In this post we will discuss about Consumer Complaint against Emaar Mgf Land Limited wherein the court ordered to deliver possession of the allotted corner plot along with all the promised facilities as per the FDI guidelines and ‘Completion Certificate’ and to pay the penalty at the rate of ₹50/- per square yard per month as per clause 8 of Buyer’s Agreement.
Also Read- Mrs. Anjali Sharma v. M/s Emaar MGF Land Limited Dr. Mudit Kumar vs. Emaar Mgf Land Limited Consumer Complaint No.731 of 2019
This post will be dealing with the land disputes under Consumer Protection Act, 1986. The complainants, Dr. Mudit Kumar and Dr. Monika Sachdeva, who are husband and wife, have filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 for issuance of following directions to the opposite parties. The section states as-
Complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty lakhs but does not exceed rupees one crore];
In the following case, the plaintiff here bought a plot bearing No.211 CG, Sector 105, SAS Nagar, Mohali, measuring 300 square yards and, as such, the cause of action is common to both of them. The following property did not have the amenities specified, and therefore the plaintiff party prays for
Also Read- Real Estate Regulatory Authority – RERA Punjab
- a) to provide the promised facilities as per the FDI guidelines issued by the Ministry of Commerce & Industry and to construct 100 feet wide roads abutting both sides of the plot as shown in the site plan supplied to them at the time of purchase of the plot and after that to issue a fresh letter of offer of possession;
OR to allot alternative plot in the same Sector with double PLC i.e., corner plot with both sides of 100 feet wide road;
- b) to award interest @ 9% per annum from the promised date of delivery of possession till handing over the actual physical control along with promised facilities and proper road connectivity as per the FDI guidelines after deducting an amount of ₹7,00,000/-, which has been paid to the complainants towards the compensation for delay in handing over the possession;
- c) to direct opposite parties Nos.1 to 2 not to charge the maintenance charges till they get the completion certificate from the competent authority;
Also Read- Emaar Palm Hills: H-RERA orders Emaar MGF Land to pay
Facts
The complaint is that both the complainants are Doctors by profession and were looking for a residential plot for constructing a house for their residence. Opposite parties through their internet website claimed themselves to be the pioneer in shaping the skylines and lifestyles worldwide, developing vibrant communities that have redefined real estate development like the iconic Burj Khalifa, the world’s highest structure; Dubai Fountain, the world’s tallest performing fountain, Dubai Mall, the world’s largest shopping and entertainment destination and Dubai Downtown, the city’s premier large-scale mixed-use complex.
Also Read- Haryana Real Estate Regulatory Authority – Haryana RERA
After going through the details regarding opposite parties put up on their website, the complainants approached them to purchase a plot measuring 300 square yards. When the complainants visited the Chandigarh office of opposing parties, they were informed that they were not left with plots with double preferential location, i.e., the road on two sides of the plot. However, a plot measuring 300 square yards was booked by one KulbhushanTrehan, who unfortunately died, and his nominee and son Vicky Trehan was ready to sell the plot. Accordingly, they introduced the said Vicky Trehan to the complainants. After going through the site plan shown to the complainants, they realized that the same is a corner plot having a double preferential location, i.e., 100 feet wide road on two sides. Accordingly, they purchased the said plot bearing No.211, measuring 300 square yards situated in Sector 105, SAS Nagar, Mohali. In the site plan, Ex.C-3, plot No.211 has been shown in red color, and two roads abutting the plot have been demonstrated as A-B and C-D. Both the streets have been established as 100 feet wide.
Also Read- Ms. Simmi Sikka Vs M/S Emaar MGF Land Limited
After such endorsements, the complainants stepped into the original allottee’s shoes, i.e., Late Shri KulbhushanTrehan, and accordingly, both the parties, i.e., the complainants and opposite parties, are bound by the terms and conditions of all the documents, including the Buyer’s Agreement. It is further stated that as per the provisions of Buyer’s Agreement dated 4.7.2007, opposite parties were required to deliver the possession of the plot to the allottees within 2 years but not later than three years from the date of execution thereof. Therefore, the possession of the plot was required to be delivered on or before 4.7.2010 even by taking the period of delivery of possession as 3 years. It is further averred that complainants did not get possession of the plot on the promised date, and after that they visited the site, but there was no progress at the spot. Neither the requisite facilities were provided at the spot nor 100 feet wide roads abutting the complainants’ plot were constructed. The complainants vide e-mails dated 10.3.2011 and 16.3.2011, Ex.C-7 to opposite parties showed their concern for the delay in development. It was further mentioned that when the complainants visited the site, they came to know that another Company now owns a part of the Central Greens in Sector 105; namely, Puma Realtors (IREO) and called upon the opposite party to hand over the possession of the plot, which was required to be handed over to them by 4.7.2010. Opposite party No.1, by e-mail dated 27.4.2011, Ex.C-8, admitted the visit of the complainants on the site and further assured that the plot’s possession shall be handed over to them on or before 30.9.2011 positively. However, when the possession was not offered, numerous mails, Ex.C-9, were exchanged between the complainants and opposite party No.1. It is further averred that when the complainants noticed opposing parties Nos.1 and 2 that there is no road abutting the plot, they offered an alternative plot bearing No.105-CP-292 vide e-mail dated 29.12.2012, Ex.C-10. Plot No.211 allotted to the complainants was a corner plot with two side roads; however, the alternative plot was not a corner plot. Therefore, they requested opposite parties to offer an alternative plot of a similar location having roads on two sides, however, they failed to offer any alternative plot with similar location. Numerous e-mails were exchanged between the parties. It is further averred that when even after expiry of more than 4 years of the promised date of delivery of possession of the plot, opposite parties failed to hand over the possession of the plot, the complainants were apprised that they were in the process of completing the project. The possession of the plot and promised facilities would be provided soon and handed over two cheques in the names of the complainants for a sum of ₹3,50,000/-, towards compensation for delay in handing over the possession of the plot.
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However, no details about how and for what period they had calculated the said amount of compensation towards delay in handing over the possession have been supplied. The complainants made numerous visits at the site and the office of opposite parties Nos.1 and 2; however, they failed to deliver the possession of the plot. When there was no hope for delivery of possession of the plot even in the near future, the complainants were forced to purchase a flat in Taj Towers, Mohali, in June 2016. Thereafter vide e-mail dated 19.11.2016, Ex.C-15, the complainants were served with a statement of account as of 19.11.2016 in which the cost of the plot was unilaterally enhanced from ₹44,27,394/- to ₹57,70,606/- on the pretext of enhancement in the area. In the said statement inflated figure of ₹64,63,047/- was shown as the cost of the property, which was inclusive of interest-free maintenance security, registration charges, electrification charges, and electricity connection charges, which are payable only after handing over the possession of the plot and raising of construction by the complainants. In the said statement, opposite parties have also shown the amount of DPC received and delayed payment charges of ₹1,85,167/- and ₹1,94,440/-; however, neither there is any clarity nor any further detail regarding the said amount. It is further averred that on receipt of the letter dated 19.11.2016, the complainants visited the site and were astonished to see that there was no road connectivity to the plot purchased by them and there was no development at the site, and the offer of the possession was only a paper transaction. Accordingly, vide letter dated 20.11.2016, Ex.C-16, it was brought to the notice of opposite party No.1 that double preferential location charges were paid by the complainants for wide road connectivity and waited for a long period, and still the possession was offered with incomplete development and without road connectivity. E-mails exchanged between the complainants and opposite parties Nos.1 and 2.
Also Read- Biresh Singhal Vs. Emaar MGF Land Ltd. & Others on 03 May
So, the maintenance charges are totally illegal and unwarranted. Opposite parties Nos.1 and 2 again demanded maintenance charges, vide e-mail dated 1.10.2018, which was duly replied by the complainants, vide reply dated 4.10.2018, Ex.C-21, in which they also put the photographs showing a pond like the situation of the plot. Various e-mails dated 24.10.2018, 7.12.2018, 7.12.2018, Ex.C-22 to Ex.C-24 were also exchanged between the complainants and opposite parties Nos.1 and 2. In the e-mail dated 7.12.2018, Ex.C-24, opposite parties themselves have admitted that proper facilities have not been provided and the possession was offered without providing the promised facilities, i.e. water supply, sewerage, sewerage treatment plant, and other conveniences as applicable under the prescribed regulations. The sewerage treatment plant is still under construction, and it will take more than one year for the completion of the same. It is further averred that thereafter the complainants submitted an application to opposite party No.3- GMADA under RTI Act and obtained a copy of the approved site plan, Ex.C-25, a perusal thereof transpired that there is no direct road connectivity to the plot purchased by the complainants and even part of the land shown in yellow color is not owned by opposite parties Nos.1 and 2. Therefore, 100 feet wide side road is not possible to be carved out till the said area is acquired by opposite parties Nos.1 and 2. Thereafter the complainants again visited the site on 9.12.2018 and obtained the photographs along with the newspaper ‘Hindustan Times’ dated 9.12.2018, Ex.C-26. A perusal of the photographs reveals that there is no development at the spot, and a temporary road has been shown, which is hardly 10 feet wide, and even two vehicles cannot cross simultaneously. A further perusal of photographs reveals that the area which is not owned by opposite parties Nos.1 and 2 and is owned by PUMA Realtors has been covered with iron-sheets. Opposite parties Nos.1 and 2 supplied a direction marking plan for the plot in question, Ex.C-27, a perusal of which reveals that even after charging the Double Preferential Location Charges from the complainants, they have not been provided even a single straight road, and the complainants will have to approach from small narrow roads from inside the Sector. Though in the direction marking plan, Ex.C-28, the passage has been shown from two directions; however, near Plot No.114, opposite parties Nos.1 & 2 have blocked the passage by putting huge cement pipe. It is further averred that the complainants had obtained the facility of housing loan from LIC Housing Finance, Chandigarh for ₹40,00,000/-, out of which an amount of ₹33,29,178/- was disbursed. Against the said loan, apart from the principal amount, an amount of ₹29,15,594.58P has been paid by the complainants as an interest to LIC Housing Finance Limited. It is further mentioned that for the delay in handing over the possession according to clause No.8, only a sum of ₹50/- per square yard per month has been mentioned as compensation in the Buyer’s Agreement, which comes to 4.22% per annum of the amount of ₹42,56,572/- paid by the complainants up to 2.8.2008.
ALSO READ- CONSUMER COMPLAINT CASES AGAINST MANOHAR INFRASTRUCTURE & CONSTRUCTION PVT LTD
Judgment
The opposite party, in its reply, took preliminary objections to the effect that the complainants have approached this Commission with unclean hands by not disclosing and misrepresenting material facts. The complainants had earlier filed CC No.1001 of 2018 and had concealed certain facts and the opposite parties in their reply alleged suppression of material facts and sought dismissal of the complaint on such ground. The complainant has already received benefits worth Rs. 11 Lakh which has not been mentioned in the following complaint and the act has been mala fide in nature.
The complainant has not disclosed the purpose for which they had purchased the plot in question. Hence, purchase of multiple plots is deemed to be for investment/speculative purposes. The complaint is time-barred having been filed beyond 2 years of the alleged cause of action. This Commission has no pecuniary jurisdiction to entertain the complaint as the claimed amount together with interest and compensation exceeds ₹1 Crore.
Also Read- RERA does not bar Homebuyers complaint under Consumer
The complainants have failed to take over possession or remit balance payments citing extraneous reasons, and filed the present complaint more than 2 years after possession was offered to them and compensation of over ₹11 lakh was paid. Hence, being defaulters, the complainants have no locus to file the present complaint and cannot be allowed to take advantage of their own wrongs. The complaint is bad for non-joinder of necessary parties. The complainants have availed loan from LIC Housing Finance Limited and hence same is a necessary party. The complaint is bad for misjoinder of parties. There is no averment or role attributed to Managing Director, EMAAR and, as such, his name ought to be deleted from the array of parties.
Also Read- M/S Emaar Mgf Land Limited vs Aftab Singh on 10 December
However, the opposition had promised to deliver the plot within the stipulated period in- spite of receipt of almost full price towards the same. The Court stated while quoting the case of m/s Ireofiveriverpvt. Ltd. V. Surinder kumarsingla& others[1] that cthere is no evidence led by opposite party No.1 to prove that the complainants indulged in the sale purchase of properties and that they purchased the plot, in question, for further sale or for earning profits. Accordingly, the above said contention of opposite party No.1 is rejected, and the complainants are held to be ‘consumers’ under the C.P. Act.
The opposition has also taken the plea that the following complaint is time-barred. While stating the judgment of Navin Sharma (Dr. )& others v. Unitech Reliable Projects Pvt. Ltd. &Anr[2] where it has been held that unless or until the complainants get possession of the flats, they have got the continuous cause of action. Since possession has not been delivered by the complainants to date and, as such, in view of the ratio of the law laid down in the above-noted authority, it is a continuous cause of action, and the complaint filed by the complainants is within limitation.
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It was noted by the Court taking into consideration certain facts and evidences that the plot shown by the party in the suit was not the property owned by them, the fact they knew was also taken into consideration, it certainly amounts to the playing of fraud with the complainants by opposite parties Nos.1 and 2 with mala fide intentions. Moreover, the possession was to be delivered up to 4.7.2010, and the complaint has been filed by the complainants on 1.10.2019. However, the possession of the fully developed plot has not been delivered even after the lapse of more than 9 years from the promised date of delivery of possession. As such, opposite parties Nos.1 and 2 not only committed deficiency in service but also adopted unfair trade practices. They have also violated various provisions of the PAPRA.
So far as a deficiency in service and adoption of unfair trade practice on the part of GMADA is concerned, there is no relationship of ‘consumer’ and ‘service provider’ between the complainants and GMADA as no payment has been received by it from the complainants. The complainants can only seek the relief claimed in the complaint from opposite parties Nos.1 and 2. It is held that the complainants are not ‘consumers’ as defined under Section 2(1)(d) of the C.P. Act qua opposite party No.3-GMADA and as such, the complaint is dismissed against opposite party No.3-GMADA.
Also Read- T.P. Malhotra & Anr. vs M/S. Emaar Mgf Land Limited
In view of our above discussion, this complaint is allowed against opposite parties Nos.1 and 2 and is dismissed against opposite party No.3. Following directions are issued to opposite parties Nos.1 and 2:-
- i) to deliver possession of the allotted corner plot in question measuring 300 square yards with 100′ wide roads abutting the said plot on both sides along with all the promised facilities as per the FDI guidelines and ‘Completion Certificate’ after obtaining the same from the concerned competent authority;
- ii) to pay the penalty at the rate of ₹50/- per square yard per month as per clause 8 of Buyer’s Agreement with effect from the promised date of delivery of possession till the date of actual delivery of possession minus the amount already paid by them;
iii) not to charge maintenance charges till the handing over of the possession of the plot as directed above;
Also Read- Consumer Complaint against Emaar MGF Land Ltd
OR
- iv) in the alternative to allot and deliver possession of an alternate plot of the same size and same value in the same Sector with double Preferential Location i.e. corner plot having 100′ wide roads on both sides along with all the promised facilities as per the FDI guidelines and ‘Completion Certificate’ after obtaining the same from the concerned competent authority;
- v) to pay the penalty at the rate of ₹50/- per square yard per month as per clause 8 of Buyer’s Agreement with effect from the promised date of delivery of possession till the date of actual delivery of possession minus the amount already paid by them;
- vi) not to charge maintenance charges till the handing over of the possession of the plot as directed above;
OR
vii) in the alternative to refunding the entire deposited amount to the complainants along with interest at the rate of 12% per annum from the different dates of deposits of different amounts till the date of actual refund after adjusting the amount paid by them to the complainants as penalty on account of delayed possession;
- iv) to pay a sum of ₹55,000/-, as costs of litigation.
ALSO READ- CONSUMER COMPLAINT GMADA IN STATE CONSUMER COMMISSION
Conclusion
In the said judgment, it can be noted that the definition of the consumer has been tacit in a wider ambit taking into consideration the various aspects of consumer-service relationships. Along with this, the fact that regional laws based on real estate have been considered for smearing the judgment. The compensation granted by the Court has to be taken care of in the widest way possible.
This post is written by Tanya Gorshi.
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[1]First Appeal No.1358 of 2016
[2]2016(2) CLT 457
