State Consumer Disputes Redressal Commission
Jaswinder Kaur vs Emaar Mgf on 26 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No : 07 of 2013 Date of Institution : 18.02.2013 Date of Decision : 26.06.2013 Ms. Jasjiwan Kaur wife of Mr. M.G. Singh, resident of House No. 57, Uday Park, New Delhi. .Complainant Versus 1. The Emaar MGF Land Limited, SCO 120-122, 1st Floor, Sector 17-C, Chandigarh 160017 Through its Branch Head. 2. Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi -110001 through its Director. .Opposite Parties. Complaint under Section 17(1) of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER
Argued by:Sh. Deepak Aggarwal, Advocate for the complainant.
Sh.Ashim Aggarwal, Advocate for the Opposite Parties.
PER DEV RAJ, MEMBER.
Ms. Jasjiwan Kaur has filed the present Consumer Complaint No.07 of 2013 under Section 17(1) of Consumer Protection Act, 1986 (hereinafter referred to as the Act).
2. In brief, the facts of the case are that being allured by the Opposite Parties vide repeated advertisements, in the leading newspapers/brochures, for the sale of plots, the complainant alongwith her two sisters i.e. Ms. Rupinder Kaur wife of Bhupinder Singh and Ms. Nimmi Bains wife of Major Gen. S.S. Bains, booked a plot, measuring 300 sq. yards in Pinewood Park, Sector 108, Mohali, vide application No.916, the sale price of which, was fixed at Rs.34,50,000/- calculated @ Rs.11,500/- per sq. yards. Apart from the above said total consideration of Rs.34,50,000/-, the complainant was also to deposit external development charges amounting to Rs.1,47,249/- and Rs.3,96,051/-(demanded by the Opposite Parties vide their letter dated 30.01.2010) said to have been levied by the Government of Punjab. According to the complainant, she was to deposit a total sum of Rs.39,93,300/-. It was stated that Plot Buyers Agreement dated 28.12.2007 (Annexure C-2) was entered in between the complainant including her sisters, and the Opposite Parties. It was further stated that Plot No.283 having approximate area of 300 sq. yards was allotted to the complainant in Pinewood Park, Sector 108, Mohali vide provisional allotment letter dated 12.06.2009 (Annexure C-3). It was further stated that the payments, as per the payment schedule, were made to the Opposite Parties, vide Receipts(Annexures C-4 to C-14 respectively). Interest of Rs.16,189/- (actually Rs.13,891/- as per Annexure C-11) for delayed payment of some installments, was also paid. It was further stated that the complainant also qualified for the Pay on Time reward scheme as part of Emaar MGF cares for You programe vide Annexure C-15. The complainant was eligible for waiver of 5% basic price on the last installment, amounting to Rs.1,72,500/-. It was further stated that against the liability of the complainant to pay a total sum of Rs.38,36,989/-, a sum of Rs.38,08,641/- was paid by her. It was further stated that the complainant did not make the payment of Rs.28,349/-. Subsequently, after the execution of Plot Buyers Agreement, the abovesaid Ms. Rupinder Kaur and Ms. Nimmi Bains surrendered their respective shares, in the plot, in question, in favour of the present complainant. It was further stated that the Opposite Parties, acknowledged the exclusive right of the complainant in the plot, in question, vide letter dated 2.9.2009 (Annexure C-17). It was further stated that after paying all the installments, the complainant received a letter dated 30.1.2010 (Annexure C-18) from the office of the Opposite Parties, asking her to take possession of the above said plot by paying an enhanced EDC i.e. External Development Charges of Rs.396051/- only. It was further stated that the possession of the plot, in question, was nowhere, in sight, and all the dreams of the complainant were shattered to ground.
3. It was further stated that as per Clause 8 of the Plot Buyers Agreement, the Opposite Parties, were to deliver possession of the Plot within the period of 2 years from the date of execution of the same, but not later than 3 years (i.e. approximately up to 28.12.2012) subject to force majeure circumstances or for the reasons beyond their control, but they failed to do so. It was further stated that the fact regarding additional external development charges levied by the Government of Punjab was never disclosed by the Opposite Parties, during the period from 19.9.2007 to 30.1.2010. It was further stated that the complainant thereafter, under the constrained circumstances, paid the enhanced external development charges amounting to Rs.3,70,000/- to the Opposite Parties. It was further stated that the offer of possession was only on papers, and there was no physical demarcation on the ground, where the complainant could initiate construction.
4. It was further stated that as per Clause 14 of the Plot Buyers Agreement, the construction by the complainant, on the above plot, was to be completed within a period three years from the date of offer of possession which was not possible in this case unless the plot was physically handed over to the complainant, alongwith proper sanctions and approvals obtained by the Opposite Parties from the competent authority, including the completion certificate etc. It was further stated that as per Clause 8 of the agreement, in the event of failure to deliver the possession within the stipulated period, the Opposite Parties were liable to pay to the complainant a penalty of the sum of Rs.50/- only per sq. yd. per month for such period of delay beyond 3 years, from the date of execution of this agreement i.e. 28.12.2007. It was further stated that the Opposite Parties, had made themselves liable by not providing internal services vide Clause No.23 of the Agreement. It was further stated that the Opposite Parties, failed to comply with the terms and conditions of the agreement/brochures for development of the Colony nor did they comply with the conditions for approval of the colony laid down by the Competent Authority. It was further stated that the Opposite Parties also failed to provide certain amenities, community building in the colony and common facilities as mentioned in their brochures and repeated advertisements.
5. It was further stated that the external development charges collected from the complainant and other allottees were not deposited with the Government of Punjab due to which even the proper electricity connection etc. were not provided by the Electricity Department. It was further stated that the Opposite Parties, also did not obtain No Objection Certificate from the various Government Authorities etc. which was one of the requirements before obtaining completion certificate for internal developments. It was further stated that the Opposite Parties, miserably failed in their duties under the agreement/brochures and, therefore, the complainant was not in a position to raise construction on the plot and become the habitant of the locality. 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 complainant, was not redressed, left with no alternative, a complaint under Section 17(1) of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Parties, to give physical vacant possession of the plot, in question, to the complainants after properly demarcating the same and after getting issued all the licences, necessary certificates, NOCs, occupation etc. from the concerned/ competent authorities, including the strict observance of the terms and conditions contained in the agreement regarding laying of roads, basic amenities etc.; pay penalty of Rs. 50/- per square yard per month (as per clause 8 of Plot Buyers Agreement) from 28.12.2010, pay Rs.2,00,000/- as compensation, towards mental agony and physical harassment; and Rs.35,000/- as cost of litigation.
6. The Opposite Parties, in their written statement, took up some preliminary objections to the effect that the complainant was not a consumer, as she had purchased another plot No.197 in Augusta Greens, Sector 109, Mohali vide Provisional Allotment Letter dated 5.5.207 (Annexure RW/A), apart from Plot No.283, solely for commercial purposes; the complaint was time barred as the cause of action accrued to the complainant on 30.01.2010 and the complaint was filed by the complainant after the period of two years specified under Section 24A of the Act; the complaint involved complicated issues, which could not be tried in summary proceedings before the State Commission.
7. On merits, the Opposite Parties admitted the factum of inviting applications for sale of residential plots and execution of plot buyers agreement on 28.12.2007. However, the Opposite Parties, denied the averment of Ms. Rupinder Kaur and Ms. Nimmi Bains being sisters, for want of knowledge and on account of the reason that there was no mention of this fact in Complaint No.371 of 2011, filed before the District Forum, (which was dismissed as withdrawn vide the order dated 01.11.2012), and co-allottees were described as two others. It was stated that the complainant paid Rs.13,891/- towards interest on delayed payments, as per copy of statement of account as on 19.3.2013 (Annexure RW/B). It was further stated that the initial allotment was in favour of three applicants and subsequently, the plot stands in the sole name of the complainant. It was further stated that the complainant had already been offered possession vide letter dated 30.01.2010 (Annexure C-18). It was further stated that additional external development charges were levied as per the statutory notification, issued by the Government of Punjab, which the complainants had agreed to pay. It was further stated that the basic amenities have already been provided in the area where the plot, in question, is located and the offer of possession was complete. It was further stated that the Opposite Parties were bound to develop the entire area in terms of the agreement and were doing the same. It was further stated that consequent upon obtaining the completion certificate, the Opposite Parties, shall register the property, which, cannot be a bar for the complainant to refuse possession and raise construction. It was further stated that the other allottees including that of plot neighboring the complainant, have duly taken possession and the plots after measurement have been demarcated to their satisfaction. It was further stated that the complainant never approached the Opposite Parties for taking physical possession of the plot, in question. It was further stated that the complainant, without visiting the site and taking over physical possession, is leveling allegations on mere surmises and conjectures. It was further stated that the complainant was informed vide letter dated 16.12.2011 (Annexure RW/G) that the Opposite Parties, would assist in getting the building plans approved from the Estate Officer, GMADA and also facilitate in getting temporary water and electricity connection but he (complainant) till date has not even taken possession. It was further stated that development of a project is an on-going process and completion of all facilities/amenities is not a condition precedent to take over possession and raise construction. It was also stated that there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor did they indulge into unfair trade practices. The remaining averments, were denied, being wrong.
8. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which a number of documents are attached.
9. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Mohit Kaura, DGM, Customer Services and authorized representative, of the Opposite Parties, by way of evidence, alongwith which number of documents were attached.
10. We have heard the Counsel for both the parties, and have considered the evidence adduced by them.
11. The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer as defined under Section 2(1)(d) of the Act or not. For deciding this issue, the provisions of Section 2(1)(d) and 2(1)(o) defining the consumer and service respectively are extracted hereunder:-
(d) "Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii)[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;]
12. It is undisputed and is also proved that earlier Plot No.197, measuring 300 Sq. Yards in Augusta Greens, Sector 109, Mohali was allotted to the complainant by the Opposite Parties, vide Provisional Allotment letter dated 5.5.2007 (Annexure RW/A), the price whereof was Rs.38,81,250/-. The complainant had also approached the Opposite Parties, for allotment of another residential plot and she was allotted residential plot No.283 measuring 300 Sq. Yards in Pinewood Park, Sector 108, Mohali, vide provisional allotment letter dated 5.5.2007 (Annexure C-3), which is the subject matter of the instant complaint. It means that the complainant was allotted two plots, each measuring 300 Sq. Yards, in Mohali, the total price whereof was Rs.76,47,603/-. It means that the complainant purchased Plot No.283, which was allotted to her, for commercial purpose, with a view to resell the same, when there was escalation in its price in the market. No doubt, it was stated by the complainant in the complaint that since, it was the desire of her late husband, who laid down his life, during Indo-Pak War, in the year 1971, that both her children should be well settled in life and should also own one property each, she applied for second plot, which is the subject matter of the instant complaint. Earlier, the complainant had filed Consumer Complaint No.371 of 2011 (Annexure RW/C) with regard to the plot, in question, wherein she did not make such an averment, which she ultimately, withdrew. In these circumstances, the complainant made improvement in the instant complaint with regard to the aforesaid factum over the contents of her earlier complaint. There is not even a fleeting reference, in the complaint, made by the complainant as to what her children are doing; at which place(s) they are residing; and whether they have got their own separate residential houses or not. In Chilukuri Adarsh Vs. M/s Ess Ess Vee Constructions, Consumer Complaint No.111 of 2012, decided on 02.07.2012, it was held by the National Commission, that even if a consumer, who had booked more than one unit of residential premises, it amounted to booking of such premises for investment/commercial purpose. Similar principle of law, was laid down by the National Commission in Jag Mohan Chhabra & Anr. Vs. DLF Universal Ltd., IV (2007) CPJ 199 (NC). Against this decision, Civil Appeal No. 6030-5031 of 2008, was filed, which was also dismissed, by the Honble Supreme Court of India, on 29.09.2008. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since, it has been held above, that second plot No.283, which is the subject matter of the instant complaint, was purchased by the complainant, for the purpose of investment so as to sell the same, as and when there was escalation in its price, which means that she (complainant) availed of the service of Opposite Parties, purely for commercial purpose, and, as such, by no stretch of imagination, she could be said to be falling within the definition of a consumer as defined under Section 2(1)(d) of the Act. The Consumer Complaint, is, therefore, not maintainable.
13. The next question, which falls for consideration, is as to whether the complaint, was within the limitation or not. According to the Opposite Parties, the complaint was time barred, on the ground that the complainant refused to take possession, which was offered to her on 30.1.2010 on the alleged ground that there was no development and thus the present complaint having been filed in March, 2013 (in-fact February, 2013) was time barred. The Counsel for the Opposite Parties, relied upon the judgment of the Honble Supreme Court of India in the matter of State Bank of India Vs. B.S. Agriculture Industries (I) reported in (2009) 5 SCC 12, wherein it was held that as a matter of law the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action, and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing.
14. No doubt, the possession was offered by the Opposite Parties, to the complainant, on 30.1.2010 vide letter (Annexure C-18) but the contents thereof reveal that it was a mere paper possession, and, in fact, there was no development. The Counsel for the complainant contended that maximum period of three years from the date of execution of agreement expired on 28.12.2010. The contents of letter dated 30.01.2010 (Annexure C-18) reveal that the development activities were in full swing, and significant progress had been made with respect to the development of basic infrastructure, and possession was offered subject to payment of additional external development charges. Thus, the offer of possession apart from being conditional, the development work was not complete..The complainant paid external development charges of Rs.3,70,000/- to the Opposite Parties on 6.3.2010 (Annexure C-14) and she seemed to be under a bonafide belief that the Opposite Parties would get the development works expedited. Annexure RW/D (Colly.) establish that possession to allottees in the same sector were given on 15.5.2010, 23.1.2011, 5.12.2011 and 19.2.2010. The complainant was well within her rights to accept the offer of possession, after being satisfied about the completion of development works. There is weight in the plea of the complainant that offer of possession on 30.01.2010 was merely a paper possession as development works were not complete. Thus there was a continuing cause of action, and, it could not be said that the complaint was barred by limitation. The contention of Opposite Parties, being devoid of merit, cannot be accepted. Since, there was a continuing cause of action and as such, the complaint is within limitation.
15. Assuming but not admitting, that the complainant is a consumer, the next question, that falls for consideration, is as to whether the complainant is entitled for possession or not? There is, no dispute, that the complainant alongwith Ms. Rupinder Kaur and Ms. Nimmi Bains applied for the allotment of a plot in Pinewood Park, Sector 108, Mohali, vide application No.916 and consequently, Buyers Agreement dated 28.12.2007 was executed. As per Annexure C-2, the total price of the plot was Rs.34,50,000/-, out of which, Rs.10,35,249/- were paid by the complainant at the time of booking. The complainant also agreed to pay the proportionate amount of external development charges, statutory and non statutory levied by the Competent Authority, Government of Punjab, amounting to Rs.1,47,249/-. Demand of additional EDCs of Rs.3,96,051/- was raised by the Opposite Parties on 30.01.2010, out of which, the complainant paid Rs.3,70,000/- on 06.03.2010. The complainant deposited a total amount of Rs.38,08,640/- as is evident from Annexures C-4 to C-14. The breakup of the payments is given in the table below:-
Sr. No. Description Amount paid to OPs Annexure
1.
Receipt No.363 dated 23.09.2006 (Registration Amount) Rs.10,35,000/-
C-4
2. Receipt No.924485 dated 15.06.2007 (Installment -01) Rs.1,72,500/-
C-5
3. Receipt No.926742 dated 27.09.2007 (Installment -02) Rs.1,72,500/-
C-6
4. Receipt No.930128 dated 18.12.2007 (Installment -03) Rs.3,45,000/-
C-7
5. Receipt No.190893 dated 15.04.2008 (Installment -04) Rs.3,45,000/-
C-8
6. Receipt No.194926 dated 23.07.2008 (Installment -05) Rs.3,45,000/-
C-9
7. Receipt No.197583 dated 13.10.2008 (Installment -06) Rs.4,18,624/-
C-10
8. Receipt No.62854 dated 24.12.2008 (Delay Interest) Rs.13,891/-
C-11
9. Receipt No.62854 dated 24.12.2008 (Installment -07) Rs.4,18,625/-
C-12
10. Receipt No.62870 dated 17.03.2009 (Installment -08) Rs.1,72,500/-
C-13
11. Receipt No.207214 dated 06.03.2010 (Customer Installment) Rs.3,70,000/-
C-14 Total Rs.38,08,640/-
16. As per the Plot Buyers Agreement dated 28.12.2007 , the sale price of the plot was Rs.34,50,000/- and as per Clause 2(d), the allottee (complainant) had agreed to pay the proportionate amount of external development charges as well as statutory and non statutory charges, till the date of issue of license for the project, amounting to Rs.1,47,249/- immediately upon demand and further amount levied as EDC or any increase therein by the Competent Authority.
17. The following relevant portion of the letter dated 30.1.2010 (Annexure C-18) is reproduced hereunder:
As you are aware, the real estate sector in India has witnessed some sharp upheavals in the past few months due to sudden change in the global economy. However, we have, keeping in mind the interest of our valuable customers, by putting extar efforts and resources continued with the development of the Project and are now pleased to inform you that we are ready to hand over the possession of the Plot allotted to you.
The development activities in all these sectors of Mohali Hills i.e. Sectors 105, 108 and 109 are in full swing and we are pleased to inform you that significant progress has been made with respect to development of basic infrastructure like water pipelines, sewer pipelines and development of roads, parks in these sectors. The development work of road and other basic infrastructure has been completed in portions of Pinewood Park, Sector 108, Mohali Hills, where your Plot is situated. Further, you may note temporary electricity and water connection has already been sanctioned for the Project.
In view of the above development and our constant endeavor to enhance our customers satisfaction, we are prepared to hand over possession of the Plot to you, subject to your making payments mentioned hereunder:
1. xxxxx
2. xxxxx
3. Payment of additional External Development Charges amounting to Rs.396051/- levied by Government of Punjab vide Notification Dated 19th September 2007 bearing No.17/17/01-5HG2/7623.
18. From the afore-extracted portion of the letter dated 30.1.2010, it is evident that the development work of road and other basic infrastructure was completed, in portions of Pinewood Park Sector 108 where the plot was allotted to the complainant. It is further evident that the Opposite Parties were ready to hand over the possession of the plot allotted, in favour of the complainant, subject to payment of Rs.3,96,051/- on account of EDC. It is also evident from Receipt dated 06.03.2012 (Annexure C-14) that the complainant deposited Rs.3,70,000/-. The complainant, on the other hand, in the complaint, as also in his affidavit, in clear cut terms, stated that on receipt of the aforesaid letter, he went to the office of the Opposite Parties, and also the site but there was no development, in the area, and that was why, the offer made by the Opposite Parties, vide letter dated 30.1.2010 could not be accepted at that time. Had all these development activities been undertaken and completed at the site, as mentioned in the letter Annexure C-18 dated 30.01.2010, the Opposite Parties, would have produced cogent and convincing evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify on this aspect. Rather whatever evidence was produced by the Opposite Parties, establishes that development works took place much later than claimed by the Opposite Parties. As stated above, the entire amount including the additional EDC of Rs.3,96,051/- barring a meagre amount of Rs.28,349/- had already been paid by the complainant. It is clearly in evidence that the complainant was very regular in paying the installments. Therefore, if all the development activities had been completed, at the site as mentioned in the letter, in question, no prudent person, much less the complainant, who had deposited, the huge amount of over Rs.38 lacs, would have refused the offer of possession of the plot. It is, therefore, held that no development activities, as mentioned in the letter dated 30.1.2010, had been completed at the site. RW/F (Colly) proposed plan, brought in evidence is in respect of Plot No.271, Pocket B, Sector 108, Mohali Hills and it is not discernible as to when it was sanctioned. However, it bears the signatures dated 4.12.2012 of the Sub Divisional Engineer, Public Health. Even this document came into existence much later i.e. after about three years of the issuance of letter dated 30.1.2010 (C-18).
This fortifies the contention of the complainant that there was no development when C-18 was issued and it was only a paper possession.
19. The Counsel for the opposite parties placed reliance on Municipal Corporation, Chandigarh and others vs. Shantikunj Investment (P) Ltd., and others, (2006) 4 Supreme Court Cases 109. In the said case, commercial site was allotted by the Municipal Corporation, Chandigarh, in auction, on as-is-where-is basis to the complainant.
There was no precondition that the amenities and facilities, shall be provided by the Municipal Corporation.
It was, under these circumstances, held that once the allotment of site had been made, in favour of the allottee, he could take possession of the same, and also use the same, but it did not mean that all the statutory facilities, should be provided first, for the so-called enjoyment of the property, as this was not a condition precedent of auction.
It was further held that it was not possible to accept a sweeping proposition, that if all the facilities or amenities were not provided, then the allottees/lessees could take upon themselves, not to pay the lease amount, interest and penalty, as it was not a condition precedent. In the instant case, a bilateral agreement was executed between the complainant and the Opposite Parties, and the latter were required to deliver possession of the fully developed plot, to the complainant, after ensuring external and internal development. When the external development charges, were charged by the Opposite Parties, from the complainant, it was their bounden duty to get the external development done. Despite payment of substantial amount of over Rs.38.0 lacs, the Opposite Parties failed to offer possession of a fully developed plot to the complainant.
The facts and circumstances of the case of Municipal Corporation, Chandigarh and others case (supra), therefore, being completely distinguishable, from the facts of the instant case, are of no help to the Opposite Parties. In view of the above discussion, the submission of the Counsel for the Opposite Parties, that the development activities were complete at the site, therefore, being devoid of merit, must fail and the same stands rejected.
20. Clause 8 of the Plot Buyers Agreement is extracted below:-
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 Pot 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. 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/- (Rupees Fifty only) per sq. yds. per month for such period of delay beyond 3 (Three) years from the date of execution of this Agreement.
21. As per this clause, in the event of failure of Opposite Parties, to deliver possession without existence of any force majeure conditions and reasons beyond the control of the Company, within the maximum period of 3 years, from the date of execution of the agreement, the Company shall be liable to pay to the allottee (complainant) a penalty in the sum of Rs.50/- per sq. yard per month for such period of delay beyond 3 years, from the date of execution of the agreement.
22. As per Clause 9 of the Plot Buyers Agreement, in the event of failure of the allottee to take over possession of the plot in the manner aforesaid, the allottee shall pay to the Company holding charges @Rs.50/- per sq. yd./sq.mt. of the plot per month for the entire period of such delay.
23. The complainant qualified for the Pay on time reward Scheme as part of the Emaar MGF Cares for your Program (Annexure C-15), launched by the Opposite Parties and was thus eligible for waiver of last installment of 5% basic price amounting to Rs.1,72,500.00. The complainant in her complaint admitted that she was liable to pay to the Opposite Parties, a total sum of Rs.38,36,989/- and paid a total sum of Rs.38,08,641/-. The balance amount of Rs.28,349/- remained to be paid by the complainant. The complainant averred that fact of demanding external development charges amounting to Rs.3,96,051/- levied by the Government of Punjab vide notification dated 19.09.2007 was never disclosed by the Opposite Parties during the aforesaid period of three years. The information to this effect was given by the Opposite Parties, vide letter dated 30.1.2010 whereas the notification is dated 19.09.2007. The complainant, under constrained circumstances, also paid the enhanced external development charges amounting to Rs.3,70,000/-. The complainant has pleaded that she approached the Opposite Parties, several times, immediately after 28.12.2010 and also alleged that the Opposite Parties, are not maintaining transparency and are indulging in unfair trade practices, by not disclosing the queries.
24. It is, thus, very clear that the complainant paid almost the entire amount to the Opposite Parties, barring a meagre amount of Rs.28,349/- whereas the Opposite Parties, have failed to develop the site and comply with the statutory requirements. They are, thus, liable to pay penalty of Rs.50/- per Sq. Yard per month w.e.f. 28.12.2010, to the complainant till delivery of possession after completing the development works. The Opposite Parties, have failed to bring, on record, any cogent and convincing evidence that the site was developed and they ever really offered physical possession of the plot to the complainant after carrying out the development works. Despite depositing of the external development charges (Rs.3,70,000) by the complainant, the Opposite Parties, failed to ensure development at the site before the possession of plot was handed over to the complainant. The complainant was justified in withholding the meagre amount of Rs.28,349/- and, in any case, it is not very significant. It is a fact, duly borne, on record, and not disputed by the Opposite Parties, that all other payments were made by the complainant well in time and it was on account of this reason that an amount of Rs.1,72,500/- was waived of by the Opposite Parties. No cogent evidence has been produced by the Opposite Parties about development of the site.
25. Thus, but for the reason, that the complainant is not a consumer, she would have been entitled to vacant physical possession of the plot after proper demarcation and issuance of all the licences, necessary certificates/NOC, Occupation Certificate etc. and also the penalty/compensation of Rs.50/- per Sq. Yard per month for the delay beyond 3 years starting from 28.12.2010, as per Clause 8 of the Plot Buyers Agreement besides compensation for mental agony and harassment and costs of litigation.
26. For the reason, recorded above, the complaint being not maintainable, as the complainant does not fall within the definition of a consumer, is dismissed, with no order, as to costs.
27. The complainant shall, however, be at liberty to resort to any other legal remedy, which may be available to her.
28. Certified Copies of this order be sent to the parties, free of charge.
29. The file be consigned to Record Room, after completion.
Pronounced.
26th June 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (Complaint Case No.07 of 2013) Argued by: Sh. Deepak Aggarwal, Advocate for the complainant.
Sh.Ashim Aggarwal, Advocate for the Opposite Parties.
Dated the 26th day of June, 2013.
ORDER The Opposite Parties have moved a miscellaneous application for permission to lead additional evidence for placing, on record, additional affidavit of Sh. Mohit Kaura, authorized signatory of Opposite Parties No.1 and 2 alongwith documents marked Annexures RW/I to RW/L.
2. The complainant has opposed the application, pleading that the application for additional evidence was not maintainable at this stage.
3. The additional evidence, sought to be produced on record, was very much available with the Opposite Parties, at the time, of filing their written version. No plausible ground, has been set up, as to what prevented the Opposite Parties, from producing these documents alongwith their written statement. The Opposite Parties now cannot be permitted to fill in the lacuna, left in the case. There is, therefore, no substance, in the application and the same deserves to be dismissed.
4. For the reasons recorded above, the application for additional evidence, being devoid of merit, must fail, and the same is dismissed.
5. Arguments, in the main complaint, already heard.
6. Vide our detailed order of the even date, recorded separately, this complaint has been dismissed with no orders as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER) PRESIDENT Ad The complainant had earlier filed Consumer Complaint No.70 of 2012 before this Commission in which, it was stated that she alongwith two others i.e. Ms. Rupinder Kaur wife of Bhupinder Singh and Ms. Nimmi Bains wife of Major Gen. S.S. Bains, had applied for allotment of a plot in the project floated by the Opposite Parties,. In Para No.3, it was stated that Ms. Nimmi Bains is her sister and Ms. Rupinder Kaur is her cousin sister (both blood relations).