Complaint Case No. 703 of 2016. Case: Vikas Kochhar and Ors. Vs Emaar MGF Land Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 703 of 2016 |
| Counsel | For Appellant: Vikas Kochhar, Adv. and For Respondents: Ashim Aggarwal, 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), 2(d), 3 |
| Judgement Date | April 05, 2017 |
| Court | Chhattisgarh State Consumer Disputes Redressal Commission |
Order:
Padma Pandey, Member, (Chandigarh)
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The facts, in brief are that the complainants being real brothers had a day dream to have their own plot in tricity, as such, they approached Opposite Parties No. 1 and 2 in August, 2010 with a view to purchase a residential plot No. 153, measuring 300 square yards in Sector 105, Central Park, Mohali Hills, SAS Nagar Mohali, Punjab, which was already sold to one Rajeev Handa. It was further stated that the complainants purchased that plot from Mr. Rajeev Handa, in resale and the same was transferred in the name of the complainants, after completing necessary formalities required, vide indemnity cum undertaking and affidavit dated 23.08.2010 (Annexure C-4 colly). The complainants paid Rs. 40,82,394/- towards sale consideration of the plot in question, which includes basic sale price of Rs. 34,50,000/- (+) external development charges of Rs. 2,01,144/- and preferential location charges of Rs. 4,31,250/-. It was further stated that to pay amount towards plot, the complainants raised loan of Rs. 34.70 lacs from Opposite Party No. 3, vide loan documents Annexure C-3 colly. It was further stated that the documents pertaining to the plot was handed over to the complainants including Plot Buyers Agreement dated 20.06.2007 (Annexure C-5). As per Clause 8 of the Buyer's Agreement, Opposite Parties No. 1 and 2 were liable to handover physical possession of residential plot within 3 years i.e. on or before 19.06.2010, subject to force majeure circumstances but they failed to deliver possession of the plot. It was further stated that number of requests were made by the complainants to deliver possession of plot but to no avail. It was further stated that vide letter dated 14.01.2014 (Annexure C-6) Opposite Parties No. 1 and 2, demanded an amount of Rs. 5,76,685.64 ps. for handing over possession of the plot. After receipt of that letter, complainant No. 1 tried to enter into the project to see the development but he was not allowed to enter as the entry gates were sealed/fenced by the Govt. of Punjab, Forest Department. Then on 16.05.2016, a meeting was held with Mr. Mohit Kaura, GM of Opposite Parties No. 1 and 2, who accompanied the complainants on 17.05.2016. It was further stated that on visit, it was found that the entire project site was only a jungle, covered with shrubs and trees only and there was no development and basic amenities like roads, water, electricity etc., were found missing at the site. Photographs Annexure C-7 (colly.) of the site visit alongwith Mr. Mohit Kaura, GM of Opposite Parties No. 1 and 2 were clicked on 17.05.2016 and are placed on record. It was further stated that Mr. Mohit Kaura assured that amount deposited by the complainants will be refunded alongwith interest by the end of June 2016, but to no avail. It was further stated that thereafter the complainants sent detailed email dated 31.07.2016 Annexure C-8 and again sought refund of the amount deposited alongwith interest. It was further stated that to the utter shock, Opposite Parties No. 1 and 2 vide email dated 01.08.2016 Annexure C-9 informed the complainant that possession of the plot was offered to them vide letter dated 14.01.2014 after completing all the amenities and services, as per the Agreement. It was further stated that information placed on record obtained by similar consumers, under RTI Act reveals that Opposite Parties No. 1 & 2, were not in legal position to deliver possession of plots in the said project for want of basic amenities, and requisite permissions/approvals/sanctions. It was further stated that till date actual physical possession of the plot has not been offered and delivered by Opposite Parties No. 1 and 2, nor they are in position of the same. The complainants have also placed on record RTI Informations and letters to prove the fact regarding lack of approvals, basic amenities and sealing of the project. 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 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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Opposite Parties No. 1 and 2, 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 possession of the plot was offered in 2010 and the complaint filed now is time barred. It was further stated that possession of the unit was offered to the complainants after completion of the amenities, as per the terms and conditions of the Agreement. It was further stated that letter of intimation of possession was sent to the original allotted on 17.05.2010. It was stated that this Commission has no pecuniary jurisdiction as well as territorial jurisdiction to try and entertain the complaint. It was further stated that reminder letter was sent to the complainants on 16.12.2011 but they failed to take possession of the plot. They also failed to place on record undertaking cum indemnity furnished by them on 14.10.2014. It was further stated that the complainants did not fall within the definition of "Consumer" as prescribed under Section 2(d) of the Consumer Protection Act as the complainants purchased the plot, in question, for commercial purposes/speculation. It was further stated that as per Clause 8 of the Agreement, the Company shall try and endeavor to hand over possession of the unit within 3 years from the date of execution of the Agreement and in case of delay, the Company was liable to pay compensation but in the present case, the complainants were not entitled for the same. It was further stated that vide letter dated 14.01.2014, demand made was legal. It was further stated that all the necessary approvals were obtained by the Company when the unit was allotted to the complainants. It was further stated that the complainants were duly attended by the officials of Opposite Parties No. 1 and 2. It was further stated that Partial Completion Certificate has already been obtained by the replying Opposite Parties. It was further stated that vide letter dated 11.02.2010, GMADA granted permission to the Opposite Parties for six approaches from Kharar-Banur-Tepla road in Village Raipur kalan to the project of the Opposite Parties No. 1 and 2 and relevant fee was deposited by them. It was further stated that the responsibility of obtaining all statutory permissions for development of the Kharar-Banur-Tepla road is of the state authorities. It was further stated that vide letter dated 15.04.2015 the Chief Administrator, GMADA was requested by the Opposite Parties No. 1 and 2 to take up issue with Forest Department to provide connectivity. It was further stated that the Forest Department has sealed certain entry points but there is still adequate access to the unit of the complainants i.e. through a motorable road and stand of the complainants that all entry points are sealed is mala fide and without any basis. The information placed on record obtained from the Competent Authorities were denied. It was further stated that in case complainants want refund, then it would amount to cancellation of Agreement and refund would be governed by the terms and conditions of the Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties No. 1 and 2, nor they indulged into unfair trade practice.
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Opposite Party No. 3 in its written version stated that the complaint against it be dismissed as no allegations of deficiency in service and unfair trade practice has been leveled by the complainants. It was further stated that the complainants have prepaid the entire loan amount and no outstanding amount is recoverable from the complainants.
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The complainants, filed rejoinder to the written statement of the Opposite Parties No. 1 and 2, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties No. 1 and 2.
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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 Vs. Puma Realtors Private Limited', IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter alia, being relevant, are extracted hereunder:-
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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:-
8. Power to refer parties to arbitration where there is an...
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