Chandigarh

StateCommission

CC/22/2015

Ajay Vijh - Complainant(s)

Versus

The Authorized Signatory, Emaar MGF land Pvt. Ltd. - Opp.Party(s)

Sher Singh Rathore, Randeep Rathore, Adv.

01 May 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

Complaint case No.	:	22  of 2015
Date of Institution	:	02.02.2015
Date of Decision	:	01.05.2015

 

Ajay Vijh son of Late Sh.Uttam Chand Vijh, resident of House No.3435, Sector 38-B, Chandigarh.

……Complainant

V e r s u s

1. M/s Emaar MGF Land Pvt. Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its General Manager/Authorized Representative.
2. M/s Emaar MGF Land Pvt. Limited, 1^st Floor, SCO 120-122, Sector 17-C, Chandigarh-160017, through its General Manager/Authorized Representative.

              .... Opposite Parties

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

BEFORE:     JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by: Sh.Chanderkant Thakur, Advocate for the complainant.                  

                        Sh.Sanjeev Sharma, Advocate for the Opposite Parties.

 

JUSTICE SHAM SUNDER(RETD.), PRESIDENT.

            The facts, in brief, are that, the complainant applied to the Opposite Parties, vide application No.444, for the allotment of a residential plot and paid a sum of Rs.10,35,000/-, as booking amount. Vide provisional allotment letter dated 11.05.2007 Annexure C-1, the complainant was allotted plot no.617, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Greens, SAS Nagar, Mohali, Punjab, @ Rs.11,500/- per square yard. The basic sale price of the said plot was to the tune of Rs.34,50,000/-. Apart from this, the complainant was also required to pay External Development Charges, to the tune of Rs.1,69,104/-. As such, the complainant was required to pay Rs.36,19,104, towards entire sale consideration of the plot, in question.

2.       It was stated that, after the allotment of residential plot, referred to above, Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, was executed between the parties, at Chandigarh. It was further stated that, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, subject to force majeure conditions, and reasons, beyond the control of the Opposite Parties, physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within three years, from the date of execution of the same, the Opposite Parties were liable to pay compensation/penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay.
3.       It was further stated that the entire sale consideration, towards the said plot was paid by the complainant, to the Opposite Parties. When physical possession of the fully developed plot, in question, was not delivered to the complainant, by the stipulated date i.e. 03.07.2010, he requested the Opposite Parties, vide letter dated 05.02.2011, to apprise him, with regard to the status of the project, as also delivery of possession of the plot, in question, in his favour. In response to the said letter, the Opposite Parties, vide letter dated 14.02.2011, intimated the complainant, that they had no definite date of delivery of possession of the plot aforesaid. It was further stated that, thereafter, vide letter dated 20.02.2011, the complainant requested the Opposite Parties, to make payment of compensation/ penalty, for the period of delay, as per Clause 8 of the Plot   Buyer's Agreement dated 04.07.2007, Annexure C-2.  However, vide letter dated 06.03.2011, it was intimated by the Opposite Parties, to the complainant, that  compensation/penalty, for the period of delay, would be adjusted, at the time of possession/ registration of the said plot.
4.       It was further stated that, thereafter, vide letter dated 02.09.2011, the complainant requested the Opposite Parties, to deliver possession of the said plot, failing which he would claim escalation cost from them. In response to the said letter, the Opposite Parties, vide letter dated 19.09.2011, intimated the complainant that the plot, in question, could not be handed over to him, for want of basic amenities, at the site, where the same was carved. Vide letter dated 25.04.2012, the   complainant was offered relocation/allotment of plot No.108-MLU-7-300, Mohali Hills, Mohali, in lieu of plot No.671 originally allotted to him. As such, the complainant agreed to  the  offer  of  relocation, aforesaid. Amendment Agreement dated 25.04.2012, Annexure C-12, was executed between the parties, in respect of the relocated plot bearing No.108-MLU-7-300, Mohali Hills, Mohali. However, except the change in the number of plot on account of relocation, all other terms and conditions, as agreed to between the parties, vide the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, remained intact.
5.       It was further stated that vide letter dated 01.05.2012, the complainant was supplied the statement of account, qua the relocated plot, which revealed that nothing was due against the same, and rather an amount of Rs.20,052/-, had already been paid in excess, by him.
6.       It was further stated that, thereafter, the complainant again requested the Opposite Parties, vide various communications, to deliver possession of the relocated plot bearing No.108-MLU-7-300, Mohali Hills, Mohali but to no avail. It was further stated that, thereafter, various communications were exchanged between the parties, regarding the delivery of possession of plot No.108-MLU-7-300, Mohali Hills, Mohali as also payment of compensation, for the period of delay, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2.
7.       It was further stated that, to the utter surprise of the complainant, the Opposite Parties, vide letter dated 28.06.2014, intimated him, to take possession of the plot, in question, on making payment of Rs.8,13,353/-. It was further stated that the demand made by the Opposite Parties, vide letter dated 28.06.2014, was illegal and arbitrary. It was further stated that even the request made by the complainant, to the Opposite Parties, vide letter dated 05.07.2014, for payment of compensation, for the period of delay, was not acceded to, by them. Thereafter, various letters were written to the Opposite Parties, to make payment of compensation/penalty, for the period of delay, but except false assurances, nothing positive came out.
8.       It was further stated that when the grievance of the complainant was not redressed by the Opposite Parties, left with no alternative, legal notice dated 10.11.2014 was also served upon them, but to no avail.It was further stated that the huge amount, deposited by the complainant, towards the price of plot, in question, was utilized by the Opposite Parties, as a result whereof, he was caused financial loss. It was further stated that even the complainant underwent a lot of mental agony and physical harassment, on account of the non-delivery of physical possession of the fully developed plot, to him, and  non-payment of compensation, as per Clause 8 of the Agreement, referred to above, for the period of delay.
9.        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. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to hand over the physical possession of plot No.108-MLU-7-300, Mohali Hills, Mohali; pay penalty @Rs.50/- (Rupees Fifty only), per square yard, per month from 03.07.2010, alongwith interest @18% P.A., as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1 lac.
10.       The Opposite Parties were served and put in appearance in this Commission, on 12.03.2015. They filed their joint written version, on 09.04.2015. In the joint written version, it was pleaded by the Opposite Parties, that the complainant did not fall within the definition of a consumer, as he being a speculator had purchased the plot, with an intention, to earn profits, after selling the same, as and when there was escalation in prices of the real estate. It was further pleaded that the present complaint was barred by limitation. It was further pleaded that this Commission has no territorial and pecuniary Jurisdiction, to entertain and decide the complaint.  It was further pleaded that the complaint was not maintainable, as an arbitration clause, existed, in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, and, in case of any dispute, the matter was to be referred to the Arbitration. It was further pleaded that time was not the essence of contract. The factum of  allotment of plot no.617, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Greens, SAS Nagar, Mohali Punjab, in favour of the complainant, was admitted. Execution of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2 between the parties was also admitted. It was also admitted that possession of plot no.617, measuring 300 square yards, in Sector 109, Mohali Hills, Augusta Greens, SAS Nagar, Mohali, could not be delivered, to the complainant, for want of basic amenities at the site, as a result whereof, he was relocated to plot No. 108-MLU-7-300, Mohali Hills, Mohali. Execution of Amendment Agreement dated 28.04.2012, Annexure C-12, between the parties, in respect of plot No.108-MLU-7-300, Mohali Hills, Mohali, was also admitted.
11.       It was stated that, no doubt, there was some delay, in the delivery of possession of the unit, in question, yet, when the same was offered to the complainant, vide letter dated 28.06.2014, on completion of the amenities,  as per Clause 23 of the Plot  Buyer's  Agreement dated 04.07.2007, Annexure C-2, on payment of the amount of Rs.8,13,353/-, due against him, he refused to accept the same and did not come forward to take the same. It was further stated that even delayed compensation/penalty, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, to the tune of Rs.7,18,027/- had already been credited to the account of the complainant, maintained by the Opposite Parties, for the period of delay. It was further stated that, as such, the complainant was still required to pay the remaining amount of Rs.1,21,114/-, before taking possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, but he failed to pay the same, and, as such, he was liable to pay the holding charges also. It was further stated that the amount demanded by the Opposite Parties, from the complainant, vide letter dated 28.06.2014, was legally due against him. It was further stated that the Opposite Parties were ready and willing to deliver possession of plot no.108-MLU-7-300, Mohali Hills, Mohali, which was offered vide letter dated 28.06.2014, on payment of the amount, mentioned therein, but it was the complainant, who failed to take the same. 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.
12.       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.
13.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
14.       The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
15.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
16.       The first 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. No doubt, an objection was taken by the Opposite Parties, in their written version, that the complainant purchased the said plot, for commercial purpose, i.e. for reselling the same, as and when, there was escalation, in the prices of real estate.  It may be stated here, that the objection taken by the Opposite Parties, in this regard, does not appear to be correct. The complainant, in para No.8 of the complainant, clearly stated that he had purchased the said plot, to construct house thereon. Otherwise also, the mere fact that it was a residential plot, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by him. On the other hand, 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 plot, 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. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential plot, in question, with a view to construct house thereon, and reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.     
17.       The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here, that according to the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, and Amendment Agreement dated 28.04.2012, Annexure C-12, the possession was to be delivered, in respect of plot No.108-MLU-7-300, Mohali Hills, Mohali, in question, within a maximum period of three years, from the date of signing of the former (Agreement dated 04.07.2007). Neither the possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, was handed over to the complainant, by the stipulated date i.e. 03.07.2010, for want of basic amenities, at the site, as has been admitted by the Opposite Parties, in their written version, nor the penalty, as provided in the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, was paid to him, by the said date (03.07.2010). Admittedly, possession of the relocated plot No.108-MLU-7-300, Mohali Hills, Mohali was offered to the complainant, vide letter dated 28.06.2014, on payment of the remaining amount, mentioned therein. However, the complainant challenged the demand, made by the Opposite Parties, vide letter dated 28.06.2014. As per Section 24A of the Act, the District Forum, the State Commis­sion or the National Commission is required to admit a complaint, if it was filed within two years, from the date, on which the cause of action has arisen. In the present case, the cause of action accrued to the complainant, on 28.06.2014, when, for the first time, offer of possession, in respect of plot No.108-MLU-7-300, Mohali Hills, Mohali, was made to him, by the Opposite Parties, subject to making payment of the amounts, mentioned therein, under various heads. As such, the present complaint, having been filed on 02.02.2015, could very well be said to be within limitation. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.     
18.       The 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, a 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 dated 04.07.2007, Annexure C-2, in respect of the plot in question, was executed, between the parties, at Chandigarh, as is evident from page 43 of the file. Not only this, various payments, in respect of part price of the said plot, were also made at Chandigarh, as is evident from the receipts, issued by the Opposite Parties, at pages 85, 89, 91, 93, 95,97 and 99 of the file. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. 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.
19.       The next question, that falls for consideration, is, as to whether, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint or not. It may be stated here, that the total cost of the said plot, was Rs.36,19,104/-. The complainant has sought physical possession of plot No.108-MLU-7-300, Mohali Hills, Mohali; penalty @Rs.50/- (Rupees Fifty only), per square yard, per month from 03.07.2010, alongwith interest @18% P.A., as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1 lac. The aggregate value of the services/goods, plus (+) compensation, and cost, claimed by the complainant, in the complaint, [excluding the interest claimed @18% P.A. aforesaid], came to be around Rs.50,89,104/- and, as such, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
20.       The next question, that arises for consideration, is, as to whether, interest @18% P.A., claimed by the complainant, in the manner, referred to above, 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 lakhs (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”.

21.       The observations made, in the aforesaid case, are fully applicable, to the facts of the instant case. In the instant complaint, interest @18% P.A., claimed by the complainant, in the manner, referred to above, was not required to be added, for determining the pecuniary Jurisdiction of this Commission. The question, thus, stands answered, in the manner, referred to above.
22.       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 04.07.2007, Annexure C-2. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under;

 “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.”

23.       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 04.07.2007,   Annexure C-2, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I. Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). 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.   
24.       The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, in question, was to be given to the complainant. The Plot Buyer's Agreement Annexure C-2 was executed between the parties, on 04.07.2007. According to Clause 8 of this Agreement, subject to force majeure conditions, and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It means that the Opposite Parties were  liable to deliver possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, to the complainant at the latest by 03.07.2010. By not delivering the possession by the stipulated date, the Opposite Parties were not only deficient in rendering service, but also indulged into unfair trade practice.
25.       The next question, that falls for consideration, is, as to whether, possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, was actually offered by the Opposite Parties, to the complainant. It is an admitted fact that possession of the unit, in question, was offered to the complainant, vide letter dated 28.06.2014, whereby it was clearly intimated to him, that the same (possession of the unit), was ready for delivery, subject to making the pending payments, mentioned therein. Thus, it is held that possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, which was allotted to the complainant, in the manner, referred to above, was for the first time genuinely offered to him (complainant), on 28.06.2014.
26.       The next question, that falls for consideration, is, as to whether, all the amenities at the site, as per Clause 23 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, where the unit, in question, was allotted to the complainant were complete, or not, and that the complainant was ready to take the possession thereof or not, when it was offered to him, vide letter dated 28.06.2014. As stated above, possession of the unit, in question, was offered to the complainant, vide letter dated 28.06.2014, i.e. before filing the complaint and demand of Rs.8,13,353/-, was also made from him. No cogent and convincing evidence, was produced by the complainant, to the effect that the amenities, which were promised by the Opposite Parties, as per Clause 23 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, were not in existence, at the site. In the absence of any reliable documentary evidence having been produced by the complainant regarding the non-existence of amenities, it is held that all the amenities, which were promised to be provided by the Opposite Parties, were in existence at the site. It is, therefore, held that the version of the Opposite Parties, that all the amenities, as promised, in the Agreement, were available at the site, and as such, the offer made to the complainant, vide letter dated 28.06.2014, was a genuine offer is correct.
27.           Now the stage is set for determination of the question, as to what amount is required to be paid by the complainant, towards the remaining sale consideration and other charges, in relation to the said unit. As per the payment schedule attached with the Plot  Buyer's  Agreement dated 04.07.2007, Annexure C-2, at page 54 of the file, the basic sale price of the said unit was Rs.34,50,000/-. Apart from this, the complainant was also required to pay Rs.1,69,104/- as External Development Charges. As such, the total price of plot No.108-MLU-7-300, Mohali Hills, Mohali, which the complainant was required to pay was Rs.36,19,104/-. As per the letter dated 28.06.2014, at page 77 of the file, produced by the complainant, a sum of Rs.8,13,353/-, was demanded from him, by the Opposite Parties, under various heads, as under:-

S.N	Payable components	Gross Amount (Rs.)	OTPR/ECFY	Demand Amount (Rs.)	Service Tax	Total payable
1.	Basic	150631	150631	0		0
2.	EDC	15	15	0		0
3.	Enhanced EDC Rs.94,851/-	94851	21854	72997		72997
4.	Club Membership Charges Rs.100000/-	100000		100000	12360	112360
5.	Electrification Charges @Rs.47.5 per Sqd.	14250		14250		14250
6.	Registration Charges	54000		54000		54000
7.	Stamp Duty Charges	486000		486000		486000
8.	IFMS @Rs.100 per Sqd.	30000		30000		30000
9.	Electricity Connection Charges	24196		24196		24196
10.	Delayed Payment Charges			0		0
11.	Monthly Maintenance Charges from 01 August-14 to 31 Jul-15 @3.25 Per Sqd + Service Tax @12.36%			13146		13146
12.	Water Charges @1500/- Fixed plus 350/- Pm/Sq. yds from 01 August-14 to 31 Jul-15 @3.25 Per Sqd + Service Tax @12.36%			6405		6405
	Total			800993	12360	813353

 

28.       No doubt, from the aforesaid table, it is evident, that a sum of Rs.8,13,353/-, was still due to be paid by the complainant, to  the Opposite Parties, under various heads. However, the question, that falls for consideration, is, as to whether, out of the aforesaid amounts, the club membership fee to the tune of Rs.1 lac, as also Rs.12,360/- (service tax on it), claimed by  the Opposite Parties, vide letter dated 28.06.2014, is legal or not. It may be stated here that, as per Clause 20 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, the club membership charges were optional and were payable, in case, the allottee/ complainant chose to avail of the same. On the other hand, there is no other Clause in the Agreement, aforesaid, authorizing the Opposite Parties, to charge the same, without the consent of the complainant. In the instant case, no evidence was produced by the Opposite Parties that the complainant gave his consent to become member of the club. Thus, in the absence of consent of the complainant to become member of the club, the demand of Rs.1 lac as club membership fee plus Rs.12,360/- service tax thereon  (i.e. Rs.1,12,360/-) is illegal and liable to be set aside.
29.       Since the complainant did  not come forward to take possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, despite receiving letter dated 28.06.2014, a letter dated 04.04.2015 Annexure R-2, for payment of Rs.1,21,114/-,  i.e. Rs.11,563/- towards principal amount plus Rs.19,551/- towards CAM charges and Rs.90,000/- towards holding charges was made. However, it is evident from the letter dated 28.06.2014, that the basic price/principal amount due towards the complainant, in respect of the said unit, was shown as “0”. As such, this demand of  Rs.11,563/- towards principal amount, made by the Opposite Parties, vide letter dated 04.04.2015, is held to be illegal. However, as far as the CAM Charges to the tune of Rs.19,551/-, are concerned, it may be stated here that, the Opposite Parties failed to establish, as to on which ground, the same had been charged by them, from the complainant. As such, this demand of CAM charges, is also held to be illegal. On the other hand, since the complainant failed to take possession of the plot, in question, despite the fact, that offer thereof, was made to him, vide letter dated 28.06.2014, the Opposite Parties were right, in making demand of holding charges to the tune of Rs.90,000/-, from him, as per Clause 9 of the Agreement Annexure C-2. Thus, it is held that out of the amounts demanded by the Opposite Parties, vide letter dated 04.04.2015, the complainant is only liable to pay Rs.90,000/-, towards holding charges, to the Opposite Parties.
30.       In view of the above, it is held that the total of amount, due against the complainant, on the basis of demands made vide letters dated 28.06.2014 and 04.04.2015 aforesaid, comes to Rs.2,50,994/- (Rs.90,000/- towards holding charges, plus (+) Rs.72,997/- towards Enhanced External Development Charges plus (+) 14250 towards Electrification Charges @Rs.47.5 per Sqd. plus (+) Rs.30,000/- towards IFMS @Rs.100 per Sqd., plus (+) Rs.24,196/- towards Electricity Connection Charges, plus (+) Rs.13,146/- towards Monthly Maintenance Charges from 01 August-14 to 31 Jul-15 @3.25 Per Sqd + Service Tax @12.36%  plus (+) Rs.6,405/- towards Water Charges @1500/- Fixed plus 350/- Pm/Sq. yds from 01 August-14 to 31 Jul-15 @3.25 Per Sqd + Service Tax @12.36%). These charges could be claimed, as per the terms and conditions of the Agreement. It is, therefore held that the complainant is liable to pay Rs.2,50,994/- to the Opposite Parties, as per the demands referred to above, in relation to plot No.108-MLU-7-300, Mohali Hills, Mohali.  
31.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot No.108-MLU-7-300, Mohali Hills, Mohali, by the Opposite Parties, by the promised date. According to Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, the Opposite Parties were liable to pay to the complainant, penalty/compensation, in the sum of 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. Admittedly, the possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, was not delivered to the complainant, by the stipulated date i.e. 03.07.2010. On the other hand, possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, was offered to the complainant, on 28.06.2014. The complainant, is, thus, entitled to compensation/ penalty @Rs.50/-, per square yard, per month, from 03.07.2010 (promised date) to 28.06.2014, when offer of possession of the fully developed plot, was for the first time made as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2.
32.       The Counsel for the Opposite Parties submitted that the amount of compensation @Rs.50/- per square yard, as per Clause 8 of the Agreement, payable to the complainant upto 28.06.2014 has already been credited to his account maintained by them. He also submitted that the complainant was also liable to pay the stamp duty and registration charges demanded by the Opposite Parties, vide letter dated 28.06.2014. Since part of the demand, raised by the Opposite Parties, as per the letters dated 28.06.2014 and 04.04.2015 Annexure R-2, has been held to be illegal, as indicated above, with a view to straighten the record and to avoid any confusion, it is held that the stamp duty registration and miscellaneous charges shall be paid by the complainant, as applicable, at the time of execution and registration of the sale deed. Similarly, the amount of the demands held to be legal hereinbefore, shall also be paid by the complainant at the time of taking actual physical possession of the plot, in question. The complainant has also been granted compensation @Rs.50/- per square yard, separately. Thus, the Opposite Parties shall be at liberty to debit the account of the complainant, maintained by them, to the extent of the amount of compensation, credited to it. This issue is decided, in the manner, referred to above.
33.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14 (1) (d) of the Act, on account of deficiency in service, unfair trade practice, mental agony and physical harassment, and injury caused to him, for a long number of years, by not delivering physical possession of the plot, in question, to him, by the Opposite Parties, by the promised date i.e. 03.07.2010, and by finally offering the same on 28.06.2014 i.e. after a delay of about four years. The Opposite Parties were, thus, not only deficient in rendering service, but also indulged into unfair trade practice. The complainant also underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties, by delaying the offer of possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, without any force majeure conditions, having been proved by them. Compensation, on account of deficiency in service, unfair trade practice, and mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,00,000/-, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,00,000/-, (Rs.One lac only).
34.       No doubt, the Counsel for the Opposite Parties, placed reliance on  Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, a case decided by the Hon’ble Supreme Court  to contend that time was not the essence of contract. The facts of  Smt. Chand Rani's case (supra), are distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held in Smt. Chand Rani's case (supra), that intention to make time, as the essence of contract, must be expressed in unequivocal terms, in the Agreement. In that case, in the Agreement, no specific time had been provided for the enforcement thereof (Agreement) It was, under these circumstances, held, in the said case, that time was not the essence of contract.  It may be stated here, that, in the instant case, as stated above, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, subject to force majeure conditions, and reasons beyond the control of the Opposite Parties, physical possession of the fully developed residential plot, was to be handed over to the complainant, within a period of two years, but not later than three years, from the date of execution thereof (Agreement). It was further mentioned, in the said Agreement, that, in case of delay, in handing over possession of the fully developed plot, within three years, from the date of execution of the same, the Opposite Parties were liable to pay compensation/ penalty @Rs.50/- (Rupees Fifty only) per square yard, per month, for such period of delay. Thus, the Opposite Parties were to deliver possession of the plot, in question, to the complainant, latest by 03.07.2010, which was finally offered on 28.06.2014. The time was, thus, unequivocally made the essence of contract. The submission of the Counsel for the Opposite Parties, thus, being devoid of merit, must fail, and the same stands rejected.
35.       No other point, was urged, by the Counsel for the parties.
36.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed as under:-
    1. To hand over physical possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, to the complainant, within 2 months, complete in all respects,  as per the terms and conditions of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, from the date of receipt of a certified copy of this order, on payment of  the amount of Rs.2,50,994/-,  due against him (complainant), as indicated above.
    2. To execute and get registered the sale deed, in respect of plot No.108-MLU-7-300, Mohali Hills, Mohali, in favour of the complainant, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration, stamp duty and other miscellaneous charges, as applicable, by him to the concerned Authorities/persons.
    3. To pay penalty/compensation @Rs.50/-, per square yard, per month,  from  03.07.2010 (the promised date of delivery of possession), till 28.06.2014 (the date when the offer of possession of plot No.108-MLU-7-300, Mohali Hills, Mohali, was made) to the complainant, as per Clause 8 of the Plot Buyer's Agreement dated 04.07.2007, Annexure C-2, within a period of 2 months, from the date of receipt of a certified copy of this order, failing  which the same shall carry interest @12% P.A., from 03.07.2010, till payment.
    4. To pay compensation, in the sum of Rs.1,00,000/- (Rs.One lac only) to the complainant on account of deficiency in rendering service, adoption of unfair trade practice mental agony and physical harassment, caused to him (complainant), at their hands.
    5. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    6.  Compensation granted, in favour of the complainant, on account of deficiency in service, unfair trade practice and mental agony and physical harassment, caused to him, by them (Opposite Parties) to the tune of Rs.1,00,000/-, (Rs.One lac only), as mentioned in Clause (iv),  shall be paid by the Opposite Parties, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
    7. To debit the account of the complainant, maintained by them (Opposite Parties) to the extent of the amount of compensation already credited, as held above.
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

May 1, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

Rg