STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Complaint Case No. 61 of 2011 Date of institution: 17.08.2011 Date of decision : 18.01.2012 1. Ms.Jasjiwan Kaur wife of Mr.M.G.Singh, resident of House No.57, Uday Park, New Delhi. 2. Ms.Kawal Ratan wife of Late Sh.Satpal Ratan, resident of House No.57, Uday Park, New Delhi. …Complainants Versus 1. The EMAAR MGF, Land Limited, SCO No.120-122, 1st Floor, Sector-17-C, Chandigarh-160017, through its Branch Head. 2. EMAAR MGF Land Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001 through its Director. ---Opposite Parties. Complaint under Section 17 of Consumer Protection Act,1986. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Present: Sh. Deepak Aggarwal, for the complainants. Sh. Ashish Sarup, Advocate for the opposite parties. --- MRS. NEENA SANDHU, MEMBER 1. The facts, in brief, are that the complainants, allured by the rosy picture projected regarding sale of plots by the Opposite Parties, vide their repeated advertisements, in the news papers, applied to the latter vide application No. 1485 for allotment of a plot. It was stated that the Opposite Parties vide provisional allotment letter (Annexure C-2) allotted them plot No.197 in Augusta Greens, Sector 109 Mohali Hills. It was further stated that as per Clause 8 of the Plot Buyer’s Agreement, C-3 (hereinafter to be referred as Agreement), the possession was to be delivered within a period of two years, but not later than three years from the date of execution of the same. It was further stated that the complainants paid all the installments towards the price of the plot except Rs.14196/-. The complainant received a letter dated 28.12.2009 from the Opposite Parties requiring them to pay the enhanced EDC i.e. Rs.3,74,196/- levied by the Government of Punjab vide notification dated 19.9.2007, which were never disclosed to them during the period from 19.9.2007 to 28.12.2009. It was further stated that under the compelled circumstances, the complainants paid Rs.3,60,000/- towards external development charges. According to the complainants, the offer of possession was made by the Opposite Parties on paper only and they failed to deliver actual physical possession of the flat by the stipulated date. Due to this reason neither the conveyance could be executed nor the building plans could be got sanctioned from the competent authorities. It was further stated that as per the agreement, on failure of the Opposite Parties to deliver the physical possession by the stipulated time, they were liable to pay to the allottee a penalty of Rs.50/- only per sq. yards per month for such period of delay beyond three years from the date of execution of the same. It was further stated that Opposite Parties did not complete the internal development woks and obtain the completion certificate from the competent authority what to talk of external developments. It was further stated that the Opposite Parties admitted their guilt vide letter dated 28.12.2009 (Annexure C-23). It was further stated that by neither delivering the physical possession by the stipulated date nor refunding the amount deposited, the Opposite Parties were not only deficient in rendering service but also indulged into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act,1986(hereinafter to be called as the Act only), for the refund of deposited amount alongwith interest, compensation for harassment, costs of litigation, as also additional compensation as agreed in Clause 8 of plot buyer’s agreement was filed. 2. In the written reply, filed by the opposite parties, it was admitted that the complainants were allotted provisionally plot No.197 measuring 300 sq. yards in Augusta Greens, Sector 109, SAS Nagar (Mohali) @ Rs.11500/- per sq. yards plus preferential location charges of Rs.4,31,250/- and Rs.1,69,104/- on account of external development charges. It was also admitted that plot buyer’s agreement dated 11.07.2007 was entered into between the parties. It was admitted that the complainants paid all the due installments towards the price of the said plot. It was further stated that as per Clause 2(d) of the plot buyer’s agreement, the external development charges are a statutory levy levied by the Government, for the purposes of external development, external to the project area and any decrease or increase in the same has to be borne by the allottee. It was denied that the Opposite Parties delayed the possession beyond the stipulated period of three years as per the terms of agreement dated 11.07.2007. It was further stated that the letter of offer of possession was issued on 29.12.2009 i.e. well within three years of signing of the said agreement. It was further stated that the Opposite Parties provided most essential infrastructure and services and the requisite external development charges were paid to the Govt. It was further stated that the payment of EDC was never a pre-condition for giving possession of the plot. It was further stated that according to Clause 2(f) of the plot buyer’s agreement, the allottee had entered into an agreement, on the condition, that, out of the amounts paid/payable by him towards the sale price, the Company shall treat 30% of the sale price, as earnest money, and in case of default, on his part, to perform all obligations set out, in the agreement, the said condition of forfeiture of earnest money shall remain valid and effective till the execution and registration of the conveyance deed of the plot. It was denied that the opposite parties were deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 3. The complainants, in support of their complaint, filed the affidavit of Ms.Jasjiwan Kaur, complainant No.1, by way of evidence, with which a number of documents were attached. 4. The opposite parties, in support of their case, filed the affidavit of Sh.Mohit Kaura, working as AGM Customer Services, and authorized signatory, alongwith a number of documents. 5. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 6. The Counsel for the complainants submitted that there is no dispute that the complainants applied for the allotment of a plot and they were allotted plot No.197 in Augusta Green, Sector 109, Mohali Hills. He further submitted that it is admitted by the Opposite Parties that the payment of Rs.42,48,840/- was made by the complainants towards the price of the plot. He further submitted as per clause 8 of the agreement, the Opposite Parties were liable to deliver possession of the Plot to the complainants within a period of 2(two) years from the date of execution of the same, but not later than 3(three) years. Clause 8 of the agreement, reads as under ; “Subject to Force Majeure conditions and reasons beyond the control of the Company, the Company shall endeavour to deliver possession of the Plot to the Allottee within a period of 2(two) years from the date of execution of this Agreement, but not later than 3(three) years. In the event that the possession of the plot is likely to be delayed for reason of any force majeure event or any other reason beyond the control of the Company including government strike or due to civil commotion or by reason of way or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the aforesaid events, the Company shall upon notice claiming force majeure to the allottee be entitled to such extension of time till the force majeure event persists or the reason beyond the control of the Company exists. In the event that the Company fails to deliver possession of the Plot without existence of any force majeure event or reason beyond the control of the Company within a maximum period of 3(three) years from the date of execution of this Agreement, the Company shall be liable to pay to the allottee, a penalty of the sum of Rs.50/- per sq. yard per month for such period of delay beyond 3 three years from the date of execution of this agreement.” 7. The bare reading of Clause 8 of the plot buyer’s agreement dated 11.07.2007 clearly shows that the possession of plot, was to be delivered, within a period of two years but not later than three years, from the date of execution of the same. The paper possession of the plot was offered to the complainants vide letter dated 28.12.2009 (Annexure C-23). In the said letter, the Opposite Parties demanded an amount of Rs.3,74,196/- as additional external development charges levied by the Govt. of Punjab vide notification dated 19.09.2007. In the said letter, it was mentioned that the sale deed will be registered in favour of the complainants on completion of the infrastructure work for the entire project. The Counsel for the complainants submitted that as per clause No.23 of the agreement, the Opposite Parties were responsible to provide internal services within the peripheral limits of the colony which inter alia include laying of i) roads, ii) water lines iii) sewer lines and iv) electric lines. Besides this, the Opposite Parties were also liable to provide external or peripheral services such as water, sewer, storm, water drains, roads, electricity, horticulture etc. He further submitted that the Opposite Parties have not complied with the terms and conditions of the agreement and till date nothing has been done. On the contrary, the Opposite Parties have failed to produce any documentary evidence to show that the aforesaid facilities were ever completed or provided to the complainants as per the terms of conditions of the agreement. By not delivering the physical possession of the plot within the stipulated period, after fully developing the area, the opposite parties indulged into unfair trade practice. 8. The Counsel for the Opposite Parties, submitted that, as per clause 2(f) of the plot buyers’ agreement (C-3), the Company had the right to forfeit, out of the amounts, paid by the allottee, the earnest money to the tune of 30% together with any interest paid, due or payable, any other amount of a non-refundable nature, in the event of failure of the allottee to perform his obligation or non-fulfillment of the terms and conditions set out in the agreement. He further submitted that surrender of plot was also to be governed by the aforesaid clause and refund was to be payable accordingly. The submission of the Counsel for the opposite parties, in this regard, does not appear to be correct. This clause of the agreement was to come into operation only, if the opposite parties had, carried out development and offered physical possession of the plot within the stipulated period. As stated above, till date, neither the physical possession of the plot has been offered, nor the refund of amount deposited by the complainants, has been made. It, therefore, could not be said that the complainants committed breach of the terms and conditions of the plot buyers’ agreement and, as such, the opposite parties were entitled to forfeit the earnest money. The submission of the Counsel for the opposite parties, in this regard, being without merit, must fail and the same stands rejected. 9. As the Opposite Parties have failed to hand over the actual physical possession of the plot, to the complainants, and further as per the version of the complainants, there is no hope, in the near future, that the OPs will hand over the possession of the same to them, therefore, they were right in demanding the refund of amount deposited towards the price of plot. It is an established that till date only symbolic possession, without developing the area, has been offered, to the complainants by the opposite parties. Without the basic amenities, the complainants cannot raise construction over the plot, in question. In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC), no development work had been carried out, at the site. Thus, the payment of further installments was stopped, by the complainant. It was, in these circumstances, held by the Hon’ble National Commission, that the builder could not be allowed to take shelter, under any clause of the agreement to usurp money, deposited by the complainant. It was further held that, if any clause, in the agreement, entitled the builder to forfeit the deposited amount, even if, the fault was, on his part, that could be said to be heavily loaded, in his favour, and it amounted to indulgence into unfair trade practice. The National Commission, ultimately, upheld the order of the State Consumer Disputes Redressal Commission directing the refund of the deposited amount, with interest. The principle of law, laid down in Prasad Homes Pvt. Ltd.’s case (supra) is fully applicable to the facts of the instant case. Since the opposite parties were, at fault, in not delivering the physical possession of the plot, the complainants could not indefinitely wait at their whims and fancies. Though, a period of more than 4 years and 6 months has lapsed since the date of execution and signing the agreement yet neither physical possession has been delivered, nor the refund of amount has been made. The opposite parties, were, thus, deficient, in rendering service. Under these circumstances, the complainants are entitled to the refund of amount deposited by them. 10. The next question, that arises for consideration, is, as to whether the complainants are entitled to interest, on the amount of refund. ‘Interest’ in general terms is the return or compensation, for the use, or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, ‘interest’ is understood to mean the amount, which one has contracted to pay for use of borrowed money. In whatever category ‘interest’ in a particular case, may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money, after it has become payable. In the instant case, the amount deposited by the complainants, was withheld by the opposite parties, for sufficiently longer period illegally. Since the opposite parties had not delivered physical possession of the plot, within the stipulated period of 3 years from 11.7.2007, when the plot buyers’ agreement was signed, between the parties, they could not decline to pay interest, on the amount. Had this amount been refunded to the complainants, when they sought refund thereof, they would have deposited the same ,in a bank, and thereby earned handsome return thereon. Since the complainants were deprived of their hard earned money for a sufficiently long period illegally, by the opposite parties, they are liable to pay interest @ 12% p.a. from the respective dates of deposits. 11. The next question, that arises for consideration, is, as to whether, the complainants are entitled to compensation, if so, to what extent. According to Section 14(d) of the Consumer Protection Act,1986, the Consumer Foras, can grant compensation, to the complainant. The word ‘compensation’ is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means, compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras, have been vested with the jurisdiction, to award value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by a consumer, which, in law, is otherwise, the wide meaning of ‘compensation’. The provision, in our opinion, enables a consumer to claim and empowers the Consumer Fora to redress any injustice done to him. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate a consumer, for injustice suffered by him. The complainants deposited Rs.42,48,840/- with the opposite parties , in the hope of getting physical possession of the plot in two or at the maximum 3 years from the date of signing the plot buyers’ agreement, with an intention to construct a house thereon. Their hopes were dashed to the ground, when they saw that there was no development, at the spot, nor there was any connectivity from their project to the already developed sectors as the opposite parties have not got laid the connecting roads from Sector 109 to other Sectors of Mohali. The complainants, thus, underwent a tremendous physical harassment and mental agony at the hands of the opposite parties, on account of their act and conduct. In Buddhist Mission Dental College & Hospital Vs Bhupesh Khurana & Others, 1(2009)CPJ25(SC) , the Apex Court while upholding the order of the Fora below, regarding the refund of amount with interest @ 12% p.a., as also compensation of Rs.20,000/-, to each of the complainants, further directed the Opposite Parties, to pay additional compensation of Rs.one lac to each of them. In Paramvir Singh Vs P.H.Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011 the National Commission, in similar circumstances, upheld the grant of interest, on the refund of amount, as also granted compensation, to the complainant. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. For tremendous physical harassment and mental agony, undergone by the complainants, on account of non-delivery of physical possession or non-refund of the amount, by the opposite parties, they are entitled to compensation to the tune of Rs.one lac. 12. According to clause 8 of the Agreement, in the event of failure of the opposite parties, to hand over possession within the stipulated period, they will be liable to pay penalty for delay in the sum of Rs.50/- (rupees fifty only)per sq. yard, per month, for such period of delay beyond three years from the date of its execution. The parties are bound by the terms and conditions of the agreement. The opposite parties made a false promise, with the complainants, regarding the delivery of possession within three years from 11.7.2007. They, thus, misled the complainants, in this regard. The opposite parties, thus, fleeced the innocent buyers, of their hard earned money knowing fully well that they were unable to abide by their commitment. They, thus, indulged into unfair trade practice. The opposite parties are, thus, liable to pay penalty @ Rs.50/- per sq. yard, per month, from 12.7.2010 till realization, for indulging into unfair trade practice. 13. No other point was urged, by the Counsel for the parties. 14. For the reasons, recorded above, the complaint is accepted with costs in the following manner ; (i) The opposite parties are directed to refund the amount of Rs.42,48,840/- to the complainants with interest @ 12% p.a. from the respective date(s) of deposits until realization. (ii) The opposite parties are further directed to pay compensation of Rs.one lac to the complainants as indicated in para 11 of the order. (iii) The opposite parties are further directed to pay penalty to the complainants @ Rs.50/ per sq.yard, per month, for the period from 12.7.2010 (the stipulated date of delivery of possession being 11.7.2010) until realization of the amount, as indicated in para 12 of the order. (iv) The opposite parties shall also pay costs of litigation of Rs.10,000/- to the complainants. (v) The aforesaid payable amounts shall be paid within 45 days, from the date of receipt of a copy of the order, failing which, the opposite parties shall pay interest @15% p.a. instead of 12% p.a. till realization, besides costs. - 15. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to the Record Room. Sd/- Announced (JUSTICE SHAM SUNDER) January 18, 2012 President Sd/- (NEENA SANDHU) Member Sd/- ( JAGROOP SINGH MAHAL) cmg Member
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
