BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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1.     Ms. Mona Makin wife of Late Maj. JBS Makin resident of 136, Uday park, New Delhi-110049

2.     Ms.  Mamta Sekhon daughter of Mr. Jung Bahadue Singh resident of 136, Uday park, New Delhi-110049.

…..Complainants

                                V E R S U S

1.     The Emaar MGF Land Limited, SCO 120-122, 1st Floor, Sector 17-C, Chandigarh 160017 through its Branch Head.

2.     Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001 through its Director.

                                        ……Opposite Parties

CORAM:    SH.P.D.GOEL                                    PRESIDENT

                SH.RAJINDER SINGH GILL                  MEMBER

                DR.(MRS) MADANJIT KAUR SAHOTA     MEMBER

Argued by: Sh.Deepak Aggarwal, Advocate for the complainants.

                    Sh.Sanjeev Sharma, Advocate for the OPs.

PER DR.(MRS) MADANJIT KAUR SAHOTA,  MEMBER

                Briefly stated, the complainants, as per the Brochure (Ann.C-1) of OPs, applied for a Plot vide Application No. 917 in the project floated by the OPs, whereupon he was allotted Plot NO.284 in Pinewood Park, Sector 108, Mohali Hills by issuing Provisional Allotment Letter (Ann.C-2).  The Plot Buyer’s Agreement was entered into between the parties on 11.7.2007 (Ann.C-3). The complainants made all the payments due against the plot and was qualified for Pay on Time reward Scheme of OP vide Ann.C-5.  Some of the receipts of payments as well as acknowledgement have been annexed as Ann.C-5 to C-15.  It has been stated that the OPs vide letter dated 30.1.2010   (Ann.C-16) demanded EDC of Rs.3,96,051/- levied by Government of Punjab vide Notification dated 19.9.2007,  but this fact was never disclosed by the OPs during the period of three years. However, the complainants paid the enhanced External Development Charges amounting to Rs.3,80,000/- to the OPs, but they did not give the actual physical possession of the plot, only the paper possession.  It has been further stated that neither the conveyance deed were executed in the name of the complainants nor building plans were got approved from the competent authorities.

                It is averred that As per Plot Buyers Agreement – Annexure C-3, if the complainants failed to raise construction within the period of 3 years from the date of offer of possession, then penalties will be imposed on the complainants.  It has been further stated that as per Para No.8 of the agreement, the OPs were required to deliver the possession of the plot within a period of 2 years but not later than 3 years, failing which the OPs shall be liable to pay penalty @Rs.50/- per sq. yd. per month to the complainants for the period of delay beyond 3 years, from the date of execution of this agreement.  It is asserted that the OPs failed to deliver the physical possession of the plot, despite repeated requests. The internal services like roads, water lines, sewer lines and electric lines as well as external services like storm water drains, roads, electricity, horticulture etc. were to be provided by the OPs through Govt. or concerned local authorities, but till date, the same have not been provided due to which the complainants are unable to construct a house.  It is also asserted that till date, the OPs neither complete the internal development works nor deposit the entire external development charges, with the Government  of Punjab, as a result, proper electricity connection have not been issued by the Electricity Department. The complainants visited the site, but no development was there and even the plinth level was not proper. The OPs admitted their guilt by writing letter dated 30.1.2010 to the complainants. It has been further stated that the Government reduced the applicable external development charges, but the OPs never reduced or intimated the same to the complainants. Hence, this complaint alleging the said act of OPs as gross deficiency in service and unfair trade practice.

2]             OPs No.1 and 2 filed joint reply, wherein, it has been admitted that vide Provisional Allotment Letter dated 5.7.2007, the complainants were allotted plot No. 284, having approximate Area of 300 Sq. yds. in Pinewood Park, Sector 108 @ Rs.11,500/- per Sq.yd. plus Preferential Location Charges @ 0, making the total consideration of Rs.34,50,000/-.  In addition the complainants were required to pay External Development Charges of Rs.1,47,259/-. The payment plan was appended to the said provisional Allotment Letter and thereafter, both the parties signed & executed the Buyer's Agreement Dated 11.7.2007 (Ann.R-1 & R-2). As per Clause 2D of the Plot Buyer’s Agreement dated 11.7.2007, the External Development Charges are applicable and liable to be paid by the allottees. The external development charges are statutory levy, levied by the Government for the purposes of external development and any increase or decrease in the same has to be borne by the allottees. It has been further pleaded that the notification issued by Govt. of Punjab dated 19.9.2007 was applicable to the project of the OPs as it was to all such other projects, falling in the State of Punjab. In fact, the Implementation and demand with regard to EDC was raised on mid 2008. It has been further pleaded that now the Govt. of Punjab issued notification dated 22.6.2010, vide which there is again a change in EDC charges and demand thereto have yet to be raised by the Government, which is was beyond the control of the OPs.

                It is stated that the offer of possession issued by the OPs still stands and only after the complainants took physical possession of the demarcated plot, the OPs shall facilitate & render all necessary assistance to the complainants.  It is also stated that the EDC, if any, due towards the allottee, the same could be paid after taking the possession and sanctioning of building plan. It is denied that possession was delayed, as the letter of offer of Possession was issued on 30.1.2010, which is well within the period of 3 years of signing of the agreement.  It has been pleaded that requisite external development charges have also been paid to the Government and approximate 800 plots in Sectors 105. 108 & 109 in Emaar MGF Mohali Hills have already been offered the possession. Rest of the allegations have been denied and it is prayed that the complaint be dismissed.

3]             Parties led evidence in support of their contentions.

4]             We have heard the learned Counsel for the parties and have also perused the record. 

5]             The averment of the complainants is that neither the OPs have delivered the physical possession of the plot despite repeated requests nor the external services were provided, inspite of making payment of the enhanced External Development Charges (EDC).  Consequently, they are unable to construct a house on the plot so booked with the OPs.  Therefore, the OPs have miserably failed to comply with the terms & conditions of the Plot Buyer’s Agreement till to date.

6]             Contrary to the allegations of the complainants, the OPs have denied that they have not honoured their commitment and obligation of offering physical possession of the plot to the complainants within the stipulated period as per terms & conditions of the Plot Buyer’s Agreement dated 11.7.2007.  It was pleaded that the letter offering of possession dated 30.1.2010 was issued well within the period of 3 years of signing of the said agreement, whereas it is the complainants, who wee liable to pay, as per Clause (d) of the Plot Buyer’s Agreement i.e. the External Development Charges, because of the fact that any increase or decrease in the same, has to be borne by the allottee(s).   

7]             Going through the entire facts & circumstances of the case, pleadings of the parties as well as documents on file, in order to clinch the matter in dispute; it has been made out that the allotment of plot in question in favour of the complainants bearing NO.284 in Pinewood Park, Sector 108, Mohali Hills by the OPs; the execution of Plot Buyer’s Agreement, dated 11.7.2007 between the parties, payments made towards the said plot as well as External Development Charges, as alleged by the complainants, have not been disputed by the OPs.

8]             The main dispute which ld.Counsel for the complainants raised is that as per Clause 8 of the Agreement, the Opposite Parties were liable to deliver the possession of the Plot to the complainants within a period of 2(two) years from the date of execution of the same, but not later than 3(three) years.  Clause 8 of the said Agreement, reads as under ; 

“Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavour 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 way 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 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/- per sq. yard per month for such period of delay beyond 3 three years from the date of execution of this agreement.”

9]          A bare reading of above referred Clause clearly proves that the possession of plot, was to be delivered, within a period of two years but not later than three years, from the date of execution of the Agreement.  However, only the paper possession of the plot was offered to the complainants vide letter dated 30.10.2010 (Annexure C-16).  In the said letter, the Opposite Parties have demanded a sum of Rs.396051/- as additional external development charges levied by the Govt. of Punjab vide notification dated 19.09.2007.  In the said letter, it was mentioned that the sale deed will be registered in favour of the complainants on completion of the infrastructure work for the entire project. 

10]            The Counsel for the complainants submitted that as per Clause No.23 of the Agreement, the Opposite Parties were responsible to provide internal services within the peripheral limits of the colony which inter alia include laying of roads, water lines, sewer lines and electric lines. Besides this, the Opposite Parties were also liable to provide external or peripheral services such as water, sewer, storm, water drains, roads, electricity, horticulture etc.  He further submitted that the Opposite Parties have not complied with the terms & conditions of the agreement and till date nothing has been done. 

11]            On the contrary, the OPs have miserably failed to produce on record any documentary evidence to prove that the aforesaid facilities were ever completed or provided to the complainants, as per the terms & conditions of the Agreement.  Thus, it is proved that the OPs have indulged into unfair trade practice by not delivering the physical possession of the plot, to the complainants, within the stipulated period after fully developing the area.

12]            On the other hand, the Counsel for the OPs contended that, as per Clause 2(f) of  the Plot Buyers’ Agreement  (Ann.C-3), the OP Company had the right to forfeit the earnest money to the tune of 30% out of the total amounts paid by the allottee together with any interest paid, due or payable or any other amount of a non-refundable nature, in the event of failure of the allottee to perform his obligation or non-fulfillment of the terms & conditions set out in the Agreement.   He further submitted that surrender of plot was also to  be governed by the aforesaid clause and refund was to be payable accordingly.

13]            The contention of the Counsel for the OPs does not hold any water.  Such clause of the agreement was to come into operation only, if the opposite parties had, carried out development and offered physical possession of the plot within the stipulated period.  As stated above, till date, neither the physical possession of the plot has been offered, nor the refund of amount deposited by the complainants, has been made.  It, therefore, could not be said that the complainants committed breach of the terms and conditions of the plot buyers’ agreement and, as such, the opposite parties were entitled to forfeit the earnest money. The submission of the Counsel for the opposite parties, in this regard, being without merit, must fail and the same stands rejected.

14]            As the Opposite Parties have failed to hand over the actual physical possession of the plot, to the complainants, and further as per the version of the complainants, there is no hope, in the near future as well that the OPs will hand over the possession of the same to them, therefore, they were right in demanding the refund of amount deposited towards the price of plot. It is an established fact that till date only symbolic possession, without developing the area, has been offered, to the complainants by the opposite parties.  Without the basic amenities, the complainants cannot raise construction over the plot, in question. Reliance has been placed on Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC), which is fully applicable to the facts of the instant case.  Since the opposite parties were, at fault, in not delivering the physical possession of the plot, the complainants could not indefinitely wait at their whims & fancies.  Though, a period of more than 4 years & 8 months had lapsed, since the date of execution & signing the agreement till date, yet the physical possession of the plot has not been delivered to the complainant. Therefore, the OPs certainly remained grossly deficient in rendering proper services to the complainant. 

15]            According to Clause 8 of the Agreement, in the event of failure of the opposite parties, to hand over possession within the stipulated period, they will be liable to pay penalty for delay in the sum of Rs.50/- (rupees fifty only)per sq. yard, per month, for such period of delay beyond three years from the date of  its execution.  The parties are bound by the terms & conditions of the Agreement.  The OPs made a false promise, with the complainants, regarding the delivery of possession within three years from 11.7.2007.  Thus, they had misled the complainants in this regard.  The OPs had fleeced the innocent buyers, of their hard earned money knowing fully well that they were unable to abide by their commitment and by doing so, they further indulged into unfair trade practice.  Therefore, OPs are held to be liable  to pay the penalty @ Rs.50/- per sq. yard per month, as per Clause 8 of the Agreement, from 12.7.2010 i.e. after a period of 3 years, till the date of delivery of actual physical possession to the complainants.

16]            In view of the foregoings, we are of the firm opinion that the present complaint has lot of merit, weight and substance. The same is accordingly allowed. The OPs are directed to pay a compensation of Rs.One Lakh to the complainants, for causing them immense mental & physical harassment.  They are also directed to pay penalty to the complainants @ Rs.50/ per sq.yard, per month, with effect from 12.7.2010 (the stipulated date of delivery of possession being 11.7.2010) till the date of delivery of actual physical possession of the plot in question to the complainants, apart from paying litigation cost of Rs.15000/-.

                This order be complied with by the OPs within a period of 30 days from the date of receipt of a copy of the order, failing which, they shall be liable to pay penal interest @12% p.a. on the above awarded amount of compensation of Rs.One Lakh from the date of filing this complaint i.e. 16.8.2011 till its actual payment, besides paying litigations costs as well as paying penalty to the complainants @ Rs.50/ per sq.yard, per month, with effect from 12.7.2010 (the stipulated date of delivery of possession being 11.7.2010) till the date of delivery of actual physical possession of the plot in question to the complainants.

                Certified copies of this order be sent to the parties free of charge. The file be consigned.