Punjab

StateCommission

FA/12/1486

M/s Emaar MGF Land Pvt. Ltd. - Complainant(s)

Versus

Ashish Ahuja - Opp.Party(s)

Rohit Khanna

09 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.1486 of 2012

 

                                                          Date of Institution: 05.11.2012     

                                                          Date of Decision :  09.09.2015

 

1.       M/s Emaar MGF Land Pvt. Limited through the Managing Director  of MGF House, 17-B, Asaf Ali Road, New Delhi 110002.

 

2.       M/s Emmar MGF Land Pvt. Limited through its head of the Sales  Department at Sale Offices (Chandigarh) at SCO No.120-122, Ist         Floor, Sector 17-C Chandigarh.

 

3.       Manager Customer Services, M/s Emaar MGF Land Pvt. Limited at Sale Offices (Chandigarh) at SCO No.120-122, Ist Floor, Sector 17-     C, Chandigarh.

 

                                                                                                                                                               …..Appellants/Opposite Parties          

                                      Versus

 

1.       Ashish Ahuja son of R.S Ahuja, resident of House No.1147, Sector   7, Panchkula.

2.       Ms. Samita Ahuja wife of Sh.Ashish Ahuja, resident of House  No.1147, Sector 7 Panchkula.

 

                                                                                                                                                                   ..Respondents/ Complainants

 

 

First Appeal against order dated 18.09.2012 passed by the District Consumer Disputes Redressal Forum, Mohali.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                :     Sh.Rohit Chandel, Advocate  

          For the respondents            :     Sh.Gunjan Mehta, Advocate.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against respondents of this appeal (the complainants in the complaint),  challenging order dated 18.09.2012 District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant and directing the OPs to pay  interest @ 9% per annum on the amount of Rs.34,46,500/- w.e.f. from 19.06.2010 till date of delivery of possession of the plot and amount of Rs.3,00,000/-, as compensation for escalation prices of building material, besides Rs.15,000/- as costs of litigation.  The instant appeal has been preferred by the opposite parties now appellants in this appeal against the same.

2.      The complainant Ashish Ahuja and others have filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that M/s Emaar MGF Land Pvt. Limited had floated residential plots scheme in Sector 109 Mohali and complainant applied for registration of plot by submitting the cheque of Rs.10,35,000/-, as required along with application form. The provisional allotment letter dated 08.5.2007 was issued to the complainant on the basis of the advance application form for allotment of the plot no.428 with approximate area of 300 sq. yards in Sector 109 for total consideration of Rs.34,50,000/- , besides external development charges of Rs.169104/-. The payment schedule of the plot in question is reproduced as under:-

Sr.No.	Time Schedule	Amount in Rs.	Purpose
1.	At the time of Registration	10,35,000	30% of BSP
2.	With allotment	1,72,500	33.33 of PLC=5% OF BSP
3.	Within 3 months of Allotment	1,72,500	33.33 of PLC+5% of BSP
4.	Within 6 months of Allotment	3,45,000	33.34 of PLC+10% of BSP
5.	Within 9 months of Allotment	3,45,000	10% of BSP
6.	Within 12 months of Allotment	3,45,000	10% of BSP
7.	Within 15 months of Allotment	4,29,552	10% of BSP +505 of EDC
8.	Within 18 months of Allotment	4,29,552	10% of BSP+50% of EDC
9.	Within 21 months of Allotment	1,72,500	5% of BSP
10.	Within 24 months of Allotment	1,72,500	5% of BSP

 

The complainant paid the amount of Rs.10,35,000/- at the time of registration and allotment and a plot buyer's agreement dated 16.6.2007 was executed between the parties. The basic sale price of the plot was Rs.34,50,000/- and total sale price including EDC was Rs.36,19,104/-. As per clause 8 of the Agreement, it was agreed upon that if OPs failed to deliver the possession of the plot in question beyond period of three years from the date of execution of the buyer's agreement, then OPs would be liable to pay the penalty of Rs.50-00 per sq. yards per month for the delay beyond three years from the date of the execution of the above-said agreement. The complainant has paid the amounts to OPs towards the residential plot, as stated in para no.10 of the complaint are reproduced as under:-

Sr.No.	Description	Amount	Date
1.	Registration Amount	1035000-00	11.12.2006
2.	Installment -01	172500-00	14.06.2007
3.	Installment-02	172500-00	13.09.2007
4.	Installment-03	345000-00	15.12.2007
5.	Installment-4	345000-00	18.03.2008
6.	Installment-05	125000-00	18.06.2008
6 a.	Installment-05	220000-00	18.06.2008
7.	Installment-06	207500-00	20.09.2008
7 a.	Installment-06	225000-00	20.09.2008
9.	Installment-07	300000-00	23.12.2008
9 a.	Installment-07	100000-00	23.12.2008
10.	Installment-07	26604-00	24.12.2008
11.	Delay Interest	1238-00	25.12.2008
12.	Installment-08	1,20,000-00	06.03.2009
13.	Installment-08	52500-00	06.03.2009

 

The possession of the plot was to be offered on or before 17.06.2010 to complainant, the complainant requested the OPs on 10.01.2010 and on 29.12.2010 for delivery of possession, but to no effect. The complainant has, thus, filed the present complaint praying for compensation of Rs.36,00,000/- penalty, as per clause 8 of the agreement along with interest @ 18% per annum, Rs.5 lac for escalation of building material, Rs.50,000/- as compensation for mental harassment, Rs.15,000/- as legal expenses and Rs.15,000/- as compensation for loss of income per month after construction till payment.

3.      Upon notice, OPs filed joint written reply and contested the complaint of the complainant. It was averred in the preliminary objections that the consumer forum has no territorial jurisdiction to entertain and adjudicate the complaint. The OPs did not reside within the territorial jurisdiction of the District Forum Mohali nor carried on their professional business thereat nor any part of cause of action accrued therein. The buyer's agreement has been executed at Chandigarh and payments towards the plot in question have been made at Mohali and hence no cause of action accrued to the complainant to file the complaint within the jurisdiction of District Mohali. It was further pleaded that the value of the goods or services in this case exceeded Rs.20 lac and hence the District Forum has no pecuniary jurisdiction to try the complaint even on that score. In view of Clause 39 of the agreement, the matter is required to be settled under the Arbitration and Conciliation Act 1996. The complainants are barred from seeking any relief under the Consumer Protection Act 1986, as there is no deficiency in service on the part of OPs. On merits, OPs further averred that complainants are not entitled to any compensation, as there is no deficiency in service on the part of OPs. The contents regarding receipts of various amounts of money paid by the complainant to OPs have been shown in the statement of account. The complainant only paid Rs.34,46,000/-  to OPs excluding the 5% incentive offered to the OPs qua the plot in question. It was further pleaded in the written reply by the OPs that complainant be put to strict proof to prove e-mail dated 12.1.2012. It was further pleaded by the OPs that possession of the plot was to be offered by the OPs within a period of 24+12=36 months from the execution of the plot buyers agreement of the plot between the parties. It was further pleaded that the complainant was duly informed by the OPs that they have offered possession to other unit/plot holder in the said sector. Since the amenities are not provided in the area where the plot of complainant is situated, hence, the is delay in the delivery of the possession of the plot ensued. It was not disputed that complainant paid a sum of Rs.34,46,000/- excluding 5% incentive offered to the OPs qua the plot in question. It was further pleaded that OPs bound themselves to pay the contractual penalty for the delay, as per the terms and conditions of the Plot Buyers Agreement between the parties. It was further pleaded by OPs that complainants are liable to be paid/adjusted penalty amount only at the time of registration of the plot and not at any earlier time and period of the same would start after expiry of 36 months period of the agreement. There was no provision in the said Plot Buyers Agreement for the OPs to pay any interest on the deposited consideration/amount of the plot to the complainants for any delay in the delivery of possession. OPs prayed for dismissal of the complaint.

 4.     The complainant tendered in evidence, the affidavit of complainant Ex.CW-1/1 along with documents Ex.C-1 to Ex.C-9. As against it, OPs tendered in evidence the affidavit of Mohit Kaura DGM Customer Services and authorized representative of Emaar MGF Land Limited Ex.RW-1/1. On conclusion of evidence and arguments, the District Forum, Mohali accepted the complaint of the complainant by directing OPs to pay interest @ 9% on amount of Rs.34,46,500/- w.e.f. from 19.06.2010 till date of delivery of possession of the plot and awarded compensation of Rs.3,00,000/- for escalation of prices of building material  and Rs.15,000/- as costs of litigation. Dissatisfied with the order of the District Forum Mohali, the opposite parties now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case with the able assistance of counsel for the parties.

6.      The first submission raised before us in this appeal is that pecuniary jurisdiction of District Forum Mohali is barred because the value of the goods and services exceeded Rs.20 lac in this case. This point has not been accepted by the District Forum, as raised by the OPs. The jurisdiction of the Forum is assessed from the pleadings contained in the complaint. The complainant has alleged that possession has not been delivered by the OPs within stipulated period of three years and hence complainant is entitled to recover the interest, as long as possession is not delivered by the OPs to him on the amount, which has  already been deposited by the complainant with the OPs. The complainant has also claimed compensation on the point  of escalation of prices of building material, such as bricks, cement, iron, tiles, labour etc from 2010 to 2012 and further compensation of Rs.50,000/- for mental harassment and Rs.15,000/- as costs of litigation. We have duly considered the buyers agreement, which was executed between the parties, vide Ex.C-4 on the record. The buyer's agreement is Ex.C-4 on the record. The buyer agreement Ex.C-4 was executed between the parties on 18.06.2007 and is on the record and Clause 8 of the buyer's agreement is relevant, which is reproduced as under :-

          "Subject to Force Majeure conditions and reasons beyond the         control of the Company, the company shall endeavor to     deliver the possession of the plot to the allottee within a period          of two years from the date of execution of this agreement, but    not later than three years. In the event that the possession of the plot is likely to be delayed for reasons 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 by war or enemy action or earthquake or any act of the         God or if non-delivery is a result of any act, notice, order, rule      or notification of the Government, and any other public or         competent authority or for any reason beyond the control of the    Company, then in any of the aforesaid event, the Company    shall upon notice claiming for 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 falls 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 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. yards per month for      such period of delay beyond three years from the date of          execution of this agreement."

It is, thus, evident from perusal of clause 8 of buyer's agreement that OPs would deliver the possession of the plot to allottee within a period of two years from the date of execution of buyers agreement, but not later than three years at the most. Three years period at the outside has been given for delivery of the possession to allottee by the terms of buyer's agreement Ex.C-4, which was executed on 18.06.2007 between the parties. OPs had agreed to deliver the possession till 17.06.2010 to the complainant. It was pleaded by the OPs that development work has not been completed around the plot of the complainant, which is a cause of delay of possession in this case. The complainant has deposited the amount with the OPs, vide receipts Ex.C-5/1 to C-5/15 on the record. OPs have also not disputed the fact of payment of above amounts by the complainant to them. The complainant wrote letter Ex.C-6 on 10.01.2010 asking them to hand over the possession of the plot. OPs replied, vide letter Ex.C-8 that they were expected to hand over the possession of the plot by end of year 2011 to complainant.  Another letter is Ex.C-9 replied by OPs to complainant on 20.01.2012 to the effect that the facilities in the sector, where the plot of the complainant is situated, are in progress and possession has been delayed on that basis. OPs are still not ready to deliver the possession of the plot because the developmental facilities in the area of the plot of complainant have not been completed by them, as yet. The cause of action is continuing and recurring one in this case till the possession of the plot is delivered by the OPs to complainants in this case. The complainants only prayed for awarding of interest on the deposited amount with the OPs, besides compensation for escalation of building material, prices and compensation for mental harassment and litigation expenses. It is the value of the goods or services only for which the complaint is filed, which has to be taken into account in this case along with compensation claimed therein. Since the OPs are not even yet ready with the delivery of possession on account of incomplete development projects to the complainants of the plot, therefore, cause of action to file the complaint would accrue to complainant to seek possession of the plot on completion of developmental projects therein by the OPs and it is continuing one. The relief claimed by complainant is confined to payment of interest @ 18% per annum from the OPs on the deposited amount of Rs.34,46,000/- and it cannot be said to be unjustified by any stretch of reasoning. The complainant cannot be deprived of his hard earned money in any manner, the benefit of which has been reaped by the OPs, without delivering the possession of the plot to the complainants. OPs may take even further more significant time in not delivering the possession of the plot to the complainant. The valuation has to be assessed for the purpose of determining jurisdiction of the District Forum, as pleaded in the complaint from the facts probanda contained therein. The relief claimed by the complainant, by no stretch of imagination, exceeded Rs.20 lac in any case. Hence, reliance of OPs now appellants,  on law laid down in "The Blossoms Co-operative House Building Society Ltd… Versus… Chandigarh Housing Board through its Chairman and another," reported in 2002(1) CLT Page 142 and M/s M.G Exports  ..Versus… M/s Intraship represented by M/s Marine Mercantile (India) Page 316 by our own State Commission Punjab Chandigarh, is not applicable, as it has been held that "claim of complainant was pleaded in a consumer complaint, then the total value of the goods and/or services as well as that of compensation would determine the pecuniary limit of jurisdiction. It was aggregate value of goods and compensation or the aggregate value of services as well as that of compensation that determines the pecuniary jurisdiction of the Consumer Forum." We find that since the cause of action for possession is recurring and continuing in this case, till the OPs completed the developmental activities and hence it is valuation of the amount, as pleaded in the complaint, which has been taken into account by us to determine the competence of District Forum to decide the complaint. The valuation, as stated in complaint is less than Rs.20 lac and contention of OPs now appellants is not accepted on this point that District Forum Mohali  lacked pecuniary jurisdiction to entertain the complaint.

7.      The next submission of counsel for OPs now appellants is that when there is arbitration clause of the agreement, hence matter needs to be relegated to the arbitrator and relied upon judgment of this commission in Raju Kumar Singal vs. M/s Puma Realtors Private Ltd and others, in Consumer Complaint no.60 of 2014, instituted on 27.03.2014 and decided on 02.02.2015. Per contra, the respondents in this appeal relied upon law laid down by Apex Court in Fair Air Engineering Pvt. Ltd & another ..versus.. N.K. Modi, reported in III(1996) CPJ (SC) to the effect that Legislature intended to provide remedy in addition to the consentient arbitration, which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure, Section 34 of the Arbitration and Conciliation Act 1996 does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act.  It is matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the CP Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Consumer Protection Act, rather than relegating the parties to an arbitration proceedings, pursuant to a contract entered into between the parties. The reason is that the act intends to relieve the consumers of the cumbersome, arbitration proceedings or civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, comes to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise than those given in the Act. The law laid down by Apex Court would apply in this case vis-à-vis the law laid down by our State Commission in the above-cited case

8.      In view of law laid down by the Apex Court in the above-referred authority, the Apex Court has, thus, made it clear that Consumer Protection Act is an independent legislature and in stead of relegating the parties/consumers to arbitrator for arbitration proceeding and hence consumer forum has been held at liberty to deal with the matter because Section 3 of CP Act confers is an additional remedy, therefore, in view of the above- cited authority, we hold that the consumer forum is competent to proceed with the consumer complaints, in view of the additional remedy conferred by  Section 3 of the CP Act on the Consumer Forums.

9.      Consequently, we find that District Forum has awarded the interest @ 9% on the amount of Rs.34,46,500/- to complainant with effect from 19.06.2010 till the date of delivery of possession of the plot in question to them by the OPs to reimburse them against unfair trade practice of OPs. The District Forum also rightly awarded the amount of Rs. 3 lac, as compensation for escalation of prices of the building material to the complainant due to non-delivery of the possession on account of non-developmental infrastructure on the part of the OPs, besides Rs.15,000/- as costs of litigation. We do not find any illegality or material infirmity in the order of the District Forum, so as to take a different view therefrom in this appeal. Order of the District Forum is, thus, affirmed in this appeal.

10     As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by upholding the order of the District Forum Mohali dated 18.09.2012 under challenge in this appeal.

11.    The appellants had deposited the amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.75,000/- was deposited, vide receipt dated 10.01.2013. Both these above-said amounts with interest accrued thereon, if any, be remitted by the registry to the complainants by way of a crossed cheque/demand draft after the expiry of 45 days from the date of receipt of copy of this order.  Remaining amount be paid within 45 days time from the date of receipt of this order by the appellants to the complainants now respondents in this appeal.

12.    Arguments in this appeal were heard on 04.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

September 9,  2015.                                                                

(ravi)