State Consumer Disputes Redressal Commission
Surinder Kaur Makan vs Emaar Mgf Land Ltd., on 13 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 03 of 2013 Date of Institution : 04.01.2013 Date of Decision : 13.05.2013 1. Surinder Kaur Makan wife of Mr. Lajbir Singh Makan, r/o H.No.2035, Phase 10, SAS Nagar, Mohali. 2. Mr. Lajbir Singh Makan, s/o Late M.S. Makan, r/o H.No.2035, Phase 10, SAS Nagar, Mohali .Complainants V e r s u s 1. Emaar MGF Land Ltd., SCO 120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director. 2. Emaar MGF Ltd., ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Director. 3. Manohar Singh and Co., SCO 139-141, Sector 17-C, Chandigarh, through its Owner/Proprietor. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER
Argued by: Sh.
Harmanjit Singh Sethi, Advocate for the complainants.
Sh.
Ashim Aggarwal, Advocate for Opposite Parties No.1 and 2.
Sh.
I.P. Singh, Advocate for Opposite Party No.3.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the Opposite Parties, in the year 2005-06, advertised the development of integrated township, under the name and style Mohali Hills. Since, the complainants wanted roof, over their head, they approached Opposite Party No.3, namely Manohar Singh and Co., SCO 139-141, Sector 17-C, Chandigarh, an agent of Opposite Parties No.1 and 2. On the basis of promise, held out by Opposite Party No.3, on behalf of Opposite Parties No.1 and 2, a residential plot @Rs.10,000/- per square yard, measuring 400 square yards, was booked by the complainants, on 19.11.2005. A sum of Rs.8 lacs, constituting 20% of the basic sale price of residential plot, vide cheque number 541915, drawn on ICICI Bank, Mohali, was paid to Opposite Parties No.1 and 2. This cheque, according to the complainants was kept by the Opposite Parties, for about ten months, but was never encashed. Thereafter, according to the complainants, Opposite Parties No.1 and 2, enhanced the price of plot, to the tune of Rs.11,500/- per square yard, unilaterally. Accordingly, a fresh cheque, in the sum of Rs.13,80,000/-, on 23.09.2006, was issued by the complainants, in favour of Opposite Parties No. 1 and 2, for the allotment of a plot, in Mohali Hills, sector 105, Augusta Park, SAS Nagar, Mohali, Punjab.
2. It was stated that provisional allotment letter dated 09.05.2007, in respect of plot number 54, measuring 400 square yards, in Mohali Hills, sector 109, in Augusta Park, SAS Nagar, Mohali, Punjab @ Rs.11,500/- per square yard, was issued, in favour of the complainants. It was further stated that Opposite Parties No.1 and 2, instead of making allotment of plot, in Mohali Hills, Sector 105, Augusta Park, SAS Nagar, Mohali, Punjab, allotted the same, in Sector 109. Plot Buyer`s Agreement dated 04.07.2007, was executed, between the parties. The total price of the plot was to the tune of Rs.54,00,472/-. As per the Plot Buyer`s Agreement, dated 04.07.2007, the physical possession of fully developed plot, was to be handed over to the complainants, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that the necessary permissions for carving out the plots, and development of the same, required under various provisions of law, had not been obtained by Opposite Parties No.1 and 2. It was further stated that the entire payment of price of the plot, in question, to the tune of Rs.54,00,472/-, was made by the complainants, to the Opposite Parties, by March, 2010.
3. It was further stated that Opposite Parties No.1 and 2, however, failed to hand over the possession of fully developed plot, allotted, in favour of the complainants, by 04.07.2010, the promised date, as per the Agreement, referred to above, despite a number of letters, having been written to them. It was further stated that even, when the entire price of plot, in question, was deposited by the complainants, with Opposite Parties No.1 and 2, they made a promise, that the physical possession of plot, shall be handed over by July 2010, to them, but to no avail. It was further stated that, by not delivering the physical possession of fully developed plot, to the complainants, allotted in their favour, by the promised date i.e. 04.07.2010, Opposite Parties No.1 and 2, were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainants, 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 on 04.01.2013, directing Opposite Parties No.1 and 2, to handover the physical possession of plot no.54, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, immediately; pay interest @18% P.A., on the amount, deposited by them, towards the price of plot, from the respective dates of deposits, till handing over the physical possession of the same (plot), besides interest @10.75% P.A., i.e. the interest which they (complainants) were paying to the HDFC Bank, from which, they obtained loan for the purchase of said plot; compensation, in the sum of Rs.40 lacs, for mental agony, physical harassment and enhancement of the cost of building material; and cost of litigation, to the tune of Rs.50,000/-
4. Opposite Parties No.1 and 2, in their joint written version, pleaded that this Commission, has no territorial Jurisdiction, to entertain and decide the complaint. It was further pleaded that the complaint was barred by time, as the same was filed, beyond the period of two years, from the date of occurrence of the alleged cause of action, in favour of the complainants. It was stated that the complainants, approached Opposite Party No.3, in the year 2006 and expressed their interest, in the project namely Mohali Hills SAS Nagar, (Mohali), District Mohali, Punjab. It was further stated that advance application form Annexure C-1 dated 04.09.2006, was submitted by the complainants, alongwith a cheque, in the sum of Rs.13,80,000/-, towards registration amount. It was denied that the basic price of plot was @Rs.10,000/- per square yard. On the other hand, it was further stated that the basic price of plot was @Rs.11,500/- per square yard, which was specified, in the allotment letter, as also, in the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3. It was further stated that the complainants applied for the allotment of plot, in Mohali Hills, in Sectors 98,105,108 and 109, Augusta Park, SAS Nagar, Mohali, Punjab, whereupon, they were allotted the same (plot), in Sector 109. It was further stated that the Plot Buyer`s Agreement Annexure C-3, was executed between the parties, on 04.07.2007. It was admitted that, as per the terms and conditions of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, the physical possession of plot was to be delivered to the complainants, within 36 months, from the date of execution thereof (Agreement). It was also admitted that the entire payment of the price of plot, was made by the complainants. It was, however, further stated that the payments were not made, in time, by the complainants, but after much delay. It was further stated that, however, as a goodwill gesture, Opposite Parties No.1 and 2, waived off interest to the tune of Rs.5,83,734/-, on the delayed payments, when the remaining amount towards sale consideration of the plot, was paid by the complainants, on 10.03.2010. It was further stated that, as per the terms and conditions of Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, Opposite Parties No.1 and 2,were well within their right, to change the location of plot, allotted to the complainants, which was only tentative. It was further stated that, as per the terms and conditions of Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, in case of delay, in delivery of possession of the plot, Opposite Parties No.1 and 2 were liable to pay penalty/compensation @Rs.50/- per square yard, per month, for the period of delay. It was further stated that since the parties were bound by the terms and conditions of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, neither they could go beyond the same, nor any relief, contrary to the same (Agreement), could be granted to the complainants. It was denied that there was no development at the site. It was further stated that the possession of plots, was being delivered to the allottees, in a phased manner. It was further stated, that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Opposite Party No.3, in its written version, pleaded that it was only an agent of Opposite Parties No.1 and 2. It was stated that the complainants, no doubt, initially, for the registration of plot, approached Opposite Party No.3, having its office, at Chandigarh. It was further stated that, thereafter, the allotment letter was issued by Opposite Parties No.1 and 2 and, even, the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, was executed between the complainants and Opposite Parties No.1 and 2. It was further stated that all the payments were made by the complainants, to Opposite Parties No.1 and 2. It was further stated that, thereafter, no act was performed by Opposite Party No.3, towards the maturity of transaction. It was further stated that, in the complaint, there were no specific allegations, against Opposite Party No.3, and, as such, neither there was any deficiency, in rendering service, on its part, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinder, filed by the complainants, they reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
7. Complainant No.2, in support of the averments, contained in the complaint, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. Opposite Parties No.1 and 2, in support of their case, submitted the affidavit of Mohit Kaura, their DGM-Customer Services, and authorized representative, by way of evidence, alongwith which, a number of documents were attached.
9. Opposite Party No.3, in support of its case, submitted the affidavit of Taraninder Singh, its authorized signatory, by way of evidence.
10. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
11. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint or not. According to Section 17 of the Act, a Consumer Complaint, could be filed in the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants, or the Parties against which, the reliefs sought, were working for gain or residing. It may be stated here, that the advance application form Annexure C-1, towards registration of expression of interest, in a residential plot, in Mohali Hills, SAS Nagar (Mohali), District Mohali, Punjab, was submitted by the complainants, to Opposite Party No.3- Manohar Singh and Co., an agent of Opposite Parties No.1 and 2, at Chandigarh, and it was accepted by it (Opposite Party No.3), at Chandigarh. Even a cheque, in the sum of Rs.13,80,000/-, alongwith the advance application form Annexure C-1, as registration amount, was paid by the complainants, to Opposite Parties No.1 and 2, at Chandigarh, as is evident, from the receipt dated 23.09.2006, Annexure C-2. Even, on the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, the address of Opposite Parties No.1 and 2, is written as Emaar MGF Land Private Limited, (EMAAR MGF), S.C.O. No. 120-122, 1st Floor, Sector 17-C, Chandigarh-160017. It means that the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, was executed, between the parties, at Chandigarh, which was duly signed by the complainants and an authorized signatory of Opposite Parties No.1 and 2. Even the letter Annexure C-10, written by complainant no.1, to the Manager Customers Services, Emaar MGF Ltd., SCO 120-22, 1st Floor, Sector 17C, Chandigarh, was received by the authorized signatory of Opposite Parties No.1 and 2, at Chandigarh, and photo impression of the stamp affixed thereon also depicts Emaar MGF Land Ltd., Chandigarh. Since, as per the documents, referred to above, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection, taken by Opposite Parties No.1 and 2, in their joint written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
12. The second question, that falls for consideration, is, as to whether, the complaint was barred by time. It may be stated here, that after the deposit of entire price of the residential plot, in question, by the complainants, they were not delivered the physical possession thereof, by the promised date i.e. 04.07.2010, as per the terms and conditions of the Agreement, referred to above. There was, therefore, a continuing cause of action, in favour of the complainants, until they were delivered the possession of plot, in question. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269, AIR 1999 SC 380, it was held that when there is a continuity of cause of action, the complaint could not be said to be barred by time. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. It is, therefore, held that the complaint having been filed on 04.01.2013, was not barred by time. The submission of the Counsel for Opposite Parties No.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. The third question, that falls for consideration, is, as to whether, the residential plot was allotted to the complainants, @Rs.11,500/- per square yard, or @Rs.10,000/- per square yard. No doubt, the complainants, in their complaint, stated that the Opposite Parties, promised to allot the residential plot @Rs.10,000/- per square yard, but, later on, they unilaterally changed the price @Rs11,500/- per square yard. Such a plea, taken by the complainants, in their complaint, does not appear to be correct. The first document is the advance application form dated 04.09.2006 Annexure C-1, towards registration of expression of interest, in a residential plot in Mohali Hills SAS Nagar (Mohali), District Mohali, Punjab, where there is no mention, that the plot shall be allotted to the complainants @Rs.10,000/- per square yard. The provisional allotment letter Annexure RW/B dated 09.05.2007, was issued, in favour of the complainants, by Opposite Parties No.1 and 2. In this provisional allotment letter, the rate of plot was mentioned as Rs.11,500/- per square yard, plus (+) Preferential Location Charges (PLC). This provisional allotment letter was duly accepted by the complainants. Not only this, in the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, the price of plot was mentioned as Rs.11,500/- per square yard. In the face of documentary evidence, referred to above, any oral promise, if, allegedly made to the complainants, by the Opposite Parties, that the plot will be allotted to them @Rs.10,000/- per square yard, that pales into insignificance. It is, therefore held that Opposite Parties No.1 and 2, allotted the plot to the complainants @Rs.11,500/- per square yard. The plea, taken up by the complainants, in the complaint, that they were promised, by the Opposite Parties, to allot them plot @Rs.10,000/- per square yard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. The fourth question, that falls for consideration, is, as to whether, the complainants were promised by the Opposite Parties, that they shall be allotted plot, in Mohali Hills, sector 105, Augusta Park, SAS Nagar, Mohali, Punjab, or not. In Annexure C-1, the advance application form, there is nothing, that the Opposite Parties ever promised, that the complainants shall be allotted plot, in Mohali Hills, sector 105, Augusta Park, SAS Nagar, Mohali, Punjab. On the other hand, from the provisional allotment letter dated 09.05.2007-Annexure RW/B, it is evident, that the complainants were allotted plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar (Mohali), District Mohali, State of Punjab. Even in Clause 1 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, it is evident, that Opposite Parties No.1 and 2, allotted to the complainants, plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab. From the documentary evidence, it was, thus, proved that Opposite Parties No. 1 and 2, only promised to allot plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, in Augusta Park, SAS Nagar, Mohali, Punjab, and the same was allotted to the complainants. The plea taken up by the complainants, in the complaint, that they were promised to be allotted plot, in Mohali Hills, sector 105, Augusta Park, SAS Nagar, Mohali, Punjab, therefore, being devoid of merit, must fail, and the same stands rejected.
15. According to Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, the physical possession of fully developed residential plot, was to be delivered by Opposite Parties No.1 and 2, to the complainants, within two years, from the date of execution of Agreement, but not later than three years. It means that the maximum period for delivery of physical possession of the plot, to the complainants, by Opposite Parties No.1 and 2, which was allotted, in their favour, was three years. Admittedly, the physical possession of residential plot, was not delivered to the complainants, by Opposite Parties No.1 and 2, on or before 04.07.2010, the promised date, as per the Agreement, referred to above. Not only this, even by 04.01.2013, when the complaint was filed, by the complainants, they were not offered the physical possession of plot, in question, which was allotted, in their favour, by Opposite Parties No.1 and 2. Even till date, no offer of physical possession of plot, in question, allotted in favour of the complainants, has been made by Opposite Parties No.1 and 2. Opposite Parties No.1 and 2, collected huge amount, from the complainants, but they failed to deliver physical possession of the plot, in question, allotted in their favour, by the promised date i.e. 04.07.2010. By collecting the huge amount, in relation to the price of plot, from the innocent allottees, by not delivering the possession thereof, by the promised date, and even much, thereafter, Opposite Parties No.1 and 2, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the delivery of physical possession of plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab.
16. The fifth question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the plot, in question, by Opposite Parties No.1 and 2, by the promised date. According to Clause 8 of the Agreement, referred to above, the Company was liable to pay to the complainants, penalty/compensation, in the sum of Rs.50/- (Rupees Fifty only), per square yard, per month, for the period of delay, beyond three years, from the date of execution of the same. The Agreement-Annexure C-3, was executed and signed by the parties, with their eyes wide open. In this case, one of the reliefs, sought by the complainants, is delivery of physical possession of plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab.
Since, the parties signed the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, with eyes wide open, they are bound by the terms and conditions thereof. The delivery of possession of plot, shall be made to the complainants, at the original price, which was prevailing in the year 2006-07, when they booked the same. They will get the benefit of escalation, in the prices of real estate, in the meanwhile. It is not a case, in which the complainants have sought refund of the amount, deposited by them. Under these circumstances, the complainants are entitled to compensation/penalty @ Rs.50/- (Rupees Fifty only), per square yard, per month, of the plot, allotted in their favour, from 04.07.2010, till realization, as per Clause 8 of the Agreement, referred to above. In Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. 1996 (IV) 4 SCC 704, a case decided by a three Judge Bench of the Hon`ble Supreme Court, a question arose that when the parties have contracted and limited their liabilities, whether the State/National Commission could go beyond the terms of the contract and give relief for damages, in excess of the limit, prescribed under the contract or not. It was held that when there is a specific term, in the contract, signed by the parties, they are bound by the same and relief for damages, in excess of the limit, prescribed under the same (contract), cannot be given. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. Thus, as stated above, the complainants are only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 04.07.2010 (promised date) onwards, on account of delay, in delivery of possession of the plot, as per Clause 8 of the Agreement, referred to above.
17. The sixth question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, for a long number of years, by not delivering the physical possession of plot, to them, by Opposite Parties No.1 and 2, by the promised date i.e. 04.07.2010. The complainants booked the plot, with the hope to have a roof over their head, by raising construction thereon, but their hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than three years, from the promised date, i.e. 04.07.2010, delivery of physical possession of the plot, has not yet been made, to the complainants, by Opposite Parties No.1 and 2. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 and 2. Compensation, on account of mental agony and physical harassment, caused to the complainants, on account of the acts of omission and commission of Opposite Parties No.1 and 2, if granted, to the tune of Rs.2 lacs, shall be reasonable, adequate and fair. The complainants, are, thus, also held entitled to the compensation, in the sum of Rs.2 lacs.
18. The seventh question, that falls for consideration, is, as to whether, the complainants are entitled to any relief, against Opposite Party No.3 or not. Opposite Party No.3 was only an agent of Opposite Parties No.1 and 2. The complainants, no doubt, initially, for the registration of plot, approached Opposite Party No.3, having its office, at Chandigarh. Thereafter, the allotment letter was issued by Opposite Parties No.1 and 2. Even, the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3, was executed between the complainants and Opposite Parties No.1 and 2. Thereafter, no act was performed by Opposite Party No.3, towards the maturity of transaction. Even the Counsel for the complainants, fairly conceded, at the time of arguments, that the complainants do not claim any relief, against Opposite Party No.3. The complaint against Opposite Party No.3, is, therefore, liable to be dismissed.
19. No other point, was urged, by the Counsel for the parties.
20. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:_ i. Opposite Parties No.1 and 2, are directed to handover the physical possession of plot no.54, measuring 400 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, to the complainants, within three months, from the date of receipt of a certified copy of the order.
ii. Opposite Parties No.1 and 2, are further directed to pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard, per month, from 04.07.2010 (the promised date of delivery of possession), till realization, to the complainants, as per Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-3.
iii. Opposite Parties No.1 and 2, are further directed to pay compensation, in the sum of Rs.2 lacs, on account of mental agony and physical harassment, caused to the complainants, at their hands.
iv. Opposite Parties No.1 and 2, are further directed to pay, cost of litigation, to the tune of Rs.30,000/-, to the complainants.
v. Compensation granted to the complainants, as mentioned in Clause (ii), which has fallen due upto 30.04.2013, shall be paid by Opposite Parties No.1 and 2, within one month, from the date of receipt of certified copy of this order, failing which, the said amount of compensation, in Clause (ii) shall carry interest @9% P.A., from 04.07.2010, till realization.
vi. Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yard, w.e.f. 01.05.2013, per month, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9% P.A., from the date of default, till the delivery of possession.
vii. Compensation granted, in favour of the complainants, as mentioned in Clause (iii), shall be paid by Opposite Parties No.1 and 2, within a period of one month, from the date of receipt of certified copy of the order, to them, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization.
21. The complaint against Opposite Party No.3, is dismissed, with no order as to costs.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion Pronounced.
May 13, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg