State Consumer Disputes Redressal Commission
Emaar India Limited vs Radhika Sareen on 24 November, 2023
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. : 297 of 2023
Date of Institution : 08.09.2023
Date of Decision : 24.11.2023
EMAAR INDIA LIMITED Office No 40, Central plaza, Sector 105, SAS NAGAR,
MOHALI Punjab through its Authorised Signatory Subrat Pradhan
...Appellant/opposite party
Versus
RADHIKA SAREEN Wife of Sh Mukesh Sareen Resident of C-139, Sector 50,
Noida Uttar Pradesh-201301
....Respondent /complainant
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. RAJESH K.ARYA, MEMBER
Present:- Sh.Sanjeev Sharma, Advocate for the appellant.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT In the case in hand, the opposite party-Emaar India Limited has come up in this appeal, assailing the order dated 21.09.2023 passed by the District Commission-II, U.T., Chandigarh, vide which, an application for amendment filed during pendency of consumer complaint bearing no.131 of 2021 was allowed by it and the respondent-complainant was allowed to add relief of delivery of possession of the plot in the relief clause, instead of seeking refund of the amount paid.
2. The record of the District Commission was requisitioned.
Factual scenario:-
3. In the original consumer complaint bearing no.131 of 2021, the complainant-Ms.Radhika Sareen (hereinafter called as the respondent) had entered into agreement to sell dated 04.07.2007 in respect of a plot bearing no.101, measuring 400 square yards in the project of the appellant launched under the name and style "Pinewoord Park", Sector 108, SAS Nagar, Mohali. Total sale consideration of the said plot was fixed at Rs.53,71,332/-, which stood paid by the complainant for the period from 06.09.2006 to 06.08.2009, 2 yet, possession of the said plot was not delivered to her, despite the fact that as per clause 8 of the said agreement, it was to be delivered latest by 03.07.2010. When neither possession of the plot was delivered nor delayed compensation was paid nor amount paid was refunded, the complainant filed consumer complaint bearing no.131 of 2021 before the District Commission, wherein, in para no.6 she stated that since the entries of the project in question stood sealed by the Forest Department for want of permissions, as such, the appellant could not deliver possession of the plot in question. Relevant part of para no.6 is reproduced hereunder:-
"......6. That according to Clause 8 of the Plot Buyer's Agreement, the O.P. was to deliver the possession of the said plot within two years from the date of agreement, but not later than three years from the date of execution of the agreement and accordingly the possession of the said plot was to be handed over by 03.07.2010. The complainant visited the office of the opposite party at Chandigarh in February, 2012 whereby she inquired about the status of possession but was told that possession has already been offered in November, 2009 and was shown a letter purported to be 29.11.2009 but when the complainant inquired about the mode of delivery of the said letter to the complainant, the said official did not respond to the said query. After great persuasion, the complainant was able to get a copy of the said letter from the official. The copy of the letter dated 29.11.2009 is annexed herewith as Annexure C-5. The said letter dated 29.11.2009 was only a construction update as it is evident from the contents of the said letter and the opposite party through the said letter in fact admits the incomplete development at the project site. The said letter was merely a construction update and the same has already been held by the Hon'ble State Consumer Disputes Redressal Commission, U.T., Chandigarh in Consumer Complaint No. 140 of 2015 tilted as "Manuj Chhabra Vs. Emaar MGF Land Limited"
decided on 05.11.2015 and the said finding has been upheld by the Hon'ble National Commission. The complainant visited the project site in 2015 and came to know that the entry points of the said sector has been sealed by the forest department and even the project lacked basic amenities...."
4. It was further added in para no.7 of the complaint that even completion certificate of the project in question was not received by the appellant.
5. However, in reply to the allegations levelled by the complainant to the effect that the project has been sealed by the Forest Department and that the project is not complete, the appellant filed reply before the District Commission stating therein that the project in question is fully developed and ready for possession but it is the complainant who is in default as she is not taking over possession of the said plot despite having been offered to her.
3Relevant part of para no.8 of the reply of the appellant to old consumer complaint is reproduced hereunder:-
"......That the factual contents of para number 8 are denied being incorrect. The averment made by the complainant about sealing by the Forest Department are denied and it is submitted that despite the fact that Forest Department had sealed certain entry points, there was still adequate access to the project and to the plot of the complainant through a motorable road and stand of the complainant that entry is sealed is malafide and lacks basis. The present allegations regard sealing of entry point is misconceived, malafide and a mere after-thought with sole intent to avoid taking over the possession which has been offered to the complainant. Merely because one entry point had been sealed due to reasons not attributable to the OP, the same does not imply that the complainant could not take over possession as there are adequate alternative access points to the plot and many allottees had initiated construction and are also residing in the said sector. That as on date, no case is pending in Civil Courts at Kharar, SAS Nagar, Punjab. Vide Order dated 03.11.2016, the Court discharged the company and case stands closed. It is also to be noted that vide letter dated 16.01.2018, the Forest Department has further clarified thatwith regard to the Integrated Township Special Education Zone and Wellness Zone which is being developed by the OP on the right side of Kharar-Banur-Tepla road in Sector 109, Village Raipur Kala, forest Land is not affected by its approach road because as per the demarcation carried out by the Revenue Department on 03.01.2018 no land remains with the Forest Department and that they have no objection if OP develops their project of Integrated Township, Special Education Zone and Wellness Zone on this land (approach road). Thus, there is no sealing and no issue relating to alleged sealing is pending in Sector 109 and Sector 108, SAS Nagar, Mohali. The Copies of letters dated 16.01.2018 and 18.05.2016 are annexed hereto and marked as Exhibit OP-8 (Colly). Furthermore, it is most humbly submitted that the complainant has failed to take the possession of the plot for extraneous reasons and has filed the instant complaint much after period of limitation by concealing material facts and documents. It is further submitted that in terms of the Buyer's Agreement the complainant is also liable to pay holding charges till possession and the answering OP reserves all its rights in this regard. The averments about decisions in other cases are not applicable to the present dispute as it is to be decided on its own merits. It is denied that water supply, electricity connections are not available at the project. The possession has been offered to the complainant after all the amenities were in place readily available to its allottees.
As regards the judgements/orders/documents referred to by the complainant in this paragraph, it is submitted that the same are inapplicable to the peculiar facts and circumstances of the present case. The present plot in question is fully developed and ready for possession it is the complainant who is in default as she has not taking possession of the present plot despite having been offered the possession thereof. The contents of the foregoing submissions......."
6. We have heard counsel for the appellant in this appeal at the preliminary stage and have also gone through the entire record of this case.
47. It is significant to mention here that it is coming out from the record that after receipt of written reply of the appellant wherein it was stated that the plot in question is fully developed and ready for possession, the respondent moved application before the District Commission for amendment of prayer clause whereby she sought delivery of possession of the plot in question alongwith delayed compensation, compensation for mental agony harassment, litigation expenses etc., instead of refund of amount paid, which stood allowed by the District Commission vide order dated 21.09.2023. The amended complaint already filed before the District Commission, by the respondent alongwith the said application was taken on record and the appellant was directed to file written version to the amended complaint, which was filed by it on 01.11.2023.
Purpose of amendment:-
8. It may be stated here that since inception of the Code of Civil Procedure, 1908, the purpose of amendment in plaint(s) is to allow either party to amend his pleadings in such manner as may be just. The power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. The amendment of pleadings aims to meet the end of justice and to determine the real questions of conflict between the parties. The objective of the amendment of pleadings is to correct the mistakes made in the pleading and protect the rights of the parties instead of punishing them for committing mistakes in pleading. In Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors. Appeal (Civil) 5350-5351 of 2002, decided on 22 March, 2006, the Hon'ble Supreme Court held that the case should be tried on merits and should allow the amendment of pleadings in the cases where these amendments determine the real question in controversies between parties and it does not cause injustice to either of the parties. In the present case, the appellant has failed to apprise this Commission as to what prejudice has been caused to it, if the application moved by the respondent seeking possession of the plot in question instead of refund of amount, has been allowed by the District Commission. The Hon'ble Supreme Court in the case titled as M.G. Fincap Pvt. Ltd. Vs Green Bay Infrastructure Pvt. Ltd., Civil Appeal No.6319 of 2021 decided on 29.04.2022, under similar circumstances allowed the amendment sought by the complainant to file substitute prayer for possession of the unit with the prayer of refund. Relevant part of the said order is reproduced hereunder:-
"............We find that the order passed by the NCDRC is not justified in law. An amendment was sought in the complaint filed to substitute the prayer for possession of the flat with the prayer of refund of the amount. Such amendment should have been allowed 5 by the NCDRC rather than dismissing the complaint with liberty to file fresh complaint. The amendment was to claim an alternative relief which emanates from the facts stated in the original complaint itself. In fact, the NCDRC could grant lesser relief than prayed even without amendment in the complaint. The course of action adopted by the NCDRC is not tenable in law and negates the objective of the statute. Consequently, we allow the present appeal and set aside the order passed by the NCDRC. The proceedings are restored to the stage which existed prior to 05.08.2021. It shall be open to the parties to take all such plea as may be available to them in accordance with law. ............"
9. The facts of M.G. Fincap Pvt. Ltd. case (supra) are fully applicable to the present case also. In view of the above discussion, it is held that the impugned order passed by the District Commission, allowing the application of the respondent to amend his prayer qua delivery of possession of the plot in question instead of refund of the amount paid, being based on the correct appreciation of law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same stands upheld.
10. Consequently, this appeal stands dismissed at the preliminary stage, with no order as to cost.
11. Application bearing no.837 of 2023 (stay) stands dismissed having been rendered infructuous.
12. The parties are directed to appear before the District Commission on 14.12.2023 for further proceedings in the main consumer complaint. However, it is made clear that any observation made in this order shall not have any bearing on the merits of the main consumer complaint to be decided by the District Commission
13. Certified copies of this order be sent to the parties, free of charge, forthwith.
14. The appeal file be consigned to Record Room, after completion and the record of the District Commission be returned to it immediately.
15. Pronounced 24.11.2023 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K.ARYA) MEMBER Rg.
6STATE COMMISSION (Appeal No. 297 of 2023) Present:- Sh.Sanjeev Sharma, Advocate for the appellant.
Dated 24.11.2023 ORDER Vide our detailed order of even date, recorded separately, this appeal has been dismissed at the preliminary stage, with no order as to cost.
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT (RAJESH K.ARYA) MEMBER Rg.
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