Complaint Case No. 843 of 2016. Case: Balvinder Singh Vs Emaar MGF Land Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission

Case Number:Complaint Case No. 843 of 2016
Party Name:Balvinder Singh Vs Emaar MGF Land Limited and Ors.
Counsel:For Appellant: Polly Shera, Advocate and For Respondents: Ajiteshwar Singh, Advocate
Judges:Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members
Issue:Arbitration And Conciliation Act, 1996 - Section 8; Consumer Protection Act, 1986 - Sections 17, 2 (1) (d) (ii), 2(1)(d), 3; Indian Forest Act, 1927 - Sections 29, 33, 63
Judgement Date:March 31, 2017
Court:Chhattisgarh State Consumer Disputes Redressal Commission

Order:

Padma Pandey, Member

  1. The facts, in brief, are that the complainant for the purpose of his residence booked a plot in Augusta Park, Sector 109 project of the Opposite Parties on 23.09.2006 and paid an amount of Rs. 10,35,000/-. Plot Buyer's Agreement was executed between the parties on 20.06.2007 (Annexure C-4), whereas, he was allotted plot No. 373 measuring 300 sq. yards. The total price of the unit was fixed at Rs. 36,19,104/-. The complainant paid the total amount of Rs. 36,46,604/- in respect of the unit, in question. It was stated that the complainant in order to raise finance for the said plot approached LIC Housing Finance Corporation, who sanctioned a loan of Rs. 20 lacs. As per Clause 8 of the Agreement, possession of the plot was to be delivered within a period of two years from the date of execution of the Agreement but not later than 3 years. Even the Opposite Parties assured the complainant that construction of the project is in full swing but the facts on the ground were totally different because the said project has not been completed and the picture presented by the Opposite Parties was untrue. The complainant visited the Opposite Parties to know the date of possession but no satisfactory reply was given by them and the project was delayed for more than six years. It was further stated that the builder also promised the complainant to pay the compensation for delaying the possession, as per the Agreement. It was further stated that the complainant frequently visited the site and was shocked to see that the project was in worst condition, nothing was completed & ready, construction was incomplete and site was not habitable in any way. It was further stated that the builder sent an email on 04.01.2015 on the subject of having dispatched a possession letter to the complainant by post in respect of unit No. 109-MUL-13-334 in the project "Mohali Hills-Plots". The letter never reached the complainant. According to the complainant, he was also shocked to know that he was being offered possession of a different plot he had booked and entered into a specific Agreement and also mortgaged the said plot by raising a loan. The complainant took up the issued with the builder but they failed to provide any reason. It was further stated that the complainant visited the office of Opposite Party No. 1 many times to take possession and each time, their representative took him to many different locations of Sector 109 and pin pointed out a different location of the plot each time, which was far and apart by more than 0.5 to 0.75 Km. It was further stated that the complainant was constrained to foreclose the housing loan taken from LIC Housing Finance Corporation on their change in plot number, its location as well as long delay in handing over the possession of the plot, putting him to financial loss. It was further stated that the Opposite Parties vide letter dated 19.09.2016 offered physical possession of the above mentioned plot and the complainant was once again shocked to see that the Opposite Parties have changed the plot number and location unilaterally contrary to the specific Plot Buyer Agreement signed with the complainant and also raised an excess demand of Rs. 15,43,055/- (Annexure C-6). It was further stated that the Opposite Parties imposed these demands on the complainant unilaterally and without the consent of the complainant. After receipt of the possession letter, the complainant came to know after visiting the project site that the other amenities/facilities, as promised, were not even ready for possession and the builder was not in a position to give possession of the plot, in question and much work was still to be done before giving the possession of the plot. It was further stated that there was no boundary walls and the land is still used for agriculture purpose and there is no security check on the entry points of the township nor a proper entry gate with a clean approach road is available. Copy of the current photographs are Annexure C-7. It was further stated that the complainant having suffered huge financial losses on account of delay in handing over the plot, is now left with no alternative but to seek refund of the deposits already made with the Opposite Parties. Ultimately, the complainant also sent legal notice to the Opposite Parties on 10.08.2016 (Annexure C-8) but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the 'Act' only), was filed.

  2. The Opposite Parties, in their written version, have taken objection regarding arbitration clause in the Agreement, and also they separately moved an application u/s. 8 of Arbitration and Conciliation Act, 1996 taking a specific objection in this regard for referring the matter to the Arbitrator in terms of the agreed terms and conditions of the Agreement. It was stated that the complainant is residing at House No. 3225, Sector 28-D, Chandigarh and moreover, the said residential address is even mentioned in the memo of parties. It was further stated that the complaint of the complainant is silent whether he sought to purchase a property from the Opposite Parties solely for his own use or for the purposes of gaining/realizing some monetary benefit, is indicative of the fact that the complainant sought to purchase property from the Opposite Parties for commercial purpose, excluding him from the purview of the Consumer Protection Act, 1986 and, as such, the complainant is not a consumer. It was further stated that firstly plot No. 373 having an area of 300 sq. yards located in Augusta Park, Sector 109, Mohali Hills, Mohali, Punjab was provisionally allotted in favour of the complainant vide letter dated 08.05.2007 (Annexure R-2) alongwith schedule of payment. However, the complainant delayed in making the payments and, thus, was liable to pay interest. Plot Buyer's Agreement was executed between the parties on 20.06.2007 (Annexure C-4). As per the Agreement, total sale consideration would be Rs. 36,19,104/-. As per Clause 8 of the Agreement, the Opposite Parties were required to hand over possession of the first allotment within a period of two years from the date of execution of the Agreement but not later than three years. It was further stated that the complainants delayed payments to the Opposite Parties between the years 2006 to 2009, therefore, they sent reminders to the complainant on multiple occasions (Annexure R-4). It was further stated that complainant in the year 2012 first expressed his desire to change the plot allotted to him under the first allotment, therefore, the Opposite Parties through email dated 15.05.2012 offered alternate plots located in Sectors 108-109. The complainant through his email of 20.05.2013 accepted another plot i.e. plot bearing No. 109-AP-722-300 (second allotment), as such, the first allotment bearing No. 373 stood cancelled. In this regard, the Opposite Parties generated an approval note of 25.05.2013 alongwith communicating the same to the complainant through letter dated 21.06.2013. It was further stated that the complainant was also informed that keeping in view the change of plot, the complainant was required to execute an amendment to the Plot Buyer's Agreement, which too was sent alongwith the said letter dated 21.06.2013 (Annexure R-5). It was further stated that the second allotment i.e. plot No. 722 also included PLC, as such, there was revision in the schedule of payment in respect of the second allotment and the said fact was also communicated to the complainant through the aforesaid letter. However, the complainant failed to execute the Amendment Agreement for the reasons best known to him. Thereafter, the complainant again requested for a larger plot measuring 334 sq. yds, as such, on his request, plot No. 109-MLU-13-334 measuring 334 sq. yds (third allotment) was allotted to the complainant, therefore, the second allotment stood cancelled. It was also informed to the complainant through the aforesaid letter regarding the revised schedule and execution of the amendment Agreement in respect of the new unit. Copies of the approval note dated 06.06.2014 and letter dated 26.07.2014 are Annexure R-6. Thereafter, on 14.01.2015, the Opposite Parties sent intimation of possession in respect of MLU Plot No. 13 i.e. subject matter of third allotment to the complainant (Annexure R-7). However, for the reasons best known to the complainant, he neither accepted possession of the plot nor paid the amounts in respect of maintenance, electricity, water etc. and further failed to deposit amounts in respect of stamp duty and registration charges to the Opposite Parties alongwith executing the amendment agreement. In fact, the complainant did not come forward to accept possession. The Opposite Parties sent repeated reminders i.e. reminder dated 19.09.2016 (Annexure R-8) to the complainant to take possession of third allotment but no action was taken by him. Therefore, the complainant has failed to disclose the aforesaid material facts, which are even to his knowledge. It was denied that the Opposite Parties assured that a unit would be given within a period of two years. It was denied that the complainant was shocked to know that he was being offered possession of a different plot than the one he had booked and entered into an Agreement. It was further stated that the change of location was made, on the request of the complainant himself and it was incumbent upon him to execute the amendment agreement and dispatch the same to the Opposite Parties but he failed to do so. It was further denied regarding receipt of the legal notice. It was further stated that neither there was any deficiency...

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