STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.60 of 2010)

                                                                   Date of Institution: 15.09.2010

                                                                   Date of Decision  : 06.12.2010

1.     Sh. Chanbir Singh Mann s/o Lt. Col. B.S. Mann, R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

2.     Mrs. Monika Mann W/o Sh. Chanbir Singh Mann R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

…Complainants.

Versus

1.       Emaar MGF Land Limited through its Managing Director, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

2.       Amaar MGF Land Limited through its Branch Head/Manager, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

              ...Opposite Parties.

BEFORE:          S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

                    MRS. NEENA SANDHU, MEMBER

Argued by:          Sh. D. K. Singal, Advocate for the complainants.

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

PER  JAGROOP  SINGH  MAHAL,  PRESIDING MEMBER.

1.                 This order will dispose of following four complaints filed by the complainants against the OPs under Section 17 of Consumer Protection Act, 1986:-

2.                 The facts are being taken from complaint No.60 of 2010 ‘Sh. Chanbir Singh Mann and another Vs. Emaar MGF Land Pvt. Ltd. and another’. Briefly stated the facts are that in the year 2006, OPs invited applications for allotment of units in Commercial Complex in Central Plaza at Mohali Hills in Sector 105, SAS Nagar, Mohali, upon which the complainants booked Unit No.41 (Second Floor) in the said plaza. The complainants paid an amount of Rs.6,27,034/- in October 2006 as 15% against the total price of the unit to the tune of Rs.41,95,480/-. OPs also issued an acknowledgement on 2.2.2007 against receipt of an amount of Rs.32,00,000/- vide cheque No.5598 dated 3.10.2006, which included the payment  of First Floor of unit No.41 and other floors of the allotted unit. The copies of acknowledgement dated 2.2.2007 and receipt dated 1.5.2007 are annexed as Annexures C-3 and C-4 respectively with the complaint. Allotment letter dated 15.5.2007 along with Annexure-1 i.e. Installments Payment Plan were issued to the complainant vide Annexures C-5. As per the said plan, 15% of the total price was to be paid on booking, 10% was to be deposited quarterly and the remaining 95% was to be paid in 24 months from the date of booking and 5% thereof was to be paid on intimation for handing over the physical possession of the allotted unit. A Buyer’s Agreement dated 24.3.2008 was also executed between the parties vide Annexure C-8. It is alleged that the complainants have already deposited the amount equivalent to 75% of the total consideration of the unit and also an amount of Rs.2,50,000/- on account of total cost of car parking space by end of the year 2008. It is alleged that the construction of the allotted site came to a halt in the beginning of the year 2008, for which the complainants lodged their protest through e-mail dated 26.2.2009 (Annexure C-15). They further wrote e-mail dated 28.2.2009 (Annexure C-16), in reply to which, OPs vide e-mail dated 4.3.2009 (Annexure C-17) offered 5% discount on the total price of the allotted site to the complainants. Thereafter, the complainants received e-mails dated 19.3.2009 and 20.3.2009 (Annexures C-20 & C-21) from the OPs informing that the construction work for the Central Plaza had been reinitiated and the new contractors had already moved in to take the work to its completion, which were again false statements given by the OPs. Since the construction work of the allotted unit had not been given shape as envisaged at the time of booking and allotting the said units as per Annexure -1 of the Buyer’s Agreement, the complainants on 26.2.2009 requested the OPs for refund of the totral amount paid by them along with interest. Thereafter, it is averred, OPs restructured the payment of the installments vide letter dated 24.11.2009 (Annexure C-24) and sent statement of account dated 21.1.2010 (Annexure C-26) to the complainant, which was farce as the development works were neither reached to the particular stage nor the same were complete in all respects. The grouse of the complainants is that as per Clause 22.1 of the Buyer’s Agreement (C-9), the completion of the construction of the allotted unit had been shifted unilaterally and swiftly by the OPs as they proposed to construct and hand over the possession of the allotted unit within 36 months and after expiry of this period, they would be entitled to extend a grace period of 90 days for applying and obtaining certificate in respect of Central Plaza but the period of more than four years have already passed from the date of booking of unit but neither the actual date of offering the physical possession was intimated nor reasons for inordinate delay has been explained till date. Ultimately, a legal notice dated 28.6.2010 (Annexure C-36) was served upon the OPs by the complainant and finally, they filed the present complaint and  prayed that the OPs be directed to refund the amount deposited over and above 25% of the total consideration along with 18% interest or in alternative to pay interest compensation @18% per annum on the deposited amounts w.e.f the date of booking till the handing over of the actual physical possession. They have also prayed for Rs.2 Lacs as punitive damages, Rs.10 Lacs as compensation for mental and physical harassment and agony and Rs.25,000/- as costs of litigation.

3.                 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 in the agreement dated 24.3.2008, it was agreed by the parties, to be deemed to have been executed at Mohali, which also excludes the territorial jurisdiction of this Commission. OPs have admitted the issuance of allotment letter dated 15.5.07 but it was pleaded that the earlier payment plan was time linked and all demands have been raised accordingly. The giving of assurance as regards delivering the possession within two years at the time of booking, has been specifically denied by the OPs. It is further asserted that even in the provisional allotment letter dated 15.5.2007, nowhere it was mentioned that the possession would be handed over within two years, as alleged by the complainants. OPs further asserted that the complainants again signed the agreement dated 24.3.2008 after carefully reading and admitting it to be correct and they agreed to abide by the terms and conditions of the same. As per OPs, they have to deliver the possession up to 23.3.2011 with additional 3 grace months i.e. up to 23.6.2011 and the complaint is thus premature. It is pleaded that the construction of the Central Plaza has been ongoing and the Company is committed towards delivering the project within the time frame as mentioned in the agreement dated 24.3.2008. It is stated that the cancellation and refund is not possible since work was going on in full swing and there was no delay towards delivering the project. Admitting the restructuring of payment of installments vide letter dated 24.11.2009 (Annexure OP-6), OPs stated that the change of payment plan was done to facilitate the customers by linking it to the construction milestones achieved. However, there was no deferment in the delivery date of the project. As per OPs, the initial payments were demanded as per the time linked payment plan and subsequent to the change in payment plan to construction linked, all amounts received were applied against the respective milestones. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

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

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

6.                 The learned counsel for the OPs has argued that the agreement (OP-1) was executed at Chandigarh on 24.3.2008but it was agreed between the parties as per Clause 41.1 of the agreement that it would be deemed to have been executed at Mohali and as the property also is situated in Mohali, therefore, the U.T. State Commission has no territorial jurisdiction over the dispute. We do not find any merit in this argument. On perusal of the agreement, it is noticed that the first line of the agreement, where the place at which the agreement is executed was to be filled, is left blank by the OPs only to facilitate them to take plea of territorial jurisdiction as and when need arise. Thus, the contention of the complainants that the agreement was executed at Chandigarh is taken to be correct. It is not disputed that the amount of Rs.32,00,000/- was paid by the complainant to OPs at their Branch Office, SCO No.120-122, First Floor, Sector 17, Chandigarh vide Receipt dated 2.2.2007 (Annexures C-3). It, therefore, cannot be said, if this Commission does not have territorial jurisdiction to try the complaint.

7.                 The learned counsel for the OPs has also argued 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.

8.                 The learned counsel for the complainants have argued that the Installment Payment Plan shows that 95% of the total sales price of the premises was to be paid within 24 months of the booking and the remaining 5% was to be paid on intimation of possession. It is argued that from this Installment Payment Plan, it is clear that the construction was to be completed within 24 months. This contention is opposed by the learned counsel for the OPs. Rightly so, because there is no such term in the agreement between the parties, which fixes the period of construction of the premises to two years. It is only by implication and from the Installment Payment Plan that the complainants are presuming that the construction was to be completed within two years.

9.                 It is then argued by the learned counsel for the complainants that a Buyer’s Agreement, copy of which is Annexure C-8, was executed between the parties, under which the Installment Payment Plan, which was previously time linked was changed to construction linked. Annexure C-25 is the Payment Plan in this respect. It is argued that this change was made by the OPs without the consent of the complainants and therefore, should not be accepted as correct. We do not find any merit in this argument.  When the complainants themselves are signatory to the agreement, they cannot now allege that the construction linked plan should not be accepted. Otherwise also, it is to the benefit of the complainants because they are required to pay the installments only when a particular stage of the construction is reached and the grievance against time linked plan would be redressed where the complainants were liable to pay after the passage of a specific period even if no construction activity was going on at the spot.

10.               The learned counsel for the complainants has argued that Annexure C-26 shows that the payment already made by the complainants under the time linked plan was adjusted towards the installments subsequently prepared under the construction linked plan. According to him, the payment, which was to be made by the complainants on 30.9.2009 had already been made on 1.9.2007 and similarly, the payment, which was to be made on 23.12.2009 was paid on 6.12.2007. Still balance amount was due with the OPs having already been deposited by the complainants under the time linked plan. The learned counsel argued that the amount, which has been kept by the OPs should bear interest at the same rate (i.e. 15% per annum as mentioned in Para 4.1 of Annexure C-8), which OPs charged interest on the amounts due from the complainants. The learned counsel for the OPs has argued that there is no such provision under the agreement to pay interest on the deposits, which are in excess of the amount due from the complainants. We, however, do not find any merit in the argument of OPs. Admittedly, the amount, which has not fallen due but has already been deposited by the complainants, would bear interest at the same rate, which the OPs charged from the complainants till the date of said payment falls due.

11.               The learned counsel for the OPs has argued that Annexure OP-1 is agreement dated 24.3.2008, which gives the OPs the period of 36 months to complete the construction as provided under Clause 22 thereof and further a period of 90 days for applying and obtaining certificate in respect of Central Plaza. It is argued that the said period is not over so far and therefore, the OPs cannot be asked to deliver the possession of the premises. We are in full agreement with this contention. However, after a period of 39 months, if the possession of the premises is not delivered to the complainants, the OPs would be liable to pay Rs.50/- per Sq. Feet per month of the super area i.e. 1281 Sq. Feet totaling Rs.64,050/- per month till the date possession is delivered to the complainants as per Clause 22.10.1 of the agreement.

12.                   In view of the above discussion, we are of the opinion that the present complaint must succeed and the same is accordingly allowed with the following directions: -

(a) OPs are directed to pay interest @15% per annum to the complainant on the amount, which though not due to be paid under the construction linked plan yet have already been paid by the complainants and have been retained by the OPs in view of the revised construction linked plan, till the period the said amount falls due;

(b) OPs shall intimate in writing to the complainants as to when the next stage, as provided in the construction linked plan, comes so that the complainants are able to verify the same before the payment of installment now falling due is made by them to the OPs;

(c) If the possession is not delivered within 39 months i.e. up to 24.6.2011, OPs shall pay Rs.64,050/- per month to the complainants till the date possession is actually delivered;

(d) OPs shall pay Rs.5,000/- towards costs of litigation in each complaint.

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

Pronounced.

6^th December 2010.

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-

STATE COMMISSION

(Complaint No.60 of 2010)

Argued by:          Sh. D. K. Singal, Advocate for the complainants.

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

Dated the 6^th day of December, 2010.

ORDER

                    Vide our detailed order of even date recorded separately, this complaint along with connected complaints bearing No.61 to 63 all of 2010 has been allowed.

                        (JAGROOP SINGH MAHAL)                      (NEENA SAHDHU)

                              PRESIDING MEMBER                         MEMBER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.61 of 2010)

                                                                   Date of Institution: 15.09.2010

                                                                   Date of Decision  : 06.12.2010

1        Sh. Chanbir Singh Mann s/o Lt. Col. B.S. Mann, R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

2        Mrs. Monika Mann W/o Sh. Chanbir Singh Mann R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

…Complainants.

Versus

1.       Emaar MGF Land Limited through its Managing Director, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

2.       Amaar MGF Land Limited through its Branch Head/Manager, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

              ...Opposite Parties.

BEFORE:          S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

                    MRS. NEENA SANDHU, MEMBER

Argued by:          Sh. D. K. Singal, Advocate for the complainants.

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

PER  JAGROOP  SINGH  MAHAL,  PRESIDING MEMBER.

1.                     For orders, see the orders passed in Complaint No.60 of 2010 titled ‘Sh. Chanbir Singh Mann and another Vs. Emaar MGF Land Pvt. Ltd. and another’ vide which this complaint has been allowed.

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

Pronounced.

6^th December 2010.

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.62 of 2010)

                                                                   Date of Institution: 15.09.2010

                                                                   Date of Decision  : 06.12.2010

1.     Sh. Chanbir Singh Mann s/o Lt. Col. B.S. Mann, R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

2.     Mrs. Monika Mann W/o Sh. Chanbir Singh Mann R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

…Complainants.

Versus

1.       Emaar MGF Land Limited through its Managing Director, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

2.       Amaar MGF Land Limited through its Branch Head/Manager, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

              ...Opposite Parties.

BEFORE:          S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

                    MRS. NEENA SANDHU, MEMBER

Argued by:          Sh. D. K. Singal, Advocate for the complainants.

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

PER  JAGROOP  SINGH  MAHAL,  PRESIDING MEMBER.

1.                     For orders, see the orders passed in Complaint No.60 of 2010 titled ‘Sh. Chanbir Singh Mann and another Vs. Emaar MGF Land Pvt. Ltd. and another’ vide which this complaint has been allowed.

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

Pronounced.

6^th December 2010.

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint No.63 of 2010)

                                                                   Date of Institution: 15.09.2010

                                                                   Date of Decision  : 06.12.2010

1.     Sh. Chanbir Singh Mann s/o Lt. Col. B.S. Mann, R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

2.     Mrs. Monika Mann W/o Sh. Chanbir Singh Mann R/o Ikounkaar, House No.9, Bhakra Enclave, Sangrur Road, Patiala Cantt- 147001-Punjab and presently at House No.44-45, Kansal Enclave, B-Block, WWRW Society, Kansal, Mohali-Punjab.

…Complainants.

Versus

1.       Emaar MGF Land Limited through its Managing Director, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

2.       Amaar MGF Land Limited through its Branch Head/Manager, SCO           No.120-122, First Floor, Sector 17-C, Chandigarh – 160017.

              ...Opposite Parties.

BEFORE:          S.  JAGROOP  SINGH   MAHAL, PRESIDING MEMBER.

                    MRS. NEENA SANDHU, MEMBER

Argued by:          Sh. D. K. Singal, Advocate for the complainants.

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

PER  JAGROOP  SINGH  MAHAL,  PRESIDING MEMBER.

1.                     For orders, see the orders passed in Complaint No.60 of 2010 titled ‘Sh. Chanbir Singh Mann and another Vs. Emaar MGF Land Pvt. Ltd. and another’ vide which this complaint has been allowed.

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

Pronounced.

6^th December 2010.

Sd/-

[JAGROOP SINGH MAHAL]

PRESIDING MEMBER

Sd/-

 [NEENA SANDHU]

MEMBER

Ad/-