Punjab

StateCommission

CC/745/2017

Barinder Kaur - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Ashok Paul Batra

15 May 2019

ORDER

                                                     FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

              Consumer Complaint No.745 of 2017

                                                           Date of Institution:  29.08.2017

                                                           Order reserved on: 09.05.2019

                                                            Date of Decision :  15.05.2019

   1.       Mrs. Barinder Kaur aged about 53 years wife of Colonel Sukhdev Singh.

               2.       Colonel Sukhdev Singh son of S. Jagir Singh

             both at the addresses as : 404 MC/ MF DET (MCO Office), Platform No.1, Room No.3, Railway Station, Amritsar.

3.       SS-49260 Lieutenant Ransher Singh Shoker son of Col. Sukhdev Singh and Barinder Kaur at present posted at 7 Sikh, The             Sikh Regiment, Colaba Military Station, Mumbai C/o 56 APO Pin-912207.

                                                                                  .….Complainants

                                        Versus  

1.       Emaar MGF Land Limited through its Managing Director, having its registered office at ECE House, 1st Floor, 28 Kasturba Gandhi Marg, New Delhi.

2.       Emaar MGF Land Limited, through its Branch Manager/ Sales Officer/ Authorized Signatory Executive Sales & Directors having its office at Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali-160062 (Punjab).

3.       Mr. Ajay Nambiar Head of Customer Care Services of Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

4.       Mr. Sanjay Malhotra, CEO of Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

5.       Mr. Mohit Kaura, Senior Manager/ GM of Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

6.       Shravan Gupta, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

7.       Shilpa Gupta, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

8.       Anil Bhalla, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

9.       Amit Jain, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

10.     Ashish Narayan Prasad Kabra, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

11.     Abhiram Seth, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

12.     Bharat Bhushan Garg, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

13.     Rahul Bindle, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

14.     Haroon Saeed Siddiqui, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

15.     Ahmed Jamal Java, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

16.     Mohamed Ali Rashed Alabar, Director, Emaar MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi.

          IInd Address:- Corporate Office :- Emaar MGF Land Limited, Emmar Business Park, Mehrauli Gurgaon Road, Skanderpur Chowk, Sector 28, Gurugram 122002 (Haryana).

                                                                    .....Opposite Parties

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

              Shri Rajinder Kumar Goyal, Member

 

Present:-

          For complainant nos.1&2          :  Sh. A.P. Batra, Advocate

          For complainant no.3                :  None

          For opposite party nos.1&2       :  Sh. Ashim Aggarwal, Advocate

          For opposite party nos.3 to 16  :  Ex-parte

          ……………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                    The complainants have instituted this complaint u/S 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against opposite parties (in short the 'OPs') on the premise, that they visited OPs builders/promoters site in the months of December 2010 and the latter assured them that the project would be complete in six months and possession would be handed over immediately thereafter. As allured by OPs, complainants desired to purchase the flat, under down payment plan. They paid Rs.Seven Lakh in January 2011 as part payment thereof. As per the down payment plan, they paid the entire price of flat of Rs.41,29,591/- plus Rs.98,432.14 toward service tax to OPs, vide Annexure C-2. Unit buyers' agreement was executed between the parties, vide Annexure C-3. OPs also issued allotment letter dated 28.01.2011 allotting them unit no.TVMK2-F04-402 of 144 square meters (1550 SFT) in The Views Mohali, the project of OPs, vide Annexure C-4. As per Unit Buyer's Agreement, Annexure C-3, the possession was to be delivered of the flat to them by OPs within 36 months from the date of allotment. Clause 23.1 of the Unit Buyers' Agreement is not applicable on the complainants, as they have not opted for possession after expiry of period of delivery of possession. They seek refund of the deposited amounts for deficiency in service in not delivering the possession of the allotted flat to them in the scheduled time. They sent notice through email dated 12.07.2016 to OPs for refund of deposited amounts with interest, vide Annexure C-5. OPs replied it, vide Annexure C-6 email dated 13.07.2016, falsely pretending that possession would be delivered in the month of March 2017. OPs sent another email to them on 16.07.2016 to reconsider their decision of cancellation of flat. The OPs again sent another email dated 22.07.2016 to the effect that the amount of Rs.6,44,179/- would be forfeited in the mutual interest, vide Annexure C-8, so that they could deflect from seeking refund of the deposited amounts. They alleged unfair trade practice and deficiency in service on the part of OPs, as they remained unable to develop the project and to give possession of the allotted flat to the complainants within schedule period of time. The complainants have prayed for below noted reliefs against OPs:-

1. OPs be directed to refund the amount of Rs.42,28,023.93 with 18% interest from the date of their deposit till actual payment.
2. to pay Rs.Ten Lakh as compensation for mental harassment.
3. to pay Rs.50,000/- as visiting expenses to OP's office.
4. to pay Rs.30,000/- as cost of litigation.

2.                 Upon notice, OP nos.1 and 2 appeared and filed joint written reply by raising preliminary objections that they purchased the flat for investment purposes and are not the consumers of OPs. The Forum has no pecuniary jurisdiction to try the complaint, as the subject matter in dispute exceeds the value of Rs.One crore in this case. The complaint is alleged to be barred by time. The complaint is bad for non-joinder of necessary parties, as son of complainant nos.1 and 2 Ransher Singh Shoker was added as a co-owner/allottee on 10.05.2012 only and he is not originally a party in this case. OP nos.3 to 16 have been wrongly impleaded as a parties in this case and complaint is bad for misjoinder of parties. There is an arbitration clause vide clause no.43 in the unit buyers agreement and complaint is not maintainable in its presence. On merits, answering OPs have not disputed this fact that complainants booked the residential plot with them. Any deficiency in service was vehemently denied by answering OPs on their part alongwith any unfair trade practice by them. As per terms and conditions of buyers agreement, there is provision for payment of penalty of Rs.5/- per square feet in case of delay in delivery of possession. Partial completion certificate for Tower K, where the allotted flat of complainants is located was received by OPs and possession was offered to them on 09.10.2017. The OPs admitted this fact that complainants paid the amount of Rs.42,28,022/- till date to them. It was denied that OPs failed to deliver the possession of the allotted flat to them within scheduled time. The answering OPs controverted the other averments of complainants. OP nos.1 and 2 specifically pleaded that they credited the compensation of Rs.3,11,868/- in the account of complainants in terms of clause 23.1 of the agreement. OP nos.1 and 2 prayed for dismissal of the complaint.

3.                 OP nos.3 to 16 were set exparte in this case.

4.                 OP-17 has filed his separate written reply admitting para no.3 of the complaint to be correct. He further averred that his claim is alike to complainant nos.1 and 2 in this case. He reiterated his stand as taken by the complainants for refund of the amount. Vide order dated 20.08.2018 of the Hon'ble National Commission in First Appeal No.380 of 2018, OP no.17 was ordered to be impleaded as complainant no.3 in this case.

5.                 The complainants tendered in evidence affidavit of Barinder Kaur complainant no.1 Ex.CW1/A and affidavit of Colonel Sukhdev Singh complainant no.2 Ex.CW2/A with documents Ex.C-1 to Ex.C-14 and closed the evidence. As against it, OP nos.1 and 2 tendered in evidence affidavit of Rajnish Kaushik, General Manager (Legal) Ex.OP1&2/A with documents Ex.OP1&2/1 to Ex.OP1&2/7 and closed the evidence.

6.                 We have heard the learned counsel for the parties and have also examined the record of the case. Since OP-17 has been ordered to be transposed as complainant no.3 in this case, as per above order of the National Commission, hence there is no need to refer to his written reply, as he has been arrayed as one of the complainants Complainant no.1 is wife of complainant no.2 and complainant no.3 is their son and they are members of the same family and they wanted to purchase the flat for setting up their son complainant no.3 near Chandigarh. It is residential project. Complainant no.1 has filed her affidavit Ex.CW1/A on the record and complainant no.2 Sukhdev Singh has tendered in evidence his affidavit Ex.CW2/A stating that complainants booked flat with OP nos.1 and 2 and OP nos.3 to 16 are the CEO and Directors of OP company. The total price of the flat was Rs.41,29,591/- plus Rs.98,432.14 service tax.  The schedule of payment is Ex.C-1 and statement of account showing the payments is Ex.C-2. Units Buyer's Agreement Ex.C-3 was executed between the parties and flat no.TVM K2-F04-402 in the project, 'The Views Mohali' was allotted to complainants vide allotment letter dated 28.01.2011 Ex.C-4. As per Unit Buyer's Agreement, OPs committed to deliver the possession within 36 months from the date of allotment of the unit to complainants, vide clause 21 thereof. The complainants also proved on record emails Ex.C-5 to Ex.C-10 to the effect that OPs failed to develop the project and to deliver the possession in the scheduled time of the allotted flat and hence they are entitle to refund of the deposited amount by them. It has further transpired in their evidence that OPs sent sham possession letter dated 09.10.2017 to them without any clearance from local authorities, vide Ex.C-11. The complainants further relied upon documents Ex.C-12 to Ex.C-14, which have been perused by us carefully on the record.

7.                 OP nos.1 and 2 also tendered in their evidence to contradict this evidence of complainants. OP nos.3 to 16 have been set exparte in this case. OP nos.1 and 2 relied upon affidavit of Rajnish Kaushik General Manager, Ex.OP1&2/A in support of their case. Ex.OP/1 is the copy of resolution passed by board of directors authorizing the named persons to pursue the case. Ex.OP1&2/2 is the copy of letter of intimation of possession dated 09.10.2017 by OPs to complainants to the effect that unit stood completed in terms of agreement and has been ready for delivery of possession. Ex.OP1&2/3 is the copy of issuance of partial completion certificate of residential block/tower-K, The Views, Sector 105, SAS Nagar (Mohali) issued by GMADA to OPs. Ex.OP1&2/4 is the copy of statement of account dated 29.09.2017 of complainants showing the total amount received by OPs  Rs.42,28,023/- from them. Ex.OP1&2/5 is the copy of letter to complainant nos.1 and 2 for addition of the name of Ransher Singh Shoker, as co-applicants in unit no.TVM K2-F04-402 in the project "The Views" at Mohali Hills, Mohali and in record of OPs as well and Ex.OP1&2/6 is the copy of letter in this regard by complainants to OPs. Ex.OP1&2/7 is copy of notification issued by Punjab Government for development of the project with terms and conditions therein. The main reliance of contesting OPs is on letter of possession dated 09.10.2017 sent by them to complainants Ex.OP1&2/2 coupled with partial completion certificate of Tower-K dated 02.08.2017, wherein the allotted flat of complainants is located. On the basis of above referred two documents, the submission of contesting OPs is that there is no deficiency in service or unfair trade practice on their part in this case and hence the complaint merits dismissal.

8.                 From hearing the respective submissions of counsel for the parties and perusal of record, we find that complainants are members of the same family and they purchased the flat for the purpose of residence. It is a residential project and they are, thus, held to be consumers, being members of the same family. The next point raised by counsel for the OPs is that there is an arbitration clause in unit buyers agreement and hence consumer complaint is not maintainable in its presence. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OP before the Top Court of the country, which has since been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the presence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum.

9.                 The next submission of counsel for OPs is that complaint is beyond pecuniary jurisdiction of this Commission and hence it merits dismissal on this score. Counsel for complainants has scaled down the claim by making statement before arguments in this case. He has reduced the claim of interest from 18% per annum to 12% per annum on the deposited amounts and similarly he has reduced the claim for compensation for mental harassment from Rs.10 Lakh to Rs.Five Lakh. On account of reduction of the reliefs claimed by counsel for complainant in this case on 09.05.2019 on behalf of complainants, this objection as raised by counsel for OPs pales into insignificance. The contention of counsel for OPs is not accepted on this point.

10.               As per clause 21 of unit buyers agreement dated 06.03.2011, OPs agreed to deliver the possession to complainants within 36 months period, as per clause 21.1 of it from the date of allotment. 36 months period has to be taken from execution of unit buyers agreement 06.03.2011, which would come to an end on 06.03.2014. The OPs were bound to deliver the possession to complainants by 06.03.2014 at the outside. The per partial completion certificate relied upon by OPs was obtained by OPs during pendency of the complaint only on 02.08.2017. The scheduled time for delivery of possession of unit, as per clause 21.1 of unit buyers agreement was uptil 06.03.2014. The complainant instituted this complaint for refund of the amount for non delivery of possession of allotted unit to them within scheduled time. The cause of action is continuing one in this case and it cannot be said that complaint is barred by time. The deficiency in service of OPs is proved as they failed to develop the project and to deliver its possession by the stipulated time in the year 2014, because they were not holding any completion certificate with them till 02.08.2017. The OPs failed to deliver the possession complete in all respect to complainants even for further period of three years after the expiry of schedule time for delivery of possession as well.

11.               As a result of our above discussion, we accept the complaint of the complainants and direct OP nos.1 to 16 as under:

          (a)     OPs are directed to refund the entire deposited amounts of Rs.42,28,023.93/- with interest @12% per annum from the date of their respective deposits till actual payments to complainants.

          (b) OPs are further directed to pay compensation of Rs.50,000/- to complainants for mental harassment and Rs.20,000/- as cost of litigation as well.

          The above amounts shall be payable by OPs to complainants within 45 days from the date of receipt of certified copy of the order. The amount of compensation of Rs.3,11,868/- paid by OPs to complainants, if any, shall be deducted from the amount of interest, which accrued on the deposited amounts for the period of delay in delivery of possession.

12.               Arguments in this complaint were heard on 09.05.2019 and the order was reserved. The certified copies of the order be communicated to the parties as per rules.

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

 

                                                                   (J. S. KLAR)

                                               PRESIDING JUDICIAL MEMBER

                                                      (RAJINDER KUMAR GOYAL)

                                                                      MEMBER

May 15, 2019.                                                                 

(MM)