State Consumer Disputes Redressal Commission
Indu Sodhi vs Emm Mrf on 11 January, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Complaint Case No. 52 of 2011 Date of institution: 21.07.2011 Date of decision : 11.01.2012 Indu Sodhi W/o Sh.Somnath Sodhi, resident of House No.1593, Sector-18-D, Chandigarh. Complainant Versus 1. Emaar MGF, Land Limited, Ist Floor SCO No.120-122, Sector-17-C, Chandigarh-160017 2. Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110002. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Arun K. Kaundal, Advocate, for the complainant. Sh.Ashish Sarup, Advocate for the opposite parties. Complaint No.53 of 2011 (Date of institution 21.7.2011) Ravinder Kumar Sodhi S/o Sh.Harish Chander Sodhi, resident of House No.1180, Sector-34A, Chandigarh. .. Complainant Versus 1. Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017. 2. Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001. Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant. Sh.Ashish Sarup, Advocate for the opposite parties. Complaint No.54 of 2011 (Date of institution 21.7.2011) M/s Saurabh Sales Pvt. Ltd., Ist Floor, SCO No.107-109, Sector-34-A, Chandigarh through its Director Sh.R.K.Sodhi. .. Complainant Versus Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017. Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001. Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant. Sh.Ashish Sarup, Advocate for the opposite parties. Complaint No.62 of 2011 (Date of institution 21.7.2011) Malik Singh Kohli S/o Late Sh.Harnam Singh Kohli, resident of House No.163, Sector 18-A, Chandigarh. Ms. Neha Sodhi Gaur W/o Sh.Akshat Gaur,R/o House No.1593, Sector-18-D, Chandigarh. .. Complainants Versus Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017. Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001. Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant. Sh.Ashish Sarup, Advocate for the opposite parties. CORAM: Justice Sham Sunder, President Sh. Jagroop Singh Mahal, Member
Per Justice Sham Sunder , President This order shall dispose of the aforementioned four complaints, involving the identical questions of fact and law.
2. The facts are extracted from Complaint Case No.52 of 2011, which run in the manner, that the opposite parties advertised the launch of exquisitely designed project namely Mohali Hills on first come first served basis, which encompassed residential plots, town houses and luxurious villas, designed by the World renowned Architect, supported by an integral infrastructure of civic amenities, including landscaped, gardens, shopping, recreations centers etc. The Central Plaza was a retail offering segment of the said project, which envisaged setting up of dynamic mix of shops. It was a project of common man, and the prospective consumers, as once in a life time opportunity, to earn their livelihood from there. The general public, the prospective consumers and the complainants were assured that the construction work in the said Central Plaza had commenced in the month of June,2007 and further assurance was given that the timely completion of project was the utmost priority of the opposite parties.
3. In view of the aforesaid promises, made by the opposite parties, the complainant applied for a Unit/shop measuring 2448 sq.ft. of area in Central Plaza at Mohali Hills, in Sector 105, SAS Nagar, District Mohali, Punjab, which she intended to use for earning her livelihood, by way of self employment. She submitted her application form dated 26.3.2008 alongwith cheque No.000129 dated 13.3.2008, drawn on Bank of India, Chandigarh, in favour of the opposite parties, in the sum of Rs.15,30,838/-, in the office of Opposite Party No.1 at Chandigarh. At the time of submission of the application form(annexure C2), the complainant was assured that possession of the Unit shall be handed over within a period of 30 months, and maximum within 36 months, from the date of signing the buyers agreement dated 31.3.2008. Even the terms and conditions, contained in the application form, also envisaged that, on failure, on the part of the opposite parties, to hand over the possession, within the stipulated period, they will be liable to pay compensation on the delayed possession of the area of the Unit, per month, for the period of default. The complainant vide letter dated 24.4.2008(annexure C4) was allotted Unit No.38 on the floor FF in the Central Plaza, Mohali Hills, Sector-105, Mohali, having approximately super area of 2448 sq.ft alongwith one car parking, for a total sale consideration of Rs.1,04,80,070/-. In the said letter of allotment, the opposite parties duly acknowledged receipt of Rs.15,30,838/-
from the complainant as 15% of the total sale consideration. As per the terms and conditions of the application form, the opposite parties were to send the agreement to the complainant. The said agreement format annexure C6 was sent to the complainant by the opposite parties, after a considerable delay, which was signed by her, as also their authorized representative. According to the buyers agreement, the opposite parties assured the complainant that the said construction work of the project was in the progress. According to clause 24 of the agreement, in the event of default, on the part of the opposite parties, to hand over possession of the unit to the allottee, within the stipulated time, compensation for delay @ Rs.50/- per sq.ft of the super area till the date of issuance of notice offering possession, was to be paid. It was stated that, right from the very beginning, the complainant had shown her intention and willingness to opt for the construction linked payment plan and the same was offered and assured by the opposite parties. To the utter surprise of the complainant, later on, the said construction linked payment plan was unilaterally changed by the opposite parties to time linked payment plan. This deficiency was duly brought to the notice of the opposite parties.
Ultimately, again the payment plan was converted into construction linked payment plan.
4. Though, there was no progress, with regard to the development of project at the spot, the opposite parties raised a demand of instalment for Rs.10,20,559/- vide letter dated 26.5.2008. This amount was paid by the complainant through cheque which was attached with letter annexure C13 dated 20.9.2008. Again a demand notice demanding a sum of Rs.20,41,118/- was issued by the opposite parties. The complainant informed the opposite parties, vide letter dated 28.11.2008, that the construction activities/work had been stopped by them for the last five months, in relation to the project at the site.
It was also made clear that further payment shall only be made, on their assurance of immediate resumption of construction ; the expected date of completion; and also the date of delivery of possession. It was further stated that the opposite parties, time and again, assured that the construction will be resumed soon, but the same was not resumed. It was further stated that, without resuming the construction and handing over possession of the Unit, further demands towards the remaining price of the same, were raised by the opposite parties. It was further stated that since there was no progress of construction, in relation to the project at the site, the complainant, refused to make payment of further instalments. It was further stated that, ultimately, the opposite parties illegally, cancelled the allotment.
Complaint Case No.53 of 20115. In C.C.No.53 of 2011, the complainant Ravinder Kumar Sodhi was allotted Unit No.38 on the floor TF, having approximately super area of 2448 sq.ft alongwith one car parking, for a total sale consideration of Rs.71,75,270/-, which he intended to use for earning his livelihood, by way of self employment. In the letter of allotment dated 20.4.2008 annexure C4 the opposite parties duly acknowledged the receipt of Rs.10,35,118/-, being 15% of the total sale consideration. The complainant also deposited Rs.6,,90,079/- vide cheque No.326216 dated 3.9.2008 drawn on HDFC Bank Ltd, The Mall, Ludhiana.
The complainant, thus, in all, deposited Rs.17,25,197/- with the opposite parties, towards part payment of the price of the Unit.
Complaint Case No.54 of 20116.. In Complaint Case No.54 of 2011, the complainant was allotted Unit No.38 on the floor SF having approximately super area of 2448 sq.ft alongwith one car parking for a total sale consideration of Rs.82,76,870/-, vide allotment letter dated 24.4.2008 annexure C4.. The complainant paid Rs.12,00,358/-, being 15% of the total sale consideration, and also paid Rs.8,00,239/- vide cheque No.725044 dated 9.8.2008. Thus, the complainant, in all, deposited Rs.20,00,597/- with the opposite parties, towards the part payment of price of the Unit.
Complaint Case No.62 of 2011
7. In Complaint Case No.62 of 2011, the complainants Malik Singh Kohli and Ms.Neha Sodhi Gaur were allotted Unit No.38 on the Floor BG having approximately super area of 3503 sq.ft. alongwith one car parking, for a total sale consideration of Rs.1,60,53,145/-, vide allotment letter dated 24.4.2008 annexure C4, which they intended to use for earning their livelihood by self employment. The complainants deposited Rs.23,27,667/-, being 15% of the total sale consideration, as acknowledged by the opposite parties, in the letter of allotment C4. Thereafter, the complainants deposited another sum of Rs.15,51,811/- vide receipts dated 28.8.2008 annexure C12(colly.) issued by the opposite parties.
8. All the complainants took up the matter, with the opposite parties seeking refund of the amounts deposited, but to no avail. It was further stated that, by not carrying out development, and construction at the spot, and by not delivering possession by the stipulated date, as per buyers agreement, the opposite parties not only, were grossly deficient, in rendering service, but also indulged into unfair trade practice. When their grievance, was not redressed, left with no alternative, four separate complaints, referred to above, under Section 17 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), for the refund of amount; compensation for harassment; damages and costs, as also for declaring the letter dated 30.6.2011 cancelling the allotment as illegal, were filed.
9. In the written replies, filed by the opposite parties, it was pleaded that the complaint were not the consumers, as the property, being commercial in nature, was sought to be purchased for running commercial activities, to gain profits. It was further pleaded that the complainant had no locus standi to file the complaint. It was further pleaded that this Commission had no territorial jurisdiction, to entertain and decide the complaint, as the property in question, is situated at Mohali, and no part of cause of action arose to the complainants within the territorial jurisdiction of Chandigarh. It was admitted that the complainants applied for the allotment of Units (shop/commercial space) in Mohali Hills, Sector105, Mohali, Punjab, vide applications dated 26.3.2008. It was admitted that buyers agreement annexure R3 was executed between the parties. It was stated that originally it was time linked payment plan, but later on, it was converted into construction linked payment plan, for the facility of the prospective buyers.
It was further stated that the parties were bound by the terms and conditions contained in the buyers agreement. It was further stated that 10% of the sale price of the Unit was treated as earnest money to ensure fulfillment of the terms and conditions, as contained in the application and the agreement. It was further stated that the complainants deposited different amounts, mentioned in the complaints, towards the part price of the Units allotted to them. It was further stated that they did not deposit the remaining amount despite sending letters to them. It was further stated that as per the terms and conditions of the agreement, entered into between the parties, in case of default, on the part of the complainants, to make payment of instalments towards the price, the opposite parties, could cancel the allotment and forfeit the amount. It was further stated that the complainants defaulted in making payment of the outstanding amount and, as such, the opposite parties cancelled the allotment. It was further stated that the construction of the units in question, already stood completed and only finishing work remained to be done, as is evident from annexure R6 photographs. It was denied that the opposite parties were deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10. The Complainant, in Complaint Case NO.52 of 2011, in support of her case, filed her own affidavit, by way of evidence, with which a number of documents were attached. Similarly in other complaints, the complainants filed their respective affidavits, by way of evidence, with which a number of documents were attached.
11. The opposite parties, in support of their case filed the affidavit of Sh.Mohit Kaura, working as AGM Customer Services, and authorized signatory, alongwith a number of documents, in all the complaints.
12. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
13. An objection, was taken, in the written replies, filed by the opposite parties, that the complainants did not fall within the definition of consumers as the applications were submitted by them, for the allotment of commercial spaces, for running the commercial activities therein, to gain profit, and, as such, the complaints were not maintainable. The first question, that falls for consideration, is, as to whether the complainants, in all the complaints, fall within the definition of consumers, or not. In all the complaints, it was, in clear- cut terms, averred by the complainants, that they applied for the allotment of units, with a view to earn their livelihood, by way of self employment. In support of the averments, contained in the complaint, brief affidavits, by way of evidence, were also filed by the complainants. Under these circumstances, it could be said, that the said units/shops, were intended to be purchased by the complainants, not for running commercial activities, on a large scale, by employing a number of persons, but for earning livelihood by way of self employment. As per the explanation appended to clause (ii) of Section2(d) of the Act commercial purpose does not include use by a person of goods bought and used by him, and services availed of by him exclusively, for the purpose of earning his livelihood, by means of self-employment. It is not the value of the goods that matters, but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought, must be used by the buyer himself, by employing himself, for earning his livelihood. A few more illustrations would serve to emphasis that a person who purchases an auto-rickshaw to ply it, himself, on hire, for earning his livelihood, would be a consumer. Similarly, a purchaser of a truck, who purchases it, for plying it as a public carrier, by himself, would be a consumer. A person, who purchases a lathe machine, or other machine, to operate it himself, for earning his livelihood, would be a consumer. In the above illustrations, if such a buyer, takes the assistance of one or two persons, to assist/help him, in operating the vehicle or machinery, he does not cease to be a consumer. As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine, to be plied or operated exclusively by another person, would not be a consumer. This is the necessary limitation, flowing from the expressions "used by him", and "by means of self-employment" in the explanation. Similar principle of law was laid down in Laxmi Engineering Works Vs P.S.G. Industrial Institute, 1995(2) Consumer Law Today 474(SC). In M/s Cheema Engineering Services Vs Rajan Singh 1996(2)Consumer Law Today 397, a case decided by a full Bench of Honble National Consumer Disputes Redressal Commission, the complainant purchased a brick manufacturing machine, to operate himself, for earning his livelihood, by taking assistance of one or two persons. Under these circumstances, it was held that he fell within the definition of a consumer. In Jindal Oil and Ginning Factory Vs Punjab Small Industries & Export Corporation (2009)CJ26(Pb), a case decided by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, an application for allotment of an industrial plot, was made by the complainant, with a view to earn his livelihood. When the industrial plot was not allotted to him, he sought refund, and, under these circumstances, it was held that, he fell within the definition of a consumer. No evidence was led by the opposite parties , to the effect, that the applications for allotment of Units/shops were moved by the complainants, for the purpose of running a commercial activity on a large scale, and not for earning their livelihood, by way of self employment. Under these circumstances, it is held that the complainants, fall within the definition of consumers. The submission of the Counsel for the opposite parties, thus, being devoid of merit, must fail, and the same stands rejected.
14. In the written reply, a specific objection was taken, by the opposite parties, that since the units/shops, which were allotted to the complainants, were situated at Mohali, the buyers agreement was also executed at Mohali, and, as such, no cause of action accrued to the complainants, within the territorial jurisdiction of this Commission, at Chandigarh, and, thus, this Commission had no territorial jurisdiction to entertain and decide the complaint. Annexure C2 is the application dated 26.3.2008 which was moved by the complainant in complaint case No.52 of 2011 for the allotment of unit/shop. Similar applications were moved by the complainants, in other complaints. These applications were addressed to Emaar MGF Land Limited(Emaar MGF), Ist floor, SCO No.120-122, Sector 17-C, Chandigarh-160017, India. Alongwith the application, in Complaint Case NO.52 of 2011, a cheque in the sum of Rs.15,30,838/- annexure C3 towards part payment of the price of the Unit was sent. Similarly, in Complaint case NO.53 of 2011, a cheque in the sum of Rs.10,35,118/- annexure C3, in CC No.54 of 2011, a cheque in the sum of Rs.12,00,358/- annexure C3, and in CC No.62 of 2011, a cheque in the sum of Rs.23,27,667/- annexure C3, towards part payment of the price of Units, were sent. Since the applications were moved for the allotment of units at Chandigarh and the initial amount, aforesaid, was paid at Chandigarh, a part of cause of action, as per Section 17(2)(c) of the Act, arose to the complainants, within the territorial jurisdiction of this Commission, at Chandigarh. Under these circumstances, this Commission, had got territorial jurisdiction to entertain and decide the complaints. Such a plea taken, in the written reply, thus, being devoid of merit, must fail and the same stands rejected.
15. The next question, that arises for consideration, is, as to whether, the complainants were assured by the opposite parties, at the time of moving the applications, and the allotment of units that the payment shall be made by them as per construction linked plan or not? No doubt, in the complaints, it was in clear- cut terms, stated by the complainants, that they were assured that the payment had to be made by them, as per construction linked payment plan, but they were shocked to receive the annexure alongwith the allotment letter, whereby the payment was to be made as per time linked payment plan. This objection appears to be without any substance. Annexure C4, is the allotment letter alongwith which, the instalment payment plan was enclosed. There is nothing, on record, to show that, at the time of allotment of the units, or even prior thereto, the opposite parties ever assured the complainants that the payment was to be made as per construction linked plan. Such an objection was raised in C7 by the complainants. Later on, for the facility of the complainants, the time linked payment plan, was converted into construction linked plan, as admitted by the complainants themselves, in the complaints. The submission of the Counsel for the Complainants that originally they were assured that the payment was to be made, as per the construction linked plan, therefore, does not find corroboration from any document. The submission of the Counsel for the complainants, in this regard, being devoid of merit is rejected.
16. The next question that arises for consideration, is, as to whether the complainants are entitled to the refund of the amount deposited by them. According to condition No.15 of the broad terms and conditions for allotment of a unit, in the Central Plaza at Mohali hills, Sector105, Mohali, which were attached with the application C2, the Company was to make all efforts to handover possession of the units in (30) months but within the maximum period of 36 months, from the date of signing the buyers agreement i.e. 31.3.2008, subject to certain limitations, as provided in the same ( buyers agreement). As per Clause-22 of the buyers agreement annexure C6, subject to force majeure conditions and reasons, beyond the control of the developer, and subject to the allottee, not being in default of any of the provisions of this agreement, and having complied with all provisions, formalities documents etc. and the terms and conditions of this agreement, the developer proposed to hand over the possession of the premises within a period of 36 months from the date of signing the agreement. It means that possession of the units/shops was to be handed over to the complainants within 36 months of the date of signing the buyers agreement, referred to above. It is evident from C7 letter dated 28.11.2008 written by the complainant in complaint case No.52 of 2011to Opposite Party NO.1, that on visit to the site, it was noticed that the construction work had been stopped for the last 4-5 months. It was further stated, in this letter, that though, the booking amount, as also one instalment towards price, had been paid by the complainant, as per construction linked payment plan, but there was no sign of any development of the project at the site.
In this letter, an assurance was sought from the opposite parties, as to when the construction was to be resumed, and what would the expected date of completion and delivery of possession. There was no assurance, on the part of the opposite parties, as to when the construction would be completed, and possession of the unit would be handed over to the complainants. It was, in these circumstances, that the complainants, did not make payment of further instalments, as per construction linked payment plan. In our considered opinion, since no progress, for the construction of the units had been registered, at the site, nor there was any hope of delivery of possession within the stipulated time, the complainants were, thus, right in not paying further instalments. It is an admitted case of the parties that till date no offer of possession of the units/shops has been made to the complainants. In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC), no development work had been carried out, at the site. Thus, the payment of further installments, was stopped by the complainant. It was, in these circumstances, held by the Honble National Commission, that the builder could not be allowed to take shelter, under any clause of the agreement, to usurp the money deposited by the complainant. It was further held that, if any clause, in the agreement, entitled the builder to forfeit the deposited amount, even if, the fault was on his part, that could be said heavily loaded, in his favour, and it amounted to indulgence into unfair trade practice. The National Commission, ultimately, upheld the order of the State Consumer Disputes Redressal Commission directing the refund of the deposited amount, with interest. The principle of law, laid down in Prasad Homes Pvt. Ltd.s case (supra) is fully applicable to the facts of the instant case. Since the opposite parties, were at fault, in not raising the construction, the complainants could not wait indefinitely at the whims and fancies of the opposite parties. Though, a period of more than 3 years and 6 months, has lapsed since the date of execution and signing of buyers agreement annexure C6, yet neither possession has been delivered, nor refund of the amount has been made. By not refunding the amount deposited, the opposite parties were deficient, in rendering service. Under these circumstances, the complainants are entitled to the refund of the amount deposited by them.
17. The Counsel for the Opposite Parties, submitted that, as per clause 3.2 of the buyers agreement annexure C6, the developer had the right to forfeit the earnest money, as well as interest over unpaid instalments(calculated @ 15% per annum, from the due date) in the event of failure of the allottees to perform their obligations or non-fulfillment of the terms and conditions set out, in the agreement. He further submitted that since as per clause 3.4 of the said agreement, upon forfeiture, as stated above, the agreement shall stand cancelled and the allottee shall have no lien, right, title or interest or claim, whatsoever, in the property. He further submitted that there was default, on the part of the complainants, in making payment of further instalments as per the construction linked payment plan, and, as such, were not entitled to the refund of amount. The submission of the Counsel for the opposite parties, in this regard, does not appear to be correct. These clauses of the agreement were to come into operation only, if the opposite parties, had raised construction as per the construction linked payment plan. As stated above, till date, neither the construction has been raised, nor the question of delivery of possession of the units to the complainants arises. No doubt, a plea was taken by the opposite parties, in the written reply, that the construction of the units was complete and only finishing work was yet to be done. However, no documentary evidence, was produced, on record, in support of this contention. Such a plea, apparently was taken by the opposite parties, in the written replies, just with a view to defeat the claim of the complainants. The complainants, in view of the circumstances, explained, in the foregoing paragraphs, and in this paragraph, were not liable to make payment of further instalments, as no construction work was being carried out, nor possession was delivered to them within the stipulated period. It, therefore could not be said that the complainants committed breach of the terms and conditions of the buyers agreement and, as such, they were not entitled to the refund of the amount. The submission of the Counsel for the opposite parties, in this regard, being without merit, must fail and the same stands rejected.
18. The next question, that arises for consideration, is, as to whether the complainants are entitled to interest, on the amount of refund. Interest in general terms, is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, interest is understood to mean the amount, which one has contracted to pay for use of borrowed money. In whatever category interest in a particular case, may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. In the instant case, the amount deposited by the complainants, was withheld by the opposite parties, for sufficiently long period illegally. Since the opposite parties have not raised construction of the units, nor they offered possession of the same within the stipulated period of 36 months from 31.3.2008, when the buyers agreement was executed between the parties, they could not decline to pay interest on the amount.
Had this amount been refunded to the complainants, when they sought refund thereof, they would have deposited the same in a bank and thereby earned handsome returns thereon. Since the complainants were deprived of their money for a sufficiently long period illegally, by the opposite parties, they are liable to pay interest @ 12% p.a., from the respective dates of deposits.
19. The next question, that arises for consideration, is, as to whether, the complainants are entitled to compensation, if so, to what extent. According to Section 14(d) of the Consumer Protection Act,1986, the Consumer Foras can grant compensation, to the complainant. The word compensation is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means, compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the jurisdiction to award value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by a consumer, which in law is otherwise, the wide meaning of compensation. The provision, in our opinion, enables a consumer to claim and empowers the Consumer Fora to redress any injustice done to him. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate a consumer for injustice suffered by him. In Complaint Case No.52 of 2011 a sum of Rs.25,51,397/-, in CC No.53 of 2011 Rs.17,25,197/-, and in Complaint Case No.62 of 2011 Rs.38,79,478/- were deposited by the complainants, in the hope of getting possession of the units/shops in 36 months from the date of signing the buyers agreement with an intention to earn their livelihood, by way of self employment. Their hopes were dashed to the ground, when they saw that there was no development at the spot, nor any construction was carried on. The complainants, in the aforesaid complaint,thus, underwent a tremendous physical harassment and mental agony, at the hands of the opposite parties, on account of their act and conduct. In Buddhist Mission Dental College & Hospital Vs Bhupesh Khurana & Others, 1(2009)CPJ25(SC) , the Apex Court while upholding the order of the Fora below, regarding the refund of amount with interest @ 12% p.a., as also compensation of Rs.20,000/-, to each of the complainants, further directed the OPs, to pay additional compensation of Rs.one lac to each of them. In Paramvir Singh Vs P.H.Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011 the National Commission, in similar circumstances, upheld the grant of interest, on the refund of amount, as also granted compensation, to the complainant. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The complainants in Complaint Case Nos.52/2011, 53/2011 and 62/2011are, thus, held entitled to compensation of Rs.one lac each.
20. Since complaint No.54 of 2011 has been filed by M/s Saurabh Sales Pvt. Ltd., a Company, which is a juristic person, the question of its suffering physical harassment, and mental agony, did not at all arise. Under these circumstances, the complainant, in complaint case No.54 of 2011, is not entitled to compensation, for physical harassment and mental agony.
21. According to clause 24.1 of the buyers agreement annexure C6, in the event of failure of the opposite parties to hand over possession within the stipulated period, they will be liable to pay compensation for delay @ Rs.50/- (rupees fifty only)per sq.ft., per month, of the super area, to the allottee, till the date of notice offering the possession . As stated above, the construction has not yet been raised, by the opposite parties, nor the question of delivery of possession of the units to the complainants arises. The parties are bound by the terms and conditions of the agreement. The opposite parties, thus, made a false promise to the complainants that the possession will be delivered within 3 years from 31.3.2008. They, thus, fleeced the innocent purchasers of their hard earned money knowing fully well that they will not be able to fulfill their commitment regarding the delivery of possession within the stipulated period. Thus, the opposite parties indulged into unfair trade practice in complaint case Nos.52/2011, 53/2011, 54/2011 and 62/2011. Thus, the opposite parties are liable to pay compensation @ Rs.50/- per sq.ft per month of the super area to the complainants, in each complaint from 1.4.2011 till realization of the amount, aforesaid, for indulging into unfair trade practice.
22. No other point was urged, by the Counsel for the parties.
23. For the reasons, recorded above, all the four complaints are accepted with costs in the following manner ;
(i) The opposite parties are directed to refund the amount of Rs.25,51,397/- in Complaint Case No.52 of 2011, Rs.17,25,197/- in Complaint case No.53 of 2011, Rs.20,0,597/- in complaint case No.54 of 2011 and Rs.38,79,478/- in Complaint Case No.62 of 2011, to the complainants with interest @ 12% p.a. from the respective date(s) of deposit until realization.
(ii) The opposite parties are further directed to pay compensation of Rs.one lac each to the complainants in complaint case Nos.52/2011, 53/2011 and 62/2011 for physical harassment and mental agony caused to them.
(iii) The opposite parties are further directed to pay compensation to the complainants @ Rs.50/ per sq.ft per month of the super area in each complaint from 1.4.2011 (the stipulated date of delivery of possession being 31.3.2011) until realization of the amount, for indulgence into unfair trade practice..
(iv) The opposite parties shall also pay costs of Rs.10,000/- to the complainants, in each complaint.
(v) The aforesaid payable amounts shall be paid within 45 days, from the date of receipt of a copy of the order, failing which, the opposite parties shall be liable to pay interest @15% p.a. instead of 12% p.a. till realization, besides costs. v
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to the Record Room.
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Announced (JUSTICE SHAM SUNDER) January 11, 2012 President Sd/-
( JAGROOP SINGH MAHAL) js Member STATE COMMISSION Complaint case NO.52/2011 Argued by: Sh.Arun K. Kaundal, Advocate, for the complainant.
Sh.Ashish Sarup, Advocate for the opposite parties.
Dated the 11th January,2012 ORDER Vide our detailed order of the even date, recorded separately, this complaint has been accepted with costs, in the manner, depicted therein.
(Justice Sham Sunder) (Jagroop Singh Mahal) President Member STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Complaint Case No. 53 of 2011 Date of institution: 21.7.2011 Date of decision : 11.01.2012 Ravinder Kumar Sodhi S/o Sh.Harish Chander Sodhi, resident of House No.1180, Sector-34A, Chandigarh.
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Complainant Versus Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017.
Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001.
Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant.
Sh.Ashish Sarup, Advocate for the opposite parties.
QUORUM : Justice Sham Sunder, President Sh.Jagroop Singh Mahal, Member Per Justice Sham Sunder , President This complaint has been accepted with costs, in terms of our detailed order of the even date, recorded separately, in connected Complaint case No.52 of 2011 titled as Indu Sodhi Vs Emaar MGF & another. A copy of that order be placed on this file, which shall form part of this order.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to the Record Room.
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(JUSTICE SHAM SUNDER) (JAGROOP SINGH MAHAL) President Member STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Complaint Case No. 54 of 2011 Date of institution: 21.7.2011 Date of decision : 11.01.2012 M/s Saurabh Sales Pvt. Ltd. Ist Floor, SCO No.107-109, Sector-34-A, Chandigarh, through its Director Sh.R.K.Sodhi.
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Complainant Versus Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017. Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001.
Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant.
Sh.Ashish Sarup, Advocate for the opposite parties.
QUORUM : Justice Sham Sunder, President Sh.Jagroop Singh Mahal, Member Per Justice Sham Sunder , President This complaint has been accepted with costs, in terms of our detailed order of the even date, recorded separately, in connected Complaint case No.52 of 2011 titled as Indu Sodhi Vs Emaar MGF & another. A copy of that order be placed on this file, which shall form part of this order.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to the Record Room.
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(JUSTICE SHAM SUNDER) (JAGROOP SINGH MAHAL) President Member STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Complaint Case No. 62 of 2011 Date of institution: 21.7.2011 Date of decision :
11.01.2012 Malik Singh Kohli S/o Late Sh.Harnam Singh Kohli, resident of House No.163, Sector 18-A, Chandigarh.
Ms. Neha Sodhi Gaur W/o Sh.Akshat Gaur,R/o House No.1593, Sector-18-D, Chandigarh.
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Complainants Versus Emaar MGF, Land Limited, Ist Floor, SCO No.120-122, Sector-17-C, Chandigarh-160017.
Emaar MGF, Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001.
Opposite Parties Present: Sh.Arun K. Kaundal, Advocate, for the complainant.
Sh.Ashish Sarup, Advocate for the opposite parties.
QUORUM : Justice Sham Sunder, President Sh.Jagroop Singh Mahal, Member Per Justice Sham Sunder , President This complaint has been accepted with costs, in terms of our detailed order of the even date, recorded separately, in connected Complaint case No.52 of 2011 titled as Indu Sodhi Vs Emaar MGF & another. A copy of that order be placed on this file, which shall form part of this order.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to the Record Room.
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(JUSTICE SHAM SUNDER) (JAGROOP SINGH MAHAL) President Member