State Consumer Disputes Redressal Commission
Sh. Ashwani Chandna vs 1. Emaar Mgf Land Pvt. Ltd on 14 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 18 of 2013 Date of Institution : 19.03.2013 Date of Decision : 14.06.2013 Sh. Ashwani Chandna, son of Sh. Krishan Chander Chandna, resident of H.No.94, Sector 11,Chandigarh .Complainant V e r s u s 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. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
Argued by: Sh. Subhash Chander Sharma, Advocate alongwith Sh. Rakesh Bajaj, Advocate for the complainant.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the Opposite Parties, intended to develop an integrated township, under the name and style Mohali Hills, District SAS Nagar, Mohali, Punjab. The Opposite Parties acquired land, in Sectors 105, 108 and 109, in Mohali. The complainant applied for the allotment of a residential plot, to the Opposite Parties, in the joint scheme, and, as such, he was allotted plot no.254, measuring 500 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/-, per square yard, in the year 2007. The total sale price of the said plot, was to the tune of Rs.67,50,590/-. After the allotment of plot, the complainant deposited the initial demanded amount, as per the payment schedule/table of the Opposite Parties, against application number 2574. The Plot Buyers Agreement, was executed between the parties on 04.07.2007. The provisional letter of allotment was issued by the Opposite Parties. It was stated that, as per the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, the physical possession of fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that, in case, the possession of fully developed residential plot, was delayed, on account of the reasons, beyond the control of the Opposite Parties, they were liable to pay penalty/compensation, to the allottee(s) @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 Plot Buyer`s Agreement. It was further stated that the entire amount of Rs.67,50,590/-, including External Development Charges and Preferential Location Charges, was deposited by the complainant, after qualifying for the scheme of waiver of 5% amount, of the Opposite Parties.
2. It was further stated that the Opposite Parties played tactics, by issuing letters dated 01.07.2011 and 16.12.2011, offering possession of the plot. It was further stated that, after receipt of these letters, the complainant had visited the site and office of the Opposite Parties, but no response was given by their officials. It was further stated that the officials of the Opposite Parties, stated in clear-cut terms, that possession of the plot, in question, could not be delivered at this stage, because of non-development of the area. It was further stated that the complainant also visited the site, where the plots were to be carved, and found that there was no development in the area, and only a portion of jungle was standing. It was further stated that when there was no development, in the area, in which the plot was allotted to the complainant, the question of delivery of physical possession of the same (residential plot), in his (complainant) favour, did not at all arise.
3. It was further stated that the Opposite Parties, were many a time, asked to deliver the physical possession of residential plot, in question, in favour of the complainant, but to no avail. It was further stated that, by not delivering the physical possession of fully developed plot, in question, to the complainant, by the promised date i.e. 04.07.2010, and by making false promises, the Opposite Parties, were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to hand over the physical possession of plot no.254, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, complete in all respects; pay interest @18% P.A., on the amount of Rs.67,50,590/-, deposited by him, towards the price of plot, from the respective dates of deposits, till handing over the physical possession of the same (plot); compensation, in the sum of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.10,000/-.
4. The Opposite Parties, in their joint written version, pleaded that the complaint was a gross abuse of the process of law, and was liable to be dismissed. It was further pleaded that, this Commission, has no territorial Jurisdiction, to entertain and decide the complaint. It was admitted, that the residential plot no.254, measuring 500 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/-, per square yard, was allotted, in favour of the complainant. It was also admitted that Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, was executed between the parties. It was also admitted that the amount of Rs.67,50,590/-, towards the sale consideration, of plot, in question, was paid by the complainant. It was also admitted that, as per Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, possession of the plot, was to be delivered to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was denied that the complainant qualified for waiver of 5% amount, aforesaid, as the said scheme was launched in December 2008, while the complainant was allotted plot, in the year 2007. It was, however, stated that on 01.07.2011, the possession of plot was offered to the complainant, on completion of amenities, as mentioned, in the Agreement. It was further stated that the complainant was also intimated that he could start construction activity on the plot, after taking possession thereof, and after getting the building plan approved from the Competent Authority, but he failed to do so. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, 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.
6. The Opposite Parties, in support of their case, submitted the affidavit of Sh. V.K. Kaura, their DGM-Customer Services, and authorized representative, by way of evidence, alongwith which, a number of documents were attached.
7. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
8. 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, as an objection, in this regard, was taken by the Opposite Parties, in their written version. 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 complainant, or the Parties against which, the reliefs sought, were working for gain or residing. It is evident, from Annexure C-1, the Plot Buyer`s Agreement dated 04.07.2007, that the same was executed between the parties, at Chandigarh. No doubt, the plot, which was allotted, in favour of the complainant, is located at Mohali. Since, the Plot Buyer`s Agreement Annexure C-1, was executed, between the parties, at Chandigarh, and the revised allotment letter of the plot was also issued at Chandigarh, a part of cause of action, arose to the complainant, to file a complaint, at Chandigarh. Under these circumstances, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, at Chandigarh. The objection taken by the Opposite Parties, in their written version, that this Commission has no territorial Jurisdiction, to entertain and decide the complaint, being devoid of merit, must fail and the same stands rejected.
9. The second 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. The Plot Buyer`s Agreement Annexure C-1 was executed between the parties, on 04.07.2007. According to Clause 8 of this Agreement, subject of force majeure conditions and reasons, beyond the control of the Company, it was to deliver physical possession of the plot, within a period of two years, but not later than three years, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties, were required to deliver the possession of plot, in question, in favour of the complainant, within three years, from the date of execution of the Plot Buyer`s Agreement dated 04.07.2007. Admittedly, a sum of Rs.67,50,590/-, towards the price of the plot, has already been paid by the complainant, by the stipulated date/time. Since, the plot had not been developed, the Opposite Parties were unable to handover legal possession of the same, to the complainant, by 04.07.2010. By not delivering the possession of the developed plot, to the complainant, on 04.07.2010, i.e. the stipulated date, even after receipt of the amount of entire price of the plot, in question, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is, thus, entitled to the physical possession of the fully developed plot, in all respects, allotted in his favour.
10. The third question, that falls for consideration, is, as to whether, the possession of the fully developed plot, was ever offered to the complainant, vide letter dated 01.07.2011 Annexure RW/D. The following relevant portion of the said letter is reproduced hereunder:-
As you are aware, the real estate sector in India has witnessed some sharp upheavals in the past few months due to sudden change in the global economy. However, we have, keeping in mind the interests of our valuable customers, by putting extra efforts and resources continued with the development of the Project and are now pleased to inform you that we are ready to hand over the possession of the Plot allotted to you.
The development activities in all three sectors of Mohali Hills i.e. Sectors , 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Augusta Park Sector 109, Mohali Hills, where your Plot is situated.
Further, you may note temporary electricity and water connection has already been sanctioned for the project.
In view of the above development and our constant endeavor to enhance our customer`s satisfaction, we are prepared to hand over possession of the Plot, to you, subject to your making payments mentioned below.
11. No doubt, from the afore-extracted portion of the letter dated 01.07.2011, it is evident, that the development work of road and other basic infrastructure was completed, in portions of Augusta Park Sector 109, Mohali Hills, where the plot was allotted, in favour of the complainant. It is further evident, from this letter, that the Opposite Parties were ready to hand over the possession of the Plot allotted, in favour of the complainant. The complainant, on the other hand, in the complaint, as also in his affidavit, in clear-cut terms, stated that, on receipt of this letter, he went to the office of the Opposite Parties, and also the site, but there was no development, in the area, and that was why, the offer made by the Opposite Parties, vide letter dated 01.07.2011, was not accepted at that time. In case, all these development activities, had been undertaken, and completed at the site, as mentioned in the letter Annexure RW/D dated 01.07.2011, then it was for the Opposite Parties, to submit some cogent and convincing evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, had been undertaken and completed at the site or not. As stated above, the entire price of the plot, in question, had already been paid by the complainant, and nothing remained due, against him. Since the entire amount had been paid by the complainant, and had all the development activities been completed, at the site as mentioned in the letter, in question, no prudent person, much less him (complainant), who had deposited the huge amount, would have refused the offer of possession of the plot. It is, therefore, held that no development activities, as mentioned in the letter dated 01.07.2011, had been completed at the site. It was only the paper possession, which was offered to the complainant, as per the letter, in question Annexure RW/D. It was, under these circumstances, that, on that date, the complainant did not accept the offer of the Opposite Parties. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
12. The Counsel for the Opposite Parties, placed reliance on Ishwar Rawat Vs. Haryana Urban Development Authority and Ors., III (2008) 351 (NC), to contend that it was for the complainant, to prove, through cogent and convincing evidence, that the development work, mentioned in the letter dated 01.07.2011, had not taken place, at the site. The facts and circumstances of Ishwar Rawat`s case (supra) are clearly distinguishable, from the facts of the instant case. In that case, the complainant was allotted booth No.48-P, Sector 17, Faridabad, measuring 27 sq. yards, in open auction, vide allotment letter dated 19.04.1996. After paying the requisite 25% of the bid amount, possession was given to the complainant, on 14.05.1996. Thereafter, the complainant did not pay the 10 equated installments, towards the price of shop and the same was resumed. The auction was made on, as-is-where-is basis. There was no agreement, between the parties, in the aforesaid case, that the provision of amenities shall be a pre-condition. In the instant case, there was a bilateral Agreement, executed between the parties, according to which the amenities were required to be provided to the complainant, before handing over the possession of the plot. Not only this, even the External Development Charges, had been deposited, by the complainant, and it was the duty of the Opposite Parties, to ensure that there was external development at the site, before the possession of plot, was handed over to him. The Counsel for the Opposite Parties, submitted that though external development had not been done, yet it was the duty of the Punjab Government, as per the Agreement, for which the Opposite Parties, could not be blamed. The External Development Charges, as stated above, were obtained by the Opposite Parties. It was their duty to get the external development made, before the scheme was actually launched and the plots were carved out. After accepting the external development charges, from the complainant, they could not leave him, at the mercy of the Punjab Government. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from Ishwar Rawat`s case (supra), as the facts of the same are quite distinguishable, from the facts of the instant case.
13. Reliance was also placed by the Counsel for the Opposite Parties, on Municipal Corporation, Chandigarh and Others Vs. Shantikunj Investment (P) Ltd., and others, (2006) 4 Supreme Court Cases 109. In the said case, Commercial site was allotted by the Municipal Corporation, Chandigarh, in auction, on as-is-where-is basis to the respondent/complainant. There was no precondition that the amenities and facilities, shall be provided by the Municipal Corporation. It was, under these circumstances held that once the allotment of site had been made in favour of the allottee, he could take possession of the same, also use the same, but it did not mean that all the statutory facilities, should be provided first, for the so-called enjoyment of the property, as this was not a condition precedent of auction. It was held that it was not possible to accept a sweeping proposition, that if all the facilities or amenities were not provided, then the allottees/lessees could take upon themselves, not to pay the lease amount, interest and penalty, as it was not a condition precedent. In the instant case, a bilateral Agreement was executed between the parties, according to which, the Opposite Parties were required to deliver possession of the fully developed plot, to the complainant, after ensuring External and Internal development. As stated above, External Development Charges were also deposited by the complainant, with the Opposite Parties. Under what circumstances, External Development Charges, were charged by the Opposite Parties, from the complainant, if they could not, within the stipulated period, provide external development. Had there been a Clause in the Agreement, that it would be the responsibility of the complainant, to get the External Development done, by making payment of charges to the Government, and the Opposite Parties, were not responsible to get the same done, the matter would have been different. What for the entire price, ranging over Rs.67,50,590/-,was received by the Opposite Parties, in case, they were not able give of the fully developed plot, to the complainant. The facts and circumstances of Municipal Corporation, Chandigarh and Others` case (supra) therefore, being completely distinguishable, from the facts of the instant case, no help, therefore, can be drawn, by the Counsel for the Opposite Parties, thereform.
14. The fourth question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the fully developed plot, in question, by the Opposite Parties, by the promised date. According to Clause 8 of the Agreement, referred to above, the Company was liable to pay to the complainant, 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-1, was executed and signed by the parties, with their eyes wide open. In this case, one of the reliefs, sought by the complainant, is delivery of physical possession of fully developed plot no.254, measuring 500 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-1, with eyes wide open, they are bound by the terms and conditions thereof. The delivery of possession of the plot, shall be made to the complainant, at the original price, which was prevailing in the year 2006-07, when he booked the same. He will get the benefit of escalation, in the prices of real estate, in the meanwhile. It is not a case, in which the complainant has sought refund of the amount, deposited by him. Under these circumstances, the complainant is entitled to compensation/penalty @ Rs.50/- (Rupees Fifty only), per square yard, per month of the plot, allotted in his 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 complainant is only entitled to compensation/penalty @Rs.50/-, per square yard, per month, from 04.07.2010 (promised date) onwards, on account of delay, in the delivery of possession of the fully developed plot, as per Clause 8 of the Agreement, referred to above, and not the interest claimed by him on the deposited amount.
15. The fifth 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 and injury caused to him, for a long number of years, by not delivering the physical possession of plot, to him, by the Opposite Parties, by the promised date i.e. 04.07.2010. The complainant booked the plot, with the hope to have a roof over his head, by raising construction thereon, but his 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 complainant, by the Opposite Parties. The complainant underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, on account of mental agony and physical harassment, caused to the complainant, on account of the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1 lac, as claimed by him, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to the compensation, in the sum of Rs.1 lac.
16. No other point, was urged, by the Counsel for the parties.
17. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:_ i. The Opposite Parties, are directed to handover the physical possession of the fully developed plot no.254, in all respects, measuring 500 square yards, in Mohali Hills, sector 109, Augusta Park, SAS Nagar, Mohali, to the complainant, within three months, from the date of receipt of a certified copy of this order.
ii. The Opposite Parties, 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 delivery of possession, to the complainant, as per Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1.
iii. The Opposite Parties, are further directed to pay compensation, in the sum of Rs.1 lac, on account of mental agony and physical harassment, caused to the complainant, at their hands.
iv. The Opposite Parties, are further directed to pay cost of litigation, to the tune of Rs.10,000/-, to the complainant.
v. Compensation granted to the complainant, as mentioned in Clause (ii), which has fallen due upto 31.05.2013, shall be paid by the Opposite Parties, within one month, from the date of receipt of a 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 delivery of possession.
vi. Compensation accruing due @Rs.50/- (Rupees Fifty only), per square yard, w.e.f. 01.06.2013, 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 complainant, as mentioned in Clause (iii), shall be paid by the Opposite Parties, within a period of one month, from the date of receipt of a certified copy of the order, to him, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion Pronounced.
14.06.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Rg