State Consumer Disputes Redressal Commission
Ajay Bansal vs Emaar Mgf Land Private Limited on 19 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.516 of 2017
Date of institution : 29.06.2017
Reserved on : 09.01.2018
Date of decision : 19.01.2018
Ajay Bansal s/o Late Shri Madan Lal Bansal, r/o A-1/501, Printers
Apartment, Plot-18, Sector-13, Rohini, New Delhi-110 085.
.......Complainant
Versus
1. Emaar MGF Land Ltd., Mohali Hills, Office No.40, Central
Plaza, Sector-105, Mohali, through its Director Shri Sharvan
Gupta.
2. Emaar MGF Land Ltd., ECE House, 28, Kasturba Gandhi
Marg, New Delhi-110 001 through its Director, Smt. Shilpa
Gupta.
3. Sh. Shravan Gupta, Director of Emaar MGF Land Ltd., ECE
House, 28, Kasturba Gandhi Marg, New Delhi-110 001.
4. Smt. Shilpa Gupta, Director of Emaar MGF Land Ltd., Mohali
Hills, Office No.40, Central Plaza, Sector-105, Mohali.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Shri S.S. Gill, Advocate.
For the opposite parties: Shri Ajiteshwar Singh, Advocate. Consumer Complaint No.516 of 2017 2 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The present complaint has been filed by Ajay Bansal, complainant, under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the C.P. Act") for the issuance of following directions to the opposite parties:-
i) to pay penalty @ ₹50/- per square yard per month from 4.7.2010 till the receipt of the completion certificate with interest @ 12% per annum;
ii) to pay ₹5,00,000/-, as compensation for mental agony, harassment and deficiency in service; and
iii) to pay ₹1,00,000/- for litigation expenses. Facts of the Complaint:
2. Brief facts, as stated in the complaint, are that the complainant wanted to have a residential plot for his daughter Miss Palak Bansal, who was minor in 2006 and accordingly he applied for a plot measuring 300 square yards in the Pinewood Park in Sector 108, Mohali Hills, SAS Nagar, Mohali, in the township of the opposite parties. The complainant moved an application for the said purpose along with booking amount of ₹10,35,000/-, which was paid, vide Receipt No.225 dated 23.9.2006. The total sale consideration of the said plot was ₹38,81,250/-. After considering the application the complainant was allotted Plot No.175 provisionally on 5.5.2007. The complainant requested the opposite parties on 4.6.2007 and 6.6.2007 to give him a non-Preferential Location plot but the opposite parties on 12.10.2007 finally changed the plot and the Consumer Complaint No.516 of 2017 3 complainant was allotted Plot No.249 in "Augusta Greens", Sector 109, Mohali but it was again a Preferential Location plot. Thereafter the complainant made another payment of ₹1,72,500/-, vide receipt No.9414 dated 15.6.2007 towards the payment of the said plot and allotment letter of the relocated plot was issued to him. It is further averred that subsequently a Plot Buyer's Agreement dated 4.7.2007 was executed between the complainant and the opposite parties. As per clause 8 of the said Agreement, possession was to be delivered within two years from the date of Agreement, at the most, within three years from the date of execution of Buyer's Agreement i.e. possession was to be delivered upto 3rd of July 2010. In case of failure to give possession within the stipulated period, the opposite parties were liable to pay penalty @ ₹50/- per square yard per month. The complainant has made the following payments, vide various receipts:-
S. No. Dated Receipt No. Amount in ₹
1. 15.6.2007 9414 1,72,500/-
2. 30.9.2007 9420 1,72,500/-
3. 21.11.2007 26651 2,87,472/-
4. 18.12.2007 26652 3,45,000/-
5. 24.4.2008 39251 1,43,779/-
6. 24.4.2008 39252 3,45,000/-
7. 18.7.2008 39261 3,45,000/-
8. 4.12.2008 48187 2,29,552/-
9. 25.12.2008 49188 2,00,000/-
Consumer Complaint No.516 of 2017 4
10. 25.12.2008 49189 2,29,552/-
11. 6.1.2009 49192 2,00,000/-
12. 6.1.2009 49193 48,813/-
13. 3.3.2009 49195 1,72,500/-
Total:- 28,91,668/-
Thereafter the opposite parties sent an undated letter in the month of April 2012 to the complainant about the progress at the site. The complainant thereafter raised an objection to the said letter and wrote a letter to the opposite parties raising an objection that the letter is undated. There is lack of facilities at the site. However, the opposite parties wrote letter that the same was ready. Consequently the complainant was forced to take possession, which was given to him by the opposite parties on 25th of March 2013. The possession was delivered without completing the project in all respects and the complainant was further threatened that he will be bound to pay holding charges in case he does not take possession. Thereafter the complainant again got in touch with the opposite parties that they have been charged preferential location charges, though he had been requesting them since the very beginning for allotment of non-
preferential location plot. The complainant again received a letter dated 9.6.2014 from the opposite parties regarding settlement of dues towards the said plot. In the settlement no reference to the payment to be made as penalty under clause 8 of the Agreement to the complainant was mentioned. In fact there was delay in delivering Consumer Complaint No.516 of 2017 5 the forced possession of the said allotted plot. Then it transpired that there is no main entry to the said project as the Civil Court has stayed the same under Sections 29, 33 and 63 of Indian Forest Act, 1927 and it is alleged that the opposite parties have violated the order of the Hon'ble Supreme Court dated 12.12.1996. The information regarding the same was received by another allottee the copy of which has been annexed on record. Moreover, the deadline given by PUDA to complete the said project in all aspects has already been over by 30.6.2015. Till date no completion certificate has been obtained by the opposite parties. The project is still incomplete, though forcible possession has been given to the complainant. The complainant has paid ₹28,91,668/- towards the sale consideration of the plot and as such, he has paid substantial part of the total sale consideration of the plot in question but there are still deficiencies at the site. Hence alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties the present complaint was filed for issuance of above mentioned directions to them.
Defence of the opposite parties:
3. In response to notice the opposite parties appeared and filed a joint reply taking preliminary objections that the complainant is having multiple properties in his name and so he does come in the definition of the 'consumer'. Furthermore the issue pertains to the year 2007 and incomplete documents have been annexed. As such, the complainant has not come to this Commission with clean hands.
Further objection has been raised that in view of Section 8 of the Consumer Complaint No.516 of 2017 6 Arbitration and Conciliation Act, 1996 read with arbitration clause in the Agreement, this Commission has no jurisdiction to try the present complaint. The dispute in this case pertains to Buyer's Agreement dated 4.7.2007 in respect of Unit No.109-AG-249-300 located in the residential complex being developed by the opposite parties known as Augusta Greens, Sector 109, Mohali Hills, Mohali, Punjab. The possession of the same was delivered to the complainant. The allegations of delay in execution, completion and handing over of the possession of the subject-property have to be viewed along with specific instances of breaches of the complainant pertaining to schedule of payment as well as failure of the complainant to take the possession of the subject property on various occasions and finally taking possession of the same on March 25, 2013. After the possession was delivered to the complainant question of harassment and mental agony does not arise. No compensation is payable to the complainant. The complaint has been filed after a long time after taking possession, which is clearly barred by limitation. The complainant has failed to deposit ₹7,32,956.02P; as a result of which the opposite parties were constrained to issue notice dated September 12, 2014. The complainant had not been cooperating with the opposite parties but he continued to remain in possession since March 2013. The information purportedly obtained by the complainant or someone else under the RTI Act, 2005 is after the lapse of a considerable time, which has otherwise no value in the eyes of law. The complaint of the complainant is misconceived as earlier he had approached the U.T. State Commission as well as Consumer Complaint No.516 of 2017 7 District Forum, U.T., Chandigarh for the same relief. Other averments have been denied. However, contents of para no.4 of the complaint have been admitted wherein the payments alleged to have been made. It is stated that the same has been reflected in the statement of account of the opposite parties. It is also denied that the complainant was forced by the opposite parties to pay for the preferential location plot. Rather, he had sought the change of the plot at his own instance and he was relocated accordingly. Furthermore the complainant has given undertaking dated 20.4.2012 and had agreed to various terms in the said undertaking which has been placed on record as Ex.OP/2. The opposite parties have further averred that the complainant is bound to pay the balance amount. Denying any deficiency in service or adoption of unfair trade practice on their part a prayer for dismissal of the complaint was made.
Evidence of the Parties:
4. In order to prove his case, the complainant tendered in evidence his affidavit as Ex.CA and documents Ex.C-1, Ex.C-2, Ex.C-2A, Ex.C2B, Ex.C-3 to Ex.C-5, Ex.C-5a, Ex.C-5b, Ex.C-5c, Ex.C-5d, Ex.C-5e, Ex.C-5f, Ex.C-5g, Ex.C-5h, Ex.C-5i, Ex.C-5j, Ex.C-5k, Ex.C-5l, Ex.C-5m, Ex.C-5n, Ex.C-5(o), Ex.C-6, Ex.C-7, Ex.C7A, Ex.C-8, , Ex.C-8A, Ex.C-8B, Ex.C-9, Ex.C-10, Ex.C-11, Ex.C-11a, Ex.C-12, Ex.C-12a, Ex.C-12b, Ex.C-12c, Ex.C-12d, Ex.C12d(translation), Ex.C-12f, Ex.C12f (translation), Mark-A and Mark- B. On the other hand, the opposite parties tendered in evidence the affidavit of their DGM, Legal, Ex.OP/A and documents Consumer Complaint No.516 of 2017 8 Ex.OP/1A, Ex.OP/1B, Ex.OP/2, Ex.OP/3, Ex.OP/4, Ex.OP/5, Ex.OP/6, Ex.OP/7, Ex.OP/8 and Ex.OP/9.
5. We have carefully gone through the averments of the parties and the evidence produced by them in respect of those averments.
We have also heard learned counsel for both the sides. Contentions of the Parties:
6. It was argued by the learned counsel for the complainant that the complainant has paid substantial amount towards the total sale consideration of the plot in question, the details of which have been given in para nos.2 and 4 of the complaint and the same have also been admitted by the opposite parties in their reply. The only dispute is with regard to the forcible giving of preferential location plot; consequently charging of the money on that account; the delay in delivery of possession; and the payment of penalty as per clause 8 of the Buyer's Agreement dated 4.7.2007, Ex.C-4. There is lack of facilities at the site. However, the opposite parties wrote letter that the same was ready. Consequently the complainant was forced to take possession, which was given to him by the opposite parties on 25th of March 2013. The possession was delivered without completing the project in all respects and the complainant was further threatened that he will be bound to pay holding charges in case he does not take possession. It was further argued that thereafter the complainant again got in touch with the opposite parties that they have been charged preferential location charges, though he had been requesting them since the very beginning for allotment of non-preferential location plot. The complainant again Consumer Complaint No.516 of 2017 9 received a letter dated 9.6.2014 from the opposite parties regarding settlement of dues towards the said plot. There is no main entry to the said project as the Civil Court has stayed the same under Sections 29, 33 and 63 of Indian Forest Act, 1927 and that the opposite parties have violated the order of the Hon'ble Supreme Court dated 12.12.1996. The information regarding the same was received by another allottee the copy of which has been annexed on record. Moreover, the deadline given by PUDA to complete the said project in all aspects has already been over by 30.6.2015. Till date no completion certificate has been obtained by the opposite parties.
The project is still incomplete, though forcible possession has been given to the complainant. It was further argued that similar matter came up for consideration before the Hon'ble U.T. State Commission and reference was made to the following cases:-
i) Complaint Case No.280 of 2016 (Ajay Bansal v. Emaar MGF Land Ltd. and another) decided on 28.12.2016;
ii) Complaint Case No.140 of 2015 (Dr. Manuj Chhabra v.
M/s Emaar MGF Land Limited and another) decided on 5.11.2015; and
iv) First Appeal No.A/314/2016 (M/s Emaar MGF Land Limited v. Sofi Zahoor) decided on 7.7.2017.
Therefore, the complainant is entitled to the reliefs as claimed in the complaint.
7. On the other hand, it was argued by the learned counsel for the opposite parties that the complainant is not a 'consumer' as defined under the C.P. Act, as he purchased multiple properties for Consumer Complaint No.516 of 2017 10 the purpose of investment/speculation i.e. two plots in his own name. Moreover, the possession had already been delivered to the complainant on 25.11.2013 and the present complaint having been filed on 29.6.2017 i.e. after more than two years from the date of accrual of cause of action is clearly barred by limitation. The complainant has not made the payment of full price of the plot in question. A sum of ₹7,32,956.02P is still due towards him. It was prayed that there is no merit in the present complaint and the same is liable to be dismissed with costs.
Consideration of Contentions:
8. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for both the sides.
9. So far as the first issue, whether the complainant is a 'consumer' or not as he had purchased two plots in his name is concerned, admittedly the complainant had purchased the said plots for her two daughters, who were minor in 2006, in his own name. After going through the record, we are not agreeing with the contention of the counsel for the opposite parties because the complainant has specifically stated in his complaint that he has purchased two plots in the project of the opposite parties, one in Sector 108, Mohali and another in Sector 109, Mohali and both the plots were purchased by him for his daughters (who were minor at the time of purchase) but for income tax purposes, the same were purchased by the complainant in his name. Even there is nothing, on the record, that the complainant is property dealer, and deals in the sale and purchase of property. Thus, in the absence of any cogent Consumer Complaint No.516 of 2017 11 evidence, in support of the objection raised by the counsel for the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, Revision Petition No. 3861 of 2014, decided on 26.08.2015. Not only above, recently under similar circumstances, in a case titled as " Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14.9.2016 , the National Commission, while rejecting similar plea raised by the builder, observed as under:-
"In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the Consumer Complaint No.516 of 2017 12 individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015."
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, for commercial/ investment purpose. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the C.P. Act. Such an objection, taken by the counsel for the opposite parties in this regard, being devoid of merit, is rejected. Similar view has been taken by the U.T. State Commission in Ajay Bansal's case (supra).
10. Now coming to the point whether the complaint is barred by limitation or not. Admittedly the complainant was required to be given possession complete in all respects as per clause 8 of the Plot Buyer's Agreement dated 4.7.2007, Ex.C-4, within a period of two years from the date of execution of the said Agreement but not later than three years. The Agreement was executed on 4.7.2007 and as Consumer Complaint No.516 of 2017 13 such, the possession of the plot complete in all respects was to be delivered to the complainant on or before 3.7.2010. The same was forcibly delivered to the complainant on 25.11.2013 i.e. after the delay of more than three years and that too without completion/development of the project and without obtaining the completion certificate from the competent authority. Moreover, the opposite parties sent letter dated 9.6.2014 to the complainant Ex.C-9 for settlement of final dues of the residential plot in question at Mohali Hills, Mohali. The opposite parties themselves proved on record Payment Request Reminder1 dated 23.7.2014 Ex.OP/5, Payment Request Reminder2 dated 26.8.2014, Ex.OP/6 and Notice dated 12.9.2014 Ex.OP/7 to the complainant. They also claimed that the amount of ₹7,32,956.02P is still due towards the complainant and the complainant alleges that the project is still incomplete and they have not obtained the Completion Certificate from the competent authority. A perusal of Ex.C-12F, vide which the information was supplied by the PUDA to one Mohan Dutt under the Right to Information Act, 2005 that the opposite parties were given time to complete the project by 30.6.2015 and the promoters have sought extension of two years more for the same. The opposite parties have not completed the project in all respects and have not obtained the Completion Certificate. In these circumstances, we have no hesitation to conclude that the cause of action is a continuous cause and as such, the present complaint is well within limitation as prescribed under Section 24-A of the C.P. Act. Consumer Complaint No.516 of 2017 14
11. Now, coming to the merits of the case. As discussed above, the possession of the plot in question was delivered to the complainant forcibly after the delay of more than three years and that possession was delivered without developing/completing the project in question. As per information supplied by the GMADA, vide letter dated 4.9.2015 Ex.C-12a to one Mohan Dutt under the Right to Information Act, 2005, only partial completion certificate has been issued by that Authority. It cannot be treated as complete possession as the project itself was not complete in all respects. Furthermore there is a dispute regarding the entry to the Sector as the Civil Court, Kharar, has stayed the same and it is alleged to be violation of the orders of the Hon'ble Supreme Court dated 12.12.1996 by the opposite parties. Therefore, the complainant cannot be said to be enjoying the possession in proper manner and certainly there are deficiencies on the part of the opposite parties for that purpose. Leaving aside that even if it is presumed that the possession was delivered on 25.3.2013 it was certainly after the period of three years from the stipulated date as per clause 8 of the Agreement Ex.C-4. Moreover, similar view has been taken by the U.T. State Commission in the aforementioned judgments relied upon by the learned counsel for the complainant. This act and conduct of the opposite parties certainly amounts to deficiency in service and adoption of unfair trade practice on their part.
12. In view of our above discussion, we partly allow this complaint and direct the opposite parties to pay penalty at the rate of ₹50/- per square yard per month beyond the period of three years from the Consumer Complaint No.516 of 2017 15 date of execution of the Agreement Ex.C-4, which was executed on 4.7.2007 i.e. with effect from 3.7.2010 till the date of receipt of Completion Certificate by the opposite parties in respect of the project in question from the competent authorities along with interest at the rate of 9% per annum. The opposite parties are further directed to pay a sum of ₹20,000/- to the complainant as costs of litigation.
13. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copies of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER January 19, 2018 Bansal