State Consumer Disputes Redressal Commission
Sudesh Kumari Mahajan vs Emaar Mgf Private Ltd. on 18 January, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.170 of 2014
Date of institution : 14.10.2014
Date of decision : 18.01.2016
Sudesh Kumari Mahajan W/o Shri Manmohan Lal Mahajan, R/o #
1119, Sector 69, Mohali.
.......Complainant
Versus
1. EMAAR MGF Pvt. Ltd. through its H.E. Mohamed Ali Alabbar
(Chairman), SCO No.120-122, Sector 17-C, Chandigarh.
2. Mr. Shravan Gupta (Managing Director),EMAAR MGF Pvt.
Ltd., SCO No.120-122, Sector 17-C, Chandigarh.
3. EMAAR MGF through its General Manager, SCO No.120-
122,Sector 17-C, Chandigarh.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Shri Upjeet Singh Brar, Member Present:-
For the complainant :Shri P.M. Goyal, Advocate.
For the opposite parties:Shri Sanjeev Sharma, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Sudesh Kumari Mahajan, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the Act") for directing the opposite parties to refund the amount of Rs.41,78,501/-, along with interest at the rate of 14%; Consumer Complaint No.170 of 2014 2 to pay Rs.1,50,000/-, as compensation on account of physical and mental harassment and unfair trade practice and Rs.50,000/-, as litigation expenses. She alleged therein that she was dreaming of having her own house at Mohali and came across active publication and advertisement in various modes of Media by the opposite parties that they were launching housing/commercial Project in Sectors 105, 107, 108 and 109 SAS Nagar, Mohali by claiming that they had approval of the Government authorities and the Project was having the best of town planners/architects. She fell prey to that tall claim and agreed to purchase a residential plot in Sector 108, SAS Nagar, Mohali. Their Representatives convinced her that the fresh plots were not available and that they could arrange residential plot in resale. Plot No.380 measuring 300 square yards was arranged by the opposite parties; which had been earlier allotted to one Rajeev Kumar Jain. The endorsement of that plot was made in her favour on 8.8.2008 after the complete agreed payment was made to the previous allottee and she stepped into his shoes. The total consideration of the plot was Rs.40,28,499/-. She made the other payments to the opposite parties, vide receipts. However, the receipts were not issued regarding the payments, which were made through cheque. All the payments, so made by her, are detailed in the Table contained in para no.4 of the complaint. The opposite parties had assured to deliver the possession of the plot within 30 months of the date of the endorsing of the plot in her name. She visited their office a number of times for taking the possession of the Consumer Complaint No.170 of 2014 3 plot but they kept lingering on the matter on one pretext or the other. When she made enquiries, she came to know that the plot, so sold to her, was even not owned by the opposite parties. Thereafter she had been making requests to them and their Representatives either to refund the money along with interest or to allot the plot, as assured by them. They assured that they would refund the money along with interest and asked her to wait for six months for the completion of the formalities for the refunding of the amount. When she visited their office after six months, they again lingered on the matter on the pretext that formalities had not been completed. These acts of omission and commission on the part of the opposite parties in not delivering the possession of the plot and in not refunding her amount amounts to deficiency in service and adoption of unfair trade practice.
2. The complaint was contested by the opposite parties, who filed joint written reply. In that written reply they admitted that as per the Payment Schedule, the total sale consideration of the plot was Rs.40,28,499/-, which was received by them and a sum of Rs.10,750/- was received, as delayed payment charges. While denying the other allegations made in the complaint, they averred that the complainant never approached them directly and had applied for the plot from secondary market out of her own free will. She herself purchased that plot from the original allottee, in whose favour the agreement had been executed. However, that agreement was endorsed in the name of complainant in August 2008 on the Consumer Complaint No.170 of 2014 4 completion of the transfer formalities. The possession was proposed/endeavoured to be delivered within three years from the date of the execution of the said agreement. They had communicated to the complainant that the possession of the plot would be offered shortly and that the compensation for the delay, if any, would be governed by the terms and conditions of the agreement. The plot is already ready and would be offered to the complainant shortly. She is seeking refund of the amount; which clearly represents her mala fide intention that she wanted to earn profit and, as such, she does not fall under the definition of 'consumer'. In case of refund, the cancellation would come into play and the complainant will lose the money on account of the forfeiture, as per the terms and conditions of the agreement. In fact, the complainant never approached them for taking the possession or for the refund of the money. No cause of action has accrued to her to file the present complaint. Before filing the present complaint she never questioned the delay in delivery of possession. The agreement was executed on 30.6.2007, whereas the complainant purchased the plot on 2.5.2008 and as per the agreement, the possession was to be handed over by 29.6.2010. The complaint was required to be filed within two years of that date, as the cause of action accrued to her on that date itself. The same having been filed after the expiry of that period is barred by limitation as per Section 24-A of the Act. The agreement was executed at Delhi and no cause of action has accrued to the complainant at Mohali. Consumer Complaint No.170 of 2014 5 Therefore, this Commission has no jurisdiction to entertain and try this complaint. It is well settled law that in case of sale of immovable property and construction, time is never the essence of the contract. The complainant is, therefore, not entitled to claim immediate possession or within any time bound manner as that would amount to specific performance of the contract. They prayed for the dismissal of the complaint with exemplary costs.
3. In support of the allegations made in the complaint, the complainant proved on record her affidavit Ex.CA and documents Ex.C-1 to Ex.C-3. To rebut that evidence, the opposite parties proved the affidavit of Sachin Kapoor, Senior Manager (Legal) Ex.OP-1/A and documents Ex.OP-1 to Ex.OP-4.
4. We have carefully gone through the averments of the parties, the evidence produced by them in support of their respective averments and have heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that after the plot in dispute was purchased by the complainant from the original allottee, Rajeev Kumar Jain, an endorsement was made on the Buyer's Agreement and she stepped into his shoes. The plot was to be developed and thereafter the possession was to be delivered to her and that was the service hired by her from the opposite parties. Therefore, she fell under the definition of the 'consumer' as contained in the Act. In support of that argument he relied upon the judgment of the Hon'ble National Commission passed in Revision Petition No.525 of 2013 decided on 22.7.2014 Consumer Complaint No.170 of 2014 6 (Vatika Limited v. Rajneesh Aggarwal). He further submitted that all the payments, which were required to be made by the complainant, were duly made to the opposite parties and that fact stands proved from the documents proved on the record and the admission made by the opposite parties in their reply. As per the terms of the agreement, the possession of the plot was to be delivered within a period of two years from the date of execution of the agreement but not later than three years. The agreement was proved on record by the opposite parties themselves as Ex.OP-4 and it is very much clear from that agreement that the same was executed on 30.6.2007. Therefore, by the latest the possession was to be delivered to the complainant on or before 29.6.2010. The opposite parties failed to deliver the possession; which amounts to deficiency in service and adoption of unfair trade practice. It kept on receiving different amounts from the complainant knowing fully that it was not in a position to develop the plot and to deliver the possession to her. The complainant had the continuous cause of action to file the complaint till the date of delivery of the possession or till the date of refusal of the amount by the opposite parties. The complainant was not supposed to wait for all the time for that possession and after the expiry of such a long time she became entitled to the refund of the amount deposited by her. She is also entitled to the interest on that amount for the intervening period as she was deprived of that amount and the opposite parties made use of that amount. On account of the said acts of the opposite parties Consumer Complaint No.170 of 2014 7 she suffered physical and mental harassment for which she is entitled to the compensation as well as the litigation expenses.
6. On the other hand, it was submitted by the learned counsel for the opposite parties that the complainant is not a 'consumer' as she purchased the plot in the open market from the original allottee. There was no direct contract between her and the opposite parties for the delivery of the plot and, as such, she never hired their services for that purpose. As per the contents of the agreement, the possession was to be delivered on or before 29.6.2010 and, as such, cause of action for filing the complaint for refund of the money accrued to the complainant on that date. The complaint having been filed after the expiry of the limitation is liable to be dismissed on that ground itself. He further submitted that offer for possession was made to the complainant as the plot was ready in all the respects. Once that offer has been made, the complainant is not entitled to the refund of the amount and her complaint is liable to be dismissed.
7. It is an admitted fact that the complainant was not the original allottee of the plot from the opposite parties. It was Rajeev Kumar Jain, who was the original allottee and she purchased the plot from that original allottee. The opposite parties themselves made endorsements on the Agreement Ex.OP-4 as well as on the letter Ex.C-1, vide which the plot was provisionally allotted to the said allottee. That letter, the receipts which had been issued to the previous allottee and the Agreement were endorsed in favour of the complainant and, thus, the opposite parties, for all intents and Consumer Complaint No.170 of 2014 8 purposes, accepted the complainant as their allottee. She stepped into the shoes of the original allottee. The question would have been different if no further act was to be performed by the opposite parties after the execution of the Agreement, which was so endorsed in favour of the complainant. As per the terms of the Agreement, further acts were to be performed by them. They were to develop the plot and to deliver the possession thereof within the said period. This was the service to be rendered by them to the original allottee and after the endorsement of the agreement, to the complainant.
8. The facts were almost similar in Rajneesh Aggarwal's case (supra). In that case the complainant had purchased the apartment from the first transferee when the construction had not been completed and the purchase/transfer of the apartment was duly approved by the opposite party after charging Rs.65,840/-, as transfer charges. It was held therein that in those circumstances the opposite party could not deny its role as a service provider to the complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the opposite party on the payment of the transfer charges. The ratio of this ruling fully applies to the facts of the present case. After the complainant was accepted as the allottee in place of the original allottee, the opposite parties became service providers in respect of the complainant and she having hired their service falls under the definition of 'consumer'. Consumer Complaint No.170 of 2014 9
9. It is the case of both the sides that as per the Agreement, the possession of the plot was to be delivered on or before 29.6.2010. It may be said that the cause of action did arise on that date on account of non-delivery of possession but it is a case of continuous cause of action and the same was to arise to the complainant every day till the possession was delivered to her or her money was refunded. She had continuous cause of action and, as such, it cannot be said that the complaint filed by her is barred by time.
10. Admittedly, the possession of the plot was not delivered to the complainant within the stipulated period. The opposite party has come up with the plea that the possession of the plot was offered to her and once the same has been offered, she has no cause of action to file the complaint for refund of the amount deposited by her as the price of that plot. The letter regarding intimation of possession, so sent to the complainant Ex.OP-1 is dated 7.2.2015. The present complaint was filed on 14.10.2014 and the opposite parties had put in their appearance before this Commission on 28.1.2015. It appears that in order to deprive the complainant the right to claim the refund, the said letter was issued by the opposite parties. That letter is not in consonance with the averments made in the written reply. The opposite parties averred in their written reply that they stand committed to hand over the possession of developed plot as per the agreement and that the same has not been offered to the complainant on account of the fact that the same was not complete. That written reply was filed on 11.2.2015. If that was the stand of the Consumer Complaint No.170 of 2014 10 opposite parties, how they had written the letter dated 7.2.2015. It is very much clear from their own written reply that the plot was not ready for delivery of possession thereof. The letter dated 7.2.2015 was written to the complainant by the opposite parties only in order to wriggle out of their liability to refund the amount received by them from the complainant. This act of omission/commission on the part of the opposite parties in not developing the plot and delivering the possession thereof to the complainant within the stipulated period and making her to wait further for a number of years clearly amounts to deficiency in service and adoption of unfair trade practice. The complainant was not required to further wait for possession of the plot and was very much within her rights to claim the refund of the amount. She is entitled to interest also on that amount from the date when the possession of the plot was required to be delivered to her till the payment thereof. Having suffered physical and mental harassment at the hands of the opposite parties, she is entitled to just and reasonable compensation also.
11. In the result, this complaint is allowed and the following directions are issued to the opposite parties:-
i) to refund the amount of Rs.41,78,501/-, along with interest at the rate of 12% per annum from 29.6.2010 till the date of payment of that amount;
ii) to pay Rs.1,50,000/-, as compensation for the physical and mental harassment suffered by her; and
iii) to pay Rs.22,000/-, as litigation expenses. Consumer Complaint No.170 of 2014 11
The compliance of this order shall be made by the opposite parties within a period of one month from the date of receipt of the certified copy of this order.
12. The arguments in this case were heard on 12.01.2016 and the order was reserved. Now, the order be communicated to the parties.
13. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (UPJEET SINGH BRAR) MEMBER January 18 , 2016 Bansal