MRS. NEENA SANDHU, MEMBER

1.         The complainant filed a complaint under Section 12 of the Consumer Protection Act against the OPs for grant of compensation on account of deficiency in service. The brief facts of the case are that the complainant booked a residential plot in Mohali Hills, Sector 105, Mohali on 4.9.2006 and deposited a sum of Rs.13,80,000/- on 11.9.2006 with demand draft No.006812 along with application form vide Annexure C-1. It is submitted by the complainant that company kept silent for almost 8 months and did not intimate anything regarding the allotment to the complainant despite his personal visits and finally, after lot of persuasion, the OPs issued a provisional allotment letter on 15.5.2007 for a plot measuring 400 sq.yds @Rs.11500/- sq.yds in Augusta Greens, Sector 109, Mohali. That on receipt of the said provisional allotment letter, the complainant visited the office of OPs and protested that he had registered his expression of interest in Sector 105 Mohali Greens but his provisional allotment has been made in another area Augusta Greens Sector 109. When nothing was done by the OPS the complainant sent a letter dated 28.5.2007 requesting therein that he be allotted a plot in Sector 105 in ‘Mohali Greens’ else his amount be returned. The complainant also sent another letter dated 15.6.2007 to the OPs for the allotment of the plot in Sector 105 in Mohali Greens but no heed was paid to the issue having been raised by him. On the pretext of changing the plot, the executives of the OPs took signatures of the complainant on blank papers for using it for purpose of an application required for this purpose and later on the complainant was informed that the company had agreed to his request and changed the plot from No.126 to 122 in the same sector since all the sectors were the same. The complainant having left with no alternative reluctantly had to agree. A copy of the revised allotment letter dated 1.10.2007 is attached as Annexure C-4. The complainant deposited a further sum of Rs.4,21,648/- on 14.9.2007 thus in all the complainant had deposited a total amount of Rs.37,95,000/- that is more than 75% of the total cost of the plot. It is submitted by the complainant that there was no development in the area like roads, storm water, drainage, electricity etc, therefore, he made requests from April, 2008 onwards to them to refund his amount. In the meanwhile the sons of the complainant had also applied for the refund of their amount of Rs.20,70,000/- for the plots vide which they had booked the plots because they did not find the location of the plots proper. The amount deposited by them was refunded to them on 16/18.7.2008 but the amount deposited by the complainant was not refunded due to mala fide intentions of duping the complainant of his hard earned money. Hence, a discriminatory attitude has been adopted by the OPs. The complainant addressed another letter dated 7.8.2009 by speed post to the respondents reiterating his request for refund of the amount deposited by him giving seven strong reasons for the same inter alia the basic amenities i.e. roads, electricity, sewer, water supply etc. did not exist in the area and the plot of the complainant was 12ft deep from the level of road which was yet to be laid and filling up of plot would be very expensive, plot was at a stone throw away distance from the road could also result in cracks in the building and due to the plying of the automobiles on the road there will be vibrations as well as noise also, the village slums on the left side of the plot would be a cause of nuisance as they had made the area into an open latrine etc. In nutshell, the plot in question is not habitable as the complainant wanted to build upon it to live there in this phase of his life in peace and serenity. The OPs sent a reply admitting fundamental allegations of the complainant and asking him to reconsider his decision. The complainant requested the OPs many times but the OPs did not accept the request of the complainant. Neither the OPs offered a good habitable plot nor the OPs refunded the amount to the complainant.   Rather the OP company has asked the complainant to reconsider his request, and in case he insist on refund of the amount, the company will not refund the full amount deposited by the complainant. The complainant was astonished with this kind of behaviour of the OPs and again requested the OPs for refund of the amount in toto as there is a clear cut deficiency in service on the part of OPs by not providing the habitable plot to the complainant. The deficiency in service is also reflected from the adamant attitude of the staff of the company by not apprising the complainant about the status of the development of the area and by not offering a habitable plot having all required basic amenities and by not taking effective steps to avoid the delay in development. Inspite lapse of four years, the possession of the plot even though not habitable has not been offered to the complainant. It is submitted that due to deficiency in service on part of OPs in neither developing the area nor refunding the amount deposited by the complainant nor offering a good site for the plot having the basic amenities, the complainant is facing mental agony, stress, embarrassment, emotion turmoil and financial loss. Hence, there is a deficiency in service as well as unfair trade practice on the part of OPs and prayed the following relief :-

i)            Refund of the amount deposited by the complainant to the tune of Rs.37,95,000/- with 18% interest for delaying refund from the date of request having been made for this purpose i.e. 14.10.2008.

ii)            Compensation of Rs.2 lacs on account of deficiency in service by the OPs and for causing untold mental harassment, distress, mental agony, fatigue, financial loss.

iii)       Costs of litigation Rs.11,000/-.

iv)        Any other order or relief which this Forum may deem fit in the circumstances of the case, be also awarded in the interest of justice, equity and fair play.

2.         Reply was filed by the OPs and the OPs took preliminary objection that this complaint is not maintainable in the present form, complainant has no locus standi to file the present complaint against the OPs, the complainant has not approached this Commission with clean hands and has suppressed the true and material facts and this Commission has got no jurisdiction to entertain, try and decide the present complaint.  

            On merits, it is submitted that the mere residence of the complainant at Chandigarh does not give any reason to arise the cause of action. It is submitted that parties are bound by the terms and conditions of the plot buyer agreement dated 4.7.2007 and as per the clause No.39 of the plot buyer agreement as follows :-

“This or any dispute arising out of or touching upon or in relations to the terms of this agreement or its termination, including the interpretation and validity thereof and the respective rights and obligations of the parties shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or any statutory amendments, modifications or re-enactment thereof for the time being enforced and shall be held at New Delhi. The Hon’ble High Court of Punjab and Haryana at Chandigarh and the courts subordinates thereto having territorial jurisdiction over the plot shall to the specific exclusion of all other courts, alone have the exclusive jurisdiction in all matters arising out of/touching and/or concerning this agreement.”

            It is submitted by the OPs that this Commission has no territorial jurisdiction to entertain the present complaint. It is admitted by the OPs that complainant booked his residential plot in Mohali Hills, Sector 105, Mohali on 4.9.2006 and deposited a sum of Rs.13,80,000/- vide demand draft No.006812 dated 11.9.2006 and also admitted that provisional allotment letter issued to the complainant on 15.5.2007 for plot measuring 400 sq.yds @ Rs.11,500/- per sq.yds in Augusta Greens, Sector 109, Mohali. It is denied by the OPs that the OPs kept silent for almost eight months and did not intimate anything regarding the allotment to the complainant despite his personal visits. It is also admitted that the complainant visited the office of the OPs and protested that he had registered his expression of interest in Mohali Greens, Sector 105 but his provisional allotment is in another area Augusta Greens, Sector 109, Mohali and as such the complainant sent a letter dated 28.5.2007 requestig therein that he be allotted a plot in Sector 105, Mohali Greens or else his amount be returned. It is pertinent to mention here that the complainant has registered his expression of interest vide advance application form dated 4.9.2006 in the residential plot in Mohali Hills and as per clause of Advance Application Form dated 4.9.2006 the complainant agreed and understand that instant expression of interest and registration amount may also be considered for registration or allotment of plot in subsequent sectors to be developed by EMMAR MGF Land Pvt. Ltd. at its discretion and the complainant has no right to get allotted the plot only in Sector 105, Mohali. The complainant was allotted plot No. 126 vide provisional allotment letter dated 15.5.2007 having approximate area of 400 sq. yds  in Augusta Greens Sector 109 Mohali @ Rs.11,500/- per sq. yds making the total consideration of Rs.56,35,000/-, in addition the complainant was required to pay external development charges of Rs.2,25,472/-.  It is pertinent to mention here that although the complainant has no choice to get the plot re-allotted but the OPs has given one final opportunity to the complainant to select another plot and the complainant exercised his right and voluntarily without any pressure and coercion choose plot No.122, measuring 400 sq yds in Augusta Greens in Sector 109, Mohali of Mohali Hills. The OP treating it as special case, issued the revised allotment letter dated 1.10.2007 Annexure OP-4 where in the basic price of the plot @ 11,500/- sq.yds is Rs.46,00,000/- making the total consideration of Rs.54,00,472/-. It is submitted by the Ops that complainant has now concocted the false and frivolous story only to wriggle out from the terms and conditions of the plot buyer agreement dated 4.7.2007. It is denied that executive of the Ops took signatures of complainant on blank papers for using it for purpose of an application required for this purpose. It is admitted that on the request of the complainant, the plot was changed from plot No.126 to 122 and admitted the copy of revised allotment letter dated 1.10.2007 issued to the complainant and the complainant deposited total amount of Rs.37,95,000/- out of total sale consideration. It is denied by the Ops that  differences have cropped up in th relation of company EMAAR and MGF and thus there was no development in the area like roads, storm water drainage, electricity etc, therefore, the complainant made request from April, 2008 onward to refund his amount. It is also denied that the complainant was not refunded the amount deposited by the complainant due to mala fide intention of duping the complainant of his hard earned money. The complainant has not given proper and clear detail of the cases settled by the Ops. It is submitted that the complainant himself is a wrong doer and has not fulfilled the terms and conditions of the plot buyer agreement and is defaulter as per schedule of payment and is not entitled to any relief. The matter published in newspaper is not perse-admissible and the news were false and not based on true and material facts. It is admitted that  the complainant addressed another letter dated 7.8.2009 to the Ops to request for refund of amount deposited by him giving seven reasons for the refund of the amount. The Ops gave reply dated 21.8.2009 to the said letter dated 7.8.2009 of the complainant, in which considerable infrastructural work has been accomplished in Sector 105, 106, 108 and 109. Sewerage, drainage and water works are on the completion stage, electrical distribution network will also commence shortly across Mohali Hills, designs of sewerage plant for safe disposal of effluents have been finalized, plantation and grassing of parks is underway and with regard to construction, the Ops would like to inform that quality and delivery are the guiding principal of EMAAR MGF. It is submitted that the complainant has right to surrender the plot as per the terms and conditions of the plot buyer agreement dated 4.7.2007. It is further pleaded that  the news published in Indian Express wherein it was mentioned that there were 3000 aggrieved buyers like the complainant who have also applied for cancellation is totally incorrect hence denied. It is also denied that inspite of lapse of four years, the possession of the plot even though not habitable was not offered to the complainant and also denied that the Ops had been delaying the development of the area despite the fact that the complainant had paid the dues regularly till he became aware that he was being cheated. It is further pleaded that it was the liability of the complainant to make the installments of the plot as per Annexure OP-5, which has not been complied by the complainant himself. The plot buyer agreement has been executed on 4.7.2007 as Annexure OP-1 as per clause – 8, “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, the company fails to deliver the possession of the plot without existence of any force majeure event or reasons beyond the control of the company within maximum period of 3 years from the date of execution of this agreement, the company shall be liable to pay to the allottee, a penalty of sum of Rs.50/- per sq. yds per month for such period of delay beyond three years from the date of execution of this agreement. The complainant has no legal right to claim the possession letter without making full and final payment as per Annexure of payment. It is submitted that the Ops have issued the possession letter to more than 300 allottees who have made full and final payment as per plan. It is further submitted that the unit allotted to the complainant is situated within the jurisdiction of SAS Nagar Mohali on which basis the complainant has filed the present complaint, thus this Commission has got no jurisdiction to entertain, try and decide the present complaint. Hence, it is prayed that the complaint may kindly be dismissed with heavy costs.

3.         The complainant has filed his evidence by way of affidavit along with Annexures C-1 to C-14 whereas the Ops has filed an affidavit of Sh.Alamdeep Singh, Manager of EMAAR MGF Land Ltd. along with documents Annexures OP-1 to OP-5 and exhibit OP-6.

4.         We have carefully gone through the file and have heard Sh.Aman Chaudhary, Advocate for the complainant along with complainant in person and Sh.A.S.Longia, Advocate for the Ops.

5.         It is argued by the learned counsel for the complainant that the complainant booked a residential plot in ‘Mohali Hills’, Sector 105, Mohali on 4.9.2006 and deposited a sum of Rs.13,80,000/- vide demand draft No.006812 dated 11.9.2006 but the OPs almost after 8 months allotted a plot measuring 400 sq.yds in Augusta Greens, Sector 109, Mohali for which the complainant protested and sent a letter on 28.5.2007 to the OPs and requested to allot a plot in Sector 105, Mohali Greens or else his amount be returned. On the pretext of changing the plot, the executives of the OPs took signatures of the complainant on blank papers for using it for purpose of an application required for this purpose and later on, the complainant was informed that the company had agreed his request and changed the plot from No.126 to 122 in the same sector in this way the complainant left with no other alternative and the complainant reluctantly had to agree. A copy of the revised allotment letter was issued on 1.10.2007 and the complainant deposited a further sum of Rs.4,21,648/- on 14.9.2007, thus in all, the complainant had deposited a total sum of Rs.37,95,000/-. It was further argued that when the complainant in the year 2008 went to the site of the plot to see his plot, he found that there was no development and the basic amenities like roads, storm water, drainage, electricity etc did not exist in the area, not only this the plot which was allotted to the complainant is also not habitable because it is 12ft deep from the level of the road and the filling of the plot would be very expensive and could also result in cracks in the building. As the plot is very near to the road, it means there will be a lot of vibrations and noise due to the running of the automobiles on the road, moreover slums of the village on the left side of the plot will also cause  nuisance to the resident of this plot. Due to these reasons, the plot allotted to the complainant is not habitable.  The complainant requested the OPs many times but the OPs neither offered a good habitable plot to the complainant nor refunded the deposited amount.  Inspite of lapse of four years, the possession of the plot even though not habitable has not been offered to the complainant and as such this act of OPs amounts to deficiency in service and due to this act of OPs the complainant is facing mental agony, stress etc and prayed that the OPs be directed to refund the deposited amount of Rs.37,95,000/- with interest @ 18% for delaying refund from the date of request having been made for this purpose, compensation of Rs.2 lacs on account of deficiency in service by the OPs and Rs.11,000/- as costs of litigation.

6.         The learned counsel for the OPs took a preliminary objection that this complaint is not maintainable as the complainant has no locus standi to file the present complaint against the OPs in this Commission as the plot is situated in SAS Nagar, Mohali (Punjab) and no cause of action has arisen at Chandigarh. It was also argued that as per clause No.39 of the plot buyer agreement, the complainant had to approach the arbitrator for the settlement of the matter and this Commission has no jurisdiction to entertain the complaint.  It is argued that there is no dispute that the complainant has registered his expression of interest vide advance application form dated 4.9.2006 for the residential plot in Sector 105 of Mohali Hills but as per clause of advance application form the complainant agreed and understand that instant expression of interest and registration amount may also be considered for registration/allotment of plot in subsequent sectors to be developed by EMMAR MGF Land Pvt. Ltd. as its discretion and as such the complainant was allotted plot No.126 vide provisional allotment letter dated 15.5.2007. Although the complainant has no choice to get the plot re-allotted even then as a goodwill gesture the OPs has given one final opportunity to the complainant to select another plot and the complainant without any pressure from the side of OPs has chosen plot No.122 in Augusta Greens in Sector 109, Mohali and to this effect, the OPs have issued revised allotment letter dated 1.10.2007. It is denied that the executive of the OPs took signatures of complainant on blank papers for using it for purpose of an application required for the change the plot. It was further argued it is the complainant on whose request the plot was changed from Plot No.126 to 122 for which the complainant had deposited total sum of Rs.37,95,000/- out of total sale consideration. It was next argued that the complainant himself is a defaulter of paying as per schedule of payment and he is not entitled for any relief. The complainant has no right to surrender the plot as per terms and conditions of the plot buyer agreement dated 4.7.2007. As per clause – 8 of the Plot Buyer Agreement dated 4.7.2007, the complainant has no legal right to claim the possession letter without making full and final payment. The OPs have issued the possession letter to more than 300 allottees who have made full and final payment as per plan. Hence, the  OPs prayed for dismissal of the complaint.

7.         After hearing the learned counsel for both the parties at length and from the perusal of the record, it is established that this Commission has a jurisdiction as the agreement dated 4.7.2007, Annexure OP-5 was executed at Chandigarh, where the branch office of the OPs is situated. Moreover as per the Section 3 of the C.P.Act although there is a arbitration clause in the agreement but even then this Consumer Protection Act, 1986 has provided a specific provision to the aggrieved consumers to get the relief under this Act. Admittedly the plot was allotted to the complainant in the year 2006 and till today basic amenities are not existing in the area where the plot was allotted to the complainant as the learned counsel for the OPs failed to satisfy the bench by showing any document that all the basic amenities have already been provided in the area where the plot of the complainant is situated. Whereas it is the duty of the OPs to provide all basic amenities even before the allotment of plot. Since after a lapse of four years, the OPs were not able to provide the basic amenities, hence the grievance of the complainant seems to be genuine. The contention of the complainant that the executive of the OPs took signatures of the complainant on blank papers and allotted a plot No.126 in Sector 109 in the area Augusta Greens without the consent of the complainant, could not be believed as being a prudent person nobody will like to sign on the blank papers. Thus there is no force in this contention made by the complainant.  It is admitted fact that on the request of the complainant, the OPs have changed the plot No.126 to 122 in the same sector but the perusal of the file shows that the plot allotted to the complainant is not habitable as it is 12 ft deep from the level of the road which was yet to be laid and filling up of the plot would be very expensive, not only this as this plot is at a stone throw away distance from the road and due to the running of the automobiles on the road, there will be vibration and too much of noise. Moreover the slums of the village on the left side of the plot will also cause a nuisance to the resident of this plot. Thus, keeping these facts into consideration even we are of the view that this plot is not habitable.  As regards the arguments put forth by the OPs that the complainant has no right to surrender the plot and as per clause 8 of the buyer’s agreement dated 4.7.2007, in case there is any delay in the possession of the plot within maximum period of 3 years the complainant is only entitled for penalty of a sum of Rs.50/- per sq. yds per month for such period of delay beyond three years from the date of execution of this agreement. We don’t find any force in this contention of the learned counsel for OPs because the OPs have failed to provide the basic amenities in the area whereas the OPs should have provide all the basic amenities even before the launching of the project. However, the OPs have failed to do so. Thus we don’t hesitate to conclude that there is deficiency in service on the part of OPs by not providing basic amenities even till today. As per the affidavit of the complainant that the Ops have refunded the amount of the sons of the complainant to which there was nothing in rebuttal from the side of the OPs. It means that in the absence of any rebuttal from the side of OPs, it is admitted that the OPs have already refunded the amount deposited by the sons of the complainant on the ground that the plots are not habitable. As the plot allotted to the complainant is also not habitable then why the OPs have left out the complainant when the amount deposited by the sons of the complainant has already been refunded. Thus keeping these facts in mind that the OPs have already refunded the amount to the sons of the complainant. We are of the view that the complainant is also entitled for the refund of the amount deposited by him. 

8.         With these facts and circumstances, we are of the view that the complainant had every reason to ask for the refund of the amount deposited by the complainant as the OPs failed to provide all the basic amenities even till today. The OPs have also failed to allot a habitable plot to the complainant. Keeping this fact in mind that the OPs have already refunded the amount to the sons of the complainant, therefore, we are of the view that the complainant is entitled for the refund of the amount deposited by him.             Therefore, the complaint filed by the complainant is allowed and the OPs are directed

i)         To refund the amount of Rs.37,95,000/- already deposited by the complainant along with interest @ 9% p.a. since the date of deposit till the payment is actually made to the complainant.

ii)        To pay compensation of Rs.50,000/- to the complainant as a consolidated compensation for physical harassment and mental agony.  

iii)       To pay Rs.5,000/- as costs of litigation.

            The above said order is directed to comply with by the OPs within 45 days from the date of receipt of copy of this order, failing which interest @ 12% will be charged on the amount to be refunded to the complainant excluding costs of litigation.

9.         Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                           

9^th December, 2010.