Judgment Date. Case: Harbrinder Singh Sandhu Vs Emaar MGF Land Private Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Judgment Date |
| Counsel | For Appellant: Arif Qureshi, Advocate and For Respondents: Sanjeev Sharma, Advocate |
| Judges | Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members |
| Issue | Arbitration And Conciliation Act, 1996 - Sections 17, 8; Consumer Protection Act, 1986 - Sections 17, 2 (1)(d)(ii), 2(1)(d), 3 |
| Citation | Complaint Case No. 839 of 2016 |
| Judgement Date | March 28, 2017 |
| Court | Union Territory State Consumer Disputes Redressal Commission |
Order:
Padma Pandey, Member, (Chandigarh)
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The facts, in brief, are that on the basis of advertisement widely published in the newspapers and brochures by the Opposite Parties, the complainant got interested in their project. The officials of the Opposite Parties introduced the complainant to Mr. Kanwar Pal Singh Kochhar, who had booked a plot measuring 400 sq. yards approximately in the project namely "Pinewood Greens" at Sector 108, Mohali, Punjab. Plot Buyer's Agreement was executed between the original allottee and the Opposite Parties on 04.07.2007 (Annexure C-1). Thereafter, the complainant executed Agreement to Sell (Annexure C-2) with the original allottee and he applied for transfer of the plot in his favour, for which, the Opposite Parties issued "No Objection Certificate" (Annexure C-3). The plot was endorsed in favour of the complainant on 30.04.2008. The complainant availed loan of Rs. 48,00,000/- from HDFC Ltd. Copy of Loan Agreement is Annexure C-4. As per Clause 8 of the Agreement, possession of the unit was to be delivered within a period of 2 years from the date of execution of the said Agreement i.e. latest by 03.07.2009 but not later than 03.07.2010. It was further stated that the Opposite Parties issued undated letter in the mid of 2009 to the complainant that the area of the plot has been increased to 457 sq. yards and also raised demand of Rs. 14,34,282/- on account of increased area and also additional EDC. It was further stated that the complainant contacted the Opposite Parties to know about the development of the project but to his utter dismay, there was no development, at all. The complainant continued to discharge his obligations in terms of the Agreement and deposited all the installments on time, for which, the Opposite Parties offered 5% rebate to the complainant (Annexure C-7). The complainant sent an email to the Opposite Parties asking them to clarify the project timeline. He was shocked to receive a reply stating the basic amenities are still not in place and the Opposite Parties are expecting to get completion by the end of 2013 (Annexure C-8). Thereafter, the complainant wrote another email to the Opposite Parties asking them to clarify about penalty, to which, they admitted the delay and proposed to give penalty, as per the Agreement (Annexures C-9 & C-10). It was further stated that the Opposite Parties sent a letter dated 05.05.2014 (Annexure C-13) to the complainant intimating about the settlement of final dues but when he visited the site, he noticed that there was hardly any development because there were no roads, parks, shopping complex, STP, club etc. in sight. It was further stated that a lot of correspondence were exchanged between the parties regarding the different issues. It was further stated that when the complainant visited India in December, 2014, he was advised to sign indemnity by way of affidavit indemnifying the Opposite Parties against any legal issues arising in future, to which, the complainant had genuine reasons to object for because it being one sided document favouring the interest of Opposite Parties only and is against the public policy. Copy of indemnity cum Undertaking is Annexure C-18. It was further stated that the complainant paid the total amount of Rs. 66,95,197/- in respect of the plot, in question but despite receipt of the huge amount, the Opposite Parties after almost 6 years from the date of booking of the plot, failed to offer actual possession of the plot. 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.
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The Opposite Parties, in their joint 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 plot was earlier allotted to Kanwar Pal Singh Kochhar and the complainant purchased the plot from open market, as such, he did not fall within the definition of "Consumer", as envisaged in the Consumer Protection Act, 1986. It was further stated that as per Clause 8 of the Agreement, in case of any delay in handing over of possession, the Opposite Parties shall be liable to pay to the allottee penalty, as per the terms of the Agreement and the same has already been credited in the name of the complainant, as per the intimation of possession letter. It was further stated that this Commission has no territorial jurisdiction to try and entertain the complaint, as the unit is situated at Mohali, Punjab and as per the Agreement, only the Courts having territorial jurisdiction over the unit/property shall have the territorial jurisdiction. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint, in view of the judgment of Ambrish Kumar Shukla v. Ferrous Infrastructure, the interest is to be added to the relief claimed and in the present case, the amount, as claimed, alongwith interest certainly exceeds the pecuniary jurisdiction of this Commission. It was further stated that both the parties are bound by the terms and conditions of the Agreement and in case of failure of the allottee to perform all obligations as set out in the Agreement, the allottee has authorized the Company to forfeit the earnest money, as stipulated in Clause 2(f) of the Agreement alongwith any interest paid, due or payable, any amount of non refundable nature. It was further stated that the present complaint is not maintainable, as the complainant has failed to implead HDFC Bank, from which, he took a loan, as a party to the complaint. It was admitted regarding purchase of the plot by the complainant from the original allottee. It was further stated that the Company received an amount of Rs. 67,14,206/- (out of which Rs. 43,000/- were paid against delayed payment charges) against unit No. 108-PG-85-400. It was further stated that as per the Agreement, the Company was supposed to try and hand over possession of the unit within 36 months from the date of execution of the Agreement. It was further stated that the compensation is payable for delay in possession (@Rs.50/- sq. yds. per month) as per Clause 8 of the Agreement and the same is payable at the time of IOP. It was averred that the intimation of possession was sent to the complainant on 29.11.2009, so no compensation is payable to him. It was admitted regarding endorsement of the plot in favour of the complainant on 30.04.2008. It was further averred that all the emails of the complainant are duly responded to. The complainant qualified for OTPR (on time payment rebate) as per letter dated 03.02.2009 and credit of the same has been duly given to him. The allegations made by the complainant regarding basic amenities were denied by the Opposite Parties. It was further stated that the Opposite Parties were exempted from seeking completion certificate for their project (Annexure R-3 colly.) and it was only in September, 2014 that the mega projects, which were earlier exempted from seeking completion certificate have been asked to apply for completion certificate and get completion/partial completion certificate. The Opposite Parties duly applied for the completion certificate and have obtained the partial completion certificate for their project. Copy of partial completion certificate is Annexure R-4. It was further stated that the complainant has been duly offered possession of the plot to him on 29.11.2009, however, the complainant, failed to take over the possession and even refused to submit the possession undertaking. It was further stated that the area of the plot is tentative in nature and is subject to change as per Clause No. F of the Agreement. It was further stated that possession was handed over within time and without any delay, and therefore no compensation is payable. 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.
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The Parties led evidence, in support of their case.
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We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
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The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ' Sarbjit Singh v. Puma Realtors Private Limited', IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-
"25. The next question, that falls for consideration, is, as to whether, in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.
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To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.
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It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:-
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