DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

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Complaint Case No.: 746 of 2009

Date of Institution :22.05.2009

Date of Decision:   :30.11.2009

[1]     Mr.Sanjay Vijay Kapoor son of Mr.Vijay Kapoor r/o House No.1036, Sector 39-B, Chandigarh.

[2]     Ms.Anuradha Vala D/o Mr.Vijay Kapoor resident of House No.187, Sector 11-A, Chandigarh.

                                   ---Complainants

V E R S U S

EMAAR MGF Land Ltd., SCO No.120-122, Sector 17-C, Chandigarh.

---Opposite Party

CORAM:     SMT. URVASHI AGNIHOTRI      MEMBER

          SH. ASHOK RAJ BHANDARI       MEMBER

PRESENT:     Ms.Alka Sharma, Adv. for complainant

Sh. Amarjit Singh Longia, Adv. for OP.

                              ---

PER ASHOK RAJ BHANDARI, MEMBER

          Mr.Sanjay Vijay Kapoor and Ms.Anuradha Vala have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed  to  refund Rs.15,61,249/- deposited on account of allotment of flat along with interest @ 12%  and Rs.1,00,000/- lac as compensation for mental agony and harassment besides Rs.10000/- as costs of litigation.

2]        In brief, the case of the complainants is that on the assurance of the OP that the possession of the apartment No.JI-F09-904 in the residential project situated in “The Views” at Mohali Hills in Sector 105, SAS Nagar, District Mohali (Pb.) would be handed over in the month of March, 2010, they deposited a sum of Rs.15,61,249/- (i.e. 30% of the total consideration amount)  in the month of April, 2008 (14.4.2008) as part payment of the total consideration of Rs.55,46,668/-.  According to the complainants, in the month of Jan.2009, they personally visited the site and found that there was no progress of work. The construction work was restricted to Zero. They sent e-mail to Jaskirat Kaur, Executive Customer Service of OP to this effect. The Executive Customer Service of OP wrote e-mail to the complainant that the infrastructure work is going on and the project would be completed as per the schedule and that the possession would be handed over tentatively sometime in the 2^nd quarter of in the year 2010. According to the complainants, there is no progress of work on the site and the OP are making false excuse on one pretext or the other and they are also earning interest on the amount of Rs.15,61,249/- which comes to Rs.2,81,024.82.   Thus, the non-construction of the flats as per the schedule plan amounts to deficiency in service on the part of OP. In these circumstances, the present complaint was filed, seeking the refund of the deposited amount along with interest.

3]        In the reply filed by OP, the booking of the unit/apartment No.J1-F09-904 (“Unit/Apartment”) by depositing Rs.15,61,249/- i.e. 30% of the total consideration  amount by the complainants has been admitted. It has been pleaded that the complainants have duly filled and signed the application form and buyer agreement dated 07.05.2008 and the complainant is bound by the terms and conditions of the said agreement. It is specifically denied that any written communication was ever sent to the complainants that possession would be finally delivered to them by March 2010. Instead, it was only a tentative date. It has further been pleaded that complainants booked their unit on 14.04.2008 & the allotment date is 22.04.2008. The possession date as per agreement is 22.04.2011 i.e. 36 months after the date of allotment. It has been specifically pleaded that as per the clause/condition No.12 (C) of the application form/buyer agreement, “Once the applicant has chosen to sign the buyer’s agreement and at a later stage, he/she does not fulfill the terms and conditions of the buyer’s agreement or cancels the allotment or surrenders the unit allotted to him/her, charges @ 20% (twenty percent) of the sale price of the unit shall be leviable and the company shall be entitled to adjust the same from the amount deposited by the applicant with the company along with the interest paid, due or payable”. According to OP, the complainant himself is defaulter and has not deposited the payment of Rs.5,29,417/- which was raised by OP on 20.05.2009 for construction of J-Tower. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4]        We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainants / OP. We also heard the arguments put forth by the learned counsel for the parties. As a result of the detailed analysis of the entire case, the following points / issues have clearly emerged and certain conclusions / arrived at, accordingly:-

i)         The basic facts of the case in respect of the Complainants having booked an Apartment No.JI-F09-904 in the Residential Project situated in “The Views” at Mohali Hills, Mohali on 14.04.2008 by paying an initial amount of Rs.5,50,000/- and also making subsequent payments to make the total amount of earnest money as Rs.15,61,249/- and later on, seeking refund for like amount from OP, on account of certain grievances with the OP, have all been admitted by the parties.

ii)      The only substantive allegation of the Complainants against the OP is that the OP has not started construction of the Apartments in “J- Block”, in which the Apartment booked by the Complainants lies and that the progress of construction work till date is zero; whereas, as per the Complainant, the OP had promised to hand over the possession of the said Apartment in March 2010 and keeping in view the present tardy progress of work on the construction site, there is no possibility of the OP handing over the built-up apartment to them during March, 2010. It is also a fact that the Complainants had made payment of the part consideration of Rs.15,61,249/- out of the total consideration of Rs.55,46,668/- and asked for the refund of the said sums paid by the Complainant along with interest to which the OP is not agreeable.

iii)   The allegations made by the Complainants have been denied by the OP saying that the Complainants have duly filled in and signed the Application Form and Buyers’ Agreement dated 7.5.2008 and the Complainant is bound by the terms and conditions of the said Agreement. It has specifically denied that any written communication was ever sent to the Complainants stating that the possession of the flat will be finally handed over by March 2010. The true and correct position, as per the OP, is that the Complainants booked their Residential Unit on 14.4.2008, the allotment date was 22.4.2008 and the tentative date of possession as per agreement is 22.4.2011 i.e. 36 months from the date of allotment. Further, as per the Buyers Agreement, if the buyer cancels the allotment or surrenders the unit allotted to him/her, charges @20% on the sale price of the unit shall be leviable and the Company shall be entitled to adjust the same from the amount deposited by the applicant with the Company along with interest paid, due or payable. In the present case, as per the OP, the Complainant himself is a defaulter and has not deposited the sum of rs.5,29,417/-, demand for which was raised on 20.5.2009, for construction of ‘J-Tower”. Therefore, as per the OP, there is no deficiency of service on their part and the complaint deserves dismissal.

iv)      From a close perusal of the documents submitted by both the parties, it is quite clear that the OP was to charge a sum of Rs.5,20,416.75P (say Rs.5,20,417/-) on the start of construction, which it has done on 20.5.2009. This amount has not been paid by the Complainants to the OP, which is clearly a violation of the terms and conditions of the Buyers’ Agreement. More so, the date for giving possession of the built-up apartment is 22.4.2011; whereas, the present was filed on 22.5.2009, which means that there is still a period of about 2 years for the OP to get the apartment built-up and hand over the same to the Complainants. The question of any deficiency of service or unfair trade practice on its part would have arisen only if the OP had failed to deliver the possession of the impugned apartment on the promised date i.e. 22.4.2011. This date was clearly two years away when the Complainant chose to file the present complaint with this Forum, which by any standards, is quite premature and too early. Further, there is no letter or document on record in the entire case file showing that the Complainant had ever demanded the refund of the earnest money from the OP. Perhaps, it is for the first time, that the Complainants made such a demand while filing the complaint in this Forum and not before. There is neither a demand from the Complainants for the refund of the earnest money, nor there is any refusal on the part of the OP in making such a payment as per the terms and conditions of the Buyers’ Agreement. It is quite clear that if the Complainants had ever made such a demand for the refund of the earnest money of Rs.15,61,249/-, which was paid by them to the OP, as part payment of the total consideration of Rs.55,46,668/-, in writing, the OP would have certainly paid back the amount after deducting 20% of the sale price of the unit. But such a situation is only hypothetical in nature and does not exist in reality. The Complainants have not been able to rebut any of the pleadings/averments made by the OP in their written statement/reply. They have also not been able to deny the existence of Buyers’ Agreement, which was duly signed by them on 7.5.2008 and as such, they are bound by the terms and conditions of the said Agreement as much as OP is bound by the same. Further, the Complainant has failed to produce any written communication showing that the OP had ever assured them about giving the possession of the built-up apartment by March, 2010; whereas, Clauses 21, 21.1 and 21.2 of the Buyers’ Agreement (Annexure R-1) read as under:

“21. Possession, Procedure for taking possession and failure to take possession.

21.1 Subject to Force Majeure conditions and reasons beyond the control of the Company, and subject to the Allottee not being in default of any of the provisions of this Agreement and having complied with all provisions, formalities, documentation etc. and the terms and conditions of this Agreement, the Company proposes to hand over the possession of the Unit within a period of 36 months from the date of allotment. The Allottee agrees and understands that the Company shall be entitled to a grace period of ninety (90) days, after the expiry of 3 months for applying and obtaining the occupation certificate in respect of the Group Housing Complex.

21.2 The Allottee also agrees and accepts that in case of any default/ delay in payment as per the Schedule of Payments by the Allottee, the date of handing over of the possession shall be extended accordingly solely on the Company’s discretion till the payment of all outstanding amounts to the satisfaction of the Company.” 

These clauses of the Buyers Agreement dated 7.5.2008, clearly lay down the terms and conditions in respect of handing over the possession of the Unit within a period of 36 months from the date of allotment. Clause 21.2 further clarifies that in case of any default/ delay in payment as per the schedule of payments by the allottee, the date of handing over of the possession shall be extended accordingly by the Company at its sole discretion. The Complainants have not been able to provide any satisfactory explanation for not abiding by these clauses of the Buyers Agreement. Further, Clause No. 12-C of the Buyers’ Agreement/ Application Form governs the terms & conditions for refund of the earnest money deposited by the Complainant with the OP and both the parties are bound by the same.

5]        After having a detailed analysis of the entire case, we do not find any substance or merit in the present complaint for the simple reason that on the one hand, the Complainants have approached this Forum two years in advance of the proposed date of giving possession of the Apartment to them by the OP and on the other, they have themselves been defaulters in not having deposited the sum of Rs.5,20,417/- as raised by the OP on 20.5.2009 for starting the construction of J-Block of Residential Complex, as per agreed payment schedule  and, therefore, they themselves are to be blamed for the mess they have created for themselves. Keeping in view the foregoings, it is our considered view that the present complaint deserves rejection. We, therefore, dismiss the complaint. However, the respective parties shall bear their own costs. 

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

Announced

30/11/2009

                                                  Sd/-

(URVASHI AGNIHOTRI)

MEMBER.

                                            Sd/-

(ASHOK RAJ BHANDARI)

MEMBER

‘Dutt’