STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 113 of 2015 Date of Institution : 03.06.2015 Date of Decision : 23.09.2015 Guninder Jeet Singh Salh, resident of House No.21, Waraich Colony, Model Town, Patiala.

Complainant V e r s u s M/s Emaar MGF Land Limited, S.C.O.120-122, First Floor, Sector 17-C, Chandigarh, through its Managing Director/Directors.

Managing Director, M/s Emaar MGF Land Limited, ECE House, 28 Kasturba Gandhi Marg, New Delhi.

.... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER : Sh.Ramandeep Singh Pandher, Advocate for the Argued by complainant.

Sh. Sanjeev Sharma, Advocate for the Opposite Parties.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The complainant was a prospective buyer of two plots, from the Opposite Parties. He signed standard format application form on 30.10.2010. He booked two plots bearing Nos.151 and 152, in a project floated by the Opposite Parties, known as Mohali Hills, Mohali, Punjab. The complainant paid an amount of Rs.5 lacs each, towards booking amount of the said plots.

Subsequent thereto, it was specifically mentioned in para No.3 of the complaint that the complainant was then informed by the Opposite Parties, that plot No.151 is not available and consequently the amount paid against both the plots were adjusted and plot No.121 measuring 250 square yards was allotted to him.

Clause 18 of the above application contains stipulation qua delivery of possession, which reads thus:-

The Company shall make all efforts to handover possession of the Plot within a period of 12 months from the date of the execution of the Buyers Agreement, subject to certain limitations as may be provided in the Plot Buyer's Agreement and timely compliance of the provisions of the Plot Buyers Agreement by the Applicant. The Applicant agrees and understands that the Company shall be entitled to a grace period of 6 months, for applying and obtaining the necessary permission/approvals in respect of the Plot and/or the Project

It is further provided that in case the Opposite Parties failed to deliver possession, as per above stipulation, they shall pay compensation @Rs.50/- per square yard, per month of the plot area for the period of delay. It is further provided that in case the complainant failed to take possession of the plot on offer being made, he shall pay holding charges @Rs.50/- per square yard per month of the plot area, for the entire such period.

After acceptance of the allotment application aforesaid, it was expected that Buyers Agreement will be sent for signatures, in near future. It was so promised in letter dated 09.12.2010 [(Annexure C-2 (colly.)] intimating the complainant that he will be dispatched within seven working days, the Buyers Agreement, in duplicate, for signing. However the promise was not kept. The complainant continued to deposit amount, as per agreed terms and conditions. Copy of receipts have been placed on record as Annexure C-3 (colly.).

It is virtually an admitted fact that an amount of Rs.52,90,252/- was deposited by the complainant with the Opposite Parties against the total price of Rs.55,15,250/-.

Buyers Agreement was offered for signatures on 05.12.2011 i.e. after a period of more than one year, from the date of signing the standard format application form on 30.10.2010.

This above action will amount to deficiency in service or not; we will discuss it in the later part of this order. In the said Agreement also, as per Clause 8, it was stated that subject to force majeure conditions, the Opposite Parties shall deliver possession of the plot, in question, within 18 months from the date of execution of that Agreement. That promise was also not kept. It is specific case of the complainant that he wanted to raise loan to purchase above said plot. However loan was not sanctioned to him for want of signing of Buyer's Agreement, at the relevant time. Payment was delayed. He was made to pay an amount of Rs.4,34,231/- towards delayed payment interest i.e. @24% compounded quarterly. Perusal of receipts indicate that when Buyers Agreement was sent for signing to the complainant, he had already paid an amount of Rs.45,82,502/-, towards price of plot No.121, by 16.12.2011. As per the Buyers Agreement, possession was to be delivered by 05.06.2013.

The said promise also failed. Delivery of possession of plot was not in sight. It is also mentioned by the complainant that thinking that possession of the plot is going to be offered, he approached the Opposite Parties, in the month of January 2012 to sell one of his plot bearing No.152. At that time an assurance was given by the Opposite Parties that the amount received against above plot would be adjusted against plot bearing No.121 and late payment charges shall not be pressed. However that commitment was not honoured. It is specifically stated that the complainant sent an email dated 14.02.2012 to supply him copies of the standard format applications, signed for plot Nos.121 and 152. However his request failed to get any result. Again an email was sent by the complainant on 18.02.2012 requesting reschedule of payment on the ground that execution of Buyers Agreement was deliberately delayed. However this request was also not accepted. Copies of the emails have been brought on record as Annexure C-11 (colly.).

On 10.09.2012 the complainant received an email (Annexure C-12) from the Opposite Parties stating that on account of ban on sand mining, work of construction has suffered.

However, when the complainant questioned the act and conduct of the Opposite Parties, vide another email, he was informed that above ban/restriction is not applicable qua his plot bearing No.121. On 19.06.2013, the complainant again sent an email (Annexure C-14), asking the Opposite Parties for waiver of penal interest. However, it was declined. Without complete development as promised and also without getting any completion certificate, paper offer of possession was made on 14.10.2014 vide letter Annexure C-17. It is mentioned in the letter Annexure C-17 that the process of delivery of possession of plot will start within 60 days. Further intimation was also given that temporary electricity and water connections have been sanctioned for the project in question. The complainant was asked to deposit an amount of Rs.11,05,319/- towards basic sale price, reverse EDC, club memberships charges, electrification charges, registration charges, stamp duty charges, interest free maintenance security, electricity connection charges, delayed payment charges, monthly maintenance charges and water charges for the period from 01.12.2014 to 30.11.2015.

(It is very surprising that as per available record most of the facilities are not in sight and even then the amount aforesaid was claimed for those facilities by the Opposite Parties).

It is case of the complainant that he was hopeful to get possession in time and after raising construction thereon, to live in the same. On account of delay on the part of the Opposite Parties, he continued to live in rented accommodation. By alleging deficiency in service, this complaint was filed.

In response to a notice issued by this Commission, joint written reply was filed by the Opposite Parties, wherein various objections were taken, to defeat the claim raised by the complainant. It was stated that since possession of plot No.121 has already been offered to the complainant vide letter dated 14.10.2014 (Annexure C-17) i.e. before filing this complaint, and he has failed to take the same, within the stipulated period, as such, he cannot raise any grievance against the Opposite Parties. Allegation of deficiency in service was refuted. It was stated that right to claim refund of the amount accrued on 05.06.2013 and not when offer of possession was made to the complainant. It was also stated that claim made by the complainant for refund of the amount deposited by him, amounts to rescinding of contract and in that case, the Opposite Parties are entitled to forfeit 15% of the earnest money, as per terms and conditions of the Agreement and further to claim holding charges for not taking over possession of the plot. It was averred that as the complainant has initially purchased two plots, in the manner aforesaid, he did not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 (in short the Act), meaning thereby that he has purchased the same for resale, as and when there is escalation in prices of the real estate, in future, to earn huge profit. It was stated that delivery of possession of the plot, in question, within the stipulated period was not essence of the contract. It was averred that execution of the Buyers Agreement was delayed because the complainant was pressing for allotment of one plot against two plots, originally purchased, and adjustment of the amount paid accordingly. There was no buyback policy of the plot with the Opposite Parties, as such, the plot was not repurchased. However, amount was adjusted on payment of delayed payment charges. It was stated that on account of Arbitration Clause contained in the Agreement, this Commission has no Jurisdiction to entertain and decide the complaint, and let the matter be placed before an Arbitrator for adjudication. The remaining averments were denied being wrong.

In the rejoinder filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written reply of the Opposite Parties.

Both the parties led evidence, in support of their case by filing their affidavits and placing on record numerous documents.

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

At the time of arguments, Counsel for both the parties reiterated the averments mentioned in the preceding part of this order.

After hearing Counsel for the parties and on going through the documents placed on record, we are convinced that it is a clear case of deficiency in service and adoption of unfair trade practice, on the part of the Opposite Parties. It is not disputed that originally standard format applications, for allotment of two plots, were signed by the complainant on 30.10.2010. Payment of booking amount of Rs.5 lacs each, is also not disputed. As per Clause 18 of the standard format application form, it was agreed by the Opposite Parties that possession of the plot shall be delivered after developing the site, within 12 months from the date of execution of the Buyers Agreement. Further grace period of 6 months was also permitted for applying and obtaining necessary permission/approvals with regard to the project, in question. An attending purchaser can expect for preparation and offer of the Buyers Agreement for signing, within few weeks of booking the plots. However it was not done. The complainant was made to make payment towards price of the plot as per schedule and substantial amount was deposited, when in a very malafide manner, Buyers Agreement was sent for signing alongwith letter dated 16.12.2011, again stipulating that possession will be delivered within 18 months from the date of signing the same. Perusal of the Buyers Agreement makes it very clear that it was prepared on 05.12.2011. Thus, it was sent for signing after one year of booking.

Above action was not justified. After signing the standard format applications, vide letter dated 09.12.2010 (Annexure C-2), a commitment was given in the following manner:- III The following documents will be dispatched to you within the next 7 working days Welcome Letter; a small note welcoming you to the Emaar family.

Buyers Agreement in duplicate: Please ensure to sign the same within 30 days of receipt as per the terms set out in the Application Form.

Allotment Letter and Payment Plan: Details of the Unit you have booked, the payment plan opted for the Unit.

It was specifically stated that above documents will be sent within seven working days from 09.12.2010, when above letter was sent. It was not done. The complainant was made to wait for more than a year, when he was asked to sign the Buyers Agreement. Above action alone amounts to deficiency in service.

Not only as above, even after signing the Buyers Agreement on 05.12.2011, delivery of possession was to be made maximum within 18 months. However, it was never offered.

Many a times, attempt was made by the complainant, to know as to when possession of the plot will be delivered, but no satisfactory reply was given. It is specific case of the complainant that he was to raise loan to make payment against price of the plot. Loan could not be raised on the ground of non-signing of the Buyers Agreement. To the contrary, on the ground that the complainant failed to make some payment, he was made to pay penal interest, which was absolutely not justified. Above fact is apparent from the document Annexure C-7. The complainant was told to make necessary payment, otherwise his allotment will be cancelled. Thereafter, after much delay, the Buyers Agreement was got signed on 05.12.2011, which made it possible for the complainant to raise loan, from Indiabulls Company, on 11.01.2012 @ 10.75% interest per annum. It is not in dispute that for causing delay in making payment, the Opposite Parties had charged Rs.4,34,231/- towards delayed interest. Payment of this amount could have been avoided, had the Buyers Agreement been signed, in time. The complainant failed to raise loan on account of non-signing of Buyers Agreement. Above non-action amounts to deficiency in service, on the part of the Opposite Parties.

Contention of Counsel for the Opposite Parties that execution of the Buyers Agreement was delayed because of request made by the complainant to adjust the money for one plot, paid against two plots, is devoid of merit. Nothing of the sort is coming out from the documents on record. Even in the reply, it has not been so said. At no point of time, any such letter was written to the complainant stating this fact. It appears that to conceal their fault, offer of possession was made by the Opposite Parties to the complainant vide letter dated 14.10.2014 (Annexure C-17). In the above letter it is admitted that connections of water and electricity are temporary. When offer of possession was made, the period to deliver possession of the plot, in question, is already over. Under these circumstances, it was justifiable for the complainant to say no to the same.

It was so said by the National Consumer Disputes Redressal Commission, New Delhi in . In theEmaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC) above case, possession was not delivered in time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. In Emaar MGF Land the National Consumer Disputes Redressal Commission,Limited and another's case (supra), New Delhi, held as under:-

It is apparent from the above clause, that possession of the apartment was to be handed over within a period of 36 months from the date of allotment, with grace period of 3 months. Admittedly, no possession was offered to the original allottee or to the respondent, till 26.11.2011 when she stepped into the shoes of original allottee. Thus, on the date of accepting the present respondent as allottee on 26.11.2011, the apartment in question was not complete.

. As appellants did not offer possession within the period prescribed under23 Clause 21 of the Apartment Buyer Agreement, the deficiency on the part of appellants, started right from that very moment. It is an admitted fact, that while offering the possession even in the year 2013, appellants sent letter dated 13.5.2013 and respondent was asked to deposit sum of Rs.3,05,969.70, within 30 days. When payment of the instalments is construction linked, then we fail to understand as to how before completing the construction appellants demanded the aforesaid amount.

This act of appellants goes on to show, that even on 13.5.2013 construction of apartment was not complete. It was only vide letter dated 16.8.2013, appellants offered possession of the apartment, subject to certain payments.

. Thus, appellants themselves have violated the material conditions with regard24 to handing over of the possession, now it does not lie in their mouth to demand further payment from the respondent. Even assuming for arguments sake, that payment as demanded vide letter dated 16.8.2013 was due, but the respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Appellants could not force the respondent, after having accepting money from the original allottee in the year 2006 and part payment from present respondent in the year 2011, to accept possession of the apartment in the year 2013, which was against the terms of the Agreement. The above facts clearly goes on to show, that appellants have been enjoying the substantial amount of money received by them in the year 2006, till 2013. Therefore, this plea of appellants, that they have done their part of the duty and it is the respondent who is defaulter, does not hold any water.

. The deficiency on the part of appellants is writ large in this case. We may25 note, that under such circumstances there was no occasion for the State Commission to have deducted 10% of the deposited amount as respondent was not at fault at all.

On the other hand, appellants were deficient when they themselves have violated the terms and conditions of Apartment Buyer Agreement, The case law relied by ld. counsel for appellants are not applicable at all to the facts of the present case.

. Accordingly, we hold that there is no merit in the present appeal. Present26 appeal is wholly misconceived and is without any legal basis. Therefore, we dismiss the same with punitive damage of Rs.1,00,000/- (Rupees One Lac only). Appellants are directed to deposit the aforesaid amount by way of demand draft in the name of Consumer Legal Aid Account, of this Commission, within a period of six weeks from today.

It was clearly stated that the State Commission was not justified in imposing cut of 10% of the deposited amount towards forfeiture, treating non-acceptance of possession as rescinding of contract.

In the present case, situation is worst. Initially by not offering the Buyers Agreement for signing, within reasonable time, unfair trade practice was demonstrated by the Opposite Parties. Agreement was sent for signing after about more than one year of signing the application aforesaid. In the meantime, substantial amount was paid by the complainant. He failed to raise loan in view of non-signing of the Agreement. Thus, in our considered opinion, it cannot be said that by not accepting possession after the stipulated date, the complainant has committed any fault, for which 15% of the sale price can be forfeited. The plea raised by the Opposite Parties being palpably wrong is rejected.

Furthermore, reading of document dated 14.10.2014 (alleged offer of possession Annexure C-17), shows that unreasonable and unnecessary demands were raised to the tune of Rs.11,05,319/-. There is no basis to claim club membership charges, monthly maintenance charges, electricity charges, registration and stamp duty charges etc. etc. Those amounts, if admissible, could have been charged only after delivery of possession of the plot and not otherwise.

By placing on record certain documents, the complainant has demonstrated that development at the site was not complete. To say so, reference has been made to the information sought under the Right to Information Act, 2005 that completion certificate was not issued to the Opposite Parties, when offer of possession was made. By moving an application, various documents have been placed on record, to show that such like completion certificate was mandatory to be obtained in the case of the Opposite Parties.

An attempt was made to defeat claim raised by the complainant, by stating that he did not fall within the definition of a consumer. It is stated that as initially the complainant has purchased two plots, as such, the same were purchased only for speculation purposes.

In the rejoinder filed, it has been specifically clarified by the complainant in paragraph No.6 that, no doubt, initially he had booked two adjacent plots, as he wanted to construct house on both the plots, but later on, he was informed that plot No.151 is not available, as a result whereof, he was allotted plot No.121. Thus, when his purpose of buying two plots for construction of house thereon was not fulfilled, he decided to abandon one plot out of the two aforesaid. It is also stated and clarified in the rejoinder that the unit, in question, was purchased for his own residence.

We are of the considered opinion that the plea taken by the Opposite Parties, that the complainant is a speculator, is devoid of merit, in view of the explanation given above, by him. On the other hand, no material data has been placed, on record, by the Opposite Parties, to prove that, in the past, before booking the units, in question, the complainant was indulged in sale and purchase of the property, on regular basis, to earn huge profits. Mere booking of two adjacent plots, in a project, did not mean that the purchaser thereof is a speculator. For proving so, the party alleging the same, is required to produce some cogent and convincing documentary evidence, in support thereto. Recently, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd.

,and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010 decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra ) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that initially, the plots, in question, were booked by the complainant, by way of investment, with a view to earn huge profit, in future. The complainant, thus, falls within the definition of consumer, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, being devoid of merit, stands rejected.

It was next argued by Counsel for the Opposite Parties that the complaint filed under Section 17 of the Act, was not maintainable, before this Commission, on account of existence of an arbitration Clause in the Agreement.

Section 3 of the Act, is worded in widest terms, and leaving no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law. The mere existence of arbitration Clause in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act. Similar principle of law was laid down in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another, I (2012) CPJ 1 (SC), C.C.I Chambers Co - op. Housing Society Ltd. Vs Development Credit Bank Ltd.

III (2003) CPJ 9 (SC), M/s Fair Air Engg. Pvt. Ltd. & another Vs N.K.Modi III and (1996) CPJ 1 (SC), DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision decided on 13.05.2013 by the National CommissionPetition No. 412 of 2011, (NC). The plea of Counsel for the Opposite Parties, in this regard, being devoid of merit, stands rejected.

No doubt, Counsel for the Opposite Parties, placed reliance on Smt. Chand Rani (dead) a case decided by theby LRs. Vs. Smt. Kamal Rani (dead) by LRs., AIR 1993 SC 1742, Honble Supreme Court and Ashok Khanna Vs. Ghaziabad Development Authority, , decided by the National Consumer Disputes RedressalRevision Petition No.2002 of 2005 Commission, New Delhi, on 18.08.2009, to contend that time was not the essence of contract.

The facts of areSmt. Chand Rani's and Ashok Khanna's cases (supra), distinguishable, from the facts of the instant case. Smt. Chand Rani's case (supra), related to the specific performance of contract. It was held that intention to make time as the essence of contract, must be expressed in unequivocal terms in the Agreement. Whereas, in the National ConsumerAshok Khanna's case (supra), Disputes Redressal Commission, New Delhi, held that at the time of delivery of possession, the respondent did not charge any additional price. Rs.57,000/- were paid by the petitioner without any protest. In the said case, the possession was taken on 15.12.1993, whereas, the complaint was filed in the later months of 1995, i.e.

after a lapse of about 2 years, which showed that, at the time of delivery of possession, the petitioner was satisfied, but later on he changed his mind and filed the complaint, seeking interest on the deposited amount. It was, under these circumstances, held in the said case that time was not the essence of contract.

However, in the instant case, the objection raised by Counsel for the Opposite Parties, in this regard, is devoid of merit, in view of Clause 18 of the application form and Clause 8 of the Agreement, according to which, possession of the unit was to be delivered in maximum period of 18 months, from the date of execution of the same (Agreement), failing which they were liable to pay compensation/penalty @ Rs.5/- per square yard per month of the Plot area. The time was, thus, unequivocally made the essence of contract. The plea of Counsel for the Opposite Parties, in this regard also stands rejected.

No other point, was urged, by Counsel for the parties.

For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:- To refund an amount Rs.52,90,252/- to the complainant.

To pay compound interest quarterly @ 18%, to the complainant, from respective dates, on the amount aforesaid (total Rs.52,90,252/-), when deposited with them.

(Above rate of interest is less than the rate of interest charged by the Opposite Parties for delayed payment i.e. 24% compounded quarterly) To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate.

To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.

To pay the entire ordered amount, in Clauses (i), (iii) and (iv), including compound interest quarterly @ 18% as mentioned in Clause (ii) above, within a period of one , from the date of receipt of a certified copy of this order, failing which theymonth shall be liable to pay to the complainant, compound interest quarterly @ 24%, qua the entire amount assessed, from the date of default till realization, i.e. on Clauses (i), (iii) and (iv).

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

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

23.09.2015 Sd/- [JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Sd/- (PADMA PANDEY) MEMBER -10-