State Consumer Disputes Redressal Commission
Raminder Pal vs Emaar Mgf Land on 12 March, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.80 of 2014
Date of Institution: 15.05.2014
Order reserved on: 09.03.2018
Date of Decision : 12.03.2018
1. Raminder Pal Singh Gulati, S/o Gurcharan Singh Gulati, R/o
187, Urban Estate, Phase-2, Jalandhar-144022.
2. Mrs. Harpreet Kaur Gulati (daughter of Raminder Pal Singh)
W/o Jaideep Singh Chimni, R/o 32, Defence Colony, Stadium
Road, Patiala.
3. Jaideep Singh Chimni S/o Sh. H.S. Chimni, R/o 32, Defence
Colony, Stadium Road, Patiala.
.....Complainant
Versus
1. Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi
Marg, New Delhi-110001 through its Managing Director/
Authorized Signatory.
2. Emaar MGF Land Limited, SCO 120-122, First Floor, Sector
17-C, Chandigarh through its Regional Manager/Branch
Manager/Authorized Signatory.
3. Emaar MGF Land Limited, Banur Landran Road, Opposite
Reliance Petrol Pump, Sector 105, Mohali Hills, Mohali, Punjab
through its Manager/Authorized Signatory.
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. Munish Goel, Advocate
For the opposite parties : Sh.Sanjeev Sharma, Advocate
.................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that OPs advertised for Consumer Complaint No.80 of 2014 2 sale of plots at their site 'Mohali Hills' at Sector 105 Mohali. OPs assured that their project has been already cleared from all departments and development of the whole area is at full swing for providing basic amenities like electricity, roads, water, sanitation, fully developed parks, electric poles, etc. After getting full assurance from OP, complainant no.1 purchased plot of 400 square yards @ Rs.11,500/- per square yard (including parking bay, preferential location charges, external development charges and interest free maintenance charges, etc.) in Sector 105, Mohali. Complainant no.1 submitted application form alongwith cheque of Rs.13,80,000/- to OP on 07.09.2006 and it issued receipt dated 23.09.2006 against the same. OPs further demanded Rs.1,00,000/- for transfer of plot in the name of complainant no.1. He deposited the same with OP vide cheque dated 20.11.2006. Thereafter, OPs transferred application no.2192 in favour of complainant no.1 of this plot. OPs issued letter dated 07.02.2007 to present complainant informing that complainant no.1 has been given priority no.2192 for advance registration of expression of interest in Mohali Hills. OPs issued provisional allotment letter dated 08.05.2007 to present complainant allotting plot no.154 in Sector 109. OPs further provided installment payment plan and as per this plan, the physical possession of plot was to be delivered in 24 months from the date of allotment. On receipt of provisional allotment letter dated 08.05.2007, complainant no.1 raised objection that he filled an application for allotment of plot in Sector 105 instead of plot in Sector 109. OPs replied that Sector Consumer Complaint No.80 of 2014 3 105 was not developed and further wrongly misrepresented that they were only developing Sector 109. The OPs changed the location of plot of complainant from Sector 105 to 109 with sole intention to sell plots in Sector 105 at higher rates to new applicants. The complainants have alleged unfair trade practice on the part of OPs.
OPs further demanded Rs.2,30,000/-, which was deposited by complainant vide cheque dated 14.06.2007. Plot buyer's agreement was executed between complainant no.1 and OPs on 04.07.2007. As per clause 8 of the agreement, OPs agreed to deliver the physical possession of plot within a period of two years from the date of execution of agreement to complainant no.1, but not later than three years. In case of delay beyond three years from the date of execution of agreement, OPs would be liable to pay a penalty of the sum of Rs.50/- per square yard per month. OPs demanded another sum of Rs.2,30,000/- before 15.09.2007, vide letter dated 31.08.2007. The complainant sent letter dated 11.09.2007 to OPs alongwith cheque no.006932 dated 14.09.2007 for an amount of Rs.2,30,000/- drawn on Union Bank of India. OPs further demanded another sum of Rs.4,60,000/- through letter dated 20.11.2007 payable by 15.12.2007. The complainant paid it through cheque dated 15.12.2007 to OPs and they issued receipt dated 15.12.2007 for payment of Rs.4,60,000/-. Vide letter dated 20.02.2008, OPs demanded another sum of Rs.4,60,000/- from complainant and complainant issued letter dated 12.03.2008 to OPs alongwith cheque dated 14.03.2008 of Rs.4,60,000/-. Another amount of Rs.4,60,000/- Consumer Complaint No.80 of 2014 4 was deposited by complainant with OPs through cheque dated 14.06.2008, as per their demand. OPs further demanded Rs.5,72,736/-, which was deposited by complainant through cheque dated 15.09.2008. Another amount of Rs.5,72,736/- was demanded by OPs through its letter dated 11.11.2008 payable by 15.12.2008. The complainant further received letter dated 29.11.2008 from OPs and enclosed initiatives. The complainant issued letter dated 13.12.2008 to OPs alongwith cheque dated 13.12.2008 of Rs.5,72,736/-. The complainant further received letter dated 04.02.2009 from OPs for congratulating on qualifying for the 'pay on time' reward as per letter dated 29.11.2008. The complainant was eligible for last installment 5% basic sale price as waived off. The OPs further demanded another sum of Rs.2,30,000/- through letter dated 18.02.2009 payable by 15.03.2009, which was deposited by complainant through cheque dated 12.03.2009 by sending letter dated 12.03.2009. OPs issued statement of account dated 04.05.2009 showing that last installment (ninth Installment) of Rs.2,30,000/- is waived off in terms of letter dated 29.11.2008. The complainant received another letter dated 21.05.2009 demanding Rs.2,30,000/- by 15.06.2009. The complainant approached OPs and showed the account statement dated 04.05.2009 alongwith letter dated 29.11.2008 and claimed waiver of 5% waiver. OPs issued letter dated 06.07.2009 stating that complainant qualified for 5% incentive under the same program. Complainant no.1 approached OPs for transferring the rights of the plot in favour of his daughter Consumer Complaint No.80 of 2014 5 and her husband namely Ms. Harpreet Kaur Gulati and Jaideep Singh Chimni (complainant no.2 and 3) out of love and affection with them. Accordingly, OPs duly endorsed the name of Ms. Harpreet Kaur Gulati and Jaideep Singh Chimni in buyers agreement. OPs issued letter dated 10.07.2009 for the same. Complainant no.1 contacted OPs number of times from 2009 till date for physical possession of plot, but nothing was done by OPs. The complainant came to know that land, where complainant had been allotted plot was neither acquired by the OPs at the time of booking and further they have not acquired the said land till date. The complainant wrote an email dated 29.03.2013 to OPs and protested for non-delivery of possession of plot, which was purchased by him for personal use and not for any financial gain, but to no effect. The complainant visited the site to see the development at site, but found that roads were not constructed and there was no provision of sewerage, water and electricity. The project of the OPs has not been cleared from concerned departments by giving requisite approvals. The complainants have alleged deficiency in service and unfair trade practice on the part of OPs and prayed for following reliefs:
(a) to direct OPs to give physical possession of plot no.154 in Augusta Park, Sector 109, Mohali within two months from the date of filing of present complaint, if they are not in a position to give the same, to give alterative plot in Sector 105 of same size at same price, where all the basic amenities have been provided.Consumer Complaint No.80 of 2014 6
(b) to pay Rs.50/- per square yard per month, as per clause 8 of the buyer's agreement dated 04.07.2007 untill physical possession of plot is handed over to the complainant.
(c) to pay 18% interest on Rs.46,95,472/- from the date of deposit till physical possession of plot be given to complainant.
(d) to provide all the basic amenities at the site within two months from filing of present complaint.
(e) to pay Rs.5,00,000/- on account of compensation for causing mental tension, harassment and mental agony to the complainant.
(f) to pay Rs.33,000/- as cost of litigation.
2. Upon notice, OPs appeared and filed written reply raising preliminary objections that this Forum does not have the jurisdiction to entertain the present complaint, as it has been specifically stated in the buyer's agreement in clause no.39, that all the disputes shall be referred to an Arbitrator, to be appointed as per provisions of Arbitration and Conciliation Act, 1996. This Forum has no territorial jurisdiction to try the complaint, as the agreement between the parties was executed at Chandigarh. The agreement was executed on 04.07.2007 between the partied and in terms thereof, the plot in question was proposed to be handed over by 03.07.2010. The complainant never questioned the delay before filing of this complaint and has not questioned delay in the year 2014. The complaint is alleged to be barred by time. Complainant no.1 has already relinquished his ownership in plot in question in favour of Consumer Complaint No.80 of 2014 7 complainant no.2 and 3, so the complaint filed by complainant no.1 claiming to be owner of plot is not maintainable and is liable to be dismissed qua complainant no.1. Complainant no.2 and 3 have not paid any consideration to the OPs and they have got the plot in question as a gift and they are not the consumers of OPs. The complainants did not rescind the contract due to alleged delay in handing over possession and further showed that time is not the essence of the contract. The OPs are committed to offer possession of the plot allotted to complainant nos.2 and 3 and have already expedited the completion of amenities work with respect to the plot in question and it is expected that the possession would be offered by the end of November 2015. In case of any delay in handing over the possession, there are sufficient safeguards in the agreement to protect the interest of complainant nos.2 and 3 and OPs are committed to honor the same at the time of final handing over/registration of the unit. On merits, it is denied by OPs that complainant purchased the plot for self living. It is admitted that OPs launched the project Mohali Hills and invited applications towards booking of units across various Sectors being developed, which included Sector 109, where the plot of the complainants is located. It is admitted that complainant no.1 applied for booking a unit in the project Mohali Hills across various Sectors being developed, which included Sector 109. In provisional allotment letter dated 08.05.2007, it was mentioned that complainant could visit any of the offices of the OPs to verify the approvals and layout plans. It was never agreed Consumer Complaint No.80 of 2014 8 that complainant would be allotted plot in Sector 105 only. It is denied that price of Rs.11,500/- per square yard included parking bay, PLC, EDC and Interest Free Maintenance charges, etc. It is admitted that complainant paid Rs.13,80,000/- toward bookings amount of 400 square yards plot to OPs through cheque. Initially the plot was allotted to Mr. Dhingra and on receipt of Rs.one lakh towards service charges from complainant no.1, the unit was transferred in his name. Complainant no.1 had himself opted for transfer of plot and had entered into agreement with Mr. Dhingra, who was allotted the plot in question. It is admitted that OPs issued provisional allotment letter dated 08.05.2007 alongwith the payment schedule, which was time linked and plot in Sector 109 was allotted to him, which was never objected by him. Buyer's agreement dated 04.07.2007 was executed between complainant no.1 and OPs, which clearly stated in clause 8 that the possession of the unit is proposed to be offered within three years from the date of signing of the agreement and in case of any delays, compensation shall be payable, as per terms of the buyer's agreement, which shall be taken up at the time of final registration. There was no misrepresentation by OPs and the allegation of misrepresentation and change of plot of complainant from Sector 105 to Sector 109 was denied. It is denied that possession was to be delivered by July 2009. Cheque no.006932 dated 14.09.2007 was received by OPs on 14.09.2007, in which complainant no.1 mentioned his plot number as 154, Sector 109 Mohali. Letter dated 29.11.2008 was sent to all customers of Consumer Complaint No.80 of 2014 9 OPs informing them of the beneficial schemes being offered by the company that if they remitted the outstanding amounts towards their unit(s) on or before 25.12.2008 and continued to pay their future installments on or before the due dates, they would qualify on time payment rebate scheme and the last 5% of BSP would be waived off. There was delay on the part of complainant in remitting the installment due on 15.03.2009 and OPs sent the signed copy of letter in token of their acceptance. It is further averred that statement of accounts is matter of record. It nowhere showed that installment amount stands waived off, as status also showed amounts due. The complainant did not qualify under the on time payment rebate scheme. The demand for allotting a fresh plot in Sector 105 is baseless and beyond the scope of buyer's agreement. Email dated 29.03.2013 is a matter of record. The complainants were duly informed that amenities were not complete, so the possession has not been offered to them. The complainant is also well aware of this fact and has never asked for delayed compensation till date, prior to filing of this complaint. The OPs have all the relevant approvals from the concerned departments and complainant had duly inquired and looked into the same at the time of allotment of plot. The possession of plot in question would be offered by end of November 2015. Complainant nos.2 and 3 have received plot in question out of love and affection and no consideration has been paid by them and they are residents of Patiala and are well settled at Patiala, so they have no intention to come and settle at Mohali and moreover they have Consumer Complaint No.80 of 2014 10 not purchased the plot for their own use, as the plot in question has been gifted to them by complainant no.1. The OPs have controverted the other averments of complainants and prayed for dismissal of the complaint.
3. The complainants tendered in evidence affidavit of Harpreet Kaur complainant no.2 Ex.C-A alongwith copy of documents Ex.C-1 to C-44 and closed the evidence. As against it, OPs tendered in evidence affidavit of Subrat Kumar Pradhan, DGM- Legal Authorized Representative of OPs Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-6 and closed the evidence.
4. We have heard the learned counsel for parties and have also examined the record of the case. The complainant side filed application seeking amendment to this effect that instead of seeking the relief of possession, the complainant be allowed to seek the refund of the deposited amount on account of alleged deficiencies and unfair trade practice of OPs. The counsel for OPs argued to the contrary, we find that even the courts are competent to mould the relief on proved facts and as such we find no ground to decline this application and this application for amendment to this effect is allowed. The relief of the complainant in this case is now for refund of the deposited amounts, as claimed by seeking this amendment. We have carefully examined the pleadings of the parties coupled with evidence on the record. Ex.C-1 is the advance application form towards registration moved by complainant no.1 showing his expression of interest in a residential plot in Mohali Hills Sector 105 Consumer Complaint No.80 of 2014 11 Mohali. This application is dated 07.09.2006. He remitted an amount of Rs.13,80,000/- to OPs for booking of the plot. Ex.C-2 is account payee cheque of Rs.13,80,000/- issued by complainant to OPs dated 07.09.2006. Ex.C-3 is the copy of receipt dated 23.09.2006 for receiving an amount of Rs.13,80,000/- from Sahil Kamur Dhingra (original allottee) towards 400 square yards plot. Ex.C-4 is the copy of cheque dated 20.11.2006 issued by complainant no.1 to OPs and Ex.C-5 is the receipt thereof. Ex.C-6 is the copy of letter dated 07.02.2007 from OPs to complainant no.1 regarding priority no.2192 for advance registration of expression of interest in Mohali Hills. Ex.C-7 is copy of receipt of Rs.one lakh issued by OPs to complainant no.1. Ex.C-8 is the copy of provisional allotment letter of plot in the upcoming residential project situated in Sector 109, Mohali issued by OPs to complainant. The total consideration of the plot was Rs.46,00,000/- alongwith payment plan. Ex.C-9 is the copy of payment plan, showing the total cost of flat as Rs.48,25,472/-. The installment-payment plan has been given in the record. The complainant further paid Rs.2,30,000/- vide cheque no.075669 dated 14.06.2007 to OPs and Ex.C-11 is the copy of receipt dated 15.06.2007 thereof. Ex.C-12 is the copy of plot buyers agreement executed between the parties on 04.07.2007. Clause 8 of buyers agreement stipulated the delivery of possession by OPs to complainant of this plot within two years from the date of execution of this agreement, which is dated 04.07.2007, but not later than three years. Ex.C-13 is the copy of allotment letter dated 31.08.2007 Consumer Complaint No.80 of 2014 12 allotting plot no.154 against registration no.2192 in Augusta Park, Sector 109, Mohali to complainant no.1 Raminder Pal Singh Gulati, since deceased, by OPs. Ex.C-14 to C-38 are the copies of demand letters by OPs to complainant, letters for payment of made by complainant through cheques and receipts thereof issued by OPs. Ex.C-39 is the copy of statement of account, showing the balance amount as Rs.2,30,000/- payable on 15.06.2009 as ninth installment towards complainant. Ex.C-40 is the copy of demand letter dated 21.05.2009 demanding Rs.2,30,000/-. Ex.C-41 is the copy of letter dated 06.07.2009 from OPs to complainant no.1 informing him that he qualified for the 5% incentive under the same program. Ex.C-42 is the copy of letter dated 10.07.2009 from OPs to complainant no.1 Raminder Pal Singh Gulati to the effect that in pursuance of the documents and affidavit submitted, OPs confirm having noted the name of Ms. Harpreet Kaur Gulati and Mr. Jaideep Singh Chimni, as nominee buyer in the above property in place of complainant no.1's name. Ex.C-43 is the copy of email from complainant to OPs for delivery of possession of plot in question. Ex.C-44 is the copy of death certificate of Raminder Pal Singh Gulati, proving his date of death as 09.04.2017. Ex.C-A is the affidavit of complainant no.2 Harpreet Kaur Gulati in support of averment of complainants.
5. On the other hand, OPs contended that complainant no.2 and 3 have no privity of contract with the OPs, since no amount has been paid by them in this case. The evidence on the record led by OPs has also been considered by us. Ex.OP-A is the affidavit Subrat Consumer Complaint No.80 of 2014 13 Kumar Pradhan. He testified that buyers agreement was executed on 04.07.2007 and plot was agreed to be handed over to complainant by 03.07.2010. Complainant no.1 never questioned the delay before filing of complaint uptil 2014 and the cause of action arose in favour of complainant no.1 on 03.07.2010 and complaint is barred by time. Complainant nos.2 and 3 are alleged to have received this plot as gift and they are not consumers of OPs. No consideration has been received from complainant nos.2 and 3 by OPs. The statement of account placed on record by OPs is Ex.OP-1. The balance amount has been shown as Rs.4,32,746/- only. Affidavit of Harpreet Kaur Gulati is Ex.OP-3. The OPs have shown the possession letter Ex.OP-4/A to Ex.OP-4/F on the record. The contention of OPs that they have delivered the possession to other persons in this case.
6. From hearing the respective submissions of counsel for parties, we find that mere delivery of possession to other persons has no proof of this fact that OPs have completed the project and obtained occupancy certificate under Section 14 of Punjab Apartment and Property Regulation Act, 1995 from the competent authority. There is no such occupancy certificate obtained by OPs on the record to the effect that they have completed the project by completing internal and external developments therein. The other persons might have not raised their fingers and accepted the possession without protesting their rights over it. The OPs are bound to prove the completion certificate before us, as mandated by Consumer Complaint No.80 of 2014 14 Section 14 of PAPRA Act, 1995, but no such certificate has been placed on record by OPs in this case. The counsel for complainants relied upon law laid down by the National Commission in case "EMAAR MGF Land Limited and another Vs. Dilshad Gill"
III(2015)CPJ-329, wherein it has been held that delay in possession- incomplete construction. As appellants did not offer possession within period prescribed under clause 21 of the apartment buyer agreement, deficiency on the part of appellants, started right from that very moment. Appeal of EMAAR MGF was dismissed with punitive damages of Rs.1,00,000/-. In this case, the OPs have received the substantial amounts from complainant no.1 with whom they entered into buyers agreement. He has expired and this fact is proved on record by his death certificate Ex.C-44 on the record. Complainant nos.2 and 3 could be taken as LRs of Raminder Pal Singh Gulati for the purpose of continuation of these proceedings. In fact, the right of Raminder Pal Singh Gulati, who instituted this complaint against OPs has to be determined by us in this complaint. Despite receipt of large amounts from Raminder Pal Singh Gulati complainant no.1, since deceased, the OPs have not completed the project and have not delivered the possession thereof to him within stipulated period. The OPs utilized the hard earned money of complainant no.1 without performing their duty to develop the project equally within scheduled time. Much time has flown under bridges, even after expiry of agreed period of delivery of possession by OPs. Still there is no occupancy certificate shown to us by OPs in this Consumer Complaint No.80 of 2014 15 regard, consequently, we hold that OPs indulged in unfair trade practice, justifying the complainants seeking refund of the deposited amounts.
7. The complainants through their counsel have filed an application that Harpreet Kaur Gulati complainant no.2 is entitled to this amount of refund. There is no gift deed in her favour nor any will proved on the record at all. Even as per Section 123 of transfer of property Act, the gift deed is required to be attested by the attesting witnesses and must be registered for giving legal effect to it. Mere filing of an application with OPs that this property has been gifted by deceased Raminder Pal Gulati cannot be taken into account being not in consonance with Section 23 of Transfer of Property Act, read with Section 17 of Registration Act, 1908. However, complainant no.2 Harpreet Kaur Gulati is daughter of late Raminder Pal Singh and is said to be one of the legal heirs of Raminder Pal Singh Gulati, since deceased for the purpose of continuation of these proceedings. Consequently, it is not possible to give the entire refund amount to her without holding an enquiry into the status of the LRs. It is, thus, held that the legal heirs of Raminder Pal Gulati will be entitled to seek the refund of the deposited amounts from OPs in this case, subject to proof of this fact in accordance with law.
8. As a result of our above discussion, we accept the complaint and pass the below noted directions:
(a) OPs shall refund the entire deposited amounts to the entire legal heirs of Raminder Pal Singh Gulati from the date of their Consumer Complaint No.80 of 2014 16 deposits till actual payment with interest @12% per annum therefrom.
(b) to pay Rs.75,000/- as compensation for mental harassment to legal heirs of Raminder Pal Singh Gulati complainant no.1.
(c) to pay Rs.25,000/- as cost of litigation.
9. Arguments in this complaint were heard on 09.03.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 12, 2018.
(MM)