DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Ajay Bansal son of Sh. Narinder Kumar Bansal, resident of Flat No.121, Vasundhara Apartments, Sector 9, Rohini, Delhi 110085.

                                      ---Complainant.

Versus

1.                 M/s Emaar MGF Land Limited, Registered Office, ECE House, 28 Kasturba Gandhi Marg, New Delhi 110001 through its General Manager/Authorised representative

2.                 M/s Emaar MGF Land Limited, Branch Office SCO 120-122, 1^st Floor, Sector 17-C, Chandigarh through its Authorised representative.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. Sandeep Bhardwaj, Adv. for the complainant

                        Sh. Rohit Khanna, Adv. for OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Ajay Bansal has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs against the opposite parties :

(i)                to refund the amount of Rs.14,92,575/- alongwith interest @ 15% from the date of deposit.

(ii)             To pay compensation of Respondent.2,00,000/- towards mental agony and harassment;

(iii)           To pay Rs.35,000/- as costs of litigation.

2.                           In brief, the case of the complainant is that he wanted to purchase one flat for his residential purpose.  He came across a scheme floated by the opposite parties for construction of flats/apartments in their project known as ‘The Views’ to be built at Sector 105, Mohali by the opposite parties. The total sale price of the apartment chosen by the complainant was Rs.51,42,750/-.  He was asked to pay Rs.7.00 lacs as the booking amount which he paid vide demand draft dated 16.8.2006. 

According to the complainant, he was allotted flat/unit No.C3-F04-404.  Opposite parties sent the Buyer’s Agreement (C-2) in duplicate alongwith their letter dated 21.2.2008 (C-1) requiring the complainant to sign the said agreement (in duplicate) and return to Opposite Party No.2.  So he signed the agreement and sent the same to opposite party No.2 vide letter dated 6.3.2008 (C-3). Opposite party No.2 sent back the duly executed agreement vide letter dated 19.5.2008 (C-4) to the complainant.  The payment was to be made as per Schedule II annexed with the agreement.  Accordingly, the complainant paid a sum of Rs.7,92,575/- to the opposite parties vide demand draft dated 21.8.2007 towards the 1^st installment.  It has been pleaded that as per Annexure II, he was required to pay the next installment of Rs.4,97,525/- on the start of construction.  As the construction has not been started so far, so the opposite parties have not made any demand for the next installment. 

It has further been pleaded that as per clause 21.1 of the agreement, the opposite parties were bound to hand over the possession of the apartment within a period of 36 months from the date of allotment i.e. by the end of February, 2011 but the construction work has not been started so far.  It has further been pleaded that the complainant visited the site and to his surprise found that the construction activity has not started so far.  So, he visited the office of the opposite parties to make enquiries about the time period within which the construction shall be completed.  However, the opposite parties failed to give any satisfactory reply.  It has further been pleaded that the opposite parties have no intention to start the construction and even the copies of license to start construction, approval by the Govt. authorities/MC with regard to Water and Electricity connections, NOC from the Pollution Control Board etc. were not shown to him.  According to the complainant, in such circumstances, he vide letter dated 27.4.2011 requested the opposite parties to refund the amount of Rs.14,92,575/- with compound interest @ 15% per annum, but to no avail.

In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3.                           The opposite parties in their joint written version, by way of affidavit of Mr. Mohit Kaura, A.G.M., did not dispute the facts with regard to the allotment of the unit and the amount paid by the complainant towards the same. 

                   It has been admitted that since the construction activity in the tower, in which the apartment of the complainant was to be situated, did not commence, therefore, the opposite parties were justified in not raising demand of further payment from the complainant.  It has further been pleaded that the opposite parties are ready and willing to relocate the apartment in question to some other location provided the complainant agrees to such new location.  The receipt of letter dated 27.4.2011 seeking refund has been denied. 

                   According to the opposite parties, there is no deficiency in service on their part and the complaint deserves dismissal.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           The first argument advanced by the ld. Counsel for the opposite parties is that this Forum does not have the pecuniary jurisdiction to entertain and decide this case.  Our attention has been drawn to the prayer clause. The complainant has prayed for refund of Rs.14,92,575/- alongwith interest @ 15% from the date of deposit.  He has also prayed for compensation of Rs.2,00,000/- towards mental agony and harassment and a sum of Rs.35,000/- as costs of litigation.  According to the ld. Counsel, if interest @ 15% is calculated from the date of deposit of the amount till the date of filing of the complaint, the total amount prayed for by the complainant would exceed the pecuniary jurisdiction of this Forum.  Hence, according to the ld. Counsel, this Forum has no jurisdiction to entertain and decide this complaint.

6.                           On the other hand, it was argued by the ld. Counsel for the complainant that the amount of interest cannot be added in the amount claimed for the purposes of ascertaining the pecuniary jurisdiction of this Forum.

7.                           The ld. Counsel for the opposite parties has relied upon the case titled Shri Balaji Industries Vs. United India Insurance Co. Ltd. & Anr.-II (2008) CPJ 312 (NC).         To our mind, the ratio of the said case is not applicable to the facts and circumstances of the present case.  In the case cited above, the question before the Hon'ble National Commission was as to whether the amount claimed in the complaint has to be taken for determining the pecuniary jurisdiction of the State Commission or as to whether the amount agreed to be paid by the opposite party in the written statement has to be taken for determining the pecuniary jurisdiction of the State Commission.  The Hon'ble National Commission after going through the facts and circumstances of the case held that the amount mentioned in the complaint has to be considered for determining the pecuniary jurisdiction of the State Commission.  So, the ratio of the case cited above is not applicable to the facts and circumstances of the present case.  The ld. Counsel has also relied upon another judgment titled M/s Quality Foils India Pvt. Limited Vs. Bank of Madura Ltd. & Anr.-1996 (2) C.P.C. 55. We have gone through this judgment also.  Nowhere in this judgment it has been mentioned that the interest has to be taken into consideration for determining the pecuniary jurisdiction.  The Hon'ble National Commission has categorically stated that generally the amount of claim or the actual value of the property claimed and the compensation sought have to be computed for the purpose of determining the pecuniary jurisdiction.

8.                           On the other hand, the ld. Counsel for the complainant has relied upon the judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors.-II (2003) CPJ 81 (NC), wherein the Hon'ble National Commission has held as under :-

 “3.    Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs.18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

             4.       Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

The Hon'ble State Commission, UT, Chandigarh has followed the ratio of this case in its recent order dated 1.8.2012 in the case of Ms. Puneet Singh Vs. Emaar MGF Land Pvt. Ltd. & Anr.

9.                           Thus, in view of the ratio of the case Shahbad Cooperative Sugar Mills Ltd. (supra) and Ms. Puneet Singh (supra), we are of the opinion that the amount of interest is not to be computed for the purpose of determining the pecuniary jurisdiction.  In case the amount of interest is not computed in the total relief sought by the complainant, then this Forum has the pecuniary jurisdiction to entertain and decide this complaint. So, the argument advanced by the ld. Counsel for the opposite parties has no force.  It is pertinent to mention here that the ratio of case titled Shri Balaji Industries (supra) and M/s Quality Foils India Pvt. Limited (supra), relied upon by the ld. Counsel for the opposite parties, is contrary to the view taken by the Hon'ble National Commission and Hon'ble State Commission, UT, Chandigarh so this Forum is not bound to follow the ratio of those cases.

10.                       Admittedly, the opposite parties have received a sum of Rs.14,92,575/- and the construction work has not been started so far.  The amount was paid as far back as on 21.8.2007.  As per clause 21.1 of the Agreement, the possession was to be delivered within 36 months from the date of allotment.  The allotment was made on 21.2.2008.  So, as per agreement, the possession was to be delivered on or before 21.2.2011.  As mentioned above, admittedly what to talk of delivery of possession, even the construction work has not started so far.  In such circumstances, the demand of the complainant for refund of the amount paid by him is justified as he cannot wait for an indefinite period for the delivery of possession.

11.                       However, the ld. Counsel for the opposite parties has argued that terms and conditions of the agreement do not permit the complainant to seek refund. According to the ld. Counsel, as per clause  23 of the Agreement, the complainant is entitled to compensation for delay at the rate of Rs.5/- per sq. ft. per month of the super area to the allottee till the date of notice offering the possession to the allottee in accordance with the terms of the Agreement. 

12.                       To our mind, the argument advanced by the ld. Counsel for the opposite parties has no force.  From the bare perusal of this clause it is apparent that the amount payable shall be adjusted in last installment meaning thereby that for seeking relief under clause 23, the complainant has to wait till the delivery of possession.  Furthermore, as per clause 23 the complainant is entitled to compensation @ Rs.5/- per month of the super area.  As per clause 1.2, the super area shall be determined on completion of the project.  So, in terms of clause 23 of the agreement, no relief can be claimed by the complainant till construction is complete.  Thus, the argument advanced by the ld. Counsel for the opposite parties has no force.

13.                       As discussed above, the complainant had deposited the total amount of Rs.14,92,575/- and till today the construction work has not started.  So, the complainant cannot be forced to wait till an indefinite period for delivery of possession.  In these circumstances, the prayer for refund of the amount is justified and the opposite parties are bound to refund the amount.  Failure on the part of the opposite parties to refund the amount amounts to deficiency in service.

14.                       In view of the above discussion, the present complaint is allowed and the opposite parties are directed as under :-

(i)                to refund the total amount of Rs.14,92,575/- to the complainant with interest @ 9% per annum from the respective dates of deposit till payment.

(ii)             To pay Rs.50,000/- as compensation for mental agony and harassment.

(iii)           To pay Rs.10,000/- as costs of litigation.

15.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.

16.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

07.09.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

hg