Bringing you the case Digest on consumer complaint against Emmar MGF Land Ltd. in State Consumer Dispute Redressal Commission Punjab, Chandigarh. Wherein consumer purchased a unit and the opposite party failed to deliver possession of the unit within the Stipulated Period.
Now let’s have the Judgment –
Judgment Digest
State Consumer Dispute Redressal Commission
Dr. Mudit Kumar v. Emaar Mgf Land Limited
Date of Decision – 28 January 2020
Complainants:
- Mudit Kumar R/o H.No. 1104, LYRA Block, Taj Towers, Sector 104, SAS Nagar, Mohali.
- Monika Sachdeva W/o Dr. Mudit Kumar
Opposites:
- Emaar MGF Land Limited, having its registered office at ECE House, 28, Kasturba Gandhi Marg, New Delhi through its Managing Director/Authorized Officer.
- Shri Hadi Mohd. Taher Badri, Managing Director, EMAAR having site office-Mohali Hills, Office No.40, Central Plaza, Sector 105, Mohali.
- Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Mohali, through its Chief Administrator.
Quoram:
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President Mr. Rajinder Kumar Goyal, Member Mrs. Kiran Sibal, Member
Also Read- Renu Khanna vs M/S Emaar Mgf Land Private Ltd.
Facts of the Case:
- It is further averred that opposite parties Nos.1 and 2 came up with Mohali Hills residential plots in SAS Nagar, Mohali with the following facilities:-
“-Township facilities fully operational comprising electricity supply from PSPCL, water, sewerage, streetlight, road infrastructure and theme parks;
-Maintenance team available on call,
-Ample open spaces, kids play area, proposed tennis, badminton courts, community centre including facility of health block & hotel block), swimming pool and more.”
- After going through the details regarding opposite parties Nos.1 and 2 put up on their website, the complainants approached them for the purchase of a plot measuring 300 square yards.
- When the complainants visited the Chandigarh office of opposite parties Nos.1 and 2, they were informed that they were not left with plots with double preferential location i.e. road on two sides of the plot.
- However, a plot measuring 300 square yards was booked by one Kulbhushan Trehan, 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 came to know that the same is a corner plot having double preferential location i.e. 100 feet wide road on two sides.
- Accordingly they purchased the said plot.
- It is further averred that opposite parties Nos.1 and 2 got the relevant papers signed from said Vicky Trehan and the total sale consideration paid by his father Shri Kulbhushan Trehan was paid by the complainants to him.
- Thereafter an endorsement was made by opposite parties Nos.1 and 2 on the provisional allotment of the plot, and also on the Buyer’s Agreement dated, vide endorsement.
- Similar endorsements were made by opposite parties Nos.1 and 2 on all the receipts of the payment.
- After such endorsements the complainants stepped into the shoes of the original allottee i.e. Late Shri Kulbhushan Trehan and accordingly both the parties i.e. the complainants and opposite parties Nos.1 and 2 are bound by the terms and conditions of all the documents including the Buyer’s Agreement.
Also Read- Real Estate Regulatory Authority – RERA Punjab
- It is further averred that as per the provisions of Buyer’s Agreement opposite parties Nos.1 and 2 were required to deliver the possession of the plot to the allottees within a period of 2 years but not later than 3 years from the date of execution thereof.
- It is further averred that complainants did not get the possession of the plot on the promised date and thereafter 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 plot of the complainants were constructed.
- The complainants, vide e-mails to opposite parties Nos.1 and 2 showed their concern for delay in development and it was further mentioned that when the complainants visited the site they came to know that a part of the Central Greens is now owned by another Company; and called upon opposite party No.1 to hand over the possession of the plot, which was required to be handed over to them on stipulated time.
- However, when the possession was not offered, numerous mails, were exchanged between the complainants and opposite party No.1.
- It is further averred that when the complainants brought to the notice of opposite parties Nos.1 and 2 that there is no road abutting the plot, they offered alternative plot, vide e-mail.
- Plot 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 Nos.1 and 2 to offer alternative plot of 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 Nos.1 and 2 failed to hand over the possession of the plot, the complainants were apprised that they were in the process of completing the project and the possession of the plot along with promised facilities would be provided soon and also handed over two cheques in the names of the complainants for a sum of ₹3,50,000/-, each, towards compensation for delay in handing over the possession of the plot.
Also Read- Ms. Simmi Sikka Vs M/S Emaar MGF Land Limited
- However, no details as to how and for what period they had calculated the said amount of compensation towards delay in handing over the possession, have been supplied.
- When there was no hope for delivery of possession of the plot even in near future, the complainants were forced to purchase a flat in Taj Towers, Mohali in June 2016.
- It is further averred that thereafter vide e-mail , opposite parties Nos.1 and 2 served letter, offering possession of the corner flat with two roads, to them.
- Thereafter vide e-mail, the complainants were served with a statement of account 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 Nos.1 and 2 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, 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, 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-mail, was received from opposite parties Nos.1 and 2 demanding an amount of ₹44,131/- as common area maintenance charges.
- The said e-mail was duly replied and it was brought to the notice of opposite parties Nos.1 and 2 that since there are no approach roads to the plot offered to them, therefore, no construction is possible.
- So, the maintenance charges are totally illegal and unwarranted.
- In one of their e-mail, opposite parties Nos.1 and 2 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, a perusal thereof transpired that there is no direct road connectivity to the plot purchased by the complainants.
- 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 and obtained the photographs along with the newspaper ‘Hindustan Times’. 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, 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.
Also Read- BEFORE THE HARYANA REAL ESTATE APPELLATE TRIBUNAL
Arguments:
Opposite party No.2 did not appear despite service and, as such, was proceeded against ex parte, vide order.
By Opposite Party No. 1
That complainants do not fall within the ambit of definition of ‘consumer’ as prescribed under the C.P. Act as they purchased the plot in question for commercial/speculation purposes.
The complaint is time barred having been filed beyond 2 years of alleged cause of action.
This Commission does not have territorial and pecuniary jurisdiction to entertain, try and decide this complaint.
As per clause 39 of the Plot Buyer’s Agreement the matter is liable to be referred to an Arbitrator to be appointed as per the provisions of Arbitration and Conciliation Act, 1996.
Opposite party No.1 has also been issued Partial Completion Certificate and as such, the complainants can validly and legally take over possession of the plot in question and cannot insist for completion certificate.
It has been prayed that there is no merit in the present complaint and the same may be dismissed with costs.
By Opposite Party No. 3
That it is an inter-se dispute between the complainants and opposite parties Nos.1 and 2 in which opposite party No.3 has no role to play and it has been unnecessarily dragged into this avoidable litigation.
It has further been contended that no amount, whatsoever, has been charged from the complainants by opposite party No.3 and there is no ‘consumer dispute’ involved qua it and no “service” as defined under the C.P. Act has been provided to them by it.
There exists no relationship of ‘consumer’ and ‘service provider’ between the complainants and opposite party No.3.
The complainants, therefore, have no locus standi to file the complaint against opposite party No.3.
It has also been contended that the EDC is charged from the promoter and not from the alleged allottees like complainants and consequently no amount has been demanded or charged by it from the complainants.
If any amount under the said head has been paid by the complainants to opposite parties Nos.1 and 2, then it is an inter-se transaction between the complainants and opposite parties Nos.1 and 2.
There is no deficiency in service or adoption of unfair trade practice on its part. Accordingly it was prayed that the complaint be dismissed qua opposite party No.3.
Case Citation:
Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan” 2019(2) R.C.R. (Civil) 738; and
M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016
Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr. 2016(2) CLT 457
Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association” Special Leave to Appeal (Civil) No.35805 of 2012
Judgment:
The Court Ordered:-
So far as 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.
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;
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 refund 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.
Opposite parties Nos.1 and 2 are directed to comply with the above directions within a period of one month from the date of receipt of certified copy of this order.
Thus, High Court once again settled the law that consumer/homebuyer is the King and he cannot be cheated or fooled. One can read the judgment here.
RERA further has pushed builder to be fair, transparent and accountable which will avoid delay in possession in the future.
But in case they do, you can contact TOP/BEST/EXPERT consumer RERA Lawyer in Chandigarh, Panchkula, Mohali (Punjab and Haryana) for the consumer matter.
More on 99888-17966.
