Complaint case No. 321 of 2016. Case: Sukhminder Singh and Ors. Vs Emaar MGF Land Private Limited. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Complaint case No. 321 of 2016 |
| Counsel | For Appellant: Sandeep Bhardwaj, Advocate and For Respondents: Gurdeep Singh, Senior Manager (Legal) |
| 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), 3 |
| Judgement Date | January 12, 2017 |
| Court | Union Territory State Consumer Disputes Redressal Commission |
Order:
Padma Pandey, Member, (Chandigarh)
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The facts, in brief, are that the Opposite Party floated a scheme for allotment of units under the name and style of "Central Plaza". Since the complainants were in urgent requirement of a shop in a developed area for carrying on their own work for the purpose of earning their livelihood, they booked the unit in the project of the Opposite Party and paid the booking amount. The Opposite Party also issued a provisional allotment of Unit No. 17SF in Central Plaza, Mohali Hills (Annexure C-1) for the total consideration of Rs. 49,52,314/-. It was further stated that the Opposite Party inspite of receipt of payment towards registration, delayed in sending the Agreement and the said fact was admitted in its letter (Annexure C-2). Copy of Buyer's Agreement, which was executed between the parties, is Annexure C-3. It was further stated that the Opposite Party was only interested in receipt of money and payments and not interested in the development and construction of the unit. However, the complainants continued to deposit the installments towards the unit vide receipts (Annexure C-4). It was further stated that the total amount of over Rs. 48.40 lacs was paid by the complainants to the Opposite Party. It was further stated that the complainants continued to take up the issue of development and construction of the unit with the Opposite Party orally as well as in writing (Annexure C-5). It was further stated that earlier the son of the complainants was also an allottee but his name was deleted, as per letter dated 29.02.2012 (Annexure C-6) issued by the Opposite Party. It was further stated that Opposite Party promised to give possession of the unit to the complainants within 3 years at the most, as per Clause 22 of the Agreement and also committed to pay Rs. 50/- per sq. feet per month for delay in delivering possession, but it failed to honour its commitment. It was further stated that the Opposite Party was not in a position to deliver possession of the unit. The representative of the complainants visited the office of the Opposite Party several times but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence 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 (in short the 'Act' only), was filed.
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The Opposite Party, in its written version, has 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 in favour of the complainants alongwith Mr. Paramvir Jaura, however, the said Mr. Paramvir Jaura shifted to Canada and asked for deletion of his name. After deletion of the name, the unit was endorsed in favour of the complainants alone in 2012. It was further stated that the complainants did not fall within the definition of "Consumer", as per the Consumer Protection Act, 1986, as they purchased Shop No. 17 (Commercial Unit), in question, at Central Park, Sector 105, Mohali for commercial purposes. It was further stated that the Opposite Party could offer possession of the unit only on completion of internal services, as specified in Clause 23 of the Agreement, which would enable the complainants to initiate construction on the plot. The complainants having accepted the alleged delay and being duly protected by penalty clause under the Agreement, would not seek specific performance and seek possession immediately. It was further stated that it is well settled principle of law that in cases of sale of immovable property, time is never regarded as the essence of the contract. Thus, the complainants are not entitled to claim possession within any time bound manner, as the same would amount to specific performance of the contract. It was further stated that this Commission has no pecuniary as well as territorial jurisdiction to try and entertain the complaint. It was further stated that both the parties are bound by the terms and conditions of the Agreement and it is clearly stipulated in the Agreement that 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 alongwith any interest paid, due or payable, any amount of non refundable nature. It was further stated that the complainants have concealed the material point that intimation of possession letter was sent to the complainants on 30.05.2016, after the receipt of Occupation Certificate on 22.03.2016 from the competent authorities and subsequently reminders were also sent to the complainants on 01.08.2016, 16.08.2016 and 15.09.2016. Copies of the possession letter and receipts are Annexure R-1 Colly. It was further stated that the Opposite Party issued Occupation Certificate only after completion of the unit, in question. It was further stated that in case of seeking of refund, the forfeiture clause would be applicable. It was admitted regarding booking of the unit; issuance of provisional allotment letter and execution of the Agreement. It was further stated that as per terms of allotment, possession of the unit was "proposed" to be handed over within 36 months from the date of execution of the Agreement and in case of any delay, the Company would be liable to pay penalty. It was further stated that the payment schedule was restructured from time linked to construction linked scheme in order to facilitate the customers in making the payments smoothly. It was further stated that the complainants have paid an amount of Rs. 48,45,396/- against the unit, in question, however, with delay. It was further stated that as per Buyer Agreement, the Company was not under obligation to send reminders for payment of installments and when no payments were made, cancellation letter dated 30.06.2011 was sent to the complainants (Annexure R-7 colly.). It was further stated that the Opposite Party has got all the necessary permissions and approvals and even partial completion certificate has been obtained from the competent authorities (Annexure R-9). It was further stated that the area of shop was increased from 1282 to 1349.87 and now the total cost, as per revised area of the unit presently is Rs. 62,33,160/-. It was further stated that the complainants have paid a sum of Rs. 47,14,803/- out of the total amount of Rs. 62,33,160/- and a sum of Rs. 15,18,357/- is still outstanding against the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.
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The complainants filed rejoinder to the written statement of the Opposite Party, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party.
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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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Party, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora v. Puma Realtors Pvt. Ltd. and another, consumer complaint No. 170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even i n 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. v. M/s. Unitech Limited, and another, Consumer Case No. 346 of...
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