Complaint Case No. 353 of 2016. Case: Surinder Bains Vs Emaar MGF Land Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 353 of 2016 |
| Counsel | For Appellant: R.S. Pandher, Advocate and For Respondents: Ashim Aggarwal, Advocate |
| Judges | Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members |
| Issue | Arbitration And Conciliation Act, 1996 - Sections 17, 2(1)(d), 8; Consumer Protection Act, 1986 - Section 17, 3; Indian Forest Act, 1927 - Sections 29, 33, 63 |
| 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 the complainant was induced by the representative of the Opposite Parties in November, 2005, as such, she agreed to purchase plot No. 69 in Augusta Greens in Sector 109 and she was promised to deliver plot within the period of two years. As per Advance Registration Form, allotment of the plot would be made within the period of nine months from the date of application. Copy of Advance Registration Form submitted on 19.11.2005 alongwith cheque is Annexure C-1 (Colly.). Then the Opposite Parties delayed the issuance of allotment letter, asked the complainant to pay the amount of Rs. 13,80,000/-, which was paid by her on 30.09.2006 and after a long delay, allotment letter was issued on 09.05.2007 (Annexure C-1/1). The total sale consideration, as per provisional allotment letter dated 09.05.2007 is Rs. 51,75,000/- plus PLC and additional EDC. Plot Buyer's Agreement was executed between the parties, at Chandigarh, on 18.06.2007 (Annexure C-2). 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 three years i.e. latest by 17.06.2009 or not later than 17.06.2010. It was further stated that the complainant paid the amount of Rs. 60,04,216/- till 13.01.2010, as mentioned in the statement of account (Annexure C-3). It was further stated that there was lack of development at project site, regarding which, the complainant submitted letters dated 05.05.2008, 05.01.2009, 17.04.2009 etc., copies of which are at Annexure C-4 (Colly.). It was further stated that vide letter dated 28.12.2009 (Annexure C-5), the Opposite Parties informed the complainant that the development activities in Sector 105, 108 and 109 are in full swing and temporary electricity & water connections were sanctioned for the project and he was asked to deposit more amount for revised area alongwith due amount and delayed interest, thereafter possession of the plot would be handed over to her. It was further stated that the Opposite Parties were sending such misleading letters inspite of the fact that development work was not complete and the Opposite Parties were not having necessary permissions for the project from the Government Authorities. As per the demand of the Opposite Parties, the complainant deposited an amount of Rs. 20,58,285/- on 13.01.2010 and amount of Rs. 1,50,931/- on 23.02.2010. Thereafter, the Opposite Parties sent letter dated 16.12.2011 (Annexure C-6) mentioning that upon receipt of completion certificate from GMADA, they were to commence the process and execution of the sale deed. The complainant visited number of times to the office of the Opposite Parties and complained regarding lack of development at the project site but they kept on delaying by promising that possession would be delivered soon. The Opposite Parties issued letter dated 13.06.2014 stating that they would be commencing the process of execution and registration of conveyance deed in favour of the complainant shortly and asked her to make the payment by 16.07.2014 to hand over the possession of the plot to her (Annexure C-7). Thereafter, the Opposite Parties sent a letter dated 23.07.2014 asking the complainant to deposit the amount of Rs. 8,85,906/- (Annexure C-8). It was further stated that by including enhanced area sale price, the total basic sale price came to Rs. 58,02,972/-for which he paid the amount of Rs. 60,04,216/-. It was further stated that the Opposite Parties were playing fraud with the complainant, just to extract more money from her, as they were not having mandatory completion certificate issued by GMADA in their favour. Despite receipt of the huge amount from the complainant, the Opposite Parties failed to offer legal and actual possession of the plot to the complainant. The project site still lacks proper facilities of access, electricity and water supply etc. The Opposite Parties remained involved in dispute with Forest Authorities and the entry and exit points of the project remained closed. It was further stated that the Opposite Parties made offer of paper/unlawful possession of the plot for 16.07.2014 and, thereafter, sent letters dated 23.07.2014 and 26.08.2014 for payment of amount. 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 written version, have stated that the complaint is time barred as it has been filed more than two years after accrual of alleged cause of action i.e. on 28.12.2009 when the possession was offered to the complainant for the first time and thereafter, reminder was sent to her on 16.12.2011 (Annexure C-6) to take over possession and initiate construction, which they have failed to do. It was further stated that the complainant did not fall within the definition of "Consumer" as per the Consumer Protection Act, 1986, as she purchased the plot for investment/commercial purposes. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint as the claim amount together with interest exceeds Rs. 1 crore. It was averred that the intimation of possession was admittedly sent to the complainant in 2009 upon completion of amenities, as per the Agreement but she failed to take possession for the reasons best known to her. It was further stated that the complainant has not led any evidence to prove that the area was not developed in 2010. The complainant is entitled to levy holding charges, in terms of Clause 9 of the Agreement, for failure of the complainant to take over possession. It was denied regarding any inducement by the representative of the Opposite Parties. It was admitted regarding booking of the plot, execution of the Agreement. It was further stated that as per Clause 8 of the Agreement, possession was endeavoured to be handed over within 3 years of execution of the Agreement. Thus, there was no definitive agreement stating that possession would definitely be delivered within 3 years. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract more so when there is penalty clause under the Agreement for any alleged delay. It was further stated that the total sale consideration of the unit was mentioned as Rs. 54,00,472/- and the complainant paid an amount of Rs. 58,53,285/- towards the principal and Rs. 1,50,931/- towards the delayed interest against the unit. Thus, total payment made by the complainant is Rs. 60,04,216/-. It was further stated that the amount of Rs. 8,35,626/- is outstanding against the complainant, for which, manifold reminders have been sent. However, the complainant failed to make the payments and is a defaulter. It was admitted that the Opposite Parties informed the complainant regarding increase in area of the unit. It was denied that the complainant ever visited the office of the Opposite Parties regarding lack of development. It was further stated that all the amenities, as per Clause 23 of the Agreement, have been completed and internal roads, water, sewerage and electrical lines have been laid in the area and such amenities were completed in 2009, when possession was offered. It was further stated that there was no requirement for the Opposite Parties to obtain any completion certificate, as it was exempted from provisions of the PAPRA Act. However, the Opposite Parties obtained Partial Completion Certificate from the Opposite Parties (Exhibit OP/4). It was further stated that this Commission has no jurisdiction to entertain the complaint. 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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Even during the pendency of the complaint, the Opposite Parties 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. The said application was disposed of vide order dated 14.09.2016 passed in MA/298/2016 and stated that question qua arbitration will be considered at the time of final arguments in the main case.
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The complainant filed replication to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
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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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