Chandigarh

StateCommission

CC/263/2015

Baljit Singh - Complainant(s)

Versus

The EMAAR MGF Land Private Limited - Opp.Party(s)

R.S.Dhull, Dharminder Balhara, Adv.

27 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	263 of 2015
Date of Institution	:	04.11.2015
Date of Decision	:	27.06.2016

 

Baljit Singh son of Mange Ram r/o G-44, Uppal Marble Arch, Mani Majra, Chandigarh.

 

……Complainant

V e r s u s

1. The EMAAR MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001, through its Managing Director.
2. The Emaar MGF Land Private Limited, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh – 160017, through its Regional Manager.  

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  R.S.Dhull, Advocate for the complainant.

Sh.  Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant was approached by the agent of the Opposite Parties with a lucrative offer of investing into their project namely “Mohali Plots” situated in Sector 106, Mohali. As such, the complainant decided to invest into the project and applied for the plot in the project of the Opposite Parties. Thereafter, Plot Buyer Agreement was executed between the parties on 28.02.2011 at Mohali (Annexure C-1). As per mutual agreement, the Opposite Parties allotted plot bearing No.1, measuring 610 sq. yards for the total sale price of Rs.1,11,69,710/- and out of the total sale consideration, the complainant paid the booking amount of Rs.5,00,000/-. Further, the complainant agreed to pay Rs.22,64,625/- as preferred location charges, which was to be paid, as he had chosen corner plot. It was further stated that as per Clause 8 of the Agreement, possession was to be delivered to the complainant within a period of 12 months from the date of execution of the Agreement i.e. 28.02.2011 and in the event of failure of the possession, the Company should be liable to pay to the complainant a penalty of Rs.50/- per sq. yards per month for such period of delay beyond 18 months from the date of execution of the Agreement. It was further stated that the possession was supposed to be delivered on or before 28.02.2012.

2.           It was further stated that the complainant was shocked firstly when the Opposite Parties approached him by saying that the dimensions of the plot are to be reduced and since the complainant had already invested lot of money in the plot, as such, he had no option but to agree with the same. Therefore, the size of the plot was reduced from 610 sq. yards to 297 sq. yards. After reduction of the plot size, the complainant was provided a new schedule of payment, wherein, total amount payable was Rs.65,40,979.50 and new welcome letter was issued to him on 19.07.2012. It was further acknowledged that the complainant had paid an amount of Rs.26,14,460/- to the Opposite Parties till that date. It was further stated that one year of the committed time of delivery of possession had already lapsed and the Company issued another payment plan and provisional allotment letter dated 19.07.2012. Copies of the payment slips and provisional allotment letter are Annexures C-2 (colly.) & C-3 respectively. It was further stated that the complainant was assured by way of various emails (Annexure C-4 colly.) that the development is going on in full swing and possession of the plot should be given soon. The complainant made various visits to the office of the Opposite Parties to check the development and to verify the time frame, by which, the plot should be handed over to him, but to no avail. It was further stated that due to delay in project, the complainant did not invest further money in the project and asked for penalty as per Clause 8 of the Agreement,  but to no effect. It was further stated that there was no development over the project, as committed and, thus, due to this reason, the complainant could not be faulted for any non payment of the amount or delayed payment for the same.

3.           It was further stated that the complainant issued various reminders to the Opposite Parties by way of email and other communications that no possession date was given by the Company because they failed to deliver possession even after more than 2 years of the Agreement. Thereafter, the complainant paid Rs.31,81,495/- by way of cheque on 30.06.2013 and, thereafter, only 5% was remaining to be paid. It was further stated that the Opposite Parties issued another letter alongwith statement of account demanding the said amount of Rs.5,80,946/- stating that plot is ready to be delivered within 60 days and he is required to be paid Rs.5,80,946/- as delayed payment charges and further Rs.8,25,571/- under other heads. Copies of the receipt dated 30.06.2013 and letter dated 03.02.2014 are Annexure C-5 and C-6 respectively. It was further stated that even as per letter (Annexure C-6), the plot is not ready for possession, as stated by the Opposite Parties in the said letter. After receipt of the aforesaid letter dated 03.02.2014 from the Opposite Parties, the complainant visited the site, wherein, he was surprised that only fields are there and there is no development till date including the basic amenities, which are required to be provided by the developer at the time of physical possession of the plot. The complainant clicked various photographs of the site (Annexure C-7), wherein, it is clear that there is no possibility of any construction even for next 3-4 years.

4.           It was further stated that the complainant had paid double PLC charges to the Company, as he was promised that the plot is corner plot and further there is a wide road in front of the plot but the same is falsified by the site photographs (Annexure C-7). It was further stated that  there is no water, electricity or street light in the area and further people are tying their animals including buffalos and cows and throwing their pit in front of the plot. Ultimately, the complainant sent a legal notice dated 12.03.2014 (Annexure C-8) to the Opposite Parties but they failed to reply the same. It was further stated that the Opposite Parties sent letters dated 10.03.2014, 25.03.2014 and 11.04.2014 (Annexure C-9 to C-11) to the complainant, after receipt of the legal notice, wherein, more charges were imposed upon the complainant for non payment of the dues within time. It was further stated that the plot is not ready for possession even till the date of filing of the complaint and, as such, no penalty is possible.

5.           It was further stated that after letter (Annexure C-5 & C-6), the complainant approached the District Consumer Disputes Redressal Forum, Chandigarh for redressal of his grievance and, thereafter, a fresh statement of account was prepared and produced before the Forum even during pendency of the complaint, wherein, the total outstanding was increased from Rs.5,80,944/- to Rs.10,52,964/- and compensation of Rs.2,55,583/- was reduced from the due prior to calculation of the same. Copy of statement as on 13.08.2014 is Annexure C-12. It was further stated that as per Annexure C-6 no such penalty was reduced and the same has been done at the later stage only to mislead the Court. It was further stated that the Opposite Parties now started sending letter of maintenance for the plot (Annexure C-13), which is virtually non-existent due to delayed project and without any development on the spot and the same is illegal.  It was further stated that earlier the complainant filed complaint bearing No.351 of 2014 before District Consumer Dispute Redressal Forum-I, UT, Chandigarh, which was dismissed as withdrawn vide order dated 13.11.2014 with liberty file a-fresh one on the same cause of action and thereafter, original complaint bearing No.131 of 2015 was filed, which was dismissed as withdrawn with liberty to file fresh one. 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 (in short the ‘Act’ only), was filed.

6.           The Opposite Parties, in their joint written version, have taken objection regarding arbitration clause in the Agreement, and also they separately, moved an application u/s 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was further stated that the Opposite Parties have completed the amenities as per Clause 25 of the Agreement and possession of the plot has been offered to the complainant vide letter dated 03.02.2014 (Annexure C-6/R-2) but the complainant has not taken possession of the plot after payment of the outstanding amount, within 60 days of offer of possession dated 03.02.2014 i.e. by 05.04.2014, therefore, he is liable to pay holding charges, as per the agreed terms and conditions of the Agreement. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as the total claim made, as per prayer clause, exceeds Rs.1 crore. It was further stated that the complainant is disputing possession offered to him and further is claiming that he has not been given PLC plot, though charges have been paid by him, whereas, the Opposite Parties claim is that plot is double PLC, as agreed and moreover, possession of the plot has been offered to the complainant as per agreed terms and conditions of the Agreement. It was further stated that the complainant had defaulted in making the due installments and accordingly, the Opposite Parties cancelled his allotment vide cancellation letter dated 05.06.2013 (Annexure R-3). After receipt of the cancellation letter, the complainant made the payment of Rs.31,81,495/- on 30.06.2013. It was further stated that the complainant again failed to pay the outstanding amounts and, therefore, were constrained to issue final notice dated 11.04.2014 (Annexure R-5). It was further stated that the complainant is bound to pay delayed payment charges and even holding charges as per the agreed terms and conditions of the Agreement.

7.           It was further stated that this Commission has got no territorial jurisdiction to try this complaint because the plot is situated in Mohali, all the payments were made at Mohali and Agreement was also signed at Mohali.  It was further stated that the complainant entered into Buyer’s Agreement for the said unit on 28.02.2011 and as per the Agreement, the complainant was allotted unit No.1 in Sector 106 with the total sale price of Rs.1,11,69,710/-. It was further stated that as per Clause 8 of the Agreement, the Company shall make every endeavour to hand over possession within 18 months from the date of execution of the Agreement, meaning thereby, the Company had only proposed to hand over possession of the plot within 18 months and in case, the Company is unable to deliver possession then there is liability to pay penalty for period of delay beyond 18 months. It was further stated that it is well settled law that in cases of immovable property time is never the essence of the contract and the complainant had accepted the stipulated penalty for any alleged delay. It was averred that the said period expired on 28.08.2012 instead of 28.02.2012, as alleged by the complainant. It was averred that after the size of the plot of the complainant was reduced, the preferred location charges were also consequently reduced and, as such, he had to pay Rs.11,02,612/- only.

8.           It was further stated that the Opposite Parties duly provided in the application form/buyer Agreement that the dimensions of plot can alter and the complainant had accepted the reduction of size of plot from 610 sq. yards to 297 sq. yards and now is estopped from raising any dispute qua the same.  It was further stated that all the amenities as per Clause 25 of the Agreement have been completed, prior to the offer of possession. It was further stated that if the complainant seek refund of the amount then forfeiture clause would be applicable upon him, as per the Agreement. It was further stated that the Opposite Parties applied to GMADA for completion certificate, after completion of amenities, copy of which is Annexure R-9.  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.

9.           The Parties led evidence, in support of their case.

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

11.          Admittedly, Plot Buyer’s Agreement was executed between the parties on 28.02.2011 (Annexure C-1). It is also the admitted fact that the size of the plot was reduced from 610 sq. yards to 297 sq. yards. It is also the admitted fact that plot bearing No.106-EP-01-297 was allotted to the complainant vide provisional allotment letter dated 19.07.2012 (at page No.58 of the file) alongwith new schedule of payment, wherein, total amount payable was Rs.65,40,979.50, out of which, the complainant paid the total amount of Rs.62,95,955/-, as is evident from statement of account (Annexure C-6).

12.          The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

13.             This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected”.

14.          Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

15.        It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 andNational Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

16.        In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

17.          As regards objection raised by the Opposite Parties in their written statement, with regard to pecuniary jurisdiction, as the amount claimed by the complainant exceeds Rs.1 crore. It may be stated here, that the complainant has sought in the prayer clause quashing of impugned letter dated 03.02.2014 (Annexure C-6) and account statement dated 11.08.2014 (Annexure C-12) ; to pay penalty of Rs.50/- per sq. yards per month for delay in allotment and possession of the plot ; to return the double PLC charges worth Rs.11,02,612/-, to quash impugned letter Annexure C-13; to pay Rs.5 lacs as compensation and Rs.55,000/- as litigation cost and/or in the alternative, in case the aforesaid reliefs (para No.a to d) are not granted, to direct the Opposite Parties to return the money invested by the complainant in the project alongwith interest 18% p.a. In the instant case, the complainant deposited the amount of Rs.62,95,955/-, as is evident from the statement of account (at page No.76 of the complainant’s documents). It may be stated here the complainant also sought refund of the deposited amount of Rs.62,95,955/- alongwith interest @18% p.a.  ; compensation of Rs.5 lacs and litigation expenses of Rs.55,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

              The question, that arises for consideration, is, as to whether, interest @18% p.a, claimed by the complainant, on the deposited amount of Rs.62,95,955/-aforesaid, was required to be added, to the value of the reliefs claimed, or not, for determining the pecuniary Jurisdiction of this Commission.  In Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, the facts were that the complainant filed a Consumer Complaint, before the State Consumer Disputes Redressal Commission, Haryana, claiming an amount of Rs.18,33,000/-, with interest @18% per annum, on this amount, from the date of claim, till realization. It also claimed suitable damages, on account of loss caused to it. The State Consumer Disputes Redressal Commission, vide order dated 08.08.2002, disposed of the complaint, with liberty reserved to the complainant, to approach the National Consumer Disputes Redressal Commission, holding that if interest @18% P.A. was allowed, on the amount of Rs.18,33,000/- it (amount) will exceed Rs.20 lacs (at that time the pecuniary Jurisdiction of the State Consumer Disputes Redressal Commission was upto Rs.20 lacs), for which it had no pecuniary Jurisdiction. Feeling aggrieved, the complainant/appellant filed the aforesaid appeal. The National Consumer Disputes Redressal Commission, in the aforesaid appeal, held as under:-

“Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs.18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.

Accordingly, while accepting appeal, the order dated 8.8.2002 is set aside. On complaint being returned by the State Commission, the appellant is permitted to file it before the appropriate District Forum for being decided on merits in accordance with law. No order as to costs”.

              Not only this, a similar question regarding pecuniary Jurisdiction, fell before this Commission, in a case titled as Karnail Singh  and another Vs. M/s Emaar MGF Land Limited, Consumer Complaint No.05 of 2014 decided on 09.04.2014. In that case also, an objection was raised by the Opposite Parties (Emaar MGF Land Limited) that since the complainants,  had sought refund of amount of Rs.62,60,750/- alongwith interest @24% P.A., from the respective dates of deposits, alongwith compensation and litigation costs, as such, if the reliefs are clubbed together alongwith interest claimed, the aggregate value therefore fell above Rs.1 crore, and as such, this Commission had no pecuniary Jurisdiction to entertain the complaint. In that case, while rejecting the said objection of the Opposite Parties, this Commission, while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’ case (supra),  came to the conclusion that it had pecuniary Jurisdiction to entertain the complaint, and ordered refund of the amount alongwith interest, compensation and litigation costs, vide order dated 09.04.2014. Appeal filed by the Opposite Parties (Emaar MGF Land Limited) against the order dated 09.04.2014, before the National Commission, was dismissed with punitive damages of Rs.5 lacs. Still feeling aggrieved, the Opposite Parties, filed Special Leave to Appeal (C) No.29392 of 2014, which was also dismissed by the Hon’ble Supreme Court of India, in limine, vide order dated 14.11.2014. In this manner, the findings given by this Commission in Karnail Singh and another’s case (supra), while placing reliance on Shahbad Cooperative Sugar Mills Ltd.’s case (supra), to the effect that it has pecuniary Jurisdiction to entertain and decide the complaint, in the manner, referred to above, were upheld by the National Commission, and also the Hon’ble Supreme Court of India. Recently, in the case of Enis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided On 08 Mar 2016, it was clearly held that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection of the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

18.          Another frivolous objection was taken by the Opposite Parties, by stating that the plot, in question, is situated at Mohali,  all the payments were made at Mohali and Agreement was also signed at Mohali, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

              According to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction, whereof a part of cause of action arose to them.  In the instant case, perusal of record reveals that welcome letter dated 19.07.2012 (Annexure C-3), provisional allotment letter dated 19.07.2012 (at page No.58 of the file), schedule of payment (at page No.59 of the file), acknowledgment-cum-receipt (Annexure C-5) and letter of intimation of possession dated 03.02.2014 (Annexure C-6), was sent by Chandigarh office of the Opposite Parties, as the same had the address “Emaar MGF Land Limited, SCO 120-122, First Floor, Sector 17-C, Chandigarh-160017”. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, also stands rejected.

19.          As regards objection raised by the Counsel for the Opposite Parties, that as per Clause 8 of the Plot Buyer’s Agreement, the Company shall make every endeavour to hand over possession within 18 months from the date of execution of the Agreement, meaning thereby, the Company had only proposed to hand over possession of the plot within 18 months and in case, the Company is unable to deliver possession then there is liability to pay penalty for period of delay beyond 18 months. It was further stated that the term ‘proposes’ duly indicated that there was no definitive commitment to hand over possession within 18 months, as time was not the essence of the contract. It is evident from the record that Plot Buyer’s Agreement was also executed between the parties on 28.02.2011 (Annexure C-1) and as per Clause 8 of the Agreement that  the Opposite Parties were to hand over possession of the said unit, in favour of the complainant, within a period of 12 months from the date of execution of the Agreement i.e. 28.02.2011 and in the event of failure of the possession, the Company should be liable to pay to the complainant a penalty of Rs.50/- per sq. yards per month for such period of delay beyond 18 months from the date of execution of the Agreement. So, it is clearly proved that possession was to be delivered maximum period of 18 months from the date of execution of the Agreement i.e. latest by 28.08.2012. Thus, once a specific period of 18 months was mentioned in the Agreement, the Opposite Parties were bound to deliver possession in the said 18 months i.e. latest by 28.08.2012 and not beyond that.  It is not the case of the Opposite Parties that they encounted any force majeure circumstances, as no document has been placed on record in this regard. The time was, thus, unequivocally made the essence of contract. Therefore, the objection taken by the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

20.           The next question, that falls for consideration, is, whether the complainant is at fault for not accepting the offer of possession given by the Opposite Parties. According to the Opposite Parties, possession has been offered to the complainant vide letter dated 03.02.2014 (Annexure C-6), after completion of all the amenities, as per terms and conditions of the Agreement but the complainant did not come forward to take possession of the unit, after payment of the outstanding dues. The Opposite Parties claimed that when the complainant failed in making the payment, the Opposite Parties cancelled the allotment vide cancellation letter dated 05.06.2013 (Annexure R-3) and after receipt of the said letter, the complainant made the payment of Rs.31,81,495/- on 30.06.2013. The Opposite Parties further stated that the complainant again failed to pay the outstanding amount, therefore, final notice dated 11.04.2014 (Annexure R-5) was issued. On the other hand, the complainant admitted in the complaint that he received a letter dated 03.02.2014 (Annexure C-6) from the Opposite Parties, but even till today i.e. till the date of filing the complaint, the plot is not ready for possession. The complainant stated in para No.19 of the complaint that after receipt of the letter dated 03.02.2014, he visited the site, wherein, he was surprised to see that only fields are there and there is no development till date including the basic amenities, which are required to be provided by the developer at the time of physical possession of the plot. Not only this, the complainant clicked various photographs (Annexure C-7) of the site, wherein, it is clear that there is no possibility of any construction even for next 3-4 years. The complainant, in his complaint, has specifically started that there was no development in the project, due to this reason, the complainant could not be faulted for any non-payment of the amount or delayed payment for the same. The Opposite Parties also placed on record letter dated 22.03.2013, vide which, they applied for obtaining completion certificate to GMADA.  However, the Opposite Parties till the date of arguments i.e. 31.05.2016 has failed to place on record any completion certificate from GMADA. So, it is clear that the possession offered by the Opposite Parties vide letter dated 03.02.2014 is only a paper possession and not more than that. So, it is clearly proved that the complainant is not at fault and due to the reasons aforesaid, he is unable to come forward to take possession of the unit, in question.

21.          The next question, that falls for consideration, is, as to within which period, the delivery of possession of the plot, was to be given to the  complainant. According to Clause 8 of the Plot Buyer’s Agreement dated 28.02.2011 (Annexure C-1), subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver possession of the unit, in question, within a period of 12 (twelve) months, from the date of execution of the Agreement, but not later than 18 months. It is, thus, evident, from this Clause, that the Opposite Parties were required to deliver possession of the unit, in question, in favour of the complainant,  within the maximum period of 18 months, from the date of execution of the Plot Buyer’s Agreement i.e. latest by 28.08.2012 but the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainant, within the stipulated period, as contained in the terms and conditions of the Agreement. Even the Opposite Parties offered possession of the unit to the complainant vide letter dated 03.02.2014 (Annexure C-6), i.e. after 3 years from the date of execution of the Agreement.  Even the Opposite Parties have already received a huge amount of Rs.62,95,955/-, towards the said unit, as is evident from the statement of account (at page No.76 of the file). By making a misleading statement, that possession of the unit, was to be delivered within a maximum period of 18 months, from the  date of execution of the  Agreement, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

22.          The next question, that falls for consideration, is, as to whether, the complainant is entitled for refund of the amount of Rs.62,95,955/-, towards the unit, in question. It is the admitted fact that the complainant deposited the amount of Rs.62,95,955/-, as is evident from the statement of account (at page No.76 of the file). The Plot Buyer’s Agreement was executed between the parties on 28.02.2011 and as per Clause 8 of the Agreement, possession of the unit was to be delivered within a maximum period of 18 months from the date of execution of the Agreement i.e. latest by 28.08.2012 but the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainant, within the stipulated time frame, as mentioned in the Agreement.  The possession offered by the Opposite Parties to the complainant vide letter dated 03.02.2014 (Annexure C-6) is only a paper possession.   Even the Opposite Parties had no right, to retain the hard earned money of the complainant, without rendering him, any service. Therefore, it is clearly proved that the Opposite Parties were not in a position to deliver possession of the unit to the complainant, complete in all respects, as per the Agreement.  In our considered opinion, the complainant is entitled to refund of amount of Rs.62,95,955/-, deposited by him.

              At the time of arguments, Counsel for the Opposite Parties stated that when complainant sought refund of the amount, forfeiture clause is applicable upon the complainant. In a similar case relating to delayed possession, titled as Guninder Jeet Singh Salh Vs M/s Emaar MGF Land Limited and another, Consumer Complaint No. 113 of 2015, decided by this Commission on 23.09.2015, noting ratio of the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), it was said that the consumer can claim refund. The National Commission was dealing with a similar situation, in the above case. In that case also, possession was not offered within the stipulated period. The consumer complaint was filed by the complainant, before this Commission, claiming refund of the amount paid by him. This Commission took it as a case of rescinding of contract and allowed the Opposite Parties to forfeit 10% of the deposited amount. The above named builder went in appeal, which was dismissed, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, holding as under:-

 

 “It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment,  with  grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

 

23.    As appellants did not offer possession within the period prescribed under Clause 21 of the ‘Apartment Buyer Agreement’, the deficiency on the part of appellants,  started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and  respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked,  then we fail to understand as to how  before completing the construction appellants demanded the aforesaid amount.  This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment,  subject to certain payments.

24.    Thus, appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from  the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period.  Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and  part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013,  which was against the terms of the Agreement.  The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013.  Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

25.    The deficiency on the part of appellants is writ large in this case. We may note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all. On the other hand, appellants were deficient when they themselves have violated the terms and conditions of ‘Apartment Buyer Agreement’, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.”

It was clearly stated by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. It is evident from the para aforesaid that the Opposite Parties have not fulfilled their part of the Agreement and failed to develop the infrastructure alongwith other amenities and failed to offer possession of the plot/unit to the complainant, within the stipulated period, as mentioned in the Agreement. So, it is clearly proved that the Opposite Parties are, thus, in breach of their part of the obligation and are deficient in providing services even after receipt of the huge amount and, as such, the Opposite Parties are not entitled to forfeit any amount, and refund the deposited amount to the complainant. 

23.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the deposited amount of Rs.62,95,955/-, if so, at what rate. The complainant was deprived of his hard earned money, to the tune of Rs.62,95,955/-, on the basis of misleading information, given by the Opposite Parties, that it would be handed over legal physical possession of the unit, in question, within a maximum period of 18 months from the date of execution of the Agreement i.e. by 28.08.2012. However, the Opposite Parties failed to deliver physical possession of the unit to the complainant, despite receipt of the huge amount. The complainant was, thus, caused financial loss.  Hard earned money, deposited by the complainant, towards price of unit, in question, was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. It is therefore, held that the Opposite Parties, by neither delivering possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. No doubt, as per Clause 3 of the Plot Buyer’s Agreement, the Opposite Parties were charging interest @24% per annum compounded quarterly from the complainant. Under these circumstances, in our considered opinion, if  interest  @15% compounded quarterly, on the amount deposited by the complainant, from the respective dates of deposits, is granted, that will serve the ends of justice.  

24.          The next question, that falls for consideration, is, as to whether, the  complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to him. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as it neither delivered physical possession of the unit to him nor refunded the amount to him, despite repeated requests. The complainant purchased the unit, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

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

26.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.62,95,955/-, to  the complainant, alongwith interest compounded quarterly @ 15%, from the respective  dates of deposits onwards, within 45 days, from   the  date of receipt of a certified copy of  this   order.
2. To pay compensation, in the sum of Rs.3,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant.
4. 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) with interest compounded     quarterly @18%, instead of interest compounded quarterly @ 15%, from the respective dates of deposits, till realization, and interest compounded quarterly @15%, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.

 

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

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

Pronounced.

June  27, 2016.                                             Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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