State Consumer Disputes Redressal Commission
1. Pawandeep Singh Bawa, vs 1. M/S Emaar Mgf Land Limited on 2 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 125 of 2014 Date of Institution : 07.10.2014 Date of Decision : 02/01/2015 1. Pawandeep Singh Bawa, son of Sh. Arshi Kawal Singh Bawa, resident of House No.1357, Sector 33-C, Chandigarh. 2. Japneet Kaur Bawa, wife of Sh. Pawandeep Singh Bawa, resident of House No.1357, Sector 33-C, Chandigarh. Complainants V e r s u s 1. M/s Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Principal Officer/ Officer-in-Charge. 2. M/s Emaar MGF Land Limited, SCO No.120-122, First Floor, Sector 17-C, Chandigarh, 160017, through its Managing Director/ Director/ Principal Officer/Officer-in-Charge. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:
Sh. Vishal Bali, Advocate for the complainants.
Sh. Sanjeev Sharma, Advocate for the Opposite Parties.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that the complainants, are the husband and wife. They are residents of Chandigarh. From the very beginning they had a daydream of having a house for their residential purpose and also one space/shop in or around Chandigarh, wherein complainant no.2 wife of complainant no.1, who is having a good experience in boutique (handicrafts) could open the same (boutique). It was stated that presently complainant No.2 has been running the boutique, in a small/partial space in SCO No.24, Sector 26, Chandigarh, which is owned by her father. Consequently, the complainants searched for a project, in which they could get a house for their residential purpose and also a space/shop for running the boutique (handicrafts) by complainant No.2 therein, with the help of complainant no.1, for earning their livelihood by way of self employment, to lead a smooth family life.
2. It was further stated that, in the year 2008 the complainants came to know through various newspapers, marketing emails and telemarketing with regard to launching of mega township by the Opposite Parties, under the name Mohali Hills, Mohali, in Sectors 105, 108 and 109, consisting of residential plots, town houses, villas, commercial, retail shops etc. with salient lavish features. It was further stated that, it was assured by the representative of the Opposite Parties, that possession of the residential plots/villas and space/showroom would be delivered to them within a period of 36 months from the date of signing the Agreement. The Opposite Parties assured the complainants that all the requisite permissions and approvals had been obtained from the Competent Authorities, and would be shown later on.
3. It was further stated that, on such assurances made by the Opposite Parties, the complainants applied to the Opposite Parties vide application Form dated 15.02.2008, for the allotment of a space/shop measuring 1282 square feet, in the Central Plaza, Mohali Hills, Sector 105, S.A.S. Nagar, District Mohali, Punjab and also for one residential unit vide another application. The complainants were allotted one residential unit and one space/shop. Alongwith the said application form dated 15.02.2008, the complainants also paid an amount of Rs.8,88,224/- i.e. 15% of the sale price of the space/shop towards registration amount vide cheque No.984943 dated 15.02.2008 drawn on the HDFC Bank.
4. It was further stated that, subsequent to the acceptance of application dated 15.02.2008, the complainants were allotted unit No.17, FF, super area 1282 square feet, alongwith 1 car parking space, vide letter of allotment dated 05.03.2008 Ann. C-4 (colly.). Alongwith the said letter of allotment, payment plan was also attached, which was time linked. The total price of the space/shop was Rs.62,34,314/-, which included Rs.3 lacs, towards reserved car parking, External Development Charges (EDC) @Rs.118.95Ps. per square feet i.e. Rs.1,52,494/-, and Interest Bearing Maintenance Security (IBMS) @Rs.10/- per square feet i.e. Rs.12,820/-. It was further stated that, after a few days of the allotment of space/shop, in the Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, was executed between the parties, in respect of the same. It was further stated that, as per the payment plan Annexure C-6, 95% of the total cost of space/shop was to be paid during the course of construction and the remaining 5% was to be paid on intimation of possession of the space/shop.
5. It was further stated that, as per Clause 22.1 of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, the Opposite Parties were to hand over physical possession of the space/shop, in favour of the complainants, within a period of thirty six (36) months, from the date of execution of the same i.e. from 24.03.2008. After delivery of possession of the space/shop, period of three months (90 days) was to be taken by the Opposite Parties, for obtaining the Occupation Certificate from the Competent Authorities. It was further stated that, as such, the Opposite Parties were required to deliver possession of the space/shop to the complainants, on or before 23.03.2011.
6. It was further stated that the Opposite Parties kept on demanding payment of installments as per the payment plan. It was further stated that, in the month of May 2010, the complainants visited the site and were surprised to see that though the construction work was being carried out at a snail speed, yet, on the other hand, the Opposite Parties had been demanding the amount of installments regularly. It was further stated that the Opposite Parties, however, assured that construction would be completed and possession of the space/shop would be delivered by the stipulated date, mentioned in the Agreement, aforesaid. It was further stated that by January 2011 the amount of Rs.53,87,508/-, had been paid by the complainants, out of Rs.62,34,314/- i.e. more than 85% of the sale consideration.
7. It was further stated that, in the month of March 2011 i.e. the month when possession of the unit, in question, was to be delivered to the complainants, they again visited the site and were surprised to see that the construction had been put to halt. The complainants spoke to the representatives of the Opposite Parties, to know about the status of delivery of possession of the space/shop to them, but they failed to give any positive reply. It was further stated that, even the payment plan, initially opted by the complainants was time linked payment plan, but since the Opposite Parties failed to adhere the time, they unilaterally restructured the payment plan to construction linked, intimation whereof was given to them vide letter dated 29.05.2009 Annexure C-11 (colly.).
8. It was further stated that even in the absence of construction work being carried out at the site, a letter dated 10.05.2011 Annexure C-12, was received from the Opposite Parties, demanding further payment of Rs.6,10,888/-. It was also mentioned, in the said letter, that if the complainants, failed to make the said payment, the unit, in question, would be cancelled. Thus, in those circumstances, the complainants had to make payment of the amounts, as and when demanded, even in the absence of construction work, at the site. Till July 2011, the construction was not restarted at the site, despite the fact that the complainants in all had already made the payment of Rs.59,21,667/-, i.e. more than 95%, out of the total sale consideration of Rs.62,34,314/-, in respect of the space/shop, which included the amount of delayed interest also. However, the possession was not offered to the complainants.
9. It was further stated that till 2012, the Opposite Parties did not restart any construction activity, at the site, where the commercial space/ shop, in question, was allotted, in favour of the complainants. It was further stated that the scheme, thus, floated by the Opposite Parties, was just a farce. It was further stated that the Opposite Parties collected the hard earned money, from the general public, including the complainants, without any intention to develop the project, and delivery of possession of the units, to the allottees, by the promised date. It was further stated that, under these circumstances, left with no other alternative, the complainants sought refund of the amount, deposited by them, towards the said commercial space/shop, but the Opposite Parties despite giving assurance vide email dated 09.09.2014, failed to do so.
10. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the entire amount of Rs.59,21,667/-, deposited by the complainants towards the space/shop alongwith interest @18% P.A., from the respective dates of deposits till realization; pay compensation, to the tune of Rs.5 lacs, for mental agony, physical harassment and financial loss; and cost of litigation, to the tune of Rs.50,000/-.
11. The Opposite Parties, put in appearance on 17.11.2014, and filed their joint written version, on 23.12.2014. In the joint written version, it was pleaded by the Opposite Parties, that since the complainants had purchased two units, in the project of the Opposite Parties i.e. one residential in the name of complainant No.1 and the second shop in the name of both of them, they (complainants), did not fall within the definition of consumers. It was further pleaded that the complainants also did not fall within the definition of consumers as defined under Section 2(1)(d) of the Act, as they purchased the said space/shop and a Villa, for commercial purposes i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. It was stated that the complainants deposited the amount of Rs.56,12,508/-, towards part price of the said unit and not Rs.59,21,667/-. It was further stated that, in case of delay of delivery of possession of the commercial space/shop, as per the terms and conditions of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008, Annexure C-5, the Opposite Parties were to pay compensation/penalty for the period of delay. It was further stated that, since it was only proposed that the Opposite Parties were to complete the construction, within 36 months, from the date of execution of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008, Annexure C-5, as such, time was not the essence of contract. It was also admitted that possession of the commercial space/shop, in question, could not be delivered, to the complainants, till the date of filing the consumer complaint, or even till date. It was further stated that, as per the terms and conditions of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008, Annexure C-5, the period of delivery of possession of the commercial space/shop, was extendable for further 90 days, after 36 months, aforesaid. It was further stated that the complainants failed to make timely payment of instalments, in respect of the said space/unit. It was further stated that the work was going on, in the Central Plaza and all efforts were being made, to handover possession of the space/unit, at the earliest. It was further stated that, in case, the complainants sought refund of the amount, deposited by them, towards the said space, they would lose considerable amount, on account of cancellation and forfeiture, as per Clause 3 of the said Agreement. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
12. In the rejoinder filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written reply of the Opposite Parties.
13. The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.
14. The Opposite Parties, in support of their case, submitted the affidavit of Sachin Kapoor, their Sr. Manager (Legal), by way of evidence, alongwith which, a number of documents were attached.
15. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
16. The first question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers or not. No doubt, the Counsel for the Opposite Parties, submitted that since the complainants have purchased two units, in the project of the Opposite Parties, one in the name of complainant No.1 and the second in his own name and in the name of complainant No.2, they (complainants), did not fall within the definition of consumers. The submission of the Counsel for the Opposite Parties, in this regard, does not appear to be correct. Complainant No.1 purchased one villa, in the project of the Opposite Parties and he was allotted the same vide provisional allotment letter dated 22.01.2008, Annexure R-1, price whereof is Rs.1,29,88,104/-. In the instant case, the space/shop was, thus, purchased by the complainants, so as to enable complainant No.2, to run her boutique therein, for earning livelihood by way of self-employment, with the assistance of complainant No.1. It is, thus, not a case where two commercial units, were purchased by the complainants. Complainant No.1, thus, purchased the villa aforesaid, in the project of the Opposite Parties, for his residence and the residence of his wife and the space/shop, in question, in the same (project), for the purpose of running a boutique by complainant No.2, for earning livelihood, by way of self-employment. Had the complainants purchased two shops, in the project of the Opposite Parties, in that event, it would have been said that the same had been purchased by them, for commercial purpose, with a view to gain huge profits, and, as such, they did not fall within the definition of consumers. There is nothing, on record, that the complainants owned any other shop, in the tricity, in their names. On the other hand, the Opposite Parties, failed to produce, on record, any evidence that the complainants were property dealers or they intended to purchase the commercial space/shop, by way of investment, with a view to sell the same, in the event of escalation in prices or to rent out the same. No evidence was also produced, by the Opposite Parties, that the complainants were having other commercial spaces/ shops, in the project, in question, or in other projects, and, as such, their sole motive to purchase the space, in question, was to run a commercial activity, on a large scale, to gain huge profits or to rent out the same. No evidence was also produced, by the Opposite Parties, to prove that the complainants were already having thriving business or indulging into commercial activities, on a large scale, with a view to gain profits, and, as such, the commercial space/shop, in question, was purchased by them, just with a view to earn huge profits, by selling the same. Since, the complainants booked the commercial space/shop, in question, small in size, as stated above, and were allotted the same, and they also, in clear-cut terms, stated in the complaint, as also in the rejoinder, that they purchased the same, for earning their livelihood, by way of self-employment, in the manner, referred to above, it could certainly be said that they fell within the definition of consumers, as defined under Section 2(1)(d)(ii) of the Act. The objection taken by the Opposite Parties, in this regard, in the written version, being devoid of merit, must fail, and the same stands rejected.
17. It was next submitted by the Counsel for the Opposite Parties, that since the complainants were allotted shop on 24.03.2008 and were to be handed over possession, by 23.06.2011, the cause of action accrued to them on that date and the complaint having been filed on 07.10.2014, was palpably barred by time. According to Clause 22.1 of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, the Opposite Parties were to hand over physical possession of the space/shop, in favour of the complainants, within a period of thirty six (36) months, from the date of execution of the same i.e. from 24.03.2008. After delivery of possession of the space/shop, period of three months (90 days) was to be taken by the Opposite Parties, for obtaining the Occupation Certificate from the Competent Authorities. It may be stated here, that neither the possession of space/shop was offered, nor delivered to the complainants, by the stipulated date, nor the penalty, as provided in the Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, was paid to them, nor the refund of Rs.59,21,667/-, deposited by them, as is evident from the statement of account Annexure C-10, sought by them, was made to them. There was, thus, a continuing cause of action, in favour of the complainants, to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under
litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
18. The next question, that falls for consideration, is, as to within which period, the delivery of possession of the commercial space/shop, in question, was to be given to the complainants. The Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, was executed between the parties, on 24.03.2008. According to Clause 22.1 of the same, 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 the Agreement, and having complied with all provisions, completed formalities, documents etc., and the terms and conditions of the same (agreement), it (Developer) proposed to hand over possession of the unit, within a period of 36 months, from the date of signing the same (Agreement), with a grace period of 90 days for applying for Occupation Certificate from the Competent Authorities. It means that possession of the commercial space/shop was to be delivered to the complainants, on or before 23.03.2011, or with grace period of 90 days, at the latest by 23.06.2011. The complainants deposited a sum of Rs.59,21,667/-, out of the total price of the said commercial space/shop, which included delayed payment charges of Rs.3,09,159/-. It was, thereafter, that when the complainants visited the site, to see the progress in construction, that they came to know that there was no construction, at the site. It may be stated here, that the Opposite Parties did not produce any cogent and convincing evidence, on record, to the effect, as to upto which level, the construction, had reached, when the payment of Rs.59,21,667/-, towards part price of the commercial space/shop, including delayed payment charges of Rs.3,09,159/- had been made by the complainants to them. Even it has been frankly admitted by the Opposite Parties, in paragraph No.21 of the written version at page 160 of the file, that the work was still going on in the said project and all efforts were being made to handover possession of the space/shop, in question, to the complainants in the near future. Thus, it is crystal clear, that even as on today, the Opposite Parties are not in a position to deliver possession of the unit, in question. On the other hand, as stated above, possession of the commercial space/shop, in question, was to be delivered to the complainants, on or before 23.03.2011, or with grace period of 90 days, at the latest by 23.06.2011, as per the stipulation made in the Central Plaza Premises Buyer`s Agreement dated 24.03.2008, Annexure C-5. Still the Opposite Parties have not given any exact date of delivery of possession of the commercial space/shop, to the complainants. Since, the Opposite Parties failed to adhere to the terms and conditions, contained in the Central Plaza Premises Buyer`s Agreement dated 24.03.2008 Annexure C-5, they could not blame the complainants. Since, neither possession of the space/shop, which was allotted to the complainants, was offered to them (complainants) by the stipulated date nor by the time, the complaint was filed, nor till date, they (complainants) were right, in seeking refund from the Opposite Parties. By making a misleading statement, that possession of the commercial space/shop, would be given to the complainants, within a period of three years, from the date of allotment, with further grace period of three months (90 days), for obtaining the Occupation Certificate from the Competent Authorities, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
19. The next question, that falls for consideration, is, as to whether, the complainants are entitled to the refund of amount of Rs.59,21,667/-, deposited by them, towards the part price of commercial space/shop, in the manner, referred to above. As stated above, the Opposite Parties, failed to deliver possession of the commercial space/shop, in question, allotted in favour of the complainants, by the stipulated date or even till date. They, therefore, had no right, to retain the hard earned money of the complainants, in the sum of Rs.59,21,667/-, deposited towards the part price of commercial space/shop, in question, without rendering them any service. Under these circumstances, the complainants were left with no alternative, than to ask for the refund of sale consideration paid by them. In our considered opinion, the complainants are entitled to the refund of amount of Rs.59,21,667/-, deposited by them, towards the part price of commercial space/shop, in question. By not refunding the amount, aforesaid, deposited by the complainants, with interest, the Opposite Parties were deficient, in rendering service.
20. The next question, that falls for consideration, is, as to whether, the complainants are entitled to interest, on the amount deposited by them, if so, at what rate. The amount of Rs.59,21,667/-, towards the price of commercial space/shop, was deposited by the complainants, as is evident from the statement of account Annexure C-10. The complainants were deprived of their hard earned money, to the tune of Rs.59,21,667/-, on the basis of misleading information, given by the Opposite Parties, that they would be handed over legal physical possession of the commercial space/shop, in question, on or before 23.03.2011, or with grace period of 90 days, at the latest by 23.06.2011, but they failed to do so. The complainants were, thus, caused financial loss. Hard earned money, deposited by the complainants, towards the part price of commercial space/shop was utilized by the Opposite Parties, for a number of years. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties had been charging simple interest @15% P.A., from the complainants, as per Clause 21.1 of the Central Plaza Premises Buyer`s Agreement dated 24.03.2008, Annexure C-5.
It is, therefore, held that the Opposite Parties, by neither delivering possession of the space/shop, by the stipulated date, nor refunding the amount to the complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to the refund of Rs.59,21,667/-, alongwith interest @12% P.A., from the respective dates of deposits.
21. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, on account of mental agony and physical harassment or not. After making payment of Rs.59,21,667/- i.e. more than 95%, towards the price of commercial space/shop, no progress was made by the Opposite Parties, at the site, by the stipulated date. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The complainants, are, thus, entitled to compensation, to the tune of Rs.2 lacs, on account of this reason.
22. No other point, was urged, by the Counsel for the parties.
23. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
i. The Opposite Parties are directed to refund the amount of Rs.59,21,667/-, to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
ii. The Opposite Parties are further directed to pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
iii. The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
iv. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.20,000/-.
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion Pronounced.
January 2, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg