State Consumer Disputes Redressal Commission
Jagdeep Singh vs Emmar Mgf on 11 January, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION
TERRITORY, CHANDIGARH.
Complaint
Case No. 28 of 2011
Date of institution: 26.04.2011
Date of decision : 11.01.2012
Jagdeep
Singh
Yadvinder
Singh
Both residents of V&PO Rollu
Majra via Lutheri Chamkaur Sahib, Ropar, Punjab.
Complainants
Versus
1.
EMAAR MGF, Land Private Limited, Regd. Office 17-B, Asif Ali Road, New
Delhi, through its Managing Director.
2.
EMAAR MGF, Land Private Limited, Office SCO No.120-122, Sector-17-C, Chandigarh, through its
Managing Director.
3.
Shrawan Gupta, Managing Director of EMAAR MGF, Land Private Limited,17-B, Asif Ali Road, New Delhi.
4.
The Manager of EMAAR MGF Land Private Limited, Office SCO No.120-122,
Sector 17-C, Chandigarh.
Opposite Parties.
Complaint
U/s 17 of Consumer Protection Act,1986.
Present: Sh.Kuldeep
Singh, Advocate, for the complainants.
Sh.Ashish
Sarup, Advocate for the opposite parties.
CORAM: Justice Sham Sunder, President
Mrs. Neena Sandhu, Member
Sh. Jagroop Singh Mahal, Member Per Justice Sham Sunder , President The facts, in brief, are that the opposite parties invited applications for the allotment of plot @ Rs.11500/- per square yard in Sector-105, SAS Nagar(Mohali). The complainants purchased the plot, from Kalra Realtors and the said dealer got transferred the application form, in the name of the complainants, from the opposite parties. The complainants then submitted an application for the allotment of plot, measuring 300 square yards, in Sector 105,Mohali, and deposited the booking amount of Rs.10,35,000/- and also paid Rs.75,000/- as transfer fee, to the opposite parties, vide receipt annexure C1 dated 6.12.2006 for Rs.11,10,000/-. The opposite parties, initially allotted plot No.571 measuring 300 sq.yards in Augusta Greens, Sector-109, Mohali, with preferential location charges of Rs.4,31,250/-, vide allotment letter dated 9.5.2007 annexure C2. On protest, having been made by the complainants, the opposite parties issued revised allotment letter dated 11.9.2007 allotting plot No.235 measuring 300 sq.yds in Augusta Greens, Sector-109, Mohali. According to the time linked payment plan, the complainant was to make payment within 24 months from the date of issue of the provisional allotment letter. The complainants again protested against the allotment of plot in Sector-109, upon which the opposite parties assured that the allotment letter issued to them, was a provisional one, and they will be given final allotment of plot in Sector 105. Accordingly, revised allotment letter dated 11.9.2007 annexure C4 was issued with payment plan annexure C5. Plot buyers agreement dated 4.7.2007 was executed between the parties. It was stated that according to Clause No.8 of the said agreement, subject to force majeure conditions and reasons beyond the control of the Company, it shall endeavour to deliver possession of the plot to the allottee, within a period of 2 years, from the date of execution of the agreement, but not later than 3 years. In the event, the Company failed to deliver possession of the plot without existence of any force majeure event, or reason beyond its control, within the maximum period of three years, from the date of execution of the agreement, it shall be liable to pay to the allottee, a penalty of the sum of Rs.50 per sq.yard per month, for such period of delay beyond three years, from the date of execution of the agreement. The complainants, according to the payment plan, paid the amounts, the detail of which is under ;
Sr.No. Amount paid in instalments (in Rupees) Date of payment Receipt issued by the OPs
1. 1,72,500/-
14.6.2007 C7 2, 1,43,750 7.12.2007 C8
3..
3,16,250
7..12.2007 C9
4. 4,88,750 7.12.2007 C10
5. 3,45,000 20.3.2008 C11
6. 3,45,000 24.6.2008 C12
7. 72,552 15.9.2008 C13
8. 3,57,000 15.9.2008 C14
9. 4,29,552 24.12.2008 C15 10 24,178 13.3.2009 C16
11. 1,72,500 13.3.2009 C17 The complainants, thus, in all, deposited Rs.39,77,032/- with the opposite parties. It was stated that, as per the terms and conditions of the plot buyers agreement, the opposite parties were bound to deliver possession of the plot upto 3.7.2010, after development of the infrastructure work, in the entire Sector alongwith amenities and common areas, but they failed to deliver the same. The complainants vide letter dated 9.10.2010, requested the opposite parties, to deliver possession of the plot, and demanded compensation @ Rs.50/- per sq.yard per month from 3.7.2010 till the delivery of possession which worked out to be Rs.15,000/- per month. It was further stated that the opposite parties sent reply on 13.10.2010, wherein they admitted that their project had been delayed and the possession could not be given by the stipulated time. However, no specific date for delivery of possession was given. It was further stated that the complainant, after visiting the spot, found that there was no sign of development, in the Sector, and even crops were standing. Ultimately, the complainants issued legal notice to the opposite parties on 14.3.2011 seeking refund of the entire amount, alongwith interest, but to no avail. It was further stated that, by not giving possession, after carrying out the development, at the site, and by not delivering possession by the stipulated date, as per plot buyers agreement, the opposite parties not only were grossly deficient, in rendering service, but also indulged 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), for the refund of amount alongwith interest ;
compensation for harassment; damages and costs, as also additional compensation as agreed in Clause 8 of plot buyers agreement , was filed.
2. In the written reply, filed by the opposite parties, it was admitted that the complainants were initially allotted plot No.571 in Augusta Greens, Sector 109, SAS Nagar(Mohali). However, on the request of the complainants and to their satisfaction, revised allotment letter allotting plot No.235, Augusta Greens, Sector-109 Mohali, was issued. It was denied that any promise was made for allotting a plot in Sector 105. Even, in the application form towards registration of expression of interest in a residential plot in Mohali Hills dated 7.9.2009, it was stated that the registration amount was to be considered for registration or allotment of a plot in subsequent sectors to be developed by Emaar MGF Land Private Limited at its discretion. It was further stated that according to Clause 2(f) of the plot buyers agreement dated 4.7.2007, the allottee had entered into an agreement, on the condition, that, out of the amounts paid/payable by the allottee towards the sale price, the Company shall treat 30% of the sale price, as earnest money, and in case of default ,on the part of the allottee to perform all obligations, set out in the agreement, the said condition of forfeiture of earnest money shall remain valid and effective till the execution and registration of the conveyance deed for the plot. 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.
3. The complainants, in support of their complaint, filed the affidavit of Sh.Jagdeep Singh complainant No.1, by way of evidence, with which a number of documents were attached.
4. 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.
5. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
6. The first question, that arises for consideration, is, as to within which period, the possession of plot, was to be handed over. There is, no dispute, about the factum, that the complainants applied for the allotment of a plot, and they were allotted plot No.235 in Augusta Green, Sector 109, Mohali. They deposited Rs.39,77,032/-, in instalments, towards the price of plot, according to instalment payment plan, as admitted by the OPs. Plot buyers agreement annexure C6 was executed between the parties. Clause 8 of the agreement, referred to above, which is relevant, for answering the question, posed, at the outset of this paragraph, reads as under
;
Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavour to deliver possession of the Plot to the Alottee 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 way 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 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. In the event that the Company fails to deliver possession of the Plot without existence of any force majeure event or reason beyond the control of the Company within a maximum period of 3(three) years from the date of execution of this Agreement, the Company shall be liable to pay to the allottee, a penalty of the sum of Rs.50/- per sq. yard per month for such period of delay beyond 3 three years from the date of execution of this agreement.
7.. The plain reading of Clause 8 of the Plot buyer agreement, extracted above, clearly goes to reveal, that the possession of plot, was to be delivered, within a period of two years but not later than three years, from the date of execution of the agreement C6, which was executed on 4.7.2007. The time could be extended, in terms of the plot buyers agreement, subject to force majeure, and the circumstances, beyond the control of the Company. In reply to the letter dated 9.10.2010, the opposite parties wrote letter Annexure C20 dated 13.10.2010 to the complainants, that the handing over of possession of plots started in November,2009 and the same was being, done in phased manner. It was further stated in this letter that the opposite parties had offered approximately 830 plots for possession, but with reference to the subject plot, possession was delayed and presently they did not have a definite date for the same, but they were expediting the matter and trying to deliver the plot allotted, in favour of the complainants, at the earliest. It was also stated, in this letter, that the Company was committed towards delivering the property, within the time frame, mentioned in the buyers agreement. It was also stated, in this letter, that in the event of any delay, the customers interests were best protected as per the terms and conditions mentioned in the agreement. The charges for the delay, if any, shall be payable at the time of possession. Therefore, it was not, on account of the circumstances, beyond the control of the developer, that delay was caused, in delivering possession of the plot. The Company could also not take shelter of force majeure clause. No document was produced by the opposite parties, that any restriction was imposed by any Court or Authority, upon them, as a result whereof, they could not develop the area and deliver possession of the plot, in time. It is, therefore, held that possession of the plot was to be delivered to the complainants, as per the agreement C6, within 36 months from 4.7.2007. By not delivering possession of the plot within the stipulated period, and even till date, the opposite parties indulged into unfair trade practice.
8. The Counsel for the Opposite Parties, submitted that, as per clause 2(f) of the plot buyers agreement R3/C6, the Company had the right to forfeit out of the amounts paid by the allottee, the earnest money to the tune of 30% together with any interest paid, due or payable, any other amount of a non-refundable nature, in the event of failure of the allottee to perform its obligation or non-fulfillment of the terms and conditions set out in the agreement. He further submitted that surrender of plot was also to be governed by the aforesaid clause and refund was to be payable accordingly. The submission of the Counsel for the opposite parties, in this regard, does not appear to be correct. This clause of the agreement was to come into operation only, if the opposite parties had, carried out development and offered possession of plot within the stipulated period. As stated above, till date, neither the possession of plot has been offered, nor the refund of amount deposited by the complainants, has been made. It, therefore could not be said that the complainants committed breach of the terms and conditions of the plot buyers agreement and, as such, the opposite parties were entitled to forfeit the earnest money. The submission of the Counsel for the opposite parties, in this regard, being without merit, must fails and the same stands rejected.
9. The perusal of the letter dated 13.10.2010 annexure C20 reveals that there was no commitment, on the part of the opposite parties, as to when the possession of plot, was to be handed over to the complainants. In our considered opinion, since there was no hope of delivery of possession , the complainants were, thus, right in demanding the refund of amount deposited towards the price of plot. It is an admitted case of the parties that till date no offer of possession of the plot, has been made, to the complainants by the opposite parties. 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 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 delivering possession of the plot , the complainants could not indefinitely wait at the whims and fancies of the opposite parties. Though, a period of more than 4 years and 6 months has lapsed since the date of execution and signing the plot buyers agreement annexure C6, yet neither possession has been delivered, nor the refund of amount, has been made. The opposite parties, were, thus, deficient, in rendering service. Under these circumstances, the complainants are entitled to the refund of amount deposited by them.
10. 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 had not delivered possession of the plot within the stipulated period of 3 years from 4.7.2007, when the plot buyers agreement was signed, 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 return thereon. Since the complainants were deprived of their hard earned 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.
11. 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 For a, 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. The complainants deposited Rs.39,77,032/- with the opposite parties , in the hope of getting possession of the plot, in two or at the maximum 3 years, from the date of signing the plot buyers agreement, with an intention to construct a house thereon. Their hopes were dashed to the ground, when they saw that there was no development, at the spot, nor there was any connectivity from their project to the already developed sectors as the opposite parties have not got laid connecting roads from Sector 109 to other Sectors of Mohali. The complainants, 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. For tremendous physical harassment and mental agony, undergone by the complainant, on account of non-delivery of possession or non-refund of the amount, by the opposite parties, they are entitled to compensation to the tune of Rs.one lac.
12. According to clause 8 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 penalty for delay in the sum of Rs.50/- (rupees fifty only)per sq.yard, per month, for such period of delay, beyond three years from the date of its execution. As admitted by the opposite parties, no definite date of delivery of possession could be fixed. The parties are bound by the terms and conditions of the agreement. The opposite parties, made a false promise, with the complainants, regarding the delivery of possession within three years from 4.7.2007. They, thus, misled the complainants, in this regard. The opposite parties, thus, fleeced the innocent buyers, of their hard earned money, knowing fully well that they were unable to abide by their commitment. They, thus, indulged into unfair trade practice. The opposite parties are, thus, liable to pay penalty @ Rs.50/- per sq. yard, per month, from 4.7.2007 till realization, for indulging into unfair trade practice.
13. No other point was urged, by the Counsel for the parties.
14. For the reasons, recorded above, the complaint is accepted with costs in the following manner ;
(i) The opposite parties are directed to refund the amount of Rs.39,77,032/- to the complainants with interest @ 12% p.a. from the respective date(s) of deposits until realization.
(ii) The opposite parties are further directed to pay compensation of Rs.one lac to the complainants as indicated in para 11 of the order.
(iii) The opposite parties are further directed to pay penalty to the complainants @ Rs.50/ per sq.yard, per month, for the period from 4.7.2010 (the stipulated date of delivery of possession being 3.7.2010) until realization of the amount, as indicated in para 12 of the order.
(iv) The opposite parties shall also pay costs of litigation of Rs.10,000/- to the complainants.
(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. -
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to the Record Room.
Sd/-
Announced (JUSTICE SHAM SUNDER) January 11,2012 President Sd/-
(NEENA SANDHU) Member Sd/-
( JAGROOP SINGH MAHAL) js Member