National Consumer Disputes Redressal
Vikas Garg vs Emmar Mgf Land Ltd. & Anr. on 9 January, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 739 OF 2017 1. VIKAS GARG S/o Sh. Sat Paul Garg H. No. 2045, First Floor, Sec 15-C, Chandigarh Punjab ...........Complainant(s) Versus 1. EMMAR MGF LAND LTD. & ANR. ECE House, 28 Kasturba Gandhi Marg, New Delhi. Also at SCO No. 120-122, Sector-17-C, Chandigarh - 160 017 2. M/s Emaar MGF Services Pvt. Ltd. Unit No. 40, GF, Central Plaza, SEc-105, Mohali ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. R.K. Dikshit, Advocate Mr. Jitendra Kumar, Advocate For the Opp.Party : Mr. Aditya Narain, Advocate Ms. Anushree Narain, Advocate Mr. Mishra Raj Shekhar, Advocate Dated : 09 Jan 2019 ORDER JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) IA/279/2019 (For directions)
This is an application seeking to serve interrogatories on the complainant. I have heard the learned counsel for the parties. In my view, since there is no prima facie evidence of the complainant owning any residential property other than the property subject matter of this complaint, none of the interrogatories annexed to the application needs to be answered. The application is therefore, dismissed.
IA/280/2019 & IA/281/2019 (For c/delay & c/delay in filing the evidence) The delay is condoned. The applications stand disposed of.
IA/282/2019 (For placing additional documents) The documents annexed to the application being public documents are taken on record. The application stands disposed of.
CC/739/2017 One Sardar Harmohan Singh and his son Sardar Gurinder Singh booked a residential flat with the OP in a project namely 'Pinewood Greens' which the OP was to develop in Sector-108 of Mohali. Plot no. 67 in the said project was allotted to them and they executed a Plot Buyers Agreement dated 17.12.2007 with the OP. Clause 8 of the said agreement to the extent it is relevant, reads as under:
"Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavor to deliver possession of the plot to the allottee within a period of 2 (Two) years from the date of execution of this Agreement, but not later than 3 (Three) years. In the event that the possession of the Plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid events, the Company shall upon notice claiming force majeure to the Allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company exists."
2. The aforesaid allotment was later purchased by the complainant from Sardar Harmohan Singh and Sardar Gurinder Singh and the allotment was endorsed in his name vide endorsement dated 26.02.2010. The possession of the plot in terms of the agreement ought to have been offered by 17.12.2010. The possession having been offered only vide order dated 04.08.2015, the complainant is before this Commission with the following prayers:
To pay interest @ 18% per annum on the deposited amount from 16.12.2010 i.e. agreed date of possession to 04.08.2015 i.e. the date of handing over the possession till realization.
To pay compensation as per the agreement i.e. @ Rs.50 per sq. yd. per month from 16.12.2010 to 04.08.2015 alongwith interest @ 18% per annum till realization.
To pay interest @ 18% per annum on Rs.5,02,000/- paid on 02.03.2010 towards additional EDC wrongly charged from the complainant on 02.03.2010 till the adjustment made in the account of complainant i.e. 06.06.2014 till realization.
To pay a sum of Rs.17,47,000/- paid by the complainant as rent amount from 16.12.2010 till 04.08.2015 alongwith interest @ 18% per annum till realization.
To pay a sum of Rs.14,86,685/- paid as interest to the financial institution i.e. HDFC Limited paid till the date of handing over the possession i.e. 04.08.2015 alongwith interest @ 18% per annum till realization.
To pay interest @ 18% per annum on Rs.9,00,760/- approx. paid by complainant on account of Electricity Connection charges, stamp duty charges, Interest Free Maintenance Security (IFMS), Electrification charges, Registration charges received on 06.06.2014 as the possession was delivered on 04.08.2015 and conveyance deed executed on 17.11.2015 till realization.
To refund Rs.25,521/- paid on 06.06.2014 on account of monthly maintenance charges and water charges for the period 01.06.2014 to 31.03.2015 alongwith interest @ 18% per annum from the date of deposit till realization.
To refund maintenance charges of Rs.5,480/- for the period from 01.04.2015 to 30.06.2015 paid vide cheque dated 13.05.2015 and Rs.5,558/- for the period from 01.07.2015 to 30.09.2015 vide cheque dated 19.09.2015 and Rs.5,558/- for the period from 01.10.2015 to 31.12.2015 paid vide cheque dated 12.11.2015 alongwith interest @ 18% per annum from the date of deposit till realization.
To refund an amount of Rs.21,000/- (Rs.26,000/- minus Rs.5,000/-) illegally charged in the shadow of incidental expenses at the time of registration f plot as no detail of such incidental expense was given to the complainant being unfair trade practices on the part of Opposite Party No.1 alongwith interest @ 18% per annum till realization.
To pay difference in increase in the cost of construction as per the declared index of 2010 (the agreed year of possession) and the declared index of 2015 (the year of handing over of possession).
To pay Rs.5,00,000/- towards mental agony and harassment.
To pay an amount of Rs.1,00,000/- towards the cost of litigation.
3. The complaint has been resisted by the OP which has taken a preliminary objection that this Commission lacks pecuniary jurisdiction to entertain the consumer complaint. Another preliminary objection taken by the OP is that the conveyance deed having already been executed in favour of the complainant, after delivery of possession, there is no subsisting agreement between the parties and therefore, a complaint alleging deficiency in the services is not maintainable. It is also claimed in the written version filed by the OP that having taken possession without raising any grievance, the complainant cannot be allowed to raise claim at this juncture, such claims being barred by the principal of estoppel.
4. On merits, it has not been disputed that the possession was delivered to the complainant on 04.08.2015. It is also stated in the written version filed by the OP that there was delay on the part of the predecessor in interest of the complainant in making payment and the said payment was made by the complainant when the allotment was endorsed in his name. A benefit of Rs.4 lacs is stated to have been given to the complainant at that time, in as much as interest on the overdue payment payable by his predecessor in interest was not recovered.
5. The first question which arises for consideration is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain this consumer complaint.
6. In terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction to entertain a consumer complaint where the value of the goods or services, as the case may be, and the compensation if any, claimed in the consumer complaint exceeds Rs.1.00 crore. As held by a Three Members Bench in Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd.
CC No. 97 of 2016, decided on 07.10.2016, the value of the services in such a case would mean the sale consideration paid by the flat / plot buyer to the builder. The sale consideration in this case was Rs.59,95,415/- if the compensation claimed by the complainant or even a part of the said compensation is added to the aforesaid amount the aggregate would come to more than Rs.1.00 crore. Therefore, I hold that this Commission possesses the requisite pecuniary jurisdiction to entertain the consumer complaint.
7. Coming to the second preliminary objection taken by the opposite party, in my view, mere execution of the conveyance deed does not come in the way of a plot / flat buyer seeking compensation for the defects or deficiencies in the services rendered to him by the service provider if he is otherwise able to prove such defect or deficiency. What is relevant in this regard is as to whether the complainant had hired or availed the services of the opposite party or not. The complainant having been allotted a residential plot to be developed by the opposite party, it can hardly be disputed that he was a consumer within the meaning of Section 2(1)(d) of the C.P. Act, housing being included in the definition of service given in Section 2 of the C.P. Act.
8. The learned counsel for the opposite party drew my attention to the possession letter dated 4.8.2015 which to the extent relied upon by the learned counsel for the opposite party reads as under:
"The allottee, hereby certifies that he/she has taken over the peaceful and vacant physical possession of the aforesaid unit after fully satisfying himself / herself with regard to its measurements, location, dimension and development etc. and hereafter the allottee has no claim of any nature whatsoever against the company with regard to the size, dimension, area, location and legal status of the aforesaid plot.
Upon acceptance of possession, the liabilities and obligations of the company as enumerated in the allotment letter / agreement executed in favour of the allottee stand satisfied."
He has also drawn my attention to Clause 15 of the conveyance deed which reads as under:
"15. The Vendee confirms and acknowledges having received actual, physical, vacant possession of the said plot from the Vendor / Confirming party after satisfying himself about the plot area, dimension, boundaries etc. and shall have no claim of any nature whatsoever against the Vendor / Confirming Party regarding the same."
9. The contention of the learned counsel is that having taken possession of the plot and got the conveyance deed executed in his favour, the complainant is estopped from raising any claim against the opposite party. I however, find no merit in the contention, as far as the compensation for the delay in delivery of possession of the plot is concerned. While, taking possession, the complainant inter-alia stated that he had no claim with respect to the size, dimension, area, location and legal status of the plot. He did not say that he had no claim with respect to the delay in delivery of possession of the plot to him. While executing the conveyance deed, he recorded his satisfaction about the plot, area, dimension, boundaries etc. and stated that he had no claim of any nature regarding the same, meaning thereby that he had no claim with respect to the plot, area, dimension, boundaries etc. He did not say that he did not have claims of any nature whatsoever. Use of the words "regarding the same" qualified the claim, which he confirmed having not been left against the vendor. Therefore, neither the possession letter nor the conveyance deed would come in way of the complainant claiming possession for the delay in delivery of the plot to him.
10. Mr. Aditya Narain also states that while receiving the possession or obtaining the execution of the conveyance deed in his favour, the complainant did not reserve any right to claim compensation of any kind from the opposite party and having not reserved any such right, he is not entitled to raise any claim whatsoever against the opposite party. I however find no merit in this contention. In my opinion, it was not necessary for the complainant to expressly reserve the right otherwise available to him in law. What is relevant is that he did not forgo a right to claim compensation for the delay in delivery of possession. Moreover, vide email dated 08.10.2015, the complainant had claimed compensation @ Rs.50/- per sq. yards, which was the compensation payable to him in terms of Clause-8 of the Plot Buyers Agreement.
11. The next question which arises for consideration is as to for which period the complainant is entitled to compensation for the delay in delivery of possession. The contention of the learned counsel for the complainant is that since the possession was to be delivered by 31.12.2010, the complainant is entitled to compensation with effect from that date till 04.08.2015. However, when the endorsement in favour of the complainant was made on 26.02.2010, more than 2 years from the date of execution of the Buyers Agreement with his predecessor in interest had already expired. He could not have expected possession by December 2010. Despite that he chose to purchase the allotment. Therefore, considering the belated stage at which the allotment was purchased by him, the period of 3 years for delivery of possession, for the purpose of grant of fair compensation should be computed from 26.02.2010. The complainant therefore, would be entitled to a fair compensation with effect from 26.2.2013 till 04.8.2015.
12. For the reasons stated hereinabove, the complaint is disposed of with the following directions:
The opposite party shall pay compensation in the form of simple interest @ 8% per annum to the complainant with effect from 26.02.2013 till 03.08.2015.
The complainant shall also be entitled to a sum of Rs.25,000/- as the cost of litigation;
The payment in terms of this order shall be made within a period of three months from today.
......................J V.K. JAIN PRESIDING MEMBER