National Consumer Disputes Redressal
Emaar Mgf Land Ltd. & Anr. vs Chanbir Singh Mann & Anr. on 1 November, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 17 OF 2011 (Against the Order dated 06/12/2010 in Complaint No. 60/2010 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. & ANR. SCO-120-122,SECTOR 17-C , CHANDIGARH CHANDIGARH 2. GENERAL MANAGER (CUSTOMER SERVICES ) , EMMAR MGF LAND PVT.LTD ,SCO-120-122, SECTOR 17-C CHANDIGARH CHANDIGARH ...........Appellant(s) Versus 1. CHANBIR SINGH MANN & ANR. R/O AT: IKOUNKAAR ,HOUSE NO.9, BHAKRA ENCLAVE ,SANGRUR ROAD , PATIALA CANTT PUNJAB 2. MONIKA MANN W/O: SHRI CHANBIR SINGH MANN /R/O AT :IKOUNKAAR ,HOUSE NO.9,BHAKARA ENCLAVE ,SANGRUR ROAD , PATIALA CANTT PUNJAB -147001 3. CHANBIR SINGH HOUSE NO.44-45, KANSAL ENCLAVE, B-BLOCK,WWRW SOCIETY , KANSAL MHOLI PUNJAB 4. MONIKA MANN W/O SH.CHANBIR SINGH MANN HOUSE NO.44-45,KANSAL ENCLAVE,B-BLOCK,WWRW SOCIETY ,KANSAL MHOLI PUNJAB CHANDIGARH ...........Respondent(s) FIRST APPEAL NO. 18 OF 2011 (Against the Order dated 06/12/2010 in Complaint No. 61/2010 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. & ANR. SCO 120-122 ,SECTOR 17-C CHANDIGARH CHANDIGARH 2. GENERAL MANAGER (CUSTOMER SERVICES ) EMMAR MGF LAND PVT.LTD , SCO -120-122, SECTOR 17-C , CHANDIGARH CHANDIGARH ...........Appellant(s) Versus 1. CHANBIR SINGH MANN & ANR. S/O LT COL .B.S. MANN,R/O IKOUNKAAR ,HOUSE NO.9, BHAKRA ENCLAVE , SANGRUR ROAD , PATIALA CANTT PUNJAB 2. MONIKA MANN W/O SH.CHANBIR SINGH MANN, R/O AT : IKOUNKAAR ,HOUSE NO.9 BHAKRA ENCLAVE ,SANGRUR ROAD PATIALA CANTT PUNJAB -147001 ...........Respondent(s) FIRST APPEAL NO. 19 OF 2011 (Against the Order dated 06/12/2010 in Complaint No. 62/2010 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. & ANR. SCO 120-122 ,SECTOR 17-C , CHANDIGARH CHANDIGARH 2. GENERAL MANAGER (CUSTOM SERVICES ) EMMAR MGF LAND PVT,.LTD SCO.120-122 ,SECTOR 17-C CHANDIGARH CHANDIGARH ...........Appellant(s) Versus 1. CHANBIR SINGH MANN & ANR. S/O LT COL .B.S. MANN R/O AT :IKOUNKAAR ,HOUSE NO.9 ,BHAKRAR ENCLAVE ,SANGRUR ROAD , PATIALA CANTT PUNJAB 2. MONIKKA MANN W/O SH CHANBIR SINGH MANN R/O AT :IKOUNKAAR ,HOUSE NO.9 BHAKARA ENCLAVE ,SANGRUR ROAD , PATIALA CANTT PUNJAB-147001 ...........Respondent(s) FIRST APPEAL NO. 20 OF 2011 (Against the Order dated 06/12/2010 in Complaint No. 63/2010 of the State Commission Chandigarh) 1. EMAAR MGF LAND LTD. & ANR. SCO-120-122 ,SECTOR 17-C , CHANDIGARH CHANDIGARH 2. GENERAL MANAGER (CUSTOMER SERVICES ) EMMAR MGF LAND PVT.LTD SCO 120-122,SECTOR 17-C CHANDIGARH CHANDIGARH ...........Appellant(s) Versus 1. CHANBIR SINGH MANN & ANR. S/O LT COL ,B.S. MANN R/O AT:IKOUNKAAR ,HOUSE NO.9BHAKARAENCLAVE ,SANGRUR ROAD , PATIALA CANTT PUNJAB -147001 2. MONIKA MANN W/O CHANBIR SINGH MANN R/O AT :IKOUNKAAR ,HOUSE NO.9 BHAKARA ENCLAVE ,SANGRUR ROAD PATIALA CANTT PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER
For the Appellant : Mr. Aditya Narain, Mr. Pallav Pandey and Mr.
Pragalbh Bhardwaj, Advocates For the Respondent : Mr. Rohit Sharma, Advocate
Dated : 01 Nov 2019 ORDER
Per Mrs. M. Shreesha, Presiding Member
Aggrieved by the order dated 06.12.2010, in Consumer Complaints No. 60 to 63 of 2010, passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (in short "the State Commission"), Emaar MGF Land Limited (hereinafter referred to as "the Developer") and General Manager (Customer Services), Emaar MGF Land Pvt. Ltd. preferred these First Appeals No. 17 to 20 of 2011 under Section 19 of the Consumer Protection Act, 1986 (in short "the Act"). By the common impugned order, the State Commission has directed the Developer to pay interest @ 15% p.a. to the Complainant on the amount, which, though not due to be paid under the construction linked plan, yet has paid by the Complainants and has been retained by the Developer in view of the revised construction linked plan, till the period the said amount falls due; the Developer was directed to intimate in writing to the Complainants regarding the next stage as provided in the construction linked plan, so that the Complainants can verify the same before the payment of the next instalment; that if the possession is not delivered within 39 months i.e. by 24.06.2011, the Developer shall pay ₹64,050/- per month to the Complainants till the date, the possession is actually delivered together with cost of ₹5,000/-.
2. As all these First Appeals are arising out of a common impugned order, the same are being disposed of by this common order.
3. For the sake of convenience, First Appeal No. 17 of 2019 is being taken as the lead case.
4. The facts in brief are that the Developer invited Applications for Allotment of units for the commercial complex in Central Plaza, Mohali Hills in Sector 105, SAS Nagar, Mohali and the Complainants booked Unit No. 41, Second Floor, in the said Plaza. It is averred that the Complainants paid an amount of ₹6,27,034/- in October 2006, which is 15% of the total price of the unit amounting to ₹41,95,480/-. The Buyer's Agreement dated 24.03.2008, was executed between the parties and it is pleaded that the Complainants paid 75% of the total sale consideration together with ₹2,50,000/- towards car parking. It is averred that the construction at the site came to a halt in beginning of the year 2008, for which the Complainants protested vide emails dated 26.02.2009, 28.02.2009, for which they received a reply from the Developer vide email dated 04.03.2009 offering 5% discount on the total price and thereafter vide emails dated 19.03.2019 and 20.03.2019, the Complainants were informed that the Construction for the Central Plaza had begun, and a new contractors have moved in to complete the construction work.
5. It is pleaded that even this assurance given by the Developer proved to be false and construction work of the allotted unit was incomplete and therefore the Complainants on 26.02.2009 requested the Developer for refund of the total amount paid by them along with interest, thereafter on 24.11.2009, the Developer restructured the payment of the instalments and sent the statement of account dated 21.01.2010 to the Complainants. It is pleaded that as the development works were incomplete in all respects and four years have passed from the date of the booking of the unit and no date of offering of physical possession was intimated, a legal notice dated 28.06.2010 was served on the Developer, but there was no response and hence the Complainants approached the State Commission seeking a direction to the Developer to refund the amounts deposited with interest and compensation or in the alternative pay delayed interest @ 18% p.a. together with compensation and costs.
6. The Developer filed their Written Version stating that the Agreement dated 28.03.2008 was executed in Mohali and therefore the State Commission does not have territorial jurisdiction to entertain the Complaint; that as per the allotment letter dated 15.05.2007 the initial payment plan was time linked; that even in the provisional allotment letter it was nowhere mentioned that the possession would be handed over within two years; that the Complainants read the Agreement dated 28.03.2008 carefully before signing it; that the promised date of delivery with additional three months grace period is 23.06.2011 and as the Complaint was filed on 15.09.2010, it is premature ; that the Developer is committed to deliver the possession within the time frame mentioned in the Agreement; the cancellation and refund is not possible as the work is going on in full swing; that there was restructuring of payment of instalments, which was informed to the Complainants vide letter dated 24.01.2009; that the time linked plan was changed to construction linked plan and that there was no deferment in the delivery of the project and hence there is no deficiency of service on their behalf.
7. The State Commission, based on the evidence adduced allowed the Complaint in part with the aforenoted directions.
8. Learned Counsel appearing for the Appellant vehemently contended that the Complaints are not Consumers as the unit in question is in a Commercial Complex; that there is no specific pleading in the Complaint with respect to self employment; that one single family has purchased five units vide four Agreements and therefore, they are not Consumers. He vehemently contended that the State Commission has erroneously allowed the Complaint, when the subject matter is of a commercial complex and that the ratio of Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, cannot be applied to the instant case. Learned Counsel in his Written Submissions stated that it was only to save payment of court fees in approaching the Civil Court that the Complainants have failed these Complaints before the State Commission. He drew our attention of the units, which have been booked by the Complainants. For better understanding of the case, the same is detailed as hereunder:
a) Unit No. 41/BF Basement- admeasuring 735 sq. ft. for sale consideration of Rs.22,54,559/-.
b) Unit No. 41/GF Ground Floor - admeasuring 1103 sq. ft. for sale consideration of Rs.59,91,164/-.
c) Unit No. 41/FF First Floor - admeasuring 1281 sq. ft. for sale consideration of Rs.52,84,330/-.
d) Unit No. 41/SF Second Floor - admeasuring 1281 sq. ft. for sale consideration of Rs.41,94,480/-.
e) Unit No. 41/TF Third Floor - admeasuring 1281 sq. ft. for sale consideration of Rs.36,51,055/-.
9. Learned Counsel for the Appellants vehemently contended that the dispute is purely a matter of civil nature and that this Commission in Amit Bajaj Vs. Emaar MGF Land Ltd. Vs. Emaar MGF Land Ltd. in CC No. 184 of 2014 in order dated 05.08.2016 and in Emaar MGF Land Ltd. Vs. M/s Banga Constructions Pvt. Ltd. in FA No. 850 of 2013 in order dated 24.03.2015, have specifically dealt with commercial spaces/ floors in commercial plaza known as central plaza and have held that a person booking a commercial space cannot be regarded as a 'Consumer'.
10. Learned Counsel appearing for the Complainants argued that the Developer did not raise this objection before the State Commission; no such pleadings were raised in the grounds of Appeal and has placed reliance on the judgement of the Hon'ble Supreme court in Common Cause Vs. Union of India & ors., (2004) 5 SCC 222, wherein the Hon'ble Apex Court has observed as follows:
"We do not think that the abovesaid is a finding recorded by the learned Judge. Be that as it may, this was not a point argued before the Court when the civil appeal was taken up for hearing. A point not argued will be deemed to have been given up and cannot be permitted to be raised now by filing of such a petition."
11. He further relied on the decision of the Hon'ble Supreme Court in Union of India Vs. Susaka Private Limited & Ors. (2018) 2 SCC 182, wherein it was held as follows:
"24. Though we find that the appellant raised this ground, for the first time, in Section 34 proceedings before the Single Judge but again this ground was not pressed at the time of arguments. It is clear from the perusal of the Single Judge's order. Not only that, the appellant again did not raise this plea before the Division Bench.
25. In the light of aforementioned factual scenario emerging from the record of the case, we cannot grant any indulgence to the appellant (Union of India) to raise such plea for the first time here. In our view, it is a clear case of waiver or/and abandonment of a plea at the initial stage itself."
12. A brief perusal of the Complaint shows that the Complainants have specifically pleaded that they had booked the said unit in the Central Plaza with the sole intention to settle in their motherland and earn their livelihood, hence the onus shifts on the Developer to adduce evidence to establish that these units were booked only for investment purpose and not for the purpose of earning livelihood/ self-employment. In the instant case, no such documentary evidence has been filed to substantiate the same. Even otherwise we observe from the record that vide order dated 08.02.2013, this Commission disposed of IA/80/2012 filed by the Complainants seeking modification of the order dated 19.07.2011 observing that 'since the Appellant/ Developer has not been able to handover possession as per the Agreement, they have become liable to pay ₹50 per sq. ft. per month of the total super area with effect from July 1, 2011 till the offer of possession. Subject to Appellants paying arrears of the amount due for the delayed period from July 1, 2011 to January 31, 2013 to the Complainants within eight weeks from today and on giving an undertaking to continue to pay the same, for each month thereafter, by 7th day of the following month, operation of the impugned order shall remain stayed.'
13. Thereafter, a Review Application was filed, which was dismissed by this Commission vide order dated 05.04.2013. It is a matter of record that SLPs against these orders dated 08.02.2013 and 05.04.2013 were preferred before the Hon'ble Supreme Court, which dismissed the same on 06.08.2013.
14. Despite the order of the Hon'ble Supreme Court, the Developer did not comply with the order dated 08.02.2013. As there was a specific direction by this Commission in the order dated 08.02.2013 that 'in case the Appellants failed to pay the amount the Stay granted by us shall stand vacated'. The Complainants filed Execution Applications no. 23 to 26 of 2013 before the State Commission.
15. It is relevant to mention here that on 22.11.2013, the State Commission in EA/23/2013 passed the following order :
"Sh. Ashim Aggarwal, Advocate for the Judgment Debtors/ Opposite Parties has handed over two drafts in the sum of Rs.1,16,488/- each in favour of the DHs namely Chanbir Singh Mann and Monica Mann. Copies of the same be retained on the file. He has further submitted that these two drafts are in respect of the entire amount due to the DHs till date in all the four Execution Application fixed for today.
These drafts have been accepted by sh. Chanbir Singh, Decree Holder No.1/ Complainant No.1, in person and on behalf of Decree Holder No. 2/ Complainant No. 2.
The Judgment Debtors/ Opposite Parties are also directed to keep on paying the compensation @ Rs.50/- per sq. ft. per month in respect of the units involved in all the Execution Applications by the 7th of each month.
Sh. Chanbir Singh, Decree Holder No. 1/ Complainant No. 1, in person, and, on behalf of Decree Holder No.2/ Complainant No.2, has submitted that the Execution Application be disposed of as satisfied.
In this view of the matter, the Execution Application stands disposed of as satisfied, with no order as to costs.
Certified copy of this order be sent to each of the parties, free of charge."
16. It is submitted by the learned Counsel appearing for the Complainants that these orders were not challenged and hence have attained finality.
17. Learned Counsel appearing for the Complainants relied on the judgement of the Hon'ble Supreme Court in Dinshaw Rusi Mehta & Anr. Vs. State of Maharashtra & Ors., (2017) 5 SCC 157, in which it has categorically held as follows:
".....it is not necessary for this Court to decide any of the points urged by the learned counsel on account of certain subsequent events which took place during the pendency of this litigation. In our opinion, the subsequent events brought to our notice have a direct bearing over the controversy involved in this case and hence they deserve to be taken note of for deciding the appeal.
....... when the scheme/agreement cannot now be given effect to due to parties' own volition, there does not arise any need for this Court to decide its legality or correctness on merits."
18. Taking into consideration that the Hon'ble Supreme Court has dismissed the SLPs preferred against the orders dated 08.02.2013 and 05.04.2013 and the Appellants did not choose to challenge the order of the State Commission dated 22.11.2013 passed in the execution proceedings, it is observed that the orders have attained finality and therefore the Developer cannot now raise the question of maintainability of the Complaint or that the Complainants are not Consumers merely because they purchased five units in the commercial complex vide five Agreements. Further, needless to add, there is a specific pleading in the Complaint that they wanted to return to their motherland and earn their livelihood. It is also pertinent to mention that all of them belonged to the same family, which further strengthened the pleadings of the Complainant that they wanted to return to their motherland to also take care of their aging parents. Needless to add, this Commission in order dated 13.01.2018 in First Appeals No. 1260 to 1262 of 2016 (M/s Landmark Apartment Pvt. Ltd. Vs. Ms. Parnita Garewal) has held that the Complainants were Consumers though they had purchased commercial space in an IT Park and that whether such a purchase falls strictly within the definition of commercial purpose or not depends on the facts and circumstances of each case and that the onus shifts on the Developer to establish whether the Complainants while purchasing commercial space are dealing in real estate or in the purchase and sale of the subject property purely with an intention of making profits. This ratio has attained finality as SLPs, preferred against this order has been dismissed by the Hon'ble Supreme Court. At the cost of repetition, in the instant case no such evidence has been filed and the Developer has failed to discharge the onus.
19. At this juncture, learned Counsel submitted that as the subject property was not handed over till 01.02.2017, the first Complainant's father had passed away.
20. I find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in Sunil Kohli & anr. Vs. M/s Pure Earth Infrastructure Ltd. in CA/9004-9005/2018, wherein the Hon'ble Apex Court has observed that 'the affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of "consumer" as defined under the provisions of the Act'. Therefore, viewed from any angle, it cannot be stated that the Complainants are not Consumers.
21. This judgement read with the aforenoted reasons establishes that the Complainants fall within the definition of 'Consumer' as defined under Section 2 (1)(d) of the Act and the Complaints are maintainable under the Act.
22. The second issue raised by the learned Counsel appearing for the Developer is that the Complaints are premature, which was strongly resisted by the learned Counsel for the Respondents. Learned Counsel appearing for the Developer submitted that they had to deliver possession by 23.02.2011 with additional grace period of 3 months, which ends on 23.06.2011. Whereas, the Complainants had filed these Complaints in a hurry on 15.09.2010, much prior to the promised date of delivery of possession and therefore the Complaints were premature.
23. Learned Counsel appearing for the Complainants submitted that as per allotment letter dated 15.05.2007, the initial payment plan was a time linked plan, which contemplated payment of 15% of the total sale consideration on the date of booking, 10% to be deposited quarterly and the remaining 70% to be paid in 24 months from the date of booking and the balance 5% to be paid at the time of physical possession. But due to delay on behalf of the Developer, the said plan was changed to a Construction Linked one on 24.11.2009. On 21.01.2010, a revised statement of account was prepared, which showed the payment of instalments made by the Complainants well in advance i.e. two instalments were paid two years before they had become due and three instalments were paid in 2008, even though they had not fallen due as on 21.01.2010.
24. We find force in the contention of the Complainants that the initial payment plan was time linked and it contemplated payment within a period of 24 months, hence the Complainants had construed that the possession too would be offered within the same time frame. It is observed from the record that the State Commission has rejected this contention. Needless to add, the compensation is sought from 24.06.2011, admittedly after the due date for handing over of possession of the properties. It is also not in dispute that the possession was offered only on 30.07.2015, after a delay of four years and one month and therefore, viewed from any angle, it cannot be stated to be premature.
25. Learned Counsel appearing for the Developer submitted that the State Commission has erroneously given a direction for possession when delivery of possession was specifically not prayed for in the Complaint. He argued that by way of an Interim Application, possession cannot be sought for when there was no specific prayer in the main Complaint. Learned Counsel argued that interim relief, which has been granted, is beyond the final relief prayed for in the Original Complaint. He relied on the judgment of the Hon'ble Supreme Court in Om Prakash Vs. Ram Kumar (1991) a SCC 441, in which the Hon'ble Apex Court has observed that 'a party cannot be granted relief which is not claimed, if the circumstances of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute'. He further contended that in all, the Complainants have paid an amount of ₹ 2.25 crores for all the five properties out of which ₹78,00,000/- was paid under protest and ₹5,43,386/- was paid towards delayed payment. It was submitted by the learned Counsel that the Developer paid ₹76,00,000/- towards penalty for delayed delivery. He further contended that interim order of this Commission was also challenged before the Hon'ble Supreme Court , which is tagged with Civil Appeal No. 2150 of 2015, M/s DLF Universal Ltd. Vs. Kaushal K. Rana & Ors. It is pertinent to reproduce the order of the Hon'ble Supreme Court, which is being relied upon by the Counsel for the Appellant:
"Delay condoned.
Issue notice.
Tag with Civil Appeal No. 2150 of 2015.
It is stated by Mr. Gopal Subramanian learned senior counsel for the petitioner that the petitioner has already complied with the order passed by the National Consumer Disputes Redressal Commission."
26. As the main Appeal is being decided on merits, any interim order which may have been challenged by way of an Appeal will lose its significance, specifically keeping in view that there was no stay and further having regard to the submission made by the learned Senior Counsel before the Hon'ble Supreme Court that the Developer herein had already complied with the order of this Commission.
27. With respect to the contention of the learned Counsel that when the possession was not prayed for in the main Complaint, no such direction can be given in the Interim Application, it is necessary to reproduce verbatim the main prayer of the Complainants in the Original Complaint:
"i) To direct the opposite parties to refund the amount deposited over and above 25% of the total consideration of the allotted unit along with 18% interest from the date of their deposit to the date of its actual payment.
Or To pay interest compensation @ 18% p.a. on the amounts deposited by the complainants w.e.f. the date of booking of the abovesaid unit to till the handing over the actual physical possession of the allotted unit to the complainants after completion of the development works namely such as roads, parking area and lights therein, sewerage, water supply and connectivity with main roads.
ii) To pay punitive damages of Rs.2.00 lacs on the opposite parties.
iii) To pay compensation of Rs.10.00 lacs towards compensation mental agony and harassment suffered by the complainants.
iv) To pay the litigation expenses of Rs.25,000/-."
(Emphasis supplied)
28. It is seen that though the Complainant has not specifically detailed in the prayer for possession per se, it can be safely construed that the prayer for delayed period interest and compensation till the delivery of the physical possession, should be interpreted in the right perspective as it is an admitted fact that possession was not given as on the date of filing of the Complaint.
29. It is seen from the record that the Developer has offered possession and therefore the interpretation ought to be that the direction sought for by the Complainant is for setting aside the demands made by the Developer, with respect to payments prior to the handing over of the possession. Keeping in view, the background of the case and the orders passed by this Commission with respect to direction of possession and the fact that the Appellants themselves offered possession on 30.07.2015, I do not find any illegality in the order of the State Commission in directing for delivery of possession. Keeping in view the facts and circumstances of the case, the submission of the learned Counsel for the Developer that the principle laid down by the Hon'ble Supreme court in Om Prakash (supra) squarely applies to the facts of this case cannot be sustained.
30. At the cost of repetition, this Commission vide order dated 08.01.2016 and 29.11.2016 directed possession of the subject property to the Complainants and has also dismissed the Review Application on 29.11.2016 filed by the Developer seeking modification of the order dated 08.01.2016. Learned Counsel appearing for the Developer submitted that an SLP was preferred challenging the order dated 29.11.2016, which is pending adjudication.
31. Next issue, which has been raised by the learned Counsel for the Developer is with respect to the aspect of pecuniary jurisdiction. He relied on the judgment of the three Member Bench of this Commission in Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited I (2017) CPJ 1 NC, wherein it was interpreted that pecuniary jurisdiction should be considered as value of goods and services plus compensation prayed for and in the instant case the value of goods and services plus compensation prayed for exceeds rupees one crore and therefore does not fall within the pecuniary jurisdiction of the State Commission. He also contended that the total sale consideration in each complaint together with amount claimed exceeds pecuniary jurisdiction of the State Commission. Learned Counsel submitted that the interest is also a form of the compensation, which should have been considered by the State Commission and that though he has raised it, it was not dealt with by the State Commission.
32. A perusal of the Written Version filed before the State Commission shows that the question of pecuniary jurisdiction was not raised in detail except for a bald denial. Even otherwise, the Complaint was instituted in the year 2010, whereas the Ambrish Kumar Shukla (Supra) is of the year 2017, which is prior to the interpretation given by this Commission and now to turn the clock backward would defeat the very spirit and objective of the Consumer Protection Act, 1986. A similar issue raised by a Developer, was addressed to by this Commission in Splendor Landbase Ltd. & Anr. Vs. Mamta Arora & Ors., III (2018) CPJ 277 (NC), which ratio was not challenged before the Hon'ble Supreme Court and hence attained finality. At this juncture, I also find it a fit case to rely on the judgement of the Hon'ble Supreme Court in Treaty Construction & Anr. Vs. Ruby Tower Cooperative Housing Society Limited, (2019) 8 SCC 157, in which the Hon'ble Supreme court has held as follows:
"........The National Commission has observed, and rightly so, that such a plea was not specifically raised before the State Commission at the earliest opportunity; and the State Commission having already decided the matter on merits, such a technical objection as regards pecuniary jurisdiction could not have been countenanced before the National Commission. We find no error in the National Commission rejecting this plea as being wholly untenable at the given stage."
33. The ratio squarely applies to the facts of this case and therefore this contention of the learned Counsel appearing for the Developer is not accepted.
34. It is relevant to add here that, in this case though stay was granted by this Commission, it was not complied with; the execution was complied with. It is relevant to note that the execution was complied, but not challenged and at this stage the stand of the Developer seeking to set the clock back by raising these technical objections, would defeat the very intent and purpose of the Act.
35. The relevant portion of the order dated 29.11.2016 is being reproduced as hereunder:
"15. Having bestowed our anxious consideration to the rival stands, in the light of the afore-stated factual scenario, we are constrained to observe that the present application is nothing but arm-twisting by the Appellants to push the Complainants to the corner, in order to pressurize them to pay the holding and maintenance charges, as being demanded. It is really ironic that having received full sale consideration as well as additional charges amounting to ₹78,00,000/-, without demur, from the Complainants, the Appellants are not willing to part with the possession of the Unit, stated to be ready for occupation, merely because, as per the information furnished by their Counsel, a total sum of ₹51,46,273/- is still due from the Complainants towards the holding and maintenance charges. During the course of hearing, we had suggested to the Appellants that if the possession of the Unit could be delivered on the Complainants paying to the Appellants further amount towards the holding charges upto 03.02.2016, the date on which additional amount of ₹78,00,000/-, as demanded by the Appellants was deposited with them as also the maintenance charges, the entire dispute, subject matter of the Appeal, could be given a quietus. We regret to note that though the suggestion was acceptable to the Complainants but it did not find favour with the Appellants, ostensibly for the reason that having received the entire sale consideration for the Unit as also additional amounts in terms of the impugned order and the Complainants having spent more than ₹50,00,000/- for purchase of the stamp papers, holding on to the Unit would not only entitle them to raise further demand towards holding charges, it would put extra pressure on the Complainants to succumb to the whims of the Appellants/builders, who on their own showing, have not been able to complete the project within the stipulated time of delivery i.e. June, 2011. Mildly put, the unholy conduct of the Appellants is evident from the fact that if the Appellants were genuinely aggrieved by the interim direction, whose modification is sought by way of this application, they would not have accepted the additional amount of ₹78,11,215/- less the amount deposited in the Bank by way of Tax Deducted at Source (TDS), from the Complainants in terms of the very same order.
16. For all these reasons, we are convinced that the application is absolutely malicious and deserves to be dismissed without expressing any opinion at this stage on the merits of the issues raised in the Appeal and pressed into service by Learned Counsel for the Appellants during the course of hearing on this application. At this juncture it would suffice to observe that apart from the fact that there is divergence of opinion on the maintainability of the complaint on the stated ground, amongst different Benches, having themselves failed to file reply to the application, in which the interim order was made, for over 45 days, the Appellants cannot be now permitted to rely on Regulation 17. Further, having parted with a huge sum of money, commencing October 2006, and again in terms of the afore-extracted order dated 19.07.2011 (₹50,00,000/-) as also the impugned order (₹78,00,000/-) but still waiting for almost a decade to be put in possession of the subject property, receiving a paltry monthly sum @ ₹50/- per sq. ft. of the super area, as highlighted on behalf of the Appellants, in our view, is of no solace to the Complainants.
17. Consequently, the application is dismissed with costs, quantified at ₹50,000/-, which shall be remitted by the Appellants to the Complainants within two weeks from the date of receipt of a copy of this order. We direct that the possession of the Unit in habitable condition, shall be delivered to the Complainants within 15 days of their making request to the Appellants in this behalf. However, the Complainants shall not sell the subject property till the disposal of the Appeals."
36. To reiterate, there was a submission made by the learned Senior Counsel before the Hon'ble Supreme Court that they have already complied with this order of this Commission.
37. Learned Counsel appearing for the Complainants drew the attention of the Bench to the email dated 27.10.2015, for which there was a demand made for paying an amount of ₹78,11,215/-, which includes ₹5,43,384/- towards DPC and ₹9,76,399/- towards 5% instalment. It was submitted that the Complainants did not pay the amount of ₹5,43,386/- and ₹9,76,399/- as all the amounts were paid in advance, in terms of the orders of this Commission dated 08.01.2016. It is seen from the record that ₹78,11,215/- was paid by the Complainants on 02.02.2016. The statement of account as on 27.10.2015 depicts that the schedule of payments up till 15th item is time linked and thereafter it was converted to construction linked payment plan. I find force in the contention of the learned Counsel for the Complainant that if the entire payment plan is taken as the construction linked plan there is no delay on behalf of the Complainants and therefore the delayed payment charges cannot be levied and that waiver of 5% should also be considered by the Developer.
38. Learned Counsel appearing for the Respondents/ Complainants prayed for additional compensation to be granted since the super area of all the four units was raised from 5701 sq. ft. to 6326.45 sq ft. and therefore would attract extra compensation of ₹50/- per sq. ft. It is pertinent to mention that the Complainants did not prefer any Appeal challenging the final order of the State Commission and therefore their prayer, at this juncture, seeking additional compensation cannot be sustained.
39. For all the aforenoted reasons, all the Appeals preferred by the Developer are dismissed with the aforenoted directions. No order as to costs. The statutory amounts stand transferred to the Complainants.
...................... M. SHREESHA PRESIDING MEMBER