Chandigarh

StateCommission

CC/173/2014

Mange Ram Gupta - Complainant(s)

Versus

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

Deepak Aggarwal

13 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

Complaint Case No.	:	173 of 2014
Date of Institution	:	04.12.2014
Date of Decision	:	13.03.2015

 

Mange Ram Gupta son of Sh. Krishan Chand Gupta resident of C-76, Kendriya Vihar, Sector 48-B, Chandigarh.

……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.

              .... 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. Deepak Aggarwal, Advocate for the complainant.

Sh.  Ashim  Aggarwal,  Advocate   for  the   Opposite  

Parties.

 

PER DEV RAJ, MEMBER.

            The facts, in brief, are that acting on the assurances given by the Opposite Parties, complainant, who is a senior citizen, booked a plot through the services of the Opposite Parties, which arranged the same in re-sale from one Sh. Ashish Mittal. It was further stated that the plot, in question, was measuring 158.86 sq. mts. (190 Sq. yards) in the project known as ‘Mohali Hills’ situated in Sector 99, Mohali. It was further stated that the price of the plot was fixed at Rs.46,19,090/-, calculated @Rs.20,000/- per sq. yard and total sale consideration amount included Basic Sale Price, External Development Charges and Preferential Location Charges. It was further stated that the Opposite Parties, confirmed receipt of Rs.44,29,090/- vide receipts (Annexure C-2 colly.). It was further stated that, thereafter, endorsement was made in favour of the complainant by the Opposite Parties on the provisional allotment letter originally issued to the original allottee on 13.08.2010 (Annexure C-3). It was further stated that  after the documentary formality, the Opposite Parties completed the nomination formalities, in favour of the complainant on 13.08.2010 and the same was confirmed vide letter dated 18.08.2010 (Annexure C-4). It was further stated that Plot Buyer’s Agreement was entered into between the parties on 03.11.2011 (Annexure C-5).

2.         It was further stated that the Opposite Parties, indulged into unfair trade practices because before entering into an agreement, they received the total sum of Rs.36,69,090/-. It was further stated that as per clause 2(c) of the Plot Buyer’s Agreement, the booking amount was Rs.5,00,000/- only, and  the payments were to be made as per Annexure–III annexed to the Agreement. It was further stated that as per Clause 2(c), PLC included plot located in the project, which were opposite to park-facing, corner plots and plot facing main road of 15 mts. or above. It was further stated that as per Clause 2(d), the proportionate amount of EDC levied by DTCP, Punjab till the date of issue of licence was included in the total sale price payable by the allottees @Rs.3,44,090/-. It was further stated that 15% of the total sale price was to be treated as earnest money. It was further stated that as per Condition No.3, in the event of delay, the Opposite Parties could charge interest @24% per annum compounded quarterly. It was further stated that as per Clause No.6, the Opposite Parties were to execute sale deed and get the same registered in favour of complainant within 6 months from the date of intimation, after plot was finally demarcated at the site and after receipt of total sale price. It was further stated that as per Condition No.8, the Opposite Parties were to deliver possession within 18 months from the date of execution of Plot Buyer’s Agreement and in the event of failure to do so, the Company was liable to pay penalty @Rs.50/- per sq. yard per month for such period of delay beyond 18 months from the date of execution of Plot Buyer’s Agreement.

3.         It was further stated that possession of plot was not to be handed over prior to the execution of sale deed/conveyance deed. It was further stated that as per Condition No.12, allotment of plot was subject to the terms and conditions of layout plan, demarcation of plots and license issued by DTCP Punjab or any other such Competent Authorities. It was further stated that as per Condition No.22, club membership registration charges were not mandatory. It was further stated that as per Condition No.26, the Opposite Parties could only handover project to anybody of persons or association (maintenance agency), upon completion of the same. It was further stated that as per Condition No.28, Competent Authority was to provide bulk electricity supply etc. It was further stated that the Opposite Parties took more than 25% of the amount from the complainant before entering into the Agreement and the same was also in violation of Section 6 of Punjab Apartment and Property Regulation Act, 1995 (for short hereinafter to be referred as PAPRA 1995).

4.         It was further stated that the Opposite Parties issued letter dated 03.02.2014 (Annexure C-5/A) regarding intimation of possession, which was only an eyewash and only paper possession was offered, without completion of development works and without complying with various conditions contained in the licence issued by the Competent Authority to develop the colony. It was further stated that the Opposite Parties could not wriggle out of the commitments made in the Letter of Intent (LOI), Change of Land Use (CLU), Exemption Notification, Agreement between the Opposite Parties and Govt. of Punjab, Layout approval conditions, NOC conditions of Environment clearance, Punjab Pollution Control Board, PSPCL and Central Ground Water Board to carry out development works. It was further stated that the Revenue roads/village rastas were under litigation after its acquisition Notification dated 09.09.2013, which was decided only on 01.10.2014.

5.         It was further stated that the National Commission in the First Appeal No.873 of 2013 decided on 29.09.2014 held that the onus to prove that the project had been completed and the area/site, in question, where the plot of the complainant was located, had been fully developed having all the basic amenities, was on the Opposite Parties but they failed to prove the same by leading any cogent and convincing evidence; a mere mention of completion of development works at the site, in the offer letter, did not in itself prove that the development, at the site, had actually been completed and in the absence of any cogent and convincing evidence to the effect that the development work at the site had been completed, the possession, so offered, by the Opposite Parties, was only a paper possession. It was further stated that the Opposite Parties, vide the aforesaid letter dated 03.02.2014, raised the following illegal demands for taking possession:-

Payable components	Demand amount (Rs.)	Service tax (Rs.)	Total payable (Rs.)
Basic	190000		190000
Reserve EDC Rs.-190760/-	-190760		-190760
Club Membership Charges Rs.100000/-	100000	12360	112360
Electrification charges @ 47.5 per SYD	9025		9025
Interest Free maintenance security @100 per SYD	19000		19000
Electricity Connection Charges Rs.24196/-	24196		24196
Delayed Payment Charges	1826		1826
Monthly Maintenance Charges from 01-MAR-14 to 31-MAR-15 @ 3.25 per SYD+ Service Tax @ 12.36%	9020		9020
Water Charges @ 1500/- fixed plus 250/- PM/Sq.Yds from 01-MAR-14 to 31-MAR-15 including Service Tax @ 12.36%	5337		5337
Amount payable	167644	12360	180004

 

6.         It was further stated that vide letter dated 03.02.2014, the Opposite Parties asked the complainant, to remit Rs.1,63,821/- in favour of Emaar MGF Land Limited and Rs.14,356.80 in favour of Emaar MGF Services Private Limited within 30 days to enable them (Opposite Parties), to hand over possession of the plot. It was further stated that the complainant was not having any contract with Emaar MGF Services Pvt. Ltd. but only with Emaar MGF Land Limited. It was further stated that as per Condition No.26 of the Plot Buyer’s Agreement, maintenance services could be handed over to anybody of persons or an association only on completion of the project i.e. after completion of development activities in the entire project. It was further stated that the Opposite Parties themselves had laid down condition that under no circumstances, the possession of plot would be handed over to the allottees prior to the execution of the sale deed/conveyance deed. It was further stated that the intimation of possession letter dated 03.02.2014, itself reflected that development works were not completed because as per the said letter, the Opposite Parties were not having permanent electricity connections sanctioned by PSPCL, Water Connection etc. within 30 days to enable the Opposite Parties to hand over possession of the plot in question.

7.         It was further stated that though the Opposite Parties reversed EDC in the sum of Rs.1,90,760/- but they were not keeping transparency in the matter and did not state as to when the revision in EDC was made and as to when the said amount was received by them. It was further stated that after taking about 95% of the total sale consideration, the Opposite Parties raised illegal demands of Rs.694/-, Rs.8,326/-, Rs.1,966/- and  Rs.3,371/-. It was further stated that the Opposite Parties also raised illegal demands vide reminder letters dated 10.03.2014 and 25.03.2014 by demanding Rs.1,63,821/-, which the complainant replied vide letter dated 25.03.2014 (Annexure C-7 and C-8). It was further stated that the letters written by complainant and emails between the parties were Annexure C-9(Colly).

8.         It was further stated that without executing the sale deed, possession was not possible as per Agreement and without completion of development works, the sale deed was not possible as per law and as such, the above mentioned charges raised were totally illegal. It was further stated that the complainant invested his hard earned money in the project of the Opposite Parties, on the assurance that they were in possession of completion and occupation certificate from the Competent Authority. It was further stated that the complainant made further payments of Rs.79,647/- vide account payee Cheque No.000006 dated 08.04.2014, in favour of Emaar MGF Land Limited and payment of Rs.14,357/- vide account payee Cheque No. 000005 dated  08.04.2014, in favour of Emaar MGF Land Limited( Annexures C-10 and C-11). It was further stated that payments were made on the assurance of the Opposite Parties regarding completion of the development works etc. It was further stated that the complainant sent email to the Opposite Parties on 14.11.2014 (Annexure C-12) asking about proofs of development works and about completion certificate etc. but to his utter shock and dismay, the Opposite Parties replied by stating that their project had been accorded exemption from all provisions of PAPRA 1995 by Governor of Punjab except Section 32. It was further sated that as far as occupation certificate was concerned, the complainant was to apply for the same to the concerned Authorities after completion of construction of the unit. It was further stated that the above reply of the Opposite Parties was not at all satisfactory in view of the exemption granted by the Authority in view of exemption notification dated 22.12.2006 issued by Government of Punjab, Department of Housing and Urban Development. It was further stated that the Opposite Parties were trying to take the benefit of exemptions granted to them by the Government of Punjab from the provisions of PAPRA 1995 (Annexure C-14), by stating that they were not responsible under the above-said act.

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 refund the amount of Rs.45,23,094/- (i.e. a total sum of Rs.44,29,090/- towards the amount deposited for the plot in question and Rs.94,004/- towards maintenance bill, water charges bills etc.) alongwith interest @18% per annum from the respective due 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 18 months;  Rs.10 lacs as compensation for mental agony and physical harassment and Rs.1,50,000/- as cost of litigation.

10.       The Opposite Parties were served and put in appearance on 19.02.2015. In their joint written version, they denied that any rosy picture of the project etc. was made or that the complainant was influenced by any such advertisement. It was stated that the complainant purchased the unit from the secondary market only in the year 2010 and agreed to buy the plot only after satisfying himself in all respects and having read, understood and agreeing to the terms and conditions of the Plot Buyer’s Agreement signed by the original seller. It was further stated that all the terms and conditions were reduced in to writing and confirmed by the parties. It was further stated that the provisional allotment letter was issued to the earlier allottee Mr. Ashish Mittal on 13.08.2010, who transferred the plot  in the name of the complainant. It was further stated that the endorsement of transfer, in favour of the complainant, on completion of transfer formalities was made on 18.08.2010 and Buyer’s Agreement with the complainant was executed on 3.11.2011. It was further stated that as per the statements of account (Exhibit OP/4), the Opposite Parties received an amount of Rs.45,94,784/- against the plot, in question, till 21.01.2015. It was further stated that the complainant paid all the payments voluntarily and as per the agreed payment schedule.

11.       It was further stated that the complainant had gone through the Buyer’s Agreement in totality and agreed to all the terms and conditions thereof and as, such challenge to the terms thereof was time barred. It was further stated that the club membership charges were mandatory and not optional. It was further stated that the period of handing over possession was also mentioned in the Agreement alongwith compensation payable to the complainant, if there was delay in handing over the same on the part of the Opposite Parties. It was admitted that the intimation of possession was sent to the complainant on 03.02.2014 (Annexure C-5/A) upon completion of amenities as mentioned in Clause 25 of the Agreement dated 03.11.2011 but the complainant till date, had not taken possession for reasons best known to him. It was further stated that the Opposite Parties offered the possession in the same area. It was further stated that the actual physical possession was very much offered and taken over by other allottees after duly recording dimensions of the plot. It was further stated that, in case, the complainant was not willing to take over possession, then Clause 2(f) of the Agreement dated 03.11.2011 would be applicable and the Opposite Parties would be competent to forfeit the earnest money (15% of the sale price) together with any outstanding dues. It was further stated that the Opposite Parties, in all their fairness, credited the compensation of Rs.86,047/- payable in terms of the Buyer’s Agreement in the account of the complainant. It was further stated that the area, in which plot of the complainant was located, was developed, in accordance with the agreement terms. It was further stated that the complainant had not led any evidence to prove that the area was not developed. It was further stated that all amounts demanded vide letter dated 03.02.2014 were in accordance to the charges payable by the allottee/complainant at the time of possession.

12.       It was further stated that before sending the intimation of possession letter on 03.02.2014, the Opposite Parties obtained a completion certificate for the internal purpose only, from a registered Architect viz. ‘Array Consortium’ on 02.02.2014 (Exhibit OP/2). It was further stated that the complainant was a defaulter and failed to make payments as per demand raised vide letter dated 03.02.2014. It was further stated that the complainant could not be permitted to take advantage of his own wrong and seek compensation especially when the Opposite Parties duly offered possession vide letter dated 03.02.2014. It was further stated that a number of other allottees, in the vicinity of the plot, in question, had already been handed over possession vide possession letters (Exhibit OP/3 Colly.).

13.       It was further stated that Emaar MGF Services Pvt. Ltd. was the maintenance agency, which was responsible for the facilities at the site. It was further stated that the complainant was aware that the maintenance charges would become payable as he had signed draft maintenance agreement (Exhibit OP/6) at the time of agreement dated 3.11.2011. It was further stated that the same was also duly mentioned in Clause 27 of the Agreement dated 3.11.2011.  It was further stated that the development works had been completed as per Clause 25 of the Agreement where the plot, in question, was located and subsequently the possession was offered. It was further stated that the complainant had paid water and maintenance bills in favour of Emaar Services Pvt. Ltd. as is evident from Annexure C-6 (Colly.), and hence, having accepted the terms and made payments without any protest, the complainant could not at this stage allege to the contrary.

14.       It was further stated that as regards EDC, it was clarified to the complainant vide email dated 27.03.2014 (Annexure C-9) that consequent upon the reduction of EDC by Govt. of Punjab, the benefit was being passed on to the complainant. It was further stated that as there were a number of revisions of EDC, the benefit/additional charges were decided to be intimated only at the time of final intimation of dues. It was further stated that the amounts were demanded and collected as per payment schedule shared with the complainant and the bills were being raised and were payable since the Opposite Parties had already deployed resources to maintain the area and look after the safety, security and housekeeping of the same. It was further stated that all concerns of the complainant were duly responded to at all times. It was further stated that till the filling of the complaint, the complainant did not request for the execution of sale/conveyance deed and was trying to mislead the Commission by raking up a non-issue. It was further stated that the Opposite Parties were ready and willing to execute the sale/conveyance deed for the plot, in question. It was further stated that the complainant till date neither deposited the applicable stamp duty, registration charges, incidental charges etc. for facilitation of execution of sale/conveyance deed nor informed the Opposite Parties if he had directly arranged the same pursuant whereto, the Opposite Parties would have proceeded for execution of Sale/Conveyance Deed. 

15.       It was denied that any assurance was given that the Opposite Parties were in possession of completion and occupation certificate. It was also denied that the Opposite Parties violated any law much less PAPRA 1995. It was further stated that the Opposite Parties were exempted from the provisions of PAPRA 1995 vide notification dated 22.01.2008 (Annexure C-14). It was further stated that the fact of exemption was also mentioned in Clause B of Agreement dated 03.11.2011. It was further stated that reply on behalf of the Chief Administrator, PUDA bearing No.PUDA-STP/2013/4848 dated 10.06.2013 (Exhibit OP/5) to the Opposite Parties, clearly stated that Emaar MGF had been granted exemption under the PAPRA 1995 including exemption under Section 14 of the PAPRA 1995. It was denied that there was any violation of the Notification dated 22.12.2008 (wrongly mentioned as 22.12.2006). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

16.       The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

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

18.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal) and Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

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

20.       The Counsel for the complainants, submitted that the complainant booked a 190 Sq. Yards plot in re-sale in the project of the Opposite Parties in Sector 99, total sale price of which was Rs.46,19,090/- inclusive of EDC Rs.3,44,090/- and PLC of Rs.4,30,000/-. He further submitted that payment of Rs.44,29,090/- was duly confirmed by the Opposite Parties as per statement of account as on 3.2.2014 (Annexure C-2 colly.). He further submitted that provisional allotment letter (Annexure C-3) was endorsed in favour of the complainant, whereas Plot Buyers Agreement was directly executed with the complainant on 3.11.2011 (Annexure C-5). He further submitted that final layout plan was not yet approved. He further submitted that only a sum of Rs.5 Lacs was paid by the previous allottee and the balance amount was paid by the complainant. He further submitted that as per Clause 2(f) of the Plot Buyer’s Agreement, sum equivalent  to 15% was to be treated as earnest money. He further submitted that Clause No.6 stipulated that the sale deed was to be executed and got registered, in favour of the allottee within six months from the date of intimation, after the plot was finally demarcated at the project site and after receipt of total sale price including but not limited to PLC, additional EDC, late payment charges, interest and other charges and the compliance of all other terms and conditions of the agreement by the allottee. He further submitted that as per Condition No.8, subject to force majeure conditions and reasons beyond the control of the Company, the Company was to make every endeavour to deliver possession within a period of 12 months from the date of execution of the Buyer’s Agreement.

21.       He further submitted that as per Clause 25, the Company was responsible for providing internal services, which inter alia, included laying of the roads, water lines, sewer lines, electrical lines etc. He further submitted that as per Clause 28, the Competent Authority, was to provide bulk electric power supply to the project. He further submitted that the complainant paid the entire amount within the stipulated period. He further submitted that there was delay of more than 15 months when possession was offered on 03.02.2014 (Annexure C-5/A) and still the amenities were not complete and there was no water/electricity connection. He further submitted that EDC in the sum of Rs.1,90,760/- was reversed but no interest was paid. He further submitted that in response to the demand of the Opposite Parties vide Annexure C-5/A, a sum of Rs.14,357/- and Rs.79,647/- was deposited vide Annexure C-10 and C-11 on 8.4.2014. He further submitted that the Opposite Parties had not even obtained the completion certificate, for which they (Opposite Parties) made a request to the Chief Administrator, GMADA vide their letter dated 22.3.2013 (page 89). He further submitted that, as per news clipping (Annexure C-16), Chief Administrator, GMADA stated that after the latest notification of September 2014, all Mega Housing Projects including those exempted under the PAPRA 1995 earlier, need to get completion certificates or partial completion certificates. He further submitted that as per data sheet attached to Government of India, Ministry of Water Resources, New Delhi letter dated 06.12.2007, development works were not completed and the NOC was valid for a period of 5 years. He further submitted that No Objection Certificate from Pollution Angle from Punjab Pollution Control Board, Zonal Office, Patiala vide letter dated 12.12.2006 was subject to conditions enumerated therein specially as per condition No.31, the promotor of the colony was to complete the installation work of STP before completing the construction work of township and STP was to be put into operation before any resident occupied any residential flat/house. He further submitted that this condition was not complied with. He further submitted that the Opposite Parties were, thus, deficient in rendering service and they also indulged into unfair trade practices.

22.       The Counsel for the Opposite Parties, on the other hand, submitted that the complainant deposited a sum of Rs.45,08,737/- towards the basic sale price of the plot. He further submitted that in terms of Clause 8 of the Plot Buyer’s Agreement dated 3.11.2011, the possession was to be delivered within a maximum period of 18 months i.e. by 03.05.2013. He further submitted that completion certificate (Exhibit OP/2) was obtained from an Architect on 2.2.2014 (at Page 186) and in view of exemption under PAPRA 1995, there was no requirement to obtain the same from GMADA. He further submitted that permanent electricity will be provided.  He further submitted that possession of the unit was offered vide Annexure C-9, but the complainant did not come forward to clear the dues and take over the possession. He further submitted that the complainant did not say that there was delay in possession. He further submitted that as per statement of account (Exhibit OP/4), an amount of Rs.45,94,784/- stood paid by the complainant and as per Sr. No.23 of the statement, compensation in the sum of Rs.86,047/- for 9 months delay was credited to the account of the complainant.  He further submitted that page 2 of Punjab Pollution Control Board letter dated 7.4.2012 (at page 105) clearly stated that the Promoter company had installed 2 no. STPs of capacity 100 KLD each (one no. sector 105 and one in sector 108) for the treatment of the waste water of the residential colony and, therefore, the submission of the complainant to this effect was not correct. He further submitted that as clearly stated in Para 3 of written statement, the Opposite Parties were exempted under the PAPRA 1995.

23.       The first 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 03.11.2011 (Annexure C-5), 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 03.02.2014 (Annexure C-5/A). As stated above, possession of the unit, in question, was offered to the complainant, vide letter dated 03.02.2014 (Annexure C-5/A), i.e. before filing the complaint and demand of Rs.1,63,821/- and Rs.14,356/- and Rs.1,826/- towards delayed payment charges to be paid by 07.03.2014 was made from him (complainant). The complainant after receipt of letter dated 3.2.2014 deposited a sum of Rs.14,357/- and Rs.79,647/- vide cheques dated 8.4.2014 (Annexures C-10 and C-11). Though the complainant has contended that he had no contract with Emmar MGF Services Pvt. Ltd. but he himself deposited a sum of Rs.14,357/- vide cheque dated 8.4.2014 (Annexure C-10) in favour of Emmar MGF Services Pvt. Ltd. Exhibit OP/2 is the completion certificate dated 02.02.2014, relating to the plot allotted to the complainant, issued by Array Consortium, Architecture and Project Management, who 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 Annexure C-13, which is email sent by the Opposite Parties to the complainant, wherein he was duly informed that as far as occupation certificate was concerned, the complainant was required to apply for the same to the concerned authorities after completing construction of the unit, which was required to be undertaken subsequent to completing the necessary formalities of taking 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 03.11.2011 (Annexure C-5), and, as such, the offer of possession vide letter dated 03.02.2014 (Annexure C-5/A), was not accepted by him. He also placed reliance on letter dated 22.3.2013 (Page 89) written by the Opposite Parties 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 99. Similarly, letters dated 12.6.2013, 24.12.2010 and 6.12.2007 (Pages 159, 160 and 161 respectively), are much prior to 3.2.2014 when possession was offered and they also do not pertain to Sector 99 where the plot, in question, was allotted to the complainant. Even other documents (Annexure C-15 Colly.) 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 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 necessary layout plans were approved on 21.1.2013 by the Chief Town Planner. As regards photographs (Annexures C-18 to C-26), it may be stated here, that these photographs cannot be said to be depicting the correct position, at the site. The mere fact that some grass was standing near or around the plot, in question, did not mean that the amenities as per Clause 23 of the Plot Buyer’s Agreement dated 03.11.2011 (Annexure C-5), were not provided by the Opposite Parties. There is nothing, on the record, as to on which date, these photographs were clicked. On the other hand, the Opposite Parties, 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 the Opposite Parties, as per Clause 23 of the Plot Buyer’s Agreement dated 03.11.2011 (Annexure C-5), 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.

24.          As regards non-obtaining of completion certificate by the Opposite Parties and exemption from PAPRA 1995, the Opposite Parties have placed, on record, copy of Notification No.CTP(Pb)MPR.2/594 dated 22.01.2008 of Government of Punjab, Department of Housing and Urban Development, vide which EMAAR MGF LAND LTD. was exempted from the provisions of the PAPRA except Section 32, subject to certain terms and conditions. Further as per letter bearing No.PUDA-STP/2013/4848 dated 10.06.2013, 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 area of 290.71 acres, 145.38 acres and 106.66 acres respectively. Thus, the Opposite Parties (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) for its Housing Project in an area of 145.38 Acres falling in Villages Raipur Kalan, Dholi, Sambhalkhi and Sukhgarh at Sectors 98, 99, 104 & 106, Mohali, except Section 32, subject to the terms and conditions specified in the said Notification. In view of the exemption aforesaid, the Opposite Parties were not required to obtain completion certificate. Thus, the contention of the complainant that the Opposite Parties did not have necessary approvals, permission is clearly an afterthought and without any basis.

25.       It is, therefore, held that the version of the Opposite Parties, was duly supported by the completion certificate of Array Consortium (Exhibit OP/2), 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 03.02.2014 (Annexure C-5/A), was a genuine offer is correct. It was, 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. The complainant, thus, avoided the taking of possession of the unit, in question. This amounted to the cancellation of allotment, and surrender of the unit, on the part of the complainant.

26.       As regards contention of the complainant that as per Clause 6 of Plot Buyer’s Agreement dated 03.11.2011 (Annexure C-5), the sale deed was to be executed and got registered in favour of the complainant within six months from the date of intimation, after the plot was finally demarcated and after receipt of total sale consideration etc., it may be stated here that Clauses 6 and 8 of the Plot Buyer’s Agreement are not to be read in isolation but Clause 6 is to be read in conjunction with Clause 8 of the Plot Buyer’s Agreement, which states that subject to force majeure conditions and reasons, beyond the control of the Company, the Company shall make every endeavor to deliver possession of the plot within a period of 18 months from the date of execution of the Buyer’s Agreement and in the event of the possession likely to be delayed beyond 18 months, the Company was liable to pay penalty of Rs.50/- per sq. yard per month for such period of delay beyond 18 months from the date fo execution of the Agreement. Thus, the possession of the plot was to be handed over to the complainant before execution of the sale deed/conveyance deed. The contention of the complainant, being devoid of substance, is rejected. 

27.       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 03.11.2011 (Annexure C-5) , 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(s) towards the total Sale Price, the Company shall treat a sum equivalent to 15% as Earnest Money. However, if the Allottee(s) chooses not to sign the Agreement, or choose to cancel the Plot, in that event the entire amount of 15% of the Total Sale price shall stand forfeited and the balance if any shall be refunded to the Allottee(s)……….”

No doubt, as per afore-extracted Clause 2(f) of the Plot Buyer’s Agreement dated 03.11.2011 (Annexure C-5), 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 entire amount of 15% of the total sale price 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 03.02.2014 (Annexure C-5/A), 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, fixing 15% of sale consideration, as earnest money, and forfeiture thereof, can be said to be unreasonable and unconscionable. Since such a condition in the Plot Buyer’s Agreement (Annexure C-5) is unilateral, unreasonable and unconscionable, it can be said that by incorporating the same, the Opposite Parties 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 the Opposite Parties are only entitled to forfeit 10% of the sale consideration of the plot, and not 15% of the same.

28.              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 as per Plot Buyer’s Agreement was Rs.46,19,090/- including External Development Charges (EDC) and PLC. Since the Opposite Parties in letter dated 3.2.2014 reversed EDC in the sum of Rs.1,90,760/-, the total sale consideration got reduced to that extent i.e. Rs.46,19,090 minus (-) Rs.1,90,760 = Rs.44,28,330/-. Therefore, the amount of such forfeiture shall come to Rs.4,42,833/-. The Opposite Parties could forfeit Rs.4,42,833/- out of Rs.45,23,094/-, deposited by the complainant. The complainant, is thus, entitled to Rs.40,80,261/- i.e. (Rs.45,23,094.00 minus (-) Rs.4,42,833/-).

29.       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, possession was to be delivered within 18 months but the same was offered to him after a delay of nine months. The complainant had made payments in the sum of Rs.45,23,094/-, 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.4,42,833/-. 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.       

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

31.        For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally held liable and directed in the following manner:-

(i)   To refund the amount of Rs.40,80,261/- i.e. (Rs.45,23,094.00 (amount paid) minus (-) Rs.4,42,833/- being 10% of the price of Rs.44,28,330], to the complainant, alongwith interest @9% per annum, from the respective dates of deposits, till realization, 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 the Opposite Parties, 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/-.

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

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

Pronounced

13^th March 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

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