Chandigarh

StateCommission

CC/128/2015

Heena Jindal - Complainant(s)

Versus

The Managing Director, EMMAR MGF Land Ltd. - Opp.Party(s)

Tribhawan Singla, Adv.

31 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	128 of 2015
Date of Institution	:	24.06.2015
Date of Decision	:	31.08.2015

 

Heena Jindal D/o Sh. Sat Dev Jindal, C/o M/s Jindal Proteins Ltd., Industrial Focal Point, Sangrur, Tehsil and District Sangrur (Punjab).

……Complainant.

Versus

1. The Managing Director, EMAAR MGF Land Ltd., Corporate Office, ECE House, 28, Kasturba Gandhi Marg, New Delhi – 110001.
2. The Manager/Incharge, EMMAR MGF Land Ltd., SCO No.120-122, Sector 17-C, Chandigarh.

              ....Opposite Parties.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

               

BEFORE:   SH. DEV RAJ, PRESIDING MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh. Harsh Goyal, Advocate Proxy for Sh. Tribhawan Singla, Advocate for the complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

 

PER DEV RAJ, PRESIDING MEMBER

              The facts, in brief, are that the complainant applied and showed her expression of interest in the allotment of a 3 bedroom apartment having super area of 1750 sq. feet at the basic price of Rs.2,950/- per sq. feet in the project of the Opposite Parties ‘The Views’ in Sector 105, Mohali, It was further stated that the complainant paid an amount of Rs.7 Lacs as booking amount on 28.3.2008 vide receipt (Annexure C-1) and she was allotted Apartment No.K23-F02-204 in the said project in Sector 105, SAS Nagar, Mohali vide allotment letter dated 2.4.2008 (Annexure C-2) having super area of 1750 sq. feet alongwith one car parking space @Rs.1,50,000/-, external development charges @Rs.112.25Ps per sq. feet and interest free maintenance charges @Rs.10/- per sq. feet, totaling Rs.55,26,543/-. It was further stated that the complainant further paid an amount of Rs.2,71,809/- being 20% of the total sale price vide receipt (Annexure C-3). It was further stated that an Apartment Buyer’s Agreement dated 13.6.2008 (Annexure C-4) was executed between the parties at Chandigarh. It was further stated that the complainant opted for construction linked plan and she had paid the total payment of Rs.50,14,535/- as on 6.2.2015 (Annexure C-5). It was further stated that the last payment  made by the complainant was Rs.2,76,000/- on 2.12.2014. It was further stated that the last 15% of the amount was to be paid at the time of completion of flooring and wall painting, occupation certificate and intimation of possession.

2.         It was further stated that the complainant visited the proposed site where tower ‘K’ was to be raised but every time she was told that the construction would be completed soon. It was further stated that the complainant wrote letter dated 7.1.2014 for grant of compensation as the Opposite Parties failed to complete the construction within 36 months as per the Agreement despite her (complainant) making more than 90% of the price. It was further stated that only the structure has been raised in Tower K where the unit was allotted to the complainant. It was further stated that the Opposite Parties are not assuring to complete the project in near future and, therefore, the complainant asked for refund of the money but the Opposite Parties flatly refused to refund the amount. It was further stated that by neither delivering the physical possession of apartment, in question, to the complainant, and in the alternative by not refunding the amount deposited with interest,  the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

3.         When the grievance of the complainant, 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), was filed, directing the Opposite Parties, to refund the total deposited amount of Rs.50,14,535/- alongwith interest @18% per annum compounded monthly from the respective dates of deposits, till the date of realization; pay an amount of Rs.10 Lacs, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.33,000/-.

4.              The Opposite Parties, in their joint written version, took up certain preliminary objections, to the effect that the complaint was barred by limitation as the cause of action to the complainant for seeking possession/refund arose on 2.4.2011 i.e. after three years from the date of allotment, whereas the instant complaint was filed in the year 2015; that all the disputes were to be referred to an Arbitrator in terms of Clause 43 of the Agreement; that the complainant was not a consumer as she purchased the property, in question, for speculative purposes.

5.         On merits, it was admitted that the complainant was allotted the apartment, in question, vide provisional allotment letter dated 2.4.2008. It was stated that the payment of Rs.3,71,809/-,which was due on 24.4.2008 was remitted by the complainant only on 20.05.2008. It was further stated that as per statement of account (Annexure R-2), as on 30.06.2015, a sum of Rs.1,27,579/- is due against the complainant against the complainant. It was further stated that as per clause 21.1 of the Agreement, it was unequivocal to cite that the Opposite Parties had proposed to handover   possession of the unit within 36 months form the allotment. It was further stated that the term “proposes” duly indicated that there was no definite commitment to handover possession within 36 months as time was not the essence of the Agreement. It was further stated that the interest of the complainant was safeguarded by the compensation clause and the Opposite Parties had committed to bear the penalty for delayed possession in terms of the Agreement, if any, beyond the time frame stipulated in the Agreement. It was admitted that the complainant had paid Rs.50,14,535/- against the flat, till date.

6.         It was further stated that the construction activity is going on in Tower K where the unit is located and in case of delay beyond the time frame, compensation clause would be applicable as per terms of the Agreement. It was further stated that the complainant was told in clear terms that on account of pending finishing works in Tower K, possession     is not being offered. It was further stated that the structure work of Tower K is complete since long and finishing works are going on at the site and, accordingly, she was offered relocation, in case, she was desirous of seeking early possession but she refused to accept the same. It was further stated that the final finishing works are going on and expected to be completed by February 2016. It was further stated that the complainant was a defaulter and the Opposite Parties had to send her numerous reminders and notice/reminders for making the payments (Annexure R-3 colly.). It was further stated that the demands were raised in accordance with the payment schedule shared and accepted by the complainant. It was further stated that, neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.         The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

8.         The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal), by way of evidence, alongwith which, a number of documents were attached. 

9.         The complainant filed replication, wherein, she reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.  

10.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

11.       It is evident that the complainant was allotted an apartment in the project of the Opposite Parties vide allotment letter dated 2.4.2008 (Annexure C-1) and a Apartment Buyer’s Agreement (Annexure C-4) was executed between the parties at Chandigarh on 13.6.2008. As admitted by the Opposite Parties in Para  7 of their written statement, as against the total price of the apartment, in question, viz. Rs.55,26,543/-, the complainant paid a sum of Rs.50,14,535/-. As per Clause 21.1 of the Agreement (Annexure C-4), possession was to be delivered by 3.4.2011 i.e. after 3 years of the date of allotment. The grievance of the complainant is that the construction of the apartment, in question, is still not complete and despite lapse of more than four years from the due date for offer of possession, the same has still not been offered and rather the Opposite Parties, in their written statement stated that they expect to offer possession by February 2016 as the final finishing works are still going on. The complainant opted for payment plan (Page 55 of the Apartment Buyer’s Agreement), which is extracted hereunder:-

Payment Plan – The Views

Sale order No.
TVM No.	TVM/CH/265
Name	Ms. Heena Jindal			%		Other		Total
Flat No.	K3-F-02-204		On Booking	20	700000	-		700000
Area	1750 Sq.Ft		Within 45 days of Booking		371808.5	-		371809
			Within 90 days of Booking	10	535904.25	-		535904
	Rate	Total	On start of construction	10	535904.25	-		535904
BSP	2950	5162500	On completion of lower basement roof slab	5	267952.125	-		267952
EDC	112.31	196542.5	On completion of upper basement roof slab	5	267952.125	75000	#	342952
Parking	1	150000	On completion of 2nd floor roof slab	5	267952.125	75000	#	342952
Plc		0	On completion of 4th floor roof slab	5	267952.125	0	$	267952
IFMS	10	17500	On completion of 6th floor roof slab	5	267952.125	0	$	267952
			On completion of 8th floor roof slab	5	267952.125			267952
Grand Total	5526542.5		On completion of 10th floor roof slab	5	267952.125			267952
			On completion of 12th floor roof slab	5	267952.125			267952
			On completion of final roof slab	5	267952.125			267952
Sale price	5359042.5		On completion of flooring & wall painting	5	267952.125			267952
			On receipt of occupation certificate	5	267952.125			267952
			On intimation of possession	5	267952.125	17500		285452
TOTAL				100	5359043	167500		5526543
Note: # includes 50% Car Parking Amount $ includes 50% of PLC Amount -Includes IFMS Amount Stamp Duty & Registration charges are payable at the time of Intimation of possession.

 

The complainant paid a total sum of Rs.50,14,535/- including last installment in the sum of Rs.2,76,000/- on 2.12.2014 as admitted by the Opposite Parties. The

 

complainant has made payment whenever due as per Payment Plan and the total payment made by her comes to more than 90% of the total sale price.

12.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It may be stated here, that apartment, in question, was allotted by the Opposite Parties to the complainant on 2.4.2008 vide provisional allotment letter (Annexure C-2) and Apartment Buyer’s Agreement dated 13.06.2008, Annexure C-4 was executed between the parties at Chandigarh. The possession of the said apartment was to be delivered by 3.4.2011 i.e. within 36 months of the date of allotment. As possession   was not offered by the stipulated date, the complainant vide her letter dated 7.1.2014 (Annexure C-6) requested for compensation in terms of Clause 23.1 of the Agreement. The complainant has submitted that she sought refund but her request  was never considered by the Opposite Parties. As admitted by the Opposite Parties, in their written statement, they gave an option to the complainant   for relocation of the apartment, which was not accepted by her. It means that, in the absence of acceptance of relocation of the apartment, no final contract came into being between the parties, in relation to the same. No possession of the originally allotted apartment, was offered to the complainant, either on the stipulated date i.e.3.4.2011, or till date. Thus, there was a continuing cause of action, firstly, in the year 2011 and secondly in the year 2014,   when the complainant demanded compensation under Clause   23.1  of  the  Agreement  till  possession  was

offered and the Opposite Parties kept on raising demands vide notices/reminders dated 10.2.2011, 9.6.2011, 27.6.2011, 3.7.2011, 31.10.2014,  and 18.11.2014. Further the Opposite Parties, in Para 8 of their written statement, have admitted that construction in the tower K where apartment, in question, allotted to the complainant was situated, was still going on. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380,  wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon’ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. Therefore, the submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.       The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.43 in the Apartment Buyer’s Agreement dated 13.6.2008 (Annexure C-4). With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N.K.Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

14.       The next objection taken by the Opposite Parties was to the effect that the complainant was not a consumer as the apartment was booked by Shree Jindal Proteins Ltd. The complainant in her rejoinder has submitted that the property was purchased by her in her own name and all the payments were made by her either from her personal account or given to her by Shree Jindal Proteins Ltd. being the director/share holder of the Company. No doubt at the time of booking, the booking amount was paid by Shree Jindal Proteins Ltd., but all the documents i.e. allotment letter, Apartment Buyer’s Agreement, statement of account are in the name of Ms. Heena Jindal, meaning thereby that the apartment, in question, was allotted in the individual name of Ms. Heena Jindal. In this view of the matter, the objection raised by the Opposite Parties, being unsustainable, is rejected.  

15.       The next question, that falls for consideration, is, as to whether, there was any deficiency or unfair trade practice on the part of the Opposite Parties, in offering possession of the plot, in question, to the complainant. It may be stated here, that, in the instant case, as stated above, as per Clause 21.1 of the Apartment Buyer’s Agreement dated 13.06.2008, Annexure C-4, the Opposite Parties were to hand over physical possession of the said apartment, in favour of the complainant, within a period of 36 months, from the date of allotment. It was further mentioned in clause 23.1 that, in case, the Opposite Parties, failed to deliver possession of the apartment, in question, within the stipulated period, they were liable to pay penalty, to the complainant, @Rs.5/- (Rupees Five only), per square feet per month of the super area, for such period of delay till the date of notice offering possession. Thus, the Opposite Parties were to deliver possession of the apartment, in question, to the complainant, latest by 3.4.2011. The Opposite Parties in their written statement have admitted that though they have completed the structure works in Tower K wherein the apartment of the complainant is located, yet the final finishing works are going on and expected to be completed by February 2016. By making a misleading statement, that possession of the apartment, in question, would be delivered within three years, from the date of the execution of Apartment Buyer’s Agreement dated 13.06.2008, Annexure C-4, and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.

16.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.50,14,535/-, deposited by her. The Opposite Parties, in Para 7 of their written statement, admitted the receipt of the aforesaid amount of Rs.50,14,535/- from the complainant towards the price of the apartment till date. As already discussed above, the Opposite Parties failed to offer possession of the apartment, in question, to the complainant, within the stipulated period of 36 months from the date of allotment and till date, the same has not been offered. As already discussed in the preceding para, the Opposite Parties expected the offer of possession by February 2016 as the construction/finishing works in Tower K, where      the apartment, in question, is located, are still going on. One can imagine the plight of a person, who has invested her hard earned money and despite promise/stipulation in the Apartment Buyer’s Agreement dated 13.06.2008, Annexure C-4, that possession would be delivered within 36 months from the date of allotment, there was no firm commitment of offering the same, complete in all respects, despite lapse of a period of more than four years from the due date and deposit of more than 90% of the sale consideration. The complainant was, thus, definitely entitled to the refund of amount, deposited by her, towards the price of the apartment, in question. In the aforesaid circumstances, when inordinate delay and deficiency on the part of the Opposite Parties is writ large, in our considered opinion, forfeiture clause is not applicable.

17.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, if so, at what rate. The amount of Rs.50,14,535/-, towards the price of apartment, in question, was deposited by the complainant. The complainant was deprived of her hard earned money, on the basis of misleading information, given by the Opposite Parties, that they would be handed over the legal physical possession of the apartment within a period of 36 months from the date of allotment i.e. by 3.4.2011, but they failed to do so. The complainant was, thus, caused financial loss.  The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient long period. Had this amount been deposited by the complainant, in some bank, she would have earned handsome returns thereon. In case of delay, in deposit of any charges within the specified time, the Opposite Parties were charging interest @15% per annum compounted, as is evident from Clause 20.1 of the Apartment Buyer’s Agreement dated 13.06.2008, Annexure C-4. Under these circumstances, in  our  considered  opinion, interest @12% per annum, on the amount deposited by the complainant, from the respective dates of deposits, if granted, will serve the ends of justice.

18.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment and injury caused to her, by not delivering physical legal possession of the apartment, to her or by not refunding the amount deposited. The complainant underwent a lot of mental agony  and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation,  to the tune of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-, as indicated above.

19.       No other point, was urged by the Counsel for the Parties.

20.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-

(i)   To refund the amount of Rs.50,14,535/-, to  the complainant,  alongwith interest @12% per annum, from the respective  dates of deposits onwards,  within two months, from  the    date of receipt of a certified copy of  this   order.

(ii)  To pay compensation, in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand Only) for causing mental agony and physical harassment, to the complainant, within two months, from the date of receipt of a certified copy of this order.

(iii) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

(iv)  In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15% per annum, instead of 12% per annum, from the respective dates of deposits, till realization, and interest @12% per annum, on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.        

21.             Certified Copies of this order be sent to the parties, free of charge.

22.         The file be consigned to Record Room, after completion

Pronounced.

August  31, 2015

Sd/-

[DEV RAJ]

PRESIDING MEMBER

 

 

Sd/-

[PADMA PANDEY]

MEMBER

AD