National Consumer Disputes Redressal
Emaar Mgf Land Pvt. Ltd. vs Krishan Chander Chandna on 29 September, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.873 OF 2013 (Against the order dated 24.10.2013 in C.C. No.50/2013 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh) 1. Emaar MGF Land Pvt. Ltd. SCO 120-122, Sector 17-C, Chandigarh, through its Managing Director 2. Emaar MGF Land Pvt. Ltd., ECE House, 28, Kasturba Gandhi Marg, New Delhi through its Director Appellants Versus Krishan Chander Chandna S/o Sh. Vishan Narain Chandna R/o H. No.94, Sector-11, Chandigarh Respondent BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For Appellants : Mr. Aditya Narain, Advocate with Mr. Shashank Bhushan and Ms. Anushree Narain, Advocates For Respondent : Mr. Rakesh Bajaj, Advocate with Mr. Rajiv Ranjan Kumar, Advocate Pronounced on: 29th September, 2014 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Appellants/Opposite Parties being aggrieved by impugned order dated 24.10.2013, passed by State Consumer Disputes Redressal Commission, UT Chandigarh have filed this appeal.
2. Brief facts are that Respondent/Complainant in response to the scheme launched by the appellants under the name & style Mohali Hills, comprising Sectors 105, 108 & 109, applied for registration of a plot with them. Plot No.253, measuring 500 sq. yards, in Mohali Hills, Sector 109, Mohali, Punjab, was allotted to the respondent. Plot Buyers Agreement, dated 04.07.2007, was executed between the parties. Respondent deposited the entire sale consideration, in respect of plot in question, to the tune of Rs.67,50,590/- including the External Development Charges (EDC) and Preferential Location Charges (PLC), after qualifying for the scheme of waiver of 5% amount of the total sale consideration. As per the Plot Buyers Agreement, the appellants were liable to handover the physical possession of residential plot, within a period of 2 years i.e. up to 04.07.2009 and not later than three years, from the date of execution agreement, but they failed to do so. The respondent is thus, entitled to interest @18% p.a., on the amount deposited by him from the respective dates of deposits, till the date of handing over the physical possession of the same and also compensation, for mental agony and physical harassment. It was further stated that appellants have played tactics, by sending letters dated 01.07.2011 and 16.12.2011, with regard to the delivery of possession of plot. After receipt of the letters, respondent visited the site and found that there was no development in the construction of project. Hence, question of delivery of possession of plot did not at all arise. Thus, by neither delivering the physical possession of plot in question to the respondent, and in the alternative by not refunding the amount deposited with interest, the appellants were not only deficient in rendering service, but also indulged into unfair trade practice. Left with no alternative, a consumer complaint was filed, praying that appellants be directed to refund the total deposited amount alongwith interest @18% P.A. from the respective dates of deposits, till the date of realization; pay an amount of Rs.10 Lacs as compensation for mental agony and physical harassment and cost of litigation to the tune of Rs.10,000/-.
3. Appellants in their joint written statement have admitted that respondent was provisionally allotted a plot, measuring 500 sq. yards. The factum of execution of Plot Buyers Agreement dated 04.07.2007, was admitted. It was stated that respondent voluntarily and with full knowledge accepted the allotment in Sector 109, after going through the terms and conditions and having satisfied himself as to the title of the appellants with respect to the plot allotted. It was further stated that respondent failed to remit all the installments in time, as such delayed interest was levied on him. The respondent also failed to remit the amount towards increase in area as intimated to him on 1.7.2011. Further, as per the statement of account as on 12.9.2013, respondent was liable to pay Rs.56,855/-. It was further stated that as per clause 8 of the agreement, possession was to be handed over within 3 years from the date of signing the agreement. It was denied that provisional allotment letter was issued after receipt of all the amounts. It was admitted that the provisional allotment was made on 26.9.2007, whereas payments were made in installments from September 2006 to July 2009 as was clear from the statements of account. It was denied that respondent had deposited Rs.67,50,590/-. It was stated that as per the statement of account, Rs.64,63,090/- had been paid by the respondent. It was further stated that laying down of internal development works such as Road works, water lines, sewerage lines, drainage and electrical lines were complete in Sector 109 and specifically in the area where plot of the respondent was situated, before offer of possession was made to him on 1.7.2011. Various other allottees in Sector 109 had duly taken over possession. The respondent was not entitled to the refund of amount deposited or any compensation. It was further stated that till date, neither respondent had made the payment due nor visited the site for taking over physical possession. It was further stated that vide letter dated 16.12.2011, respondent was informed to initiate construction on his plot, after obtaining sanction of building plans. It was denied that the possession offered was fake and symbolic and there was no development in the area. As per Clause 9 of the agreement, the appellants were entitled to levy penalty on the respondent for his failure, to take possession within 60 days of offer. It was further stated that as per clause 2(f), in case of failure by the allottee to perform his obligations, the appellants at their discretion were entitled to forfeit earnest money of Rs.17,25,000/-, i.e. equal to 30% of the sale price of Rs.57,50,000/-. It was further stated, that neither there was any deficiency in rendering service on the part of the appellants nor they indulged into unfair trade practice.
4. The State Commission, vide impugned order partly accepted the complaint of the respondent and passed the following directions;
i. The Opposite Parties are jointly and severally, directed to refund the amount of Rs.64,63,090/-, to the complainant, alongwith interest @12% per annum, from the respective dates of deposits, till realization, within two months, from the date of receipt of a certified copy of this order.
ii. The Opposite Parties are further jointly and severally, directed to pay compensation, in the sum of Rs.1,50,000/-for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
iii. The Opposite Parties are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.10,000/-, 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 jointly and severally liable to pay amount mentioned in Clause (i)with interest @15% P.A. instead of 12% P.A., from the respective dates of deposits till realization and interest @15% P.A.,on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.10,000/-.
5. Hence, the present appeal.
6. We have heard the learned counsel for the parties and have gone through the record.
7. It has been contended by learned counsel for the appellants that the impugned order is beyond the ambit of Section 14 of the Act, which does not empower the consumer fora to direct the cancellation of a Plot Buyer Agreement.
Another contention made by learned counsel is that as per Clause 23 of the Plot Buyer Agreement, the external and peripheral works, such as water lines, roads, electricity etc. were to be provided by the State Government or the Local Authorities. Moreover, there is no evidence on record that there has been no development work in the area where the plot in question is situated. Lastly, the respondent had failed to pay the outstanding amount towards revised area and interest for delayed payment as per clause (3) of the Agreement. Hence, question of possession does not arise.
8. In support of his contentions, learned counsel has relied upon the following judgments;
i) Punjab Tractors Ltd. Vs. Gian Singh and another, (2005) 13 Supreme Court Cases 736;
ii) Unity & Trust Society, Jaipur Vs. Chairman & Managing Director, Bank of Baroda, Calcutta and another, (1995) 2 Supreme Court Cases 150;
iii) Union Bank of India Vs. Seppo Rally Oy and another, (1999) 8 Supreme Court Cases 357;
iv) Godfrey Phillips India Ltd Vs. Ajay Kumar, AIR 2008 SC 1828 and
v) Ghaziabad Development Authority Vs. Balbir Singh, 2004) 5 Supreme Court Cases 65
9. On the other hand, it has been contended by learned counsel for the respondent that till date the development work is not complete. Moreover, completion certificate has not been obtained by the appellants. Thus, there is no infirmity or illegality in the impugned order passed by the State Commission.
10. The State Commission in its impugned order has observed ;
11. As per Clause 8 of the Plot Agreement dated 04.07.2007(Annexure C-1), it was obligatory on the part of the Opposite Parties to deliver the possession of plot, in question, to the complainant within a period of two years from the date of execution of the agreement but not later than three years i.e. latest by 03.07.2010. Clause 8 of the Plot Buyers Agreement dated 04.07.2007 (Annexure C-1),being relevant, is extracted below:-
8. Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver possession of the Plot to the Allottee with a period of 2(Two) years from the date of execution of this Agreement, but not later than 3 (Three) years. In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists of the reason beyond the control of the Company exists. In the event that the company fails to deliver possession of the Plot without existence of any force majeure event or reason beyond the control of the Company within a maximum period of 3 (three) years from the date of execution of this Agreement, the Company shall be liable to pay to the Allottee, a penalty of sum of Rs.50/-
(Rupees Fifty only) per sq. yards per month for such period of delay beyond 3 (Three) years from the date of execution of this Agreement.
12. Admittedly, the possession was offered by the Opposite Parties, to the complainant after one year of the stipulated date i.e. on 01.07.2011 vide Annexure C-5. The possession, so offered, after delay of one year from the stipulated date, was a mere paper possession as the development in the area has not been completed. This fact is fortified from the contents of letter dated 16.12.2011 (Annexure RW/D), which was written by the Opposite Parties to the complainant after five months of offering the possession, wherein it was mentioned that upon completion of works, mentioned in the aforesaid letter, and receipt of completion certificate from GMADA, the Opposite Parties shall commence the process of execution and registration of sale deed. This letter (Annexure RW/D) also indicates that adequate facilities of electricity and other basic amenities were not available at the site, where the plot was allotted to the complainant. The relevant paras from Annexure RW/D, being relevant are extracted hereunder:-
We would be delighted to assist you in your endeavour to get the building plans approved. Further, once the sanctioned building plans are received, should you decide to construct, prior to the company receiving the Completion Certificate from GMADA, we would be happy to facilitate you with temporary electricity and water connection at applicable rates.
We have already initiated community development works like parks, Golf Course, roads, electrical lighting and setting up of STP (Sewage Treatment Plant), Rain Water harvesting system, and the electrical sub stations.
Upon completion of the above and receipt of Completion Certificate from GMADA, we shall commence the process of the execution and registration of sale deeds and shall keep you updated on further developments in relation.
13. The Counsel for the complainant vehemently argued that the area, even as on date, is still not developed and the physical possession of plot has not been delivered to him. The onus to prove that the project had been completed and the area/site, in question, where the plot of the complainant is 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. 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. One could really imagine the plight of a person, who had deposited his hard earned money to the tune of Rs.64,63,090/-, for the purchase of a plot, but later on came to know that there were no development at the site, in question, and only a portion of jungle was standing there. The facts of the case Smt. Satwant Kaur and another Vs. The EMAAR MGF Land Private Limited (supra), relied upon by the Counsel for the Opposite Parties, are somewhat distinguishable, from the facts involved in the instant case, and, therefore, it is of no help to the Opposite Parties. In Paramvir Singh Vs P. H. Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011 decided by the National Consumer Disputes Redressal Commission, New Delhi, in similar circumstances, when possession of the plot was not given by the builder to the complainant for a long period, refund of the amount deposited by him with interest and compensation were granted. The principle of law, laid down in Paramvir Singhs case (supra) is fully applicable to the facts of the instant case. The complainant, thus, has suffered immense physical harassment and mental agony, at the hands of the Opposite Parties, for which, he is entitled to refund of the entire amount deposited by him with the Opposite Parties alongwith interest, as well as compensation simultaneously.
11. Thus, as per the above findings of the State Commission, as on date, the appellants themselves are not sure as to by which date they will be able to hand over the possession of the plot to the respondent. The appellants after grabbing the entire cost of plot, are sitting over it, whereas respondent is running from pillar to post to get his hard earned money back.
12. This act of the appellants, even after collecting total amount of Rs.67,50,590/- from the respondent against a plot measuring 500 sq. yard, including the external development charges and preference location charges (PLC) and even after executing the Plot Buyer Agreement dated 4.7.2007 and not confirming till date any firm date of handing over of the possession of the plot, amounts to a Deceptive Practice which falls within the meaning of Unfair trade practice as defined under the Consumer Protection Act, 1986. The appellants should have given firm date of handing over of the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondent, the appellants induced him to part with his hard earned money, which also amounts to unfair trade practice.
13. Moreover, the appellants by not delivering the legal physical possession of the fully developed plot to the respondent till date, even after having received entire price thereof, are not only deficient in rendering service but are also guilty of indulging into unfair trade practice. Under these circumstances, Clause 8 of the Plot Buyers Agreement which was executed only after taking substantial sum of Rs.64,63,090/-, at the time of executing Plot Buyer Agreement, is of no help to the appellants.
14. Appellants/Builders in the present case wants to have the cake and eat it too, as admittedly they had received entire cost of the plot. Thus appellants being the builder, are enjoying the possession of the plot as well as the entire amount of consideration paid by the respondent. On the other hand, respondent after having paid the entire amount of consideration of the plot, is still empty handed.
15. Such type of unscrupulous act on the part of appellants/builders should be dealt with heavy hands who after grabbing the hard earned money from the purchasers, enjoy and utilize their money but does not hand over the possession on one pretext or the other. Appellants wants the respondent to run from one fora to other, so that appellants can go on enjoying respondents money without any hindrance.
16. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless appeal in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builders like appellants who after taking entire cost of the plot, do not perform their part of obligation, should not be spared.
A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
17. None of the judgments (supra) relied upon by the learned counsel for the appellants in support of its case are at all applicable to the facts of the present case.
18. Now question arise for consideration is as to what should be the quantum of costs which should be imposed upon the appellants for dragging the respondent upto this fora, when appellants had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
19. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, the Apex Court observed;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
20. Further, the Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors. (Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011) has also observed ;
45. We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
The court further held;
50. Learned Amicus articulated common mans general impression about litigation in following words;
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
Lastly, the Apex Court observed;
54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.
21. Thus, present appeal is nothing but gross abuse of process of law and same is required to be dismissed with punitive damages. Accordingly, present appeal stand dismissed with punitive damages of Rs.5,00,000/-(Rupees Five lakhs only). Out of this amount, a sum of Rs.2.50,000/-(Rupees Two Lacs Fifty Thousand only) be paid to the respondent. Remaining amount of Rs.2,50,000/- (Rupees Two Lac Fifty Thousand only) be deposited in this Commission. Therefore, the appellants are directed to deposit a sum of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) by way of demand draft in the name of Consumer Leal Aid Account of this Commission within four weeks from today and balance amount of Rs.2,50,000/-(Rupees Two Lacs Fifty Thousand only) be deposited in the name of the respondent by way of demand draft with this Commission within four weeks from today.
22. The damages awarded in favour of the respondent, shall be paid to him only after expiry of period of appeal or revision preferred, if any.
23. In case, appellants fail to deposit the aforesaid amount within the prescribed period, then they shall also be liable to pay interest @ 9% p.a. till realization.
24. Pending application stand disposed of.
25. List for compliance on 29th October, 2014.
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(V.B. GUPTA, J) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Sg.