DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

          Complaint Case No.:1232 of 2009

 Date of Inst:28.08.2009

      Date of Decision:13.04.2010

1.              Guldeep Kaur Kandhari r/o 2159, Sector 15-C, Chandigarh.

2.              Nikhil Saraf r/o r/o 2159, Sector 15-C, Chandigarh.

                                  ---Complainants

V E R S U S

Emaar MGF Land Pvt. Ltd., through its Managing Director, SCO 120-122, Sector 17-C, Chandigarh.

---Opposite Party

QUORUM        SHRI LAKSHMAN SHARMA         PRESIDENT

              SHRI ASHOK RAJ BHANDARI      MEMBER

              SMT.MADHU MUTNEJA            MEMBER

PRESENT:      Sh.D.K.Singal, Adv. for complainant

Sh.Amarjeet Singh Longia, Adv. for OP.

                        ---

PER LAKSHMAN SHARMA, PRESIDENT

          Sh.Nikhil Saraf has filed this complaint on his behalf and on behalf of Smt.Guldeep Kaur Kandhari being her Special Attorney under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed  to :-

i)              Allot any other alternative plot having similar location as of originally allotted plot in Sector 105, Mohali with consent of the complainants in lieu of plot No.590 allotted in Sector 109, Mohali along with physical possession and all basic amenities and interest @ 18% on the amount of Rs.13,07,500/- from date of deposition to the date of offering the physical possession of the plot in question.

Or

In the alternative, to refund Rs.13,07,500/- with interest @ 18% p.a. from the date of deposit till its realization.

ii)         Pay a sum of Rs.2 lacs as compensation for mental agony and harassment.

iii)    Pay a sum of Rs.2 lacs as punitive damages.

iv)         Pay a sum of Rs.11000/- as litigation expenses.

2.        In brief, the case of the complainants is that OP launched a scheme for construction of ultra modern residential and commercial complex in Sector 105, Mohali and invited applications for allotment of plots @ Rs.10,000/- per square yards plus extra development charges. The complainants applied for allotment of a plot measuring 300 sq. yards by depositing booking amount along with the advance registration form dated 16.11.2005 (Annexure C-2). According to the complainants, OP revised the rate of allotment unilaterally from Rs.10000/- to Rs.11,500/- sq. yards in the year 2007 and asked them to deposit an amount equivalent to 30% of the basic sale price. Consequently, they deposited an amount of Rs.10.35 lacs vide cheque dated 07.06.2006 (Annexure C-3). Thereafter OP allotted a plot in Sector 105, Mohali having preferential location instead of ordinary plot and demanded preferential land charges (for short P.L.C).     As the complainants did not want preferential plot,  they requested OP to allot some other plot other than having preferential location.  Thereafter, OP allotted a plot No.590 in Sector 109 Mohali. The complainants came to know that railway line is passing through in front of the plot No.590, Sector 109 Mohali. According to the complainants, OP gave an assurance to them that another plot will be allotted to them later on. However, OP got signed the plot buyer’s agreement from them. Thereafter, the complainants made number of requests to OP to allot some other plot having decent location in Sector 105, Mohali in lieu of the plot allotted to them but to no effect. The complainants even served a legal notice dated 30.03.2009 upon the OP but to no effect. According to the complainants, requests of similarly situated persons for change of plot or in alternative refund of the amount have been acceded to by the OP. But in their case nothing has been done which amounts to deficiency in service and unfair trade practice. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OP, it has been admitted that OP launched a scheme for ultra modern residential and commercial complex at Mohali. It has been denied that OP invited applications for allotment of plots @ Rs.10,000/- per square yards plus extra development charges. It has been pleaded that OP booked the plot at its basic price @ Rs.11,500/- per square yard.  It has been admitted that complainants were asked to deposit an amount equivalent to 30% of the basic sale price.  It has further been admitted that the complainants deposited an amount of Rs.10.35 lacs vide cheque dated 07.06.2006 (Annexure C-3). It has been denied that OP allotted a plot in Sector 105, Mohali having preferential location instead of ordinary plot. It has been denied that the complainants inspected the site plan of Sector 109 Mohali and found that railway line is passing through the allotted plot. It has been denied that any assurance was given to the complainants to change the location and on their assurance, the complainants had signed the plot buyer agreement dated 04.07.2007. It has been pleaded that the complainants have signed the plot buyer agreement dated 04.07.2007 without any mis-representation, coercion and pressure and therefore, they are bound by the terms and conditions of the plot buyer agreement dated 04.07.2007. All other averments of the complainants made in the complaint have been denied by OPs. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4.        We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 

5.        Annexure C-2 is the copy of the application moved by the complainant for allotment of plot measuring 300 square yards. In this application, there is no mention of the fact that the plot be allotted in Sector 105, Mohali only. Annexure C-6 is the plot buyers agreement executed between the complainant and OP. From this agreement, it is apparent that the complainant had agreed to purchase plot No.590 in Sector 109 at Mohali Hills. No document has been placed on record to prove that the complainant had agreed to purchase some plot in Sector 105, Mohali only. Self-serving deposition made by the complainant to the effect that OP had agreed to change the plot and to allot the plot in Sector 105, Mohali cannot be accepted in view of the written agreement executed between the parties. Letter (Annexure C-7) is the self generated document of the complainant himself. The complainant has failed to place on record any document to prove that OP had agreed to allot a plot in Sector 105, Mohali. In these circumstances, failure on the part of the OP to allot any plot in Sector 105, Mohali does not amount to deficiency in service and the complainant has no right for allotment of plot in Sector 105, Mohali.

6.        Faced with this situation, the learned counsel for the complainant has argued that the possession of the plot has not been delivered to the complainant so far despite the fact that there is a specific term in the agreement for delivery of the possession within two years. We have gone through clause 8 of the agreement. As per this, the maximum period for delivery of possession is three years from the date of signing of the agreement  subject to force majeure and for the reasons beyond the control of OP. The agreement is dated 04.07.2007. So, the period of three years has not expired so far.  In these circumstances, the argument advanced by the learned counsel for the complainant that non-delivery of possession amounts to deficiency in service has no force.

7.        In these circumstances, the complainant has failed to make out any case of deficiency in service against OP. Hence, this complaint is hereby dismissed with no orders as to costs.

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

Announced

13.04.2010.

Sd/-

                             (LAKSHMAN SHARMA)

PRESIDENT

Cm                                              sd/-

(ASHOK RAJ BHANDARI)

MEMBER

Sd/-

(MADHU MUTNEJA)

MEMBER