Complaint Case No. 355 of 2016. Case: Vikas Nagpal and Ors. Vs Emaar MGF Land Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 355 of 2016 |
| Counsel | For Appellant: Arihant Goyal, Advocate and For Respondents: Subrat Kumar Pradhan, DGM (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), 2(d), 3; Indian Forest Act, 1927 - Sections 29, 33, 63 |
| Judgement Date | March 29, 2017 |
| Court | Chhattisgarh State Consumer Disputes Redressal Commission |
Order:
Padma Pandey, Member, (Chandigarh)
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The facts, in brief, are that the Opposite Parties, on the basis of an application dated 06.10.2006 by the first allottee, allotted a unit bearing No. 50TF in the commercial complex in Central Plaza at Mohali Hills in Sector 105, Mohali for the total consideration of Rs. 42,82,210/- and against a booking amount of Rs. 6,19,232/- vide receipt (Annexure C-2). Copy of the Agreement, which was executed between the first allottee(s) and the Opposite Parties is Annexure C-1. Thereafter, the first allottees paid the installments vide receipts (Annexures C-2 to C-5). It was stated that on 27.06.2008 the first allottees transferred the site in favour of the second allottee, which was endorsed in favour of the second allottee. The complainants were in the search of a suitable site for running their business in order to earn their livelihood came into the contact of second allottee and they purchased the site from the second allottee, which was endorsed in their favour on 11.07.2008. On 19.08.2008 the complainants paid an amount of Rs. 1,47,700/- towards transfer fee to the Opposite Parties (Annexure C-8). Thereafter, the complainants made payment of installments (Annexure C-9 colly.). On 24.11.2009, the Opposite Parties intimated the complainants that the payment plan had been changed from time linked to construction linked plan (Annexure C-10). It was further stated that as per the letter dated 24.11.2009, the complainants were required to pay 75% payment before starting the third slab but they already made more than the required payment. On 28.04.2010, the Opposite Parties sent a demand letter for an amount of Rs. 4,01,744/- and in the said letter, the net amount payable by the complainants were Rs. 4,00,073/-, which was paid by them on 14.05.2010 vide receipt (Annexure C-12). It was further stated that by perusing the receipt dated 26.02.2011, it is clear that by February, 2011, the complainants made the payment of more than 90% of the total sale amount and, as such, there was no fault whatsoever on the part of the complainants with regard to payment of installments. It was further stated that as per Clause 22.1 of the Agreement, possession was to be handed over within a period of 36 months/3 years with a grace period of 90 more days, as such, possession was to be handed over to them latest by the year 2010 and if the period of possession counted from the date of endorsement i.e. 11.07.2008, the same was to be delivered to the complainants latest by 11.10.2011 but the Opposite Parties failed to deliver the possession. It was further stated that vide letter dated 12.08.2015, the Opposite Parties revised super area of the unit and that too after retaining the site for more than three years (Annexure C-14). Not only this, the Opposite Parties have also demanded an amount of Rs. 7,42,320/- towards registration charges, which is tenable and unsustainable in the eyes of law. The Opposite Parties also raised a demand of Rs. 1,87,448/- vide letter dated 12.08.2015 towards delayed payment charges, whereas, it is the admitted position that before the starting of third slab, the complainants had already made the excess payment. It was further stated that the site was not ready for possession till the year 2015, as such, the Opposite Parties have caused a delay of more than 3 years in handing over the possession, for which, they are liable to be penalized. It was further stated that the complainants have already made more than 90% payment as and when demanded by the Opposite Parties, so they are not at fault, as such, they are not liable for payment of any delayed payment charges. 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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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 complainants did not fall within the definition of "Consumer" as per the Consumer Protection Act, 1986 being a purchaser of commercial property. It was further stated that complainant No. 1 is a property dealer and is engaged in large scale sale, resale, purchase of properties and making profits by selling, purchase and resale of properties, as such, he is not a consumer. It was further stated that the complainants are subsequent purchasers of a commercial unit, in question, and has stepped into the shoes of earlier allottee. The earlier allottee had defaulted in making the payments of the due installments, as being apparent from statement of accounts, as such, they are not eligible for the delayed compensation. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as no cause of action has arisen within the jurisdiction of this Commission, as the unit, in question, is situated at Mohali, Punjab. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was further stated that the complainants have already offered possession of the commercial unit but they failed to take possession of the same and also failed to pay the delayed payment charges of Rs. 2,82,586/-, basic cost payment of Rs. 2,34,218/-, additional EDC of Rs. 42,171/- and other applicable charges, as per the offer of possession letter. It was further stated that unit was initially allotted in the names of Sh. Rajesh Aswani, Sh. Vinal Raj Khurana and Sh. Rohit Nand and later, it was transferred only in the name of Sh. Rohit Nand on 24.07.2008 and from Sh. Rohit Nand, the present complainants purchased the commercial unit and stepped into the shoes of earlier allottees, which was endorsed in favour of the complainants on 07.08.2008 vide endorsement (Annexure R-2). The total sale consideration of the unit was Rs. 42,82,210/- (excluding service tax). It was further stated that the complainants were well aware of the payment of due amounts on account of delayed payments and copies of some of reminders sent to the earlier allottees are Annexure R-4 (Colly.) and the complainants themselves asked for extension of time in making of payment and copy of letter dated 31.07.2008 is Annexure R-5. Copy of statement of account showing the details of payment made with regard to the present unit is Annexure R-6. It was further stated that the payment schedule was restructured from time linked to construction linked in order to facilitate the customers in making the payments smoothly. It was further stated that the Opposite Parties shall try and endeavor to hand over possession, as per Clause 22.1 of the Agreement and no definitive time line was given in the Agreement. The Opposite Parties offered possession of the unit to the complainants vide letter dated 12.08.2015 but the complainants failed to pay the due amounts towards the unit, in question and neither taken the possession of the commercial unit. It was admitted regarding increased of the area of the unit. It was further stated that the registration charges, stamp duty charges and infrastructure cess are Government levies and mandatory to be paid for getting the conveyance deed executed in the customer's favour. It was further stated that after perusal of the letter dated 28.04.2010 (Annexure R-8), 10% of sale price is due to be paid on start of third floor slab and a sum of Rs. 1671/- was shown in credit of complainants. The only sum of Rs. 1671/- was in excess and Rs. 4,00,073/- was still payable. It was further stated that the complainants are also bound to pay the last installment as per the terms and conditions of the payment plan duly signed and accepted by them. It was further stated that the compensation for delays in handing over beyond the time frame mentioned in the Agreement is Rs. 50/- per sq. feet per month, subject to the customers/allottees remitting all the payments on or before the due dates. Since the complainants have defaulted in remitting certain installments on or before the due dates, they shall not be entitled to any compensation. It was further stated that the Opposite Parties have been issued Occupation Certificate by the competent authority only after completion of unit, in question. It was further stated that in case of seeking refund of price, the Agreement has to be cancelled and forfeiture clause should come into operation and money should be refunded without any interest as possession has already been offered on 12.08.2015. 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 complainants, filed replication to the written statement of the Opposite Parties, wherein they 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...
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