State Consumer Disputes Redressal Commission
Nargis Gurdial Singh vs Emaar Mgf Land Limited on 3 December, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 801 of 2017 Date of Institution : 17.11.2017 Date of Decision : 03.12.2018 Nargis Gurdial Singh wife of Col. Gurdial Singh, aged about 68 years, resident of House No.1063, Sector 2, Panchkula. ......Complainant V e r s u s Emaar MGF Land Ltd., SCO No. 120-122, First Floor, Sector 17-C, Chandigarh, through its Manager. Corporate Office : ECE House, 28, Kasturba Gandhi Marg, New Delhi - 110001 through Managing Director/ Authorised Representative. .... Opposite Party BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER Argued by:
Sh. Arjun Sheoran, Advocate for the complainant.
Sh. Sanjeev Sharma, Advocate for the Opposite Party.
PER PADMA PANDEY, MEMBER The facts, in brief, are that the complainant booked a unit with the Opposite Parties in their upcoming commercial project in the name and style of "Central Plaza" situated as Mohali Hills, Sector 105, SAS Nagar, Punjab to set up her own practice in psychological counseling for earning income and livelihood, by paying booking amount of Rs.5,76,900/- vide receipt (Annexure C-1). The said unit with approximate super area of 1282 sq. ft. alongwith one car parking space was allotted to the complainant for a total consideration of Rs.38,74,914/- vide allotment letter dated 09.04.2008 (Annexure C-2). Thereafter, Premises Buyer's Agreement was executed between the parties on 12.06.2008. As per Clause 22.1 of the Agreement, possession was to be delivered to the complainant within a period of 36 months from the date of execution of the Agreement i.e. until 11.06.2011. It was further stated that in terms of the payment plan provided by the Opposite Party and the demand raised, the complainant already paid an amount of Rs.36,72,842.29. It was further stated that final payment was to be paid upon receipt of the final notice of possession and after the final payment, the sale deed was required to be executed in favour of the complainant. It was further stated that the Opposite Party failed to deliver possession of the unit, in question, to the complainant despite promising several times. It was agreed by the Opposite Party that the possession of the said unit would be handed over by 12.06.2011. The complainant came to know after visiting the project site on various occasions that the abovesaid unit and other amenities/facilities, as promised, were not even ready for possession and the Opposite Party was not in the position to give the possession of the said unit, as much work was still to be done. Furthermore, several other facilities have not been provided by the Opposite Party, as promised. The complainant was informed vide letter dated 29.11.2008 about 'Emaar MGF Care for you Program' as per which the last installment of 5% towards purchase of the said unit would be waived of subject to no pending dues on the cut-off date of 25.12.2008. The complainant was further informed vide letter dated 02.02.2009 (Annexure C-6) that she qualified for the aforesaid payment scheme and there were no outstanding dues payable by the complainant till that date. The Opposite Party forwarded a new Construction Linked Payment Plan to the complainant vide letter dated 24.11.2009 (Annexure C-7). Even the Opposite Party raised incorrect demands and the complainant continued to make the payments to the Opposite Party. It was further stated that despite making all the payments in time and no outstanding dues, the complainant was not offered possession in time i.e. until 11.06.2011. It was further stated that the Opposite Party failed to pay to the complainant the defaulted amount in case of delayed possession, as per Clause 24 of the Agreement. It was further stated that after a lapse of more than 4 years since the due date of possession, the Opposite Party informed the complainant vide letter dated 12.08.2015 that the Occupation Certificate for the said unit has been issued on 18.11.2014 and the unit was being prepared to be handed over (Annexure C-10). She was also informed vide the aforesaid letter that the super area of the said unit had also been unilaterally increased from 1281 sq. ft. to 1315.12 sq. ft. without any prior intimation or knowledge to the complainant and huge demand was raised. It was further stated that the complainant was shocked to review the payment chart enclosed with the aforesaid letter laying down the details qua the final demand of Rs.12,32,971/-, which also included the amount payable towards the final installment of Rs.2,16,407/-. Even the Opposite Party neither waived of the final installment, as promised, nor adjust the penalty towards the delay in handing over of possession in the final statement. This fact was brought to the notice of the Opposite Party vide letter dated 06.09.2015 (Annexure C-11) but the Opposite Party instead of replying to the aforesaid letter, sent a reminder dated 01.10.2015 for payment (Annexure C-12) it did not pay any heed. The complainant again agitated her grievances vide letter dated 25.10.2015 (Annexure C-13). The Opposite Party vide email dated 25.12.2015 informed the complainant that in order to execute the waiver of the final installment amounting to 5% of the total basic sale price, the complainant would be required to sign an undertaking enclosed with the said email. Evidently, by proposing execution of the said undertaking, the Opposite Party was essentially imposing a one-sided and arbitrary waiver on the complainant by asking her to waive off any further demands or claims of any nature against the Opposite Party. The complainant also made frequent visits to the site, which shockingly revealed that even basic amenities/facilities were not complete and the unit was not even close to be functional even after more than 5 years since possession became due. In fact, there is no direct access road to the site, which the Opposite Party promised at the time of allotment. It was further stated that till date, sewerage treatment plant has not been commissioned and no regular water and electricity connection is available, as such, the intimation of possession given by the Opposite Party is nothing but a mere paper possession. Therefore, the complainant was compelled to issue a final notice dated 08.11.2016 to the Opposite Party demanding refund of the entire amount alongwith interest and compensation, however, no reply was received. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the 'Act' only), was filed.
2. The Opposite Party, in its written version, has taken objection regarding arbitration clause in the Agreement, and also it separately, moved an application u/s 8 read with Section 5 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainant did not fall within the definition of "Consumer" as defined in the Consumer Protection Act, 1986, as the complainant is a resident of Panchkula, residing at her own house and she has not even mentioned that at present where she is running her business and she needs the premises for running her business. It was further stated that in the earlier complaint, the complainant admitted that she is getting monthly pension of Rs.40,000/- and rendering services to various organizations and also mentioned that she wanted to augment her income, meaning thereby she was already earning and commercial unit was purchased for augmenting her income and was not purchased for earning her livelihood. It was further stated that the complainant is not eligible for waiver of amount as well as payment of delayed compensation/penalty, as she herself defaulted in making the payments. It was further stated that the Opposite Party had already offered possession vide possession letter dated 12.08.2015, however, the complainant is avoiding to take possession for gaining undue advantages. The complainant failed to make payment of due installments in time and an amount is still outstanding in the account of the complainant, as is evident from the account statement. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the property is located in Punjab and registered office of the Opposite Parties is at New Delhi, as such, the Courts at Punjab only have the jurisdiction for all matters relating to the Agreement. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint, as the claim if included with interest, then same exceeds Rs.1 crore. It was further stated that the complaint is barred by limitation, as per Section 24-A of the Consumer Protection Act, 1986. It was further stated that the parties are bound by the terms and conditions of the Agreement, in which, it has been clearly stated that in case of failure of the allottee to perform all obligations as set out in the said Agreement, the allottee has authorized the Company to forfeit the earnest money, as stipulated in Clause 3 of the Agreement alongwith interest paid, due or payable, any amount of non-refundable nature. It was further stated that as per Clause 22 of the Agreement, subject to force majeure circumstances, the Opposite Party endeavor to hand over possession of the unit within 36 months from the date of Agreement with a grace period of 90 days after expiry of 3 months for applying and obtaining the occupation certificate. Thus, there was no definitive agreement stating possession would definitely be delivered within 3 years or extended period thereof. It is settled law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. It was further stated that the complainant never approached the Opposite Party for possession of flat and never even enquired as to status of development etc., which implies that he accepted the alleged delay. It was further stated that the complainant took loan from different persons but she has failed to make them as party and, therefore, the complaint is liable to be dismissed on the ground of misjoinder of necessary and proper parties. It was denied that as per allotment letter, the total consideration was Rs.38,74,914/-. The Opposite Party had provisionally allotted unit No.CPM 53-A1-F0353 (1282 sq. ft.) vide letter dated 09.04.2008 for total consideration of Rs.39,24,914/-. It was admitted regarding booking of the unit ; execution of the Agreement and receipt of the amount of Rs.36,72,843/- from the complainant against the unit, in question. It was denied that the complainant had visited the project site or the amenities/facilities of the said unit was not ready for possession. It was further stated that the Opposite Party duly informed the complainant vide letter dated 12.08.2015 that the Occupation Certificate for the said unit has been obtained and had also asked the complainant to take possession after clearing due amounts. Thus, the complainant made herself liable for the payment of delayed payment interest, holding charges alongwith penalties, in terms of the Agreement. It was further stated that as per Clause 1.2 of the Agreement, the area is tentative and final super area of the unit would be confirmed by developer only after the completion of construction and issuance of Completion Certificate from the competent authorities. It was also denied that intimation of possession is nothing but a mere paper possession. It was further stated that all the amenities are complete in the said unit as the same is fully functional. It was further stated that the Occupation Certificate is received only after the amenities/construction have been completed. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.
3. The Parties led evidence, in support of their case.
4. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
5. First, we will deal with an objection, raised by the Opposite Party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.
It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as 'Sarbjit Singh Vs. Puma Realtors Private Limited', IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon'ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon'ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.
In view of above, the objection raised by the Opposite Party, in this regard, being devoid of merit is rejected.
6. The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.
According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that receipts/acknowledgment cum receipts (Annexures C-1 & Annexure C-4 colly.), allotment letter (Annexure C-2), letters (Annexures C-5 to C-7), letter of intimation of possession (Annexure C-10) and possession reminder (Annexure C-12) annexed by the complainant were sent by the Opposite Party from its Chandigarh Office, as the same bore the address of the Company as "SCO 120-122, First Floor, Sector 17-C, Chandigarh 160017". Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
7. Another objection taken by the Opposite Party, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. Relevant part of the said order reads thus:-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. "
In the present case, if total sale consideration of the unit, in question i.e. Rs.38,74,914/- (as per the allotment letter) plus compensation claimed by way of interest @18% p.a. on the amount deposited to the tune of Rs.36,72,842.29 (say Rs.36,72,843/-) ; compensation to the tune of Rs.10 lacs claimed for mental agony and physical harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. The objection taken by the Opposite Party that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.
8. It has vehemently been contended by Counsel for the Opposite Party that the complainant is a resident of Panchkula, residing at her own house and she has not even mentioned that at present where she is running her business and she needs the premises for running her business. As such, the purchase of unit by the complainant was to earn huge profits for commercial purposes, therefore, the complainant did not fall within the definition of "Consumer" as defined under Section 2(d) of the Consumer Protection Act, 1986.
We are not going to agree with the contention raised by Counsel for the Opposite Party. There is nothing on record to show that the space was purchased by the complainant to earn profits, in future, by selling it at a higher premium. The complainant is not the property dealer and deals in the sale and purchase of property, on regular basis, and as such, there is no evidence to show that the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Similar controversy, as to whether the complainant(s) on purchase of a unit would fall within the definition of consumer complaint, came up for consideration, before this Commission, in a case titled as M/s Chandigarh Overseas Private Limited Vs. Easow Mathew, First Appeal No.284 of 2015, decided on 25.01.2016. Taking note of similar contentions, this Commission, gave findings as under:-
On interpreting provisions of application form for allotment/agreements, and other documents on record, the Forum came to the conclusion that construction at the project, was to be completed by 18.01.2010, however, it was not done and possession of the unit, was not delivered, as per promise made by the opposite parties. Defence taken by the appellant that the respondent was not a consumer was righty rejected, by observing as under:-
"As we have already observed, the complainant has specifically pleaded in his complaint that he wanted to settle a business for himself for earning his livelihood and to become an independent business owner, he agreed to purchase the said unit of 100 sq. ft. in Design Studio No.12. The complainant has also pleaded that he is a consumer as per the provisions of the Consumer Protection Act as the said unit was purchased by him for earning his livelihood. The allegations of the complainant are supported by his own affidavit. The OPs have not produced any such evidence that the complainant is a property dealer dealing in the sale and purchase of real estate. The total area of the unit purchased by the complainant from the OPs is only 100 sq. ft. which is for small investors. Since the complainant wanted to settle a business for himself for earning his livelihood, it cannot be inferred that the said unit was purchased by him with the sole motive of earning profits. As far as the contention of the learned counsel for the OPs that the complainant is not qualified to run his unit in the project is concerned, it was the duty of the OPs to verify the same before accepting the application for allotment of the unit whether he was eligible under "Small Investor Scheme" or not. At this stage, such an objection is not tenable. In Arun Mandhana Vs. Chandigarh Overseas Pvt. Ltd. & Anr., Consumer Complaint No.19 of 2012 decided on 12.10.2012 and Ruchira V. Arora Vs. M/s Chandigarh Overseas Private Limited, First Appeal No.8 of 2013 decided on 1.3.2013, our own Hon'ble State Commission in somewhat similar circumstances in the complaints against the same very OPs held that the size of the studio was small and the sale price of the said studio was also not too high, therefore, it was established that the complainant never intended to run commercial activity in the studio on a large scale with a view to earn huge profits and he fell within the definition of consumer."
Contention of Counsel for the appellant that the respondent was not a consumer also needs to be rejected, taking note of ratio of the judgement of the National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar objection was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-
"Going by the Dictionary meaning of the expression 'Commerce' as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.
By noting ratio of the judgment of the Hon'ble Supreme Court of India, titled as Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, it was stated by the National Commission in that case that the word commercial purpose is a question of fact to be decided in the facts of each case. It is not value of the goods, which matters, but the purpose, for which the goods bought are put to, needs to be noted. Same would be clearly applicable to, for hiring or availing services. In the present case, application to purchase a unit, was moved in the year 2006. Out of Rs.5 lacs, an amount of Rs.4,75,000/- stood paid, for purchase of the built-up unit. Rest of the amount was to be paid, at the time of possession of the unit. In the year 2009, when completion of the project was not visible, under above circumstances, when buyback offer was made by the appellant on 22.06.2009, may be on account of frustration in not getting possession of the unit, in time, it was accepted by the respondent, on 04.08.2009 vide letter Annexure C-7. On account of that act, the respondent cannot be excluded from the definition of a consumer. Even otherwise, as has been observed by the National Commission, in the case of Kavit Ahuja's case (supra), that surplus funds can be invested, in such a manner, in purchasing property/unit(s), to earn better returns, in future and unless there is evidence on record that the purchaser thereof, was indulging into sale and purchase of unit(s), on regular basis, he would fall within the definition of a consumer."
9. In the instant case, it is specifically stated by the complainant in para No.3 of her complaint, as also in her affidavit that she was desirous of owning a commercial unit near Chandigarh for setting up her own vocational practice as a counselor, so she booked a unit with the Opposite Party in its upcoming commercial project in the name and style of "Central Plaza" situated at Mohali Hills, Sector 105, SAS Nagar, Punjab. The complainant further mentioned that she booked the said unit with an endeavour to set up her own practice in psychological counseling for earning income and livelihood. There is nothing, on record, that the complainant owned any other space, in the tricity, in her name. On the other hand, the Opposite Party failed to produce on record any evidence that the complainant was property dealer or she intended to purchase the commercial space, by way of investment, with a view to sell the same, in the event of escalation in prices or to rent out the same. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the Opposite Party, therefore, being devoid of merit, is rejected.
10. With regard to objection raised by the Opposite Party regarding non-joinder of necessary party, we are of the view that the said persons/friends from whom the complainant took loan is not a necessary party, as it is the mutual understanding of the complainant with different persons/friends whether she repay the loan amount or not. So, the objection taken by the Opposite Party stands rejected.
11. Another objection raised by Counsel for the Opposite Party that since it was mentioned in the Agreement that the Company only endeavour to deliver possession of the unit within maximum period of 36 months, from the date of execution of the Agreement thereof and, as such, no definite assurance was given and, therefore, time was not to be considered as the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 22.1 of the Agreement that possession of the unit will be delivered by the Opposite Party, within a period of maximum 36 months, from the date of execution of the Agreement, subject to force majeure circumstances or reason beyond the control of the Opposite Party. In the instant case, the Opposite Party did not raise any force majeure circumstances, if any, encountered by them. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 22.1 of the Agreement, the Opposite Party was bound to deliver possession of the unit, within a maximum period of 36 months, from the date of execution of the Agreement, as such, time was, unequivocally made the essence of contract.
At the same time, the Opposite Party, also cannot evade its liability, merely by saying that since the words "shall endeavor/try/propose etc." was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-
"(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly";
Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer's Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-
"Merely making endeavour to deliver possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer".
In view of above, the plea of the Opposite Party in this regard also stands rejected.
12. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. In this regard Clause 22.1 of the Central Plaza Premises Buyer's Agreement (Annexure C-3) reads thus :-
"22.1 Subject to Force Majeure conditions and reasons beyond the control of the Developer and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Developer proposes to hand over the possession of the premises within a period of thirty-six (36) months from the date of signing of this Agreement. The Allottee agrees and understands that the Developer shall be entitled to a grace period of ninety (90) days, after the expiry of thirty-six (36) months for applying and obtaining the occupation certificate in respect of the CENTRAL PLAZA."
In view of the afore-extracted clause, it is clear that possession of the unit was to be delivered to the complainant within a maximum period of 36 months from the date of signing of the Agreement. In the instant case, the Agreement was executed between the parties on 12.06.2008 and, as such, possession was to be delivered to the complainant latest by 11.06.2011. However, the Opposite Party sent letter of intimation of possession dated 12.08.2015 (Annexure C-10) i.e. after a delay of more than four years.
13. The next question that falls for consideration, is, as to whether, the complainant was bound to accept offer of possession, in respect of the unit, in question, when the same was offered to him vide intimation of possession letter dated 12.08.2015 (Annexure C-10), i.e. after a huge delay of more than four years and that too, in the absence of any force majeure circumstances. Since, in the instant case, the Agreement was executed between the complainant and the Opposite Party on 12.06.2008 and the Opposite Party was bound to give possession within a maximum period of 36 months, which was expired on 11.06.2011. The Opposite Party offered intimation of possession only vide letter dated 12.08.2015 i.e. after a huge delay of more than four years. No doubt, a plea is taken by Counsel for the Opposite Party that since the Opposite Party has already received Occupation Certificate on 18.11.2014 in respect of the project, in question, as such, it could very well be said that the development at site was complete and that the Opposite Party was in possession of all the necessary approvals/sanctions and was ready to offer/deliver possession of the unit to the complainant. It may be stated here that non-delivery of possession of the unit, in question, by the stipulated date, complete in all respects, is a material violation of the terms and conditions of the Agreement. It is not the case of the Opposite Party that the said delay occurred, on account of force majeure circumstances, met by it, on account of some stay or any other valid reason. Our view is supported by the law laid down by the National Commission, in the case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016,wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
"I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest."
Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No. 59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.
Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. &Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon'ble National Commission, under similar circumstances, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
The above view taken by the National Commission, has been reiterated by it, recently in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No. 1814 of 2017 decided on 05.07.2018.Relevant part of the said order reads thus: -
"This Commission in Emaar MGF Land Ltd. &Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment".
In view of the above, it is held that since there was a material violation on the part of the Opposite Party, in not handing over physical possession of the unit, complete in all respects, by the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.
14. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the deposited amount. It is the admitted fact that the complainant deposited the total amount of Rs.36,72,842.29 (say Rs.36,72,843/-) in respect of the unit, in question. As per the Agreement, possession was to be delivered by the Opposite Party within a period of 36 months from the date of execution of the Agreement, which expired on 11.06.2011 but the Opposite Party offered possession of the unit vide intimation of possession letter dated 12.08.2015 (Annexure C-10) i.e. after a huge delay of more than four years. So, the complainant is thus, entitled to get refund of amount deposited by her. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her.
15. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.36,72,842.29 (say Rs.36,72,843/-), was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. The Opposite Party was charging rate of simple interest @15% p.a., as per Clause 21.1 of the Agreement, for the period of delay in making payment of installments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the complainant is held entitled to get refund of the amount deposited by her, to the tune of Rs.36,72,843/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization.
16. As far as the plea taken by Counsel for the Opposite Party, regarding forfeiture clause is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party) case, that it was ready with possession of the unit, to be delivered to the complainant, complete in all respects, as per terms and conditions contained in the Agreement, by the stipulated date but it was she (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. In the present case, the Opposite Party sent intimation of offer of possession letter only after more than four years from the stipulated date. Had this been the case of the Opposite Party, only in those circumstances, it would have been held that since the complainant herself is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by the Opposite Party, in this regard, has no legs to stand and is accordingly rejected.
17. No other point, was urged, by the Counsel for the parties.
18. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-
To refund the amount of Rs.36,72,843/- to the complainant, alongwith simple interest @ 12% p.a. (simple), from the respective dates of deposits onwards, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the amount mentioned in Clause (i) with simple interest @15% p.a., instead @ 12% p.a. (simple), from the respective dates of deposits, till realization, and interest @15% p.a. (simple), on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs.
19. However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
December 3rd, 2018.
[JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER rb