STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.26 of 2010)

                                                                   Date of Institution: 23.04.2010

                                                                   Date of Decision  : 09.12.2010

1.     Sh. Vijay Kumar Gupta son of Sh. Ved Parkash Gupta, resident of House No.278, Sector 6, Panchkula.

2.     Sh. Rakesh Gupta son of Sh. Roshan Lal Gupta, resident of House No.132, Sector 27-A, Chandigarh.

…Complainants.

Versus

EMAAR MGF Land Limited, a Company registered under the Companies Act, 1956 having its registered office at MGF House, 17-B, Asaf Ali Road, New Delhi and its Corporate Office at ECE House, 28, Kasturba Gandhi Marg, New Delhi and having its Branch Office at SCO No.120-122, Sector 17-C through its Managing Director.

              ...Opposite Party.

BEFORE:          S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

                    MRS. NEENA SANDHU, MEMBER.

Argued by:          Sh. Arvind Mittal, Advocate for the complainants.

                    Sh. A. S. Longia, Advocate for the OP.

PER  JAGROOP  SINGH  MAHAL,  PRESIDING MEMBER.

1.                 The complainants have filed the present complaint under Section 17 of Consumer Protection Act, 1986 alleging that the OPs had floated a Project known as “Mohali Hills” in Sectors 105, 108 and 109, SAS Nagar, Mohali. The complainants showed their interest in the scheme and submitted their application dated 6.9.2006 (Annexure C-1) for registration of residential plot in ‘Mohali Hills’. They paid a sum of Rs.13,80,000/- as registration amount vide two cheques each of Rs.6,90,000/-.  Provisional allotment was made in their favour vide letter dated 15.5.2007 (Annexure C-2) and Plot No.118 measuring 400 Sq. Yards was allotted in Augusta Green, Sector 109, Mohali @ Rs.11,500/- per sq. yard plus Preferential Location Charges of Rs.10,35,000/- and Rs.2,25,472/- towards External Development charges. Thus, an amount of Rs.56,35,000/- was demanded by the OPs from them for which a payment schedule (Annexure-1) was given along with the provisional allotment letter. A Plot Buyers Agreement dated 9.4.2008  (although it bears the date 4.7.2007) was executed between the parties, as per which, the OPs were liable to deliver the possession of the plot within two years from the date of the agreement i.e. 4.7.2007 but not later than 3 years and in case OPs failed to deliver the plot within the specified period, they should pay a penalty of Rs.50/- per sq. yard per month for the period of delay. It is alleged that at the time of agreement, the OPs were not granted the license by the Government and they were charging extra development charges to the tune of Rs.2,25,472/-. The complainant requested the OPs to change the location of the plot and also deposited Rs.2,30,000/- as 5% of the basic sale price vide two cheques dated 15.6.2007, which were received by the OPs on 5.7.2007. OPs asked the complainants to return the original provisional allotment letter in order to consider the request of change of location of plot vide letter dated 7.8.2007, which was done but no decision was taken by the OPs. It is alleged that the OPs declined request of the complainants for change of location on self created grounds vide letter dated 25.1.2008 (Annexure C-8). The complainants also sent reminders dated 21.9.2007 and 28.11.2007 (Annexures C-10 & C-11) requesting the OPs to come forward with the offer of alternative plot but they were more interested in collecting the money rather than fulfilling their obligation. It is averred that the OPs were pressing hard for payment of installments along with interest on account of delayed payment whereas there was a delay on the part of OPs as they have not taken any decision regarding the change of location of the plot. They further averred that vide letter dated 28.12.2009 i.e. after more than 31 months of the date of allotment, OPs informed them that they have continued with the development of the project and were ready to hand over the possession of the plot allotted to the complainants. It was further informed that significant progress has been made in the development of basic infrastructure like water pipelines, sewer pipelines and roads and parks etc; area of plot has been increased on the basis of ground demarcation and the revised area of the plot is now 440 Sq. Yards and hence, additional amount was demanded vide letter (Annexure C-12). It is next averred by the complainants that after receiving the letter (C-12),  they visited the site but were surprised to see that there was no development in the site and photographs in this respect have been annexed as Annexure C-13 by the complainants. As per the complainants, they have been wrongly charged Rs.5,71,368/- as EDS and Rs.7,94,052/- as interest despite the fact that the plot allotted is not demarcated and the plot is not traceable and identifiable at all. Left with no other remedy, the complainants served a legal notice dated 2.3.2010 (Annexure C-14) upon the OPs and finally, filed the present complaint seeking refund of Rs.25,59.932/- paid by them; Rs.5,00,000/- as compensation for mental harassment and agony; Rs.5,00,000/- as punitive damages besides Rs.35,000/- as litigation expenses.

2.                 The complaint was opposed by the OPs alleging that there is an arbitration clause in the agreement, in view of which, this complaint is not maintainable, that the territorial jurisdiction of the Consumer Fora is excluded because the project is in the area of Mohali and therefore, U.T. State Commission has no jurisdiction. Even agreement dated 4.7.2007 though executed at Chandigarh, it was agreed by the parties to be deemed to have been executed at Mohali, which also excludes the territorial jurisdiction of this Commission. It was admitted that the complainants submitted their application dated 6.9.2006 for registration of residential plot in Mohali Hills and paid  Rs.13,80,000/- as registration amount. OPs have also admitted their demand of Rs.56,35,000/- for which a payment schedule(Annexure OP-4) was given to the complainants. It is pleaded that the application for change of location of allotted plots were to be considered subject to availability of such plots and within reasonable time.  It is next admitted that an agreement dated 4.7.2007 was executed between the parties, which was communicated to the complainants vide letter dated 9.4.2008. It is also admitted that the possession of the plot was to be delivered within two years from the date of agreement dated 4.7.2007 but not later than three years and in case of failure to deliver the same within specified period, they would be liable to pay penalty of sum of Rs.50/- per square yard per month for such period of delay.. The OPs have also admitted that as per Clause 10 of the agreement, the allotment of plot was subject to terms and conditions of sanction of layout plan, demarcation of plots or license issued by the Punjab Government.  It is further asserted that a final notice dated 31.7.2008 (Annexure OP-7) was issued to the complainants directing them to remit the outstanding dues and further vide letter dated 28.12.2009 (Annexure OP-8), OPs offered the possession of the allotted plot to the complainants on completion of development work of road and other basic infrastructure in portions of Augusta Green, Sector 109, Mohali where the plot of the complainants was situated but this offer was subject to making payments of Rs.38,94,040/- towards the plot as per ;ayment plan, Rs.7,94,052/- on account of delay in making payment of installments and Rs.5,71,368/- as additional external development charges. Pleading no deficiency in service  as well as unfair trade practice, OPs prayed for dismissal of the complaint.

3.                 Both the parties produced evidence in support of their contentions.

4.                 We have heard the learned counsel for the parties and have perused the record.

5.                 As regards the first preliminary objection with respect to territorial jurisdiction, it is submitted in the written reply that the agreement (OP-1) was executed at Chandigarh on 4.7.2007 as is mentioned in the opening lines of the agreement but as per Clause 35, the agreement would be deemed to have been executed at Mohali (Punjab) and the property also is situated in Mohali and therefore, the U.T. State Commission has no territorial jurisdiction over the dispute. We do not find any merit in this contention. When the agreement was executed at Chandigarh, the Consumer Fora at Chandigarh would have the jurisdiction even if there is some unreasonable and contrary to facts, clause therein holding that it would be deemed to have been executed at Mohali. Annexure C-3 i.e. letter dated 9.4.2008 vide which copy of Plots Buyers Agreement was provided to the complainants is also on the letter head of Branch Office of OPs at Chandigarh i.e. SCO No.12-122, First Floor, Sector 17-C, Chandigarh. It, therefore, cannot be said, if this Commission does not have territorial jurisdiction to try the complaint.

6.                 The next objection raised by the OPs is that there is an arbitration clause in the agreement, in view of which, the dispute was to be settled through Arbitration and therefore, the jurisdiction of the Consumer Fora is excluded. This question has already been settled in a number of decisions that the arbitration clause does not take away the remedy provided under the Consumer Protection Act, 1986. A reference may be made to the case of National Seeds Corporation Ltd. Vs. P.V. Krishna Reddy, I (2009) CPJ 99 (NC); Associated Road Carriers Ltd. Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC) and Mahindra & Mahindra Limited Vs. Ranvijay Singh & Ors., III (2008) CPJ 216.

7.                 The learned counsel for the OPs argued that as per the Plot Buyers Agreement i.e. 4.7.2007 (Annexure C-4), the possession is to be delivered within three yeas of the agreement i.e. up to 3.7.2010 and thus, the complainant have filed the present complaint prematurely on 23.4.2010. It is admitted by the complainants that as per the Plot Buyers Agreement (Annexure C-4), the possession of the allotted plot was to be delivered within three years of the agreement, which date falls on 3.7.2010 but the complainants did not even bother to grant the complete three years period to the OPs to get the construction completed and failed to fulfill this part of the contract. The present complaint was filed on 23.4.2010 and thus, in our view, the same is premature as the cause of action for filing the complaint to the complainants would accrue on 4.7.2010 i.e. after exhausting the period of complete three years for handing over the possession of the allotted plot as per terms and conditions of the Plot Buyers Agreement (Annexure C-4). Accordingly, the complaint is liable to be dismissed on this very score.

8.                 The learned counsel for the complainants argued that they had requested for relocation of their plot as was intimated vide Annexure C-5 received by the OPs on 5.7.2007 but the plot was not relocated by the OPs, which amounts to deficiency in service on their part. The OPs admitted having received a request from the complainants for relocation and vide letter dated 30.7.2007 (Annexure C-9), they asked the complainants to return the original provisional allotment letter and when the same was not returned, a reminder (Annexure C-6) was sent on 7.8.2009. The complainants intimated on 14.1.2008 vide Annexure C-7 that they had returned the original allotment letter on 10.8.2007. It is mentioned in Annexure C-7 that they had several meetings in the office of OPs for alternative site in the same sector but till then (i.e. 14.1.2008), they have not been offered any acceptable site. It is not their case, if no site was offered to them but it appears, whatever sites were offered, those were not accepted by the complainants. Annexure C-8 is letter dated 25.1.2008 in which also, it was mentioned by the OPs that the complainants were offered a couple of alternative locations but the complainants did not seem to be interested in the locations so offered. The OPs, therefore, told them that they did not have any other alternative location to offer to them. The OPs requested them to deposit the amount due from them vide this letter dated 25.1.2008. From these facts, it is clear that alternative sites were offered to the complainants but they were not acceptable to them and the OPs, therefore, did not have any alternative site to offer. The plots, which had already been allotted to some other persons, could not have been offered to the complainants and the complainants should have appreciated their limitations. It, therefore, cannot be said, if there was any deficiency in service on the part of OPs.

9.                 It is an admitted fact that the complainants have not deposited the amount demanded from them. The Plot Buyer Agreement (Annexure C-4 & also attached by the OPs as Annexure OP-1) encloses the payment schedule, which is Annexure OP-4, in accordance with which, the payments were to be deposited by the complainants. Annexure C-8 makes it clear that out of Rs.33,35,061/- due till 25.1.2008, only a sum of Rs.16,10,000/- had been deposited and the remaining Rs.17,25,001/- was still due from them. Some more amount was deposited by the complainants, thereafter, making it a total of Rs.25,29,932/-. There was, therefore, default on the part of the complainants in depositing the amount with the OPs. Needless to mention that the development work was to be carried out by the OPs with the amount received from the complainants and others and if the complainants themselves did not deposit the amount in time, they cannot accuse the OPs of not developing the area.

10.               The learned counsel for the complainants argued that there is no development at the spot and in support of his contention, he referred to the photographs (Annexure C-13), which are alleged to have been taken on 19.2.2010. The photographs show that roads have been laid at the spot and at some places, as in the last two photographs, the work of laying the road was on. As per the Plot Buyers Agreement (Annexure C-4), the possession is to be delivered within three yeas of the agreement i.e. up to 3.7.2010. The complainants, therefore, should not have expected that the development should have been completed by 19.2.2010. The complainants have not produced any photographs taken on 3.7.2010 to allege that the construction works have not been completed. It, therefore, cannot be said, if there was any deficiency in service on the part of OPs.

11.               The learned counsel for the OPs has contended that in fact the construction work is complete at the spot where the plot of the complainants is located and in this respect, they were informed on 28.12.2009 vide Annexure C-12. They were asked to make payment of the remaining amount, so that the possession was offered to them. It is admitted that the possession of the plot is to be offered to the complainants only when they make full payment of the price thereof. The OP through Annexure C-15 informed the complainants that they have already handed over possession of approximately 700 plots and planned to offer possession to approximately 200 more plots in the said month of March 2010. The complainants were requested to deposit the amount due from them so that the possession was offered to them. Needless to mention that the complainants did not deposit the amount and did not even request the OPs to get possession of their plot. His contention was that there is no development work on the spot and he did not like the location of the plot, therefore, he would not deposit the remaining amount and was not interested in getting its possession. This stand of the complainants is not only contrary to the agreement but is not otherwise tenable. They cannot dictate terms and are bound by the agreement executed between the parties in view of which they had already accepted the allotment of Plot No.118 in Augusta Green, Sector 109, SAS Nagar, Mohali when they signed the agreement (Annexure C-4). If the complainants subsequently requested for alternative plot, it could be allowed only subject to the availability of the plot of their choice. Needless to mention that several vacant pots were shown to the complainants as is clear from the correspondence referred to above but none of those was acceptable to them with the result that they would have to accept Plot No.118 already allotted to them. It was, therefore, imperative on the complainants to pay the remaining amount and to get the possession of the plot allotted to them by the OPs. In this respect, several notices have been given to the complainants but they did not comply with their commitment to pay the amount. They, therefore, cannot blame anybody else except themselves for the delay in delivery of possession. It may again be mentioned for the sake of repetition that the development at the spot is to be done by the OPs with the amount deposited by the buyers including the complainants. The payment of the installment in time was, therefore, an essence of the contract.

12.               The learned counsel for the complainants has argued that the layout plan has not been sanctioned so far nor any sanctioned copy of the same has been produced but the OPs have been recovering the amount of installments without any basis, which amounts to deficiency in service and an unfair trade practice on their part. This contention has been opposed by the OPs. The contention of OPs is that even in December 2009, the sewer pipelines, roads and parks had been laid and the work was in progress as intimated vide Annexure C-12. The complainants were directed to deposit the amount but they remained adamant and the default was, therefore, on the part of the complainants and not of the OPs.

13.               The learned counsel for the complainants has also referred to Annexure C-16, which is letter dated 19.7.2010 written by the OPs cancelling the allotment in favour of the complainants for non payment of the amount and thereby forfeiting the entire amount of Rs.25,96,375/- deposited by them. The learned counsel argued that no cancellation could be made during the pendency of this complaint. We do not find any merit in this argument. Neither the complainants requested for stay nor was any granted against any such action to be taken by the OPs for non-deposit of the installments by the complainants. Annexure C-16, therefore, cannot be said to be illegal or void simply because it was passed during the pendency of the present complaint. Otherwise, OPs have not taken any such ground in their reply if the plot has been cancelled or the amount deposited by the complainants has been forfeited. It, therefore, would not be considered to have been cancelled. This document does not find mention in the pleadings of any of the parties. The rights and liabilities of the parties would, therefore, continue to be decided excluding this document.

14.               In view of the above discussion, we are of the opinion that there is no deficiency in service on the part of OPs. In fact, the complainants had been negligent and committed default in making the payment of installments. The OPs would give time to the complainants to deposit the amount within a reasonable time and we hope that the complainants would abide by the terms of the agreement executed between the parties. With these observations, the complaint is dismissed. The parties are left to bear their own costs of litigation.

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

Pronounced.

9^th December 2010.

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

[NEENA SANDHU]

MEMBER

Ad/-

STATE COMMISSION

(Complaint No.26 of 2010)

Argued by:          Sh. Arvind Mittal, Advocate for the complainants.

                    Sh. A. S. Longia, Advocate for the OP.

Dated the 9^th day of December, 2010.

ORDER

                    Vide our detailed order of even date recorded separately, this complaint has been dismissed by leaving the parties to bear their own costs of litigation.

(JAGROOP SINGH MAHAL)                                   (NEENA SAHDHU)

                             PRESIDING MEMBER                                          MEMBER