Chandigarh

StateCommission

CC/76/2015

Vinod Kumar Gupta - Complainant(s)

Versus

The Emaar MGF Land Limited - Opp.Party(s)

Deepak Aggarwal, Adv.

03 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	76 of 2015
Date of Institution	:	24.04.2015
Date of Decision	:	03.08.2015

 

Vinod Kumar Gupta son of Sh. M.R. Gupta presently residing at House No.1129, Sector 31-B, Chandigarh (U.T.), through General Power of attorney, Sh. Mange Ram Gupta son of Sh. K.C. Gupta (i.e. father of the complainant).

……Complainant

Versus

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.

3.      Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, District SAS Nagar (Mohali), State, Punjab through its Estate Officer.

              ....  Opposite Parties

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

 

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

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

Sh. Deepak Aggarwal, Advocate for the complainant.

Sh. Ashim Aggarweal, Advocate for Opposite Parties No.1 and 2.

Sh. G. S. Arshi, Advocate for Opposite Party No.3.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainant wanted a plot, where he could construct his own house, which could give the comforts of dreams, overlooking the soothing greens and an open view of a well maintained park which could promise a peaceful and comfortable hassle free life. It was stated that the complainant came into contact with Opposite Parties No.1 and 2 and was impressed by the claims/projections made by them vide their repeated advertisements in the leading newspapers/ brochures for the sale of plots. It was further stated that Opposite Parties No.1 and 2 acquired and purchased land in Sectors 98, 105, 108 and 109 SAS Nagar, Punjab to set up and develop thereon an integrated township named as Mohali Hills and the project involved development of four residential sectors as part of an integrated Township on a total plot area of 359.56 Hectares. It was further stated that the said area under plotted development was 102.09 hectares, under Group Housing 23.98 Hectares, under commercial use 14.09 Hectares and under Economically Weaker Sections housing 14.85 Hectares. It was further stated that the total built up area proposed under group housing was 2,97,000 sq. meters and under institutional use was 1,81,619 sq. meters. It was further stated that it was proposed to construct 3,507 apartments plus 2,766 EWS units. It was further stated that the plotted development was to have 3,425 plots of various sizes, total water requirement proposed was 10,303.66 kilo litres per Day (net water requirement was to be 7,740 KLD). It was further stated that the capacity of 2 Sewerage treatment plants proposed was 10,600 KLD. (STP 1-4900 KLD at Sector-105 and STP 2-5700 KLD at Sector 109). Treated waste water to be used for flushing of toilets was to be 3942 KLD, for AC cooling was to be 2325 KLD and for Horticulture was to be 2960 KLD. Excess water-236 KLD was to be disposed of in Punjab Urban Planning and Development Authority sewer. It was further stated that the power requirement was 22,07,611 Kilo Watts, the total parking spaces proposed were 49,289 equivalent car space. It was further stated that the total cost of the project was Rs.5000.00 crores and the project work started in June 2008. It was further stated that Opposite Parties No.1 and 2 had only spent Rs.250 crores in 4 years till March 2012 out of Rs.5000 crores earmarked for the project.

2.         It was further stated that according to Opposite Parties No.1 and 2, change of land use from agricultural to residential/group housing was also granted by the Department of Housing & Urban Development, Punjab. It was one of the conditions of Plot Buyer’s Agreement as shown to the complainant that Opposite Parties No.1 and 2 were accorded approval and exemptions to develop and promote residential plots and made allotment of plots to intending purchaser in residential colony which was more particularly known as “Mohali Hills”. It was further stated that acting on the assurances given by Opposite Parties No.1 and 2, the complainant booked the plot through the services of said Opposite Parties. It was further stated that the total cost of above mentioned plot admeasuring 300 sq. yards in Augusta Park (location is Sector 109 “plot no 465”), was fixed at Rs.36,19,104/-, which included External Development charges of Rs.1,69,104/-.  It was further stated that the plot of the complainant was not preferentially located. It was further stated that the sale price was calculated @Rs.11,500/- per sq. yards/Sq. meters and the area of the plot and its location allotted was tentative and subject to change till the final layout and demarcation of plots in the project by the OP company.

3.         It was further stated that the complainant booked the above said plot and paid the booking amount of Rs.10,35,000/-. It was further stated that provisional allotment letter dated 11.05.2007 (Annexure C-2), was issued by Opposite Parties No.1 and 2, to the complainant. It was further stated that thereafter, Plot Buyer’s Agreement dated 19.06.2007 (Annexure C-3) was executed between Opposite Parties No.1 and 2, and the complainant alongwith which Instalment payment plan was attached as Annexure-I. It was further stated that the complainant made the payments strictly in accordance with the instalment payment plan, vide receipts [Annexure C-4 (Colly)].  It was further stated that the complainant deposited a total sum of Rs.35,21,604/- with Opposite Parties No.1 and 2. It was further stated that Opposite Parties No.1 and 2 issued letter dated 04.02.2009 (Annexure C-5) clearly stating therein, that the complainant had qualified for the pay on time reward as part of “Emaar MGF Cares for You Program”, under which, he had become eligible for wavier of last installment  of 5% of the basic sale price i.e. Rs.1,72,000/-.

4.         It was further stated that after purchase of the plot by the complainant, he made a request to Opposite Parties No.1 and 2, to handover to him physical vacant possession of the plot after properly demarcating the same and also after completion of development works. It was further stated that Opposite Parties No.1 and 2, lingered on the matter on one pretext or the other and told the complainant that as soon as they got the completion certificate for internal as well as external development works from the competent Authority/Government of Punjab, they would start the process of possession and process of execution and registration of sale deeds but nothing concrete happened in the matter. It was further stated that Opposite Parties No.1 and 2,  assured that they would compensate the complainant under penalty clauses of the Agreement dated 19.06.2007 and specifically Clause 8 wherein Opposite Parties No.1 and 2 were required to deliver the possession of the plot within a period of 2 years from the date of execution of the said Agreement but not later than 3 years. It was further stated that in the event of failure to deliver possession within this period, Opposite Parties No.1 and 2 were to pay penalty of Rs.50/- per sq. yds. per month for such period of delay beyond 3 years from the date of execution of the said agreement.

5.         It was further stated that Opposite Parties No.1 and 2 admitted vide email dated 19.08.2011 (Annexure C-6) that presently they did not have any definite date for possession but they were expediting the development work on the same and expecting to handover possession of plot by the end of the year 2011. It was further stated that that in case of delay beyond the time frame mentioned for giving possession, the company was liable to pay a penalty  for such delay as per clauses mentioned therein. It was further stated that complainant patiently waited for further extended period, but nothing concrete happened in the matter. It was further stated that Opposite Parties No.1 and 2, informed the complainant that they were not in position to give possession of Plot No.465 as per their commitment and offered re-location to Unit No.121 for early possession, which was clearly reflected from email dated 03.02.2013 and 11.02.2013 (Annexures C-7 & C-8). It was further stated that vide email dated 15.02.2013 (Annexure C-9), Opposite Parties No.1 and 2 requested the complainant to confirm the decision on plot No.121, in Sector 109. It was further stated that left with no other option, the complainant consented to go for plot No.121 because as per Opposite Parties No.1 and 2, the said plot was not only preferentially located,  but  the possession of the same could be given at the earliest. It was further stated that Opposite Parties No.1 and 2 confirmed the allotment of plot No.121 vide letter dated 03.04.2013 (Annexure       C-10) and Amendment Agreement dated 09.04.2013 (Annexure C-11) was entered into between the complainant and Opposite Parties No.1 and 2. It was further stated that as per the Amendment Agreement, the total sale price of plot No.121 was fixed at Rs.40,50,354/- inclusive of Preferential Location Charges of Rs.4,31,250/-; Annexure – I of the Buyer’s Agreement was replaced with Annexure – III of Amendment Agreement; allottee/complainant agreed and undertook to abide by terms and conditions of Buyer’s Agreement and the same were to apply to the allotment of the alternative Plot Pari Pasu and the same were sacrosanct, save and except to the extent amended and agreed under this amendment agreement.

6.         It was further stated that although, it was committed by Opposite Parties No.1 and 2 that they would hand over possession of the relocated plot No.121 in June/July, 2013, but they did not adhere to the above date and, thus, indulged in unfair trade practices. It was further stated that in this regard, complainant also sent email dated 21.01.2014 (Annexure C-12) to Opposite Parties No.1 and 2, who replied vide email dated 09.02.2014 (Annexure C-13) and committed that shortly they would be sending formal Offer of Possession to the complainant. It was further stated that to the utter surprise and shock, Opposite Parties No.1 and 2 sent formal letter of possession to the complainant on 01.04.2014 (Annexure C-14), which itself showed that possession so offered was without completion of development works. It was also stated in the above said formal possession letter dated 01.04.2014 was that on completion of infrastructure work for the entire project, Opposite Parties No.1 and 2 would execute the sale deed. It was further stated that thereafter, the complainant vide email dated 24.04.2014 (Annexure C-15) requested Opposite Parties No.1 and 2 to pay the remaining compensation for delay in handing over possession, after adjusting the preferential location charges of Rs.4,31,250/- but in response vide their email dated 09.05.2014 (Annexure C-16), Opposite Parties No.1 and 2  stated that it was not possible for them to adjust the compensation amount towards preferential location charges as the same was not part of cost of unit.

7.         It was further stated that instead of compensating the complainant Opposite Parties No.1 and 2 issued letter dated 24.06.2014 (Annexure C-17), vide which, they stated that shortly they would be commencing the process of execution and registration of conveyance deed and requested the complainant to deposit various amounts on or before 30 days of the receipt of the said letter. It was further stated that there was delay of about 49 months in handing over of possession and compensation worked out to be Rs.7,35,000/-  which was more than the legitimate dues of Opposite Parties No.1 and 2 towards the complainant. It was further stated that Club membership charges were not mandatory. It was further stated that electrification charges, electricity connection charges, interest free maintenance security, monthly maintenance charges and water charges could not have been demanded vide letter dated 24.06.2014 because the same could have been claimed only on the actual usage basis and only on handing over of possession, complete in all respects, after carrying out entire development works. It was further stated that possession was never offered to the complainant by Opposite Parties No.1 and 2 after completion of development works and after obtaining completion certificate from the Competent Authority after complying with all the terms and conditions as per the Letter of Intent (LOI), Change of Land Use (CLU), Exemption Notification annexed by Opposite Parties No.1 and 2, Revised Agreement between Opposite Parties No.1 & 2 and Govt. of Punjab dated 16.11.2006, Layout approval conditions, NOC conditions of Environment clearance, NOC conditions of Punjab Pollution Control Board, NOC conditions of PSPCL and NOC of Central Ground Water Board.

8.         It was further stated that the complainant even sought clarification from Opposite Parties No.1 and 2 regarding charges mentioned in the letter dated 24.06.2014, but they had no answer to the same. It was further stated that Opposite Parties No.1 and 2 took indemnity-cum-undertakings from the complainant on 18.07.2014 (Annexures C-20 & C-21). It was further stated that thereafter the complainant wrote various emails to Opposite Parties No.1 and 2 for redressal of his grievances but to no avail. It was further stated that according to RTI replies, Opposite Parties No.1 and 2 were not in a position to complete their project in the near future.

9.         It was further stated that as per information recorded in Environmental report DATA sheet of Ministry of Environment and Forests Northern Regional Office at Chandigarh, in 2012, proposed investment for the project of Opposite Parties No.1 and 2 was Rs.5,000 crores  and the project was to be implemented till March, 2016. It was further stated that Rs.250 crores were spent in 4 years till 2012 since 2008, the date when the project was started by Opposite Parties No.1 and 2 as submitted. It was further stated that in this report, the date of commencement of project stated was June,2008 and date of completion of the project was March, 2016, which was tentative. It was further stated that, however, in the Agreement dated 19.06.2007, Opposite Parties No.1 and 2 mentioned the date of possession as two years and maximum three years from the date of Agreement dated 19.06.2007, which was misrepresentation on the part of Opposite Parties No.1 and 2. It was further stated that information under Right to Information Act, 2005 supplied by the Competent Authorities, were annexed as Annexure C-26 (Colly). It was further stated that possession of the fully developed plot was nowhere in the sight and all the dreams of the complainant were shattered to ground due to deficiency in rendering services and indulgence into unfair trade practice on the part of Opposite Parties No.1 and 2.

10.       It was further stated that Opposite Parties No.1 and 2 made themselves responsible for providing internal services including laying (i) of roads, (ii) water lines, (iii) sewer lines, (iv) electric lines. External or peripheral services such as water, sewer, storm water drains, roads, electricity, horticulture etc. vide Clause No.23 of the Plot Buyer’s Agreement dated 19.06.2007. It was further stated that till date, Opposite Parties No.1 and 2, did not complete the internal development works and obtained the completion certificate from the Competent Authority, what to talk of external developments. It was further stated that Opposite Parties No.1 and 2 also did not obtain No Objection/commissioning Certificate from various Government Authorities etc. which was one of the requirements before obtaining the completion certificate for developments till date. It was further stated that Opposite Parties No.1 and 2 were trying to take the benefit of exemptions granted to them by the Government of Punjab from the provisions of the Punjab Apartment & Property Regulations Act, 1995 (Punjab Act No. 14 of 1995) w.e.f. 22.12.2006 by stating that they were not responsible under the above said Act.

11.       It was further stated that Opposite Party No.3 was also liable to pay damages to the complainant because, according to Opposite Parties No.1 and 2, they had deposited various amounts with Opposite Party No.3 towards External Development Charges and, as such, Opposite Party No.3, was to ensure the connectivity to power supply, roads, accessibility, water and other infrastructure up-to project is provided within 240 days from the date the same was applied for to the concerned department/agency/authority/local body on fulfillment of various terms and conditions required in this regard at such rates/fee etc. which was to be less favorable to them compared to similarly placed projects/customers. It was further stated that despite completing all the necessary formalities as required in this regard, Opposite Party No.3 was not doing the needful and is, thus, washing off its hands in the matter.

12.            It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and 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 refund the entire amount of Rs.35,21,604/-, alongwith interest @18% P.A. from the respective dates of deposits till realization; pay penalty of Rs.50/- per square yard per month (as per clause 8 of Plot Buyer’s Agreement) for the period of delay beyond 3 years (starting from 19.06.2010); compensation in the sum of Rs.10 lacs for mental agony, harassment and punitive damages and Rs.1,50,000/- as cost of litigation.    

13.       Opposite Parties No.1 & 2, put in appearance, on 28.05.2015, and filed their written version, on 03.07.2015. In the written version, Opposite Parties No.1 & 2, took-up certain preliminary objections to the effect that the complaint being gross abuse of the process of law, was liable to be dismissed, at the very threshold; that the complainant had approached this Commission, with unclean hands, and suppressed the material facts; that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, as he purchased the plot, in question, with an intention, to earn profits, after selling the same, as and when there was escalation in the prices of real estate; that the complaint was barred by time as the cause of  action for seeking refund of the amount accrued to the complainant on 18.06.2010, the date for handing over the possession; and that this Commission did not have the jurisdiction to entertain the complaint in view of existence of Arbitration Clause 39 in  Plot Buyer’s Agreement dated 19.6.2007.

14.       On merits, the factum, with regard to the allotment of plot No.465 admeasuring 300 sq. yards in Augusta Park, Sector 109, Mohali, in favour of the complainant, and deposit of the amount, mentioned in the complaint, towards the part price thereof, by him was admitted. It was stated that Opposite Parties No.1 & 2 launched  the Emaar MGF Cares for You program in November 2008 and those allottees who cleared their outstanding by 25^th December 2008 and continued to remit their future instalments, on or before the due date qualified for waiver of last 5% of the basic sale price equivalent to Rs.1,72,500/-. It was further stated that the complainant was a defaulter as he failed to make payments, as demanded vide letter dated 24.6.2014 (Annexure C-17). It was also admitted that, as per Clause 8 of the Plot Buyer’s Agreement dated 19.6.2007, Annexure C-3, Opposite Parties No.1 & 2  were to hand over physical possession of the said plot, in favour of the complainant, within a period of three years, from the date of execution of the same (Plot Buyer’s Agreement dated 19.6.2007), i.e. by 18.6.2010, failing which, they were liable to pay penalty/compensation, @ Rs.50/- (Rupees Fifty only), per square yard/sq. mt. per month, of the plot, for the entire period of delay.

15.       It was further stated that the Opposite Parties were exempted from the provisions of the PAPRA Act vide Notification dated 22.12.2006 (Annexure C-26) and this fact was also mentioned in Clause B of Plot Buyer’s Agreement dated 19.6.2007. It was further stated that in reply on behalf of the Chief Administrator, PUDA sent to Opposite Parties No.1 & 2, bearing No.PUDA-STP/2013/4848 dated 10.6.2013 it was clearly stated that Emaar MGF had been granted exemption under the PAPRA Act including exemption under Section 14 of the said Act. It was further stated that since the complainant wanted early possession, he was offered relocation to another plot, where early possession was expected. It was    further stated that based on request of the   complainant, relocation was offered and, as such, as per the settled law, where alternative site was offered or delivered, then allottee was not entitled to any interest or compensation. It was further stated that the complainant was aware of the fact that the work in the area where the new unit was being offered was underway and expected to be completed within 12-15 months, subsequent to which, the possession was to be offered by Opposite Parties No.1 & 2. It was further stated that the complainant was also informed vide email dated 09.02.2014 (Annexure C-13) that the amenities were complete and formal possession would be offered shortly. It was also admitted that possession of the plot, in question, was offered to the complainant, on 01.04.2014 after completion of amenities as mentioned in Clause 23 of Plot Buyer’s Agreement dated 19.6.2007. It was further stated that Opposite Parties No.1 & 2 sent the settlement of final dues letter to the complainant on 24.6.2014 vide which he was asked to remit the charges, which were mandatory for registration of conveyance deed in his favour. It was further stated that only the club charges were optional, which could be excluded from the total amount payable on submission of indemnity. It was further stated that the complainant submitted the indemnity for club charges on 18.7.2014 alongwith deferment of registration undertaking cum indemnity. It was further stated that the complainant was deliberately not coming forward to take possession despite possession being offered on 01.04.2014. It was further stated that Opposite Parties No.1 & 2 had already credited the amount of compensation amounting to Rs.6,79,798/- in the account of the complainant. It was further stated that  Opposite Parties No.1 & 2 are ready and willing to execute the sale deed as intimated vide letter dated 24.6.2014 (Annexure C-17). It was further stated that all the necessary permissions were obtained by the Opposite Parties, from the Competent Authorities. It was further stated that in case the complainant wanted to surrender the plot, in question, then as per Clause 2(f) of the Plot Buyer’s Agreement dated 19.6.2007, Opposite Parties No.1 & 2, would be competent to forfeit the earnest money and refund the balance amount, without any interest. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

16.       Opposite Party No.3, put in appearance, on 28.05.2015, and filed its written version, on 29.06.2015. Opposite Party No.3, in its written version, took up certain preliminary objections to the effect that the complaint was barred for misjoinder of parties as Opposite Party No.3 was not the necessary party. It was stated that the Chief Administrator was only exercising the powers of Competent Authority given by the Government of Punjab under the PAPRA 1995. It was further stated that the Estate Officer, GMADA had nothing to do in this matter as he/she was least concerned with it. It was further stated that the complainant was not a consumer qua Opposite Party No.3 as no cause of action against Opposite Party No.3, had accrued to him. It was further stated that the complainant had no locus-standi to file the complaint against Opposite Party No.3.

17.       On merits, it was stated that Opposite Parties No.1 & 2 had already deposited EDC in the Licensing Wing of Opposite Party No.3. It was further stated that as regards supply of electricity to mega project, the liability of Opposite Party No.3 was limited to the erection/installation of 66 KV grid substation from the deposited amount. It was further stated that this fund would be made available from EDC charges deposited in GMADA. It was further stated that all internal electric work had to be carried out by the developer as per PSPCL specifications. It was further stated that the developer was to apply directly to the concerned PSPCL office for issuance of connection etc. subject to its fulfilment of supply conditions. It was further stated that the acquisition process of land in Sector 109 was stopped due to C.W.P. no.25843 of 2013 titled Hargobind Singh & Ors. Vs. State of Punjab & Ors. It was further stated that the complainant had no claim and cause of action against Opposite Party No.3. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3,  nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

18.       The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.

19.       Opposite Parties No.1 & 2,  in support of their case, submitted the affidavit of Sh. Sachin Kapoor, its Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.

20.       Opposite Party No.3,  in support of its case, submitted the affidavit of Sh. Sukhwant Singh Sandhu, its Chief Engineer, by way of evidence, alongwith which, a number of documents were attached.

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

22.       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. It was a residential plot, which was purchased by the complainant. The mere objection of Opposite Parties No.1 & 2, that the complainant is not a consumer as he purchased the same (plot), for resale thereof, as and when there was escalation, in prices, and, as such, he did not fall within  the definition of a ‘consumer’, as per Section 2(1)(d)(ii) of the Act, does not carry any weight and the same deserves to be rejected. The mere fact that it was a residential plot, which was purchased by the complainant, was sufficient to prove that it was to be used for the purpose of residence, by him. It is not the case of Opposite Parties No.1 & 2 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 residential 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, or to rent out the same. The complainant, thus, availed of the services of Opposite Parties No.1 & 2, for consideration, for the purchase of a plot with a view to 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 Opposite Parties No.1 & 2, in their written statement, therefore, being devoid of merit, is rejected.

23.       The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.39 in the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3). With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is 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.”

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 an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of Opposite Parties No.1 & 2, being devoid of merit, must fail, and the same stands rejected.

24.       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 the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3), in respect of plot No.465 admeasuring 300 sq. yards in Augusta Park, Sector 109, Mohali, Punjab, was executed between the parties, possession whereof was to be delivered by 18.06.2010. Since the plot allotted to the complainant had not been developed, he was allotted alternative plot No.121 situated in MLU admeasuring 300 sq. yards in Sector 109, Mohali and Amended Agreement dated 9.4.2013 (Annexure C-11) was executed between the complainant and Opposite Parties No.1 & 2. However, as per Para 7 of the Amended Agreement, the complainant agreed and undertook that the terms and conditions of the Buyer’s Agreement shall apply to the allotment of the alternate plot. As per the Amended Agreement dated 09.04.2013, the total sale price of Plot No.121 was Rs.40,50,354/- which was inclusive of PLC of Rs.4,31,250/-. Admittedly, possession of the alternative plot was offered by Opposite Parties No.1 & 2 to the complainant on 01.04.2014. In the instant case, the cause of action was a continuing one till the date possession was offered by Opposite Parties No.1 & 2 i.e. on 01.04.2014. Thus, it cannot be said that the complaint was time barred or the cause of action accrued to the complainant for filing the complaint on 18.06.2010. In this view of the matter, this objection of Opposite Parties No.1 & 2, being devoid of merit, must fail, and the same stands rejected.

25.       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 19.06.2007 (Annexure C-3), where the plot, 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 01.04.2014 (Annexure C-14). As stated above, possession of the plot, in question, was offered to the complainant, vide letter dated 01.04.2014 (Annexure C-14), i.e. before filing the complaint and demand of Rs.4,31,250/- towards plot, Rs.1,736/- as delayed interest @15% and Rs.72,996/- towards revised external development charges @Rs.807/- per sq. yard for the allotted plot was made from him (complainant). Subsequently letter for settlement of final dues dated 24.6.2014 (Annexure C-17) was sent by Opposite Parties No.1 & 2 to the complainant, as per which, he was asked to pay Rs.12,50,414.64Ps within 30 days of the receipt of the said letter, to enable Opposite Parties No.1 & 2, to handover possession of the plot, in question. Exhibit OP/3 is the completion certificate dated 28.03.2014, relating to the plot allotted to the complainant, issued by Array Consortium, Architecture and Project Management, which after inspection of the plot, allotted to the complainant, and the site, certified that  Emaar MGF had executed the work in satisfactory manner with regard to the internal services/infrastructure including roads, water lines, water supply, electrical lines including street lights, drainage, sewer lines and other conveniences/amenities, as applicable under prescribed regulations and as per Buyer’s Agreement. As per email dated 09.02.2014 (Annexure C-13), the complainant, was duly informed that all the amenities i.e. water, sewerage, electrification and road up to the complainant’s unit were complete and the same was ready for possession. No doubt, the complainant, in his complaint, stated that the amenities where the plot, in question, was located, were not complete, as per Clause 23 of the Plot Buyer’s Agreement dated 19.06.2007 (Annexure C-3), and, as such, the offer of possession vide letter dated 01.04.2014 (Annexure C-14), was not accepted by him. He also placed reliance on letter dated 22.3.2013 (Page 205) written by Opposite Parties No.1 & 2 to the Chief Administrator, GMADA, for grant of completion certificate for Sector 106, which is of no help to him as the plot, in question, is in Sector 109. Similarly, letters dated 12.6.2013, 27.06.2013, 24.12.2010, 19.01.2010 and 6.12.2007 (Pages 187, 188, 193, 194 and 201 respectively), are much prior to 1.4.2014 when possession was offered. Even other documents relied upon by the complainant do not prove his contention that the area where the plot, in question, was allotted, was not developed. It is clearly evident from the contents of Para 1 of Punjab Pollution Control Board letter dated 7.4.2014 (Page 202) that environment clearance vide MoEF letter dated 18.6.2006 and 8.2.2012 was granted and permission for change in demarcation of Sectors 98, 99, 104, 105, 106, 108 and 109 and 110 and necessary layout plans were approved on 31.1.2013 by the Chief Town Planner. Thus, it cannot be said that the amenities as per Clause 23 of the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3), were not provided by Opposite Parties No.1 & 2. On the other hand, Opposite Parties No.1 & 2, categorically denied that there was no development, in the area, where the plot of the complainant was located. No expert evidence, was produced by the complainant, to the effect that the amenities, which were promised by Opposite Parties No.1 & 2, as per Clause 23 of the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3), were not in existence, at the site. In the absence of any expert evidence, in the shape of report(s) of the engineer(s)/ architect(s), no reliance on these photographs can be placed.

26.          As regards non-obtaining of completion certificate by Opposite Parties No.1 & 2 and exemption from PAPRA 1995, they (Opposite Parties No.1 & 2) have placed, on record, copy of letter bearing No.PUDA-STP/2013/4848 dated 10.06.2013 (Exhibit OP/4), that EMAAR MGF Land Ltd. was granted exemption for its Mega Housing Project at SAS Nagar (Mohali) from the provisions under Section 44(2) of PAPRA, 1995 vide Notifications bearing No.18/41/2006-5HG-II/122790 dated 22.12.2006; CTP(Pb)MPR.2/594 dated 22.01.2008 and No.18/41/2006-5HG-II/7397 dated 11.08.2006 for 290.71 acres, 145.38 acres and 106.66 acres respectively. The complainant has placed on record copy of the Notification dated 22.12.2006 (Page 140) on record, as per which, Opposite Parties No.1 & 2 (M/s EMAAR MGF Land Private Limited) have been exempted from all the provisions of the Punjab Apartment & Property Regulation Act, 1995 (Punjab Act No.14 of 1995), except Section 32, subject to the terms and conditions specified in the said Notification. In view of the exemption aforesaid, Opposite Parties No.1 & 2 were not required to obtain completion certificate. Thus, the contention of the complainant that Opposite Parties No.1 & 2 did not have necessary approvals, permission is clearly an afterthought and without any basis.

27.       It is, therefore, held that the version of Opposite Parties No.1 & 2, duly supported by the completion certificate of Array Consortium (Exhibit OP/3), that the amenities, as promised, in the Agreement, were available at the site, and, as such, the offer made to the complainant, vide letter dated 01.04.2014 (Annexure C-14), was a genuine offer is correct. It is, thus, abundantly proved that the complainant was only interested in the refund of amount deposited, on the false pretext of no development at the site and non-existence of the requisite amenities. Clearly the complainant, has avoided the taking of possession of the unit, in question. This amounted to cancellation of allotment, and surrender of the unit, on the part of the complainant. So far as the judgment relied upon by the Counsel for the complainant in Megacity Developers & Builders Ltd. & Anr. I (2012) CPJ 225 (NC), is concerned, the same is distinguishable on facts, as in that case the petitioners had themselves admitted that they could not complete the project in time and there had been delay in providing civic amenities. However, in the instant case, the Opposite Parties had duly provided all the basic amenities at the site, where the plot allotted to the complainant was situated. 

28.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount, if so, to what extent.  Clause 2(f) of the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3) , intealia, reads as under:-

“2(f) The Allottee(s) has entered into this Buyer’s Agreement on the condition that out of the amounts paid/payable by the Allottee towards the Sale Price, the Company shall treat 30% of the Sale Price as Earnest Money (hereinafter referred to as “the Earnest Money”. However, if the Allottee chooses not to sign this Agreement and further choose to forfeit his allotment, then 20% of the amount paid by the Allottee at the time of the Expression of Interest shall stand forfeited and rest of the amount (if any) shall be refunded to the Allottee.….”

No doubt, as per afore-extracted Clause 2(f) of the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3), once the allottee chose to sign the Buyer’s Agreement, and at a later stage, he/she cancelled the plot, the Company was to forfeit the 20% of the amount paid by the allottee and the balance, if any, was refundable to the complainant. As stated above, the complainant was not interested in taking possession of the unit, in question, despite the fact that the same was offered to him, vide letter dated 01.04.2014 (Annexure C-14), before filing the complaint, and sought refund of the amount. This amounted to surrender of the plot, in question, and the Agreement between the parties, stood rescinded. However, in our considered opinion, forfeiting 20% from the amount paid by the allottee, can be said to be unreasonable and unconscionable. Since such a condition in the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3) is unilateral, unreasonable and unconscionable, it can be said that by incorporating the same, Opposite Parties No.1 & 2 indulged into unfair trade practice. A similar question arose in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.01.2015, by the National Consumer Disputes Redressal Commission, New Delhi, wherein as per the Agreement, 20% of the sale price of the premises was to collectively constitute the earnest money, which was to be forfeited, in case, the allottee made a default in payment of instalments(s) and asked for refund of the amount deposited. Such Clause came up for interpretation, before the National Commission, in the aforesaid case. The National Commission, ultimately, held that an Agreement having forfeiture Clause of more than 10% of the sale consideration, would be invalid, as it would be contrary to the established legal principle that only a reasonable amount could be forfeited, in the event of default on the part of the buyer. In the aforesaid case, the National Commission placed reliance on Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704, wherein the Hon’ble Supreme Court of India accepted the contention that in appropriate case, the Consumer Forum, without trenching upon acute disputed questions of fact, may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts. Ultimately, the National Commission, in the aforesaid case, held that the amount exceeding 10% of the total sale price, could not be forfeited, by the seller Relying upon, what has been held above, in DLF Ltd.’s case (supra), in our considered opinion, Clause 2(f) contained in Annexure C-1 providing for forfeiting more than 10% of the sale consideration, being unreasonable and unconscionable, amounted to unfair trade practice. It is, therefore, held that Opposite Parties No.1 & 2 are only entitled to forfeit 10% of the sale consideration of the plot, and not 20% of the same. So far as the judgment relied upon by the Counsel for the complainant in Emaar MGF Land Limited & Anr. Vs. Amit Puri, III (2015) CPJ 568, to contend that the complainant is entitled to refund of the full amount paid by him to the Opposite Parties and nothing is to be deducted from the same, it may be stated here that the same is distinguishable on facts, as in Emaar MGF Land Limited & Anr. Vs. Amit Puri’s case (supra), possession was not offered by the Opposite Parties to the complainant and, as such, this Commission ordered for refund of the full amount. However, in the instant case, as discussed above, since the possession was offered by the Opposite Parties to the complainant vide letter dated 01.04.2014, keeping in view the law settled by the Hon’ble Supreme Court of India in DLF Ltd. Vs. Bhagwanti Narula’s case (supra), Opposite Parties No.1 & 2 are only entitled to forfeit 10% of the sale consideration of the plot, and not 20% of the same, as already discussed above.

29.          The next question, that falls for consideration, is, as to what amount the complainant would be entitled, in such circumstances. Thus, as held above, only 10% of the sale consideration could be forfeited. The total sale consideration of the plot initially allotted, as per the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3) was Rs.36,19,104/- including External Development Charges (EDC) of Rs.3,45,000/-. However, as per the Amended Agreement dated 09.04.2013, the total sale price of Plot No.121 was Rs.40,50,354/- which was inclusive of PLC of Rs.4,31,250/-. This agreement was duly accepted and signed by the complainant. Therefore, the amount of forfeiture shall come to Rs.4,05,035/-. The Opposite Parties could forfeit Rs.4,05,035/- out of Rs.35,21,604/-, deposited by the complainant. The complainant, is thus, entitled to Rs.31,16,569/- i.e. (Rs.35,21,604.00 minus (-) Rs.4,05,035/-).

30.       The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. As per Clause 8 of the Plot Buyer’s Agreement dated 19.6.2007 (Annexure C-3), possession was to be delivered within 3 years but the same was offered to him after a delay of 3 years 9 months. The complainant had made payments in the sum of Rs.35,21,604/-, which was undoubtedly his hard earned money. For rescinding the contract, the complainant stands penalized by forfeiting 10% of the total sale price in the sum of Rs.4,05,035/-. The complainant has certainly suffered physical harassment and mental agony, for which, he needs to be suitably compensated, In our considered opinion, compensation in the sum of Rs.70,000/-, would be just and adequate, to meet the ends of justice.      

31.       No other point, was urged, by the Counsel for the parties.

32.        For the reasons, recorded above, the complaint is partly accepted, with costs, against Opposite Parties No.1 & 2 only and they (Opposite Parties No.1 & 2) are jointly and severally held liable and directed in the following manner:-

(i)    To refund the amount of Rs.31,16,569/-  i.e. [Rs.35,21,604.00 (amount paid) minus        (-) Rs.4,05,035.00 being 10% of Rs.40,50,354], to the complainant, alongwith interest @9% per annum, from the respective dates of deposits, within 45 days, from the date of receipt of a certified copy of this order.

(ii)  To pay an amount of Rs.70,000/- (Rupees Seventy Thousand only), to the complainant, as compensation for mental agony and physical harassment, within a period of 45 days from the date of receipt of a certified copy of the order.

 (iii)      To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

 (iv) In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then Opposite Parties No.1 & 2, shall be liable to pay the amount mentioned in Clause (i) above, with interest @12% per annum, instead of 9% P.A., from the respective dates of deposits, till realization and amount mentioned in Clause (ii) above, with interest @12% per annum from the date of default, besides payment of costs, to the tune of Rs.20,000/-.

33.       However, the complaint against Opposite Party No.3 stands dismissed, with no orders as to cost.

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

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

Pronounced

August 03, 2015.

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

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