot Buyer's Agreement dated 04.07.2007, that the appellants are responsible to provide internal services, which, inter alia, includes laying of roads, water lines, sewer lines, electric lines etc. It is an admitted fact that after booking of the plot, in question, the respondent regularly deposited the installments, towards the entire sale consideration aforesaid, as per the payment plan opted by him, till 26.02.2009. Since the respondent had made timely payment of installments, towards the plot, in question, as such, he qualified for the “Pay on time” reward and was given waiver/rebate of 5% of the basic sale price i.e. Rs.1,72,500/-. It was further stated that as per the statement of accounts Annexure C-20 at page 50 of the Forum file, the entire sale consideration, stood paid by the respondent, to the appellants. It was further stated that perusal of the statement of accounts Annexure C-20, at page 50 of the Forum file, forming part of letter dated 07.02.2012 Annexure C-19, indicates that nothing was due, towards sale consideration of the plot, in question, from the respondent. It was further stated that, the complainant was again relocated to plot No.346 from plot No.412, which fact is evident from the letter dated 05.10.2010 Annexure C-13 (colly.), (at page 39 of the Forum file).
5.       It is case of the appellants, that, as a matter of fact, possession of plot No.346 was offered to him, vide letter dated 05.01.2012 Annexure C-17. The relevant contents of the said letter read as under:-

“As you are aware, the real estate sector in India has witnessed some sharp upheavals in the past few months due to sudden change in the global economy. However, we have, keeping in mind the interests of our valuable customers, by putting extra efforts and resources continued with the development of the Project and are now pleased to inform you that we are ready to hand over the possession of the Plot allotted to you.

The development activities in all three sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Greens, Sector 109, Mohali Hills, where your plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project”.

6.       It was further written in the letter dated 05.01.2012 (Annexure C-17), vide which the possession of plot No.346 was allegedly offered to the respondent that there is no outstanding amount, due to be paid by him, in respect of the same (plot No.346), as per the payment plan agreed by him. However, the respondent  was directed to pay Rs.1098/- towards delayed payment interest and additional External Development Charges (EDC), as levied by the Government of Punjab, as and when communicated by Company. It was further mentioned in the letter dated 05.01.2012, that on completion of infrastructure work for the entire project, sale deed will be executed, on payment of stamp duty and registration charges, at the prevailing rate, on the date fixed for the same.
7.       In reply to the letter dated 05.01.2012, the respondent vide letter Annexure C-18, (at page 48 of the Forum file), sought clarification from the appellants, as to wherefrom he will get water and electricity, for raising construction of plot No.346. Clarifications with regard to the time of registration of plot No.346; offer of possession with incomplete basic amenities; obtaining of Completion Certificate from the Competent Authorities, in respect of the project, in question; payment of additional EDC; as also compensation/ penalty for the period of delay, in offering the possession of same (plot No.346) were also sought by the respondent, from the appellants vide letter Annexure C-18.
8.       It was further stated that the offer of possession, made by the appellants, vide letter dated 05.01.2012, was mere a paper transaction, as the project, in question, had not yet been fully developed and the basic amenities, as promised by them, as per Clause 23 of the Agreement, referred to above, are not in existence. It was further stated that, on the other hand, the entire amount, in respect of plot No.346 already stood paid, including EDC, in the manner, referred to above. It was further stated that despite the fact that nothing is due against the sale consideration of plot No.346, it is not known, as to under what circumstances, the appellants made demand of the amounts mentioned in letter dated 05.01.2012. It was further stated that even the compensation/penalty for the period of delay, in making offer of  possession, beyond three years from the stipulated date i.e. from 03.07.2010,  was not paid by the appellants.
9.       It was further stated that, in response to the letter (Annexure C-18), written by the respondent, the appellants wrote letter dated 07.02.2012 (Annexure C-19), admitting their liability to pay compensation/ penalty towards the delay caused in offering possession of plot No.346, beyond the stipulated date. Not only this, it was also informed by the appellants, vide letter dated 07.02.2012, that they are trying to expedite the construction and completion of overall infrastructure work, within the sector, in question. It was further informed by the appellants, vide letter dated 07.02.2012, that works qua Sewerage Treatment Plant (STP), rain water harvesting and electrical sub-stations are expected to be complete, within 6 to 8 months.
10.       It is case of the respondent  that thereafter, he received letter dated 08.07.2014 Annexure C-21, wherein the appellants asked him to settle the final dues, towards relocated plot No.346, on payment of Rs.11,47,652.88Ps. The respondent  was asked to deposit the said amount of Rs.11,47,652.88Ps, under different heads, in their various bank accounts, maintained by them, latest by 12.08.2014. However, deposit of the said amount, was made a precondition, for registration of the sale deed, in respect of plot No.346. The respondent, by writing letter dated 21.07.2014 Annexure C-24 (at page 60 of the Forum file),  denied his liability, to make payment of the amount,    demanded    by    the   appellants, vide letter   dated   08.07.2014 (Annexure C-21). It was specifically stated by the respondent, in letter dated 21.07.2014, that the entire sale consideration, in respect of plot No.346 already stood paid. It was further stated that with a view to avoid their liability of payment of compensation/penalty for the period of delay, in delivery of possession of the same (plot No.346), only paper possession has been offered, vide letter dated 05.01.2012. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. However, when the grievance of the respondent was not redressed by the appellants, left with no alternative, he filed a consumer complaint, before the Forum, under compelling circumstances, which was registered by it on 29.08.2014.
11.       It was specifically stated by the respondent that cause of action accrued to him,  on 08.07.2014, when an unreasonable demand for payment of amount as mentioned above, was raised by the appellants.
12.       In the complaint filed by the respondent, the following reliefs were claimed by him:-

“That the OPs be directed to pay Rs.15,000/- per month, as compensation/ penalty for delayed possession from 04.07.2010, till the possession is physically handed over to the complainant and adjust the amount accordingly with the amount to be paid by complainant i.e. EDC charges and stamp duty charges and pay the balance amount to the complainant. The OPs be further  directed to pay Rs.5,00,000/- as compensation for deficiency in service, unfair trade practice and mental harassment suffered by the complainant and also Rs.55,000/- as litigation expenses to the complainant”.

13.       Notice of the complaint was served to the Opposite Parties.
14.       In the joint reply filed by the appellants, it was pleaded that the complaint was not maintainable before the Forum, as it had no pecuniary Jurisdiction, to entertain and decide the same. It was further pleaded that the complainant is a speculator, as he had bought the plot, in question, for speculative purposes. It was also  pleaded that the complaint was barred by time.
15.       On facts, it was alleged that so far as the question of payment of compensation/penalty for the period of delay, in offering possession of plot No.346 is concerned, the appellants are bound by the terms and conditions of the Plot Buyer's Agreement dated 04.07.2007. It was stated that the possession of plot No.346 was offered to the respondent, vide letter dated  05.01.2012, however he failed to take the same. It was denied that development work was not complete or the basic amenities were not in existence, in the project, in question, where the plot of the respondent was situated. It was further averred that the demand made by the appellants, to the tune of Rs.11,47,652.88Ps. under various heads, vide letter dated 08.07.2014 (Annexure C-21) was legally due against the respondent. 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.
16.       In the rejoinder filed by the complainant, he reiterated all the averments contained in the complaint, and repudiated those contained in the written version of the Opposite Parties.
17.       Both the parties led evidence, in support of their case.
18.       The Forum, on analysis of the evidence on record and hearing the Counsel for the parties, accepted the complaint, and granted following reliefs, vide the order impugned:- 

“For the reasons recorded above, we find that the act of the OPs in not handing over the legal and valid possession of the plot to the complainant (without providing the internal services) amounts to unfair trade practice as well as deficiency in service.  Furthermore, the demand in respect of club membership charges, water charges, monthly maintenance charges, electricity connection charges is also illegal and the OPs cannot pressurize the complainant to pay the said amounts and to furnish the indemnity bonds.  Accordingly, we find merit in the complaint and the same is partly allowed.  The OPs are directed :-

i)      To pay to the complainant Rs.15,000/- per month as penalty for delayed possession from 4.7.2010 till the filing of the complaint.

ii)     To also pay the penalty for the delayed possession @ Rs.15,000/- per month from the date of filing of the complaint till the possession of the plot is physically handed over to the complainant after providing the internal services. The amount so accrued shall be paid/adjusted to the outstanding amount, if any, at the time of handing over of the possession/registration of the sale deed.

iii)    To also pay an amount of Rs.1,00,000/- to the complainant as compensation for deficiency in service and unfair trade practice and mental harassment suffered by him.

iv)    To pay Rs.15,000/- as costs of litigation to the complainant.

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 amounts mentioned at Sr.No.(i) & (iii) 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.(ii)&(iv) above”.

19.       Hence this appeal.
20.       We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
21.       The Counsel for the appellants has vehemently contended that the consumer complaint was barred by time, as it was filed after two years, from the date of accrual of cause of action i.e. when offer of possession of plot No.346 was made to him, vide letter dated 05.01.2012. He further contended that since price of the plot, in question, as also other reliefs claimed by the respondent, if clubbed together, falls more than Rs.20 lacs, as such, the Forum had no pecuniary Jurisdiction, to entertain and decide the complaint. He also argued that the respondent did not fall within the definition of a consumer, as he has purchased the plot to get benefit of escalation in future. He prayed that the order impugned passed by the Forum being illegal and invalid is liable to be set aside.
22.       On the other hand, the Counsel for the respondent, controverted the above arguments, raised by the Counsel for the appellants, stating that the offer of possession, in respect of plot No.346 was only a paper transaction, as the development work was not complete  as also the basic amenities, as promised vide Plot Buyer's Agreement dated 04.07.2007, were not in existence, at the site, where the plot, in question, was carved. He further stated that the cause of action had accrued to the respondent, on 08.07.2014, when without any justification, additional amount aforesaid, was demanded by the appellants, from him and also offer was made to the respondent to take physical possession of the plot, in dispute. He further controverted that since the respondent  had raised his claim to the extent of payment of compensation/penalty for the period of delayed possession, alongwith other reliefs, which fell below Rs.20 lacs, as such, the Forum had pecuniary Jurisdiction to entertain and decide the complaint. He further controverted that it was not required to include the price of plot No.346 to determine pecuniary Jurisdiction of the Forum. He further said that the order impugned passed by the Forum, being legal and valid, is liable to be upheld.
23.       First coming to the argument of the Counsel for the appellants that the respondent  did not fall under the definition of a “consumer” as defined under Section 2 (1) (d) of the Act, as he had purchased the plot, in question, to get benefit of price escalation, in future, after resale thereof. It may be stated here that no material data has been placed, on record, by them, to prove that he was a property dealer and had been engaged in sale and purchase of the properties, on regular basis or that he had purchased other similar situated plots, in or around the vicinity of the project, wherein the plot, in dispute, is located. It was specifically stated by the respondent  that he had purchased the plot, in question, to settle at Mohali, considering the need of his family members and he wish to raise construction on the same and reside therein. In this view of the matter, the argument raised by the Counsel for the appellants, in this regard, stands rejected. The District Forum was also right, in holding so.
24.       By taking note of the contents of letters dated 05.01.2012 Annexures C-16 and C-17 respectively, it was rightly held by the Forum that offer of possession of plot No.346 was a mere paper transaction. It was done so, by the appellants, just with a view to avoid their liability in making offer of possession beyond the period of three years, as was stipulated in Clause 8 of the Plot Buyers Agreement dated 04.07.2007, which was executed between the parties. By taking note of the stand taken by the appellants, it was further said that the development works, which was necessary to be completed before making offer of possession of plot No.346, were not complete. In the letter dated 05.01.2012 Annexure C-16, at page 45 of the Forum file, it is virtually admitted by the appellants that the development work with regard to construction of Sewerage Treatment Plant (STP), rain water harvesting and electrical sub-stations is going to be complete within 6 to 8 months. In another letter of the even date Annexure C-17, it was also admitted by the appellants, that only significant progress has been done with respect to the development of basic infrastructure like water and sewer pipelines, roads, parks etc. etc. in the project, in question, where plot No.346 is carved. It was further stated in the said letter that development work of roads and other basic amenities has been completed in portions of Augusta Greens, Sector 109, Mohali Hills, where plot of the respondent  was located. It was further stated in the said letter that temporary electricity and water connection has already been sanctioned for the project, in question.
25.       In view of the above, and the documents placed on record, we feel that the findings recorded by the Forum are perfectly justified. It is reflected from the documents, on record, that the development work, in the project was not complete, when offer of paper possession in respect of plot No.346 was made to the respondent. It may be stated here, that the development work was to be done, in terms of the conditions contained in Clause 23 of the Plot Buyers Agreement dated 04.07.2007.  In reply to the letter, written by the appellants, to the respondent, on 07.02.2012 (Annexure C-19), i.e. after about one month of issuance of offer of possession letter dated 05.01.2012 (Annexure C-17), the above deficiencies, in the project, were again admitted by them, as it was clearly written by them therein, that they are trying to expedite the construction and completion of overall infrastructure work, within the sector, in dispute and that work with regard to Sewerage Treatment Plant (STP), rain water harvesting and electrical sub-stations is going to be complete within 6 to 8 months.
26.       The Forum while taking note of deficiency in service, rightly came to the conclusion that offer of possession letter dated 05.01.2012, was sent by the appellants, to the respondent, just with a view to avoid their liability to pay compensation/penalty, for the period of delay, beyond three years aforesaid, as per the Plot Buyers Agreement dated 04.07.2007. It was noticed that at an earlier point of time, vide letter dated 16.12.2011 (Annexure C-14), at page 43 of the Forum file, the respondent  was asked to get his building plans sanctioned, to raise construction over the plot, in question. Virtually, it was conveyed that the possession of plot No.346 stood transferred to the respondent.  Once it is proved, on record, that the attitude of the appellants was malafide and offer of possession made vide letter dated 05.01.2012 Annexure C-17, was only a paper transaction,  just with a view to avoid their liability to pay compensation/penalty, for the period of delay, beyond three years aforesaid, as per the Plot Buyers Agreement dated 04.07.2007, in the absence of development at the site, it cannot be said that the limitation needs to be calculated from 05.01.2012.
27.       It is true that the appellants were exempted from the provisions of Punjab Apartment and Property Regulation Act, 1995, vide letter dated 30.05.2013 (Annexure OP/4). For the period prior thereto, it is nobody’s case that the above provisions were not applicable. As per the notification (Annexure OP/3), the development work was to be carried out, in accordance with the lay out plans sanctioned by the Chief Town Planner, Punjab and other guidelines, issued by the Competent Authorities, from time to time. Nothing has been produced on record, to prove that  development work, in the said project was carried out, in accordance with the layout plans sanctioned by the Chief Town Planner, Punjab. Furthermore, the appellants also failed to prove on record, by producing cogent and convincing documentary evidence, in the shape of reports of their architects/engineers that internal services including laying of roads, water lines, sewer lines, electrical lines were provided in the project, in question.
28.       Not only above, reading of contents of letter dated 08.07.2014 makes it very clear that letter dated 05.01.2012 making offer of possession was nothing but a paper transaction. In that letter, when to take possession date was not mentioned. In the letter dated 08.07.2014, which was written in furtherance to intimation of possession letter dated 05.01.2012 (wrongly mentioned as 04.01.2012) it was specifically mentioned that to enable the appellants, to handover possession of the plot on the mentioned date, the respondent needs to complete some formalities. Relevant portion of the said letter reads as under:-

“Dear Ram Niwas Bansal,

This is in furtherance to our Intimation of Possession letter dated 04 JAN 2012.

We wish to inform you that we will be commencing the process of execution and registration of conveyance deed in your favour shortly. In the meantime, You are kindly requested to make the payments of the following amounts vide Cheques/Demand Draft/Electronic Transfer on or before 30 days of receipt of this letter i.e. 12 AUG-14 to enable us to handover the possession of the Plot on the mentioned date”.

 

29.       It was further mentioned that, in case, any allottee failed to take possession of plot, in terms of letter of offer of possession by the stipulated date, holding charges shall be levied. That stipulation in the letter referred to above, reads as under:-

“Holding Charges:- The allottees who have not taken possession of their plots pursuant to the letter of possession are requested to take possession by the due date mentioned herein in this letter and also complete the documentation and other formalities for taking possession. If you or any of your representatives fail to take possession by the due date after making the full and final payments, you shall be liable to pay to the company, holding charges at the rate of Rs.50/- per sq.yd of the plot per month for the entire period of such delay as per the terms of the plot buyer's agreement dated 04 JUL-07”.

30.       By writing the letter dated 05.01.2012, the appellants had shown their readiness to deliver possession. What formalities were to be completed before the possession of plot is delivered, those are mentioned in letter dated 08.07.2014 Annexure C-21. On receipt of this letter, the respondent raised objections, which were never attended to. In view of the above, limitation can be said to have started not on 05.01.2012 as alleged, but on 08.07.2014.
31.       Taking note of the above facts, it was rightly held by the Forum that the offer of possession made by the appellants, vide letter dated 05.01.2012 Annexure C-17, was a paper transaction. Infact, offer of possession was made only on 08.07.2014, as mentioned above. The Forum was right in saying that the  respondent was entitled to get penalty @Rs.15,000/- per month i.e. Rs.50/- per square yard of the super area of the plot, in question, measuring 300 square yards, for the period of delay, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007.
32.       That so far as the pecuniary Jurisdiction of the Forum for entertaining and deciding the consumer complaint is concerned, it was within its competency. We have noted from the documents on record and as discussed in preceding part of this order that the dispute was not with regard to the delivery of possession, which the appellants always alleged that they were ready to deliver (rather they wrongly say it was delivered on 05.01.2012). Order of the Forum had discussed about non-delivery of possession as an incidental matter in connection with, when deciding the main dispute between the parties.  The basic relief claimed by the respondent was only qua payment of penalty/compensation, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, for the period of delay, alongwith compensation for mental agony, physical harassment and cost of litigation. Since, the total aggregate value of the reliefs claimed by the respondent  fell below Rs.20 lacs, as such the Forum had pecuniary Jurisdiction to entertain and decide the consumer complaint. The argument raised by the Counsel for the appellants, in this regard, stands rejected.
33.       It was further rightly stated by the Forum, in its order impugned that the appellants cannot insist for payment of club membership charges, the same being optional for the plot owner, to subscribe or not. Qua charges payable towards free maintenance security, monthly maintenance charges, water and electricity connection charges, it was rightly held by the Forum that the respondent  shall pay the same, as and when the construction of plot No.346 is started.   
34.       No other point, was urged, by the Counsel for the parties.
35.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
36.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no order as to costs. The order of the District Forum is upheld.
37.       Certified copies of this order, be sent to the parties, free of charge.
38.       The file be consigned to Record Room, after completion.

Pronounced.

14.09.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg