Sham Sunder (Retd.), President:
1. The facts, in brief, are that a combined/joint Scheme, consisting of Sectors 105, 108 and 109, under the name and style of œMohali Hills?, for the allotment of residential plots, was launched by the Opposite Parties. The complainant applied for the allotment of a residential plot, to the Opposite Parties, by way of submission of an advance registration form, under the said Scheme, and paid a sum of Rs.10,35,000/-, as booking amount towards the same (plot). He was allotted plot no.279, measuring 300 square yards, in Mohali Hills, Sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, @Rs.11,500/- per square yard, plus (+) Preferential Location Charges (PLC) of Rs.4,31,250/- plus (+) External Development Charges of Rs.1,69,104/-. The basic sale price of the said plot, was to the tune of Rs.34,50,000/-. Thus, the total sale consideration, in the sum of Rs.40,50,354/-, was required to be paid by the complainant. In all, the complainant deposited a sum of Rs.40,05,621/-, towards the total price of the residential plot, in question. Receipts dated 30.09.2006 (alongwith application form), 23.07.2007, 09.10.2007, 01.12.2007, 22.02.2008, 30.05.2008, and 07.06.2008 (Colly.), were issued by the Opposite Parties, to the complainant, towards the said amount.
2. After the allotment of residential plot, aforesaid, Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, was executed between the parties. It was stated that, as per Clause 8 of the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, subject to force majeure conditions, and reasons beyond the control of the Company, the physical possession of fully developed residential plot, was to be handed over to the complainant, within a period of 2 years, but not later than three years, from the date of execution thereof (Agreement). It was further stated that, it was also provided in the said Clause, that, in case, there was any delay, beyond the period of maximum three years, from the date of execution of the said Agreement, the Opposite Parties shall pay to the allottee/complainant, penalty @Rs.50/- (Rupees Fifty only), per square yard, per month, for such period of delay, beyond three years.
3. It was further stated that since the plot, which was allotted, in favour of the complainant, had not been developed, on the asking of the Opposite Parties, he (complainant), made a request through email dated 09.04.2012, for allotment of an alternate plot, in Mohali Hills, in lieu of the old plot aforesaid. The said request of the complainant was acceded to, by the Opposite Parties, and the complainant was allotted an alternate plot bearing No.33, measuring 300 square yards, Block No.MLU, Sector 108, (108-MLU-33-300) in Mohali Hills, Mohali. It was further stated that since the newly allotted plot (108-MLU-33-300), was allotted without Preferential Location, Rs.1,28,000/-, on account of difference of Extra Development Charges, in February 2013 and Rs.4,11,086/-, on account of Preferential Location Charges, in July, 2012, were refunded to the complainant.
4. Thereafter, an Amended Agreement dated 06.07.2012 Annexure R-1, was executed between the parties, in continuation of the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1. Thus, in this manner, after adjustment of the amount of refund, the complainant deposited a sum of Rs.34,66,535/-, as price of the alternate plot, with the Opposite Parties. It was further stated that even there was no development, in the area, where the alternate plot was allotted to the complainant, despite the lapse of a period of more than six years, from the date of execution of the original Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, and more than three years, from the date stipulated for the delivery of possession. The complainant made a number of requests, to the Opposite Parties, to deliver possession of the alternate plot (108-MLU-33-300), allotted in his favour, but they put off the matter, on one pretext or the other, with the promise that the same would be delivered soon. It was further stated that the complainant suffered a lot of mental agony and physical harassment, as the possession of plot, in question, was not handed over to him, by the Opposite Parties, within the stipulated period, and even after the expiry of more than three years thereof, and, therefore, he was deprived of raising construction, thereon.
5. It was further stated that by making false promise, that the possession of plots, would be delivered by the stipulated date, and not abiding by the same, the Opposite Parties duped the innocent consumers, including the complainant. It was further stated that since there was no hope of offer of delivery of possession of the alternate developed plot, in the near future, left with no alternative, the complainant asked for the refund of amount, deposited by him, but his request was not acceded to, by the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also 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 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.34,66,535/-, alongwith interest @24% P.A., from the respective dates of deposits, till realization; pay interest, on the amount of Rs.5,39,086/-, refunded to him, on account of difference of External Development Charges and Preferential Location Charges, from the date of deposits, till February 2013; compensation, in the sum of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
6. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, as he being a Foreign National, being a permanent citizen of Canada, had purchased the plot, in question, with an intention, to earn profits, after selling the same. It was further pleaded that the complaint was premature, as the original Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, was superseded by the Amended Agreement dated 06.07.2012 Annexure R-1, wherein, it was clearly mentioned that after development of the infrastructure work, possession of the alternate plot (108-MLU-33-300), would be delivered. It was further pleaded that the complainant was not present in India, when the complaint was filed, and, as such, the same was not maintainable. It was further pleaded that the complainant approached this Commission, with unclean hands, and, as such, was liable to be thrown out, at the very threshold. It was further pleaded that the complaint was not maintainable, as earlier also, the complainant had filed a Consumer Complaint, which was dismissed as withdrawn, by this Commission. It was admitted that earlier the complainant was allotted plot no.279, measuring 300 square yards, in Mohali Hills, Sector 109, Augusta Park, SAS Nagar, Mohali, Punjab, by the Opposite Parties, for the sale consideration of Rs.40,50,354/-. It was also admitted that Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, was executed between the parties, according to which, possession of the fully developed plot, was to be delivered to the complainant, on or before 04.07.2010. It was also admitted that out of the amount of Rs.40,05,621/-, deposited by the complainant, in respect of the original plot, he was refunded Rs.1,28,000/-, on account of difference of External Development Charges, in February 2013 and Rs.4,11,086/-, on account of Preferential Location Charges, in July, 2012, when the alternate plot (108-MLU-33-300), was allotted, in his favour. It was stated that, at the time of allotment of alternate plot, Amended Agreement dated 06.07.2012 Annexure R-1, was executed between the parties, wherein, it was, in clear-cut terms, provided that only after development of the infrastructure work, possession thereof (plot), would be delivered, to the complainant. It was further stated that the Amended Agreement dated 06.07.2012, Annexure R-1, thus, superseded the original Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1. It was further stated that the parties were bound by the term and conditions of the Amended Agreement dated 06.07.2012, Annexure R-1, and none of them could turn round and say that the earlier Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, was applicable. 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. The remaining averments, were denied, being wrong.
7. In support of the averments, contained in the complaint, the complainant submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. The Opposite Parties, in support of their case, submitted the affidavit of Mohit Kaura, their General Manager-Customer Services, by way of evidence, alongwith which, a number of documents were attached.
9. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
10. The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The complainant, no doubt, is Non-Resident Indian (NRI), and is settled in Canada. It was the residential plot, which was allotted, in favour of the complainant. The mere objection of the Opposite Parties that the complainant is a permanent citizen of Canada, though, originally belonged to India, and, thus, could not purchase a residential plot, in India, for the purpose of constructing a house, with a view to have his residence in the same, as and when he came to India, does not carry any weight and the same stands rejected. It was not necessary for the complainant to aver, in the complaint, that he was purchasing the residential plot, in question, from the Opposite Parties, for the purpose of his residence. The mere fact that it was a residential plot, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant, may be off and on, on his visit to India. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the plot, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. No law of the land, debars an NRI, though originally belonging to India, to purchase a residential property, in India, with a view to reside therein. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential plot, in question, with a view to raise construction thereon, and reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.
11. The next objection taken by the Opposite Parties, in their written statement, was to the effect that earlier a Consumer Complaint, with regard to the same subject matter was filed by the complainant, which was dismissed, as withdrawn, by this Commission, vide order dated 17.10.2013, and, as such, the instant complaint was not maintainable. This objection, also does not carry any weight. It is evident, that earlier, Consumer Complaint, bearing No.49 of 2013, titled as Sh.Amit Puri Vs. Emaar MGF Land Pvt. Ltd. and Another, was filed by the complainant. Since there were certain technical defects, in the said Consumer Complaint, on the basis of the statement, made by the Counsel for the complainant, at the Bar, the same (Consumer Complaint) was dismissed as withdrawn, with liberty to file a fresh one. Had the liberty been not granted, in the Consumer Complaint, referred to above, vide order dated 17.10.2013, the matter would have been different. In those circumstances, it would have been said that the second Complaint, on the same cause of action, was not maintainable. The objection taken by the Opposite Parties, in their written statement, that the complaint was not maintainable, being devoid of merit, stands rejected.
12. The next objection taken by the Opposite Parties, in their written statement, was to the effect that the complaint was premature, as, when an alternate plot (108-MLU-33-300) was allotted, in favour of the complainant, and the Amended Agreement dated 06.07.2012 Annexure R-1, was executed, between the parties, they were bound by the terms and conditions thereof. It may be stated here, that the Amended Agreement dated 06.07.2012 Annexure R-1, did not completely supersede the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1. As per Clause 7 of the Amended Agreement dated 06.07.2012 Annexure R-1, it was made clear that that the allottee agreed and undertook that the terms and conditions of the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, were to apply to the allotment of alternate plot (108-MLU-33-300), pari pasu, and the same were sacrosanct, save and except to the extent amended and agreed, under the same (Amendment Agreement). This Clause clearly proved that earlier the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, was not superseded in its entirety. Once, the parties agreed that the terms and conditions of the earlier Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, would be applicable, the stipulated date for possession of the alternate plot also remained the same. No doubt, according to Clause 10 of the Amended Agreement dated 06.07.2012 Annexure R-1, it was made clear, that, in case of any conflict between the terms of the Buyers Agreement and the Amendment Agreement, the terms of the same (Amendment Agreement) shall prevail. It was also made clear, vide this Clause that save and except, what is agreed under the Amended Agreement dated 06.07.2012 Annexure R-1, all other Clauses and provisions of the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, shall remain unchanged and this Agreement (Amended Agreement) shall be read as a part and parcel of the same (Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1). When the Amended Agreement dated 06.07.2012 Annexure R-1, is read as a whole, then only one and one conclusion, which can be arrived at, is that the Plot Buyer`s Agreement dated 04.07.2007, Annexure C-1, remained in operation, with regard to the date of delivery of possession of the alternate plot (108-MLU-33-300). Since, possession of the alternate plot, was not delivered upto the date of filing the instant complaint, on 27.11.2013, certainly cause of action arose to the complainant, to file the complaint, for the purpose of refund of the amount, with interest and compensation. The complaint, by no stretch of imagination, could be said to be premature. The objection taken by the Opposite Parties, in their written statement, that the complaint was premature, being devoid of merit, stands rejected.
13. The next objection taken by the Opposite Parties, in their written statement, was to the effect that the complainant was not in India, when the affidavit, by way of evidence was signed and sworn by him, and the complaint was filed. This objection of the Opposite Parties, also does not appear to be correct. Annexure C-14 is a copy of the Passport and Visa of the complainant. It is evident, from these documents, that the complainant was issued multiple Visa, from 11.10.2013 to 10.04.2014. There is also a stamp, in photo-impression, on this document (Visa), showing arrival of the complainant at IGI Airport, New Delhi, on 15.11.2013. The affidavit, by way of evidence, submitted by the complainant, alongwith the complaint was signed by him, on 21.11.2013, and the complaint was filed on 27.11.2013. Since, the complainant arrived in India, on 15.11.2013, and there is nothing, on the record, to show that he left this Country (India), before 27.11.2013, it could certainly be presumed that he was in India, on the date of signing the affidavit, by way of evidence, submitted by him, alongwith the complaint, and at the time of filing the same (complaint), on 27.11.2013. The objection taken by the Opposite Parties, in their written statement, to the effect that the signatures of the complainant were forged, on these documents (complaint and affidavit), therefore being devoid of merit, is rejected.
14. Undisputedly, the complainant applied for the allotment of a plot, which was allotted to him. As stated above, he deposited a sum of Rs.40,05,621/-, from time to time, towards the price of plot. Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1, was also executed between the parties, at Chandigarh, in respect of plot no.279, measuring 300 square yards, in Mohali Hills, Sector 109, Augusta Park, SAS Nagar, Mohali, Punjab. According to Clause 8 of this Plot Buyer Agreement dated 20.06.2007, the Opposite Parties were to deliver possession of the plot, in question, in favour of the complainant, within a period of 2 years, from the date of execution of the same, but not later than three years. It means that the possession of the plot, in question, was to be delivered to the complainant, by the Opposite Parties, on or before 04.07.2010. Admittedly, the possession of this plot was not delivered to the complainant. Later on, as stated above, as advised by the Officials of the Opposite Parties, the complainant opted for the allotment of Unit No.108-MLU-33-300, at Mohali Hills, Mohali, in lieu of Unit No.109-AP-279-300, which was originally allotted to him, and Amended Agreement dated 06.07.2012 Annexure R-1, was executed between the parties. Since the newly allotted plot (108-MLU-33-300), was allotted without Preferential Location, Rs.1,28,000/-, on account of difference of Extra Development Charges, in February 2013 and Rs.4,11,086/-, on account of Preferential Location Charges, in July, 2012, were refunded to the complainant. Thus, after deducting the said amounts of Rs.1,28,000/- and Rs.4,11,086/-, from Rs.40,05,621/-, deposited by the complainant, towards price of the original plot, a sum of Rs.34,66,535/-, already stood paid by him (complainant), by the stipulated date/time. Since, there was no development at the site, the Opposite Parties were unable to handover the legal physical possession of the alternate plot, in question, to the complainant even till the date of filing the complaint. Even, the development had not been completed by the time, the complaint was filed. No documentary evidence was produced by the Opposite Parties, by way of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, actually, there was development of the area, where the alternate plot, in question, was allotted, in favour of the complainant. In the absence of production of such documentary evidence, which could be easily available with the Opposite Parties, only one and one inescapable conclusion, which can be arrived at, is that the version set up by the complainant, that there was no development at the site, where the alternate plot was allotted to him, is correct. By not delivering the legal physical possession of the fully developed residential plot, to the complainant, even after the receipt of entire price thereof, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
15. Now, the question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount, deposited by him, in the circumstances, referred to above. As stated above, the Opposite Parties failed to deliver legal physical possession of the alternate plot, in question, allotted in favour of the complainant. They, therefore, had no right, to retain the hard earned money of the complainant, in the sum of Rs.34,66,535/-, deposited by him, towards the price of plot, in question, in the manner, referred to above, without rendering him, any service. Since, the alternate plot, in question, had not been developed, even by the time, the complaint was filed, no alternative was left with the complainant, than to ask for the refund of amount, deposited by him. In our considered opinion, the complainant is entitled to the refund of amount of Rs.34,66,535/-, deposited by him. By not refunding the amount, deposited by the complainant, the Opposite Parties were deficient, in rendering service.
16. The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, and the amount of refund, to the tune of Rs.5,39,086/-, if so, at what rate. The amount of Rs.34,66,535/-, towards the price of alternate plot, in question, was deposited by the complainant, in the manner, referred to above. The complainant was deprived of his hard earned money, on the basis of misleading information given by the Opposite Parties, that he would be handed over the legal physical possession of the residential plot, in question, by the stipulated date, but they failed to do so. The complainant, was, thus, caused financial loss. The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties were charging compound interest (quarterly) @15% P.A., as is evident from Clause 3 of the Plot Buyer`s Agreement dated 04.07.2007 Annexure C-1. Under these circumstances, in our considered opinion, if interest @ 12% P.A., on the amount, deposited by the complainant, and part amount, already refunded to him, from the respective dates of deposits, is granted, that will serve the ends of justice.
17. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to him, for a long number of years, by neither delivering the physical possession of plot, to him, nor refunding the amount, asked for by him. The complainant booked the plot, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground, when there was no development of the residential plot, nor the question of delivery of possession thereof, arose. Till date, delivery of physical possession of the alternate plot, has not been made, to the complainant, by the Opposite Parties. The complainant shall also not be able to purchase the plot, like the one, in question, at the same rate, at which it was allotted to him, due to escalation in prices. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to him, at the hands of the Opposite Parties, as also escalation in prices of the real estate, to the tune of Rs.1,50,000/-, which could be said to be adequate and reasonable.
18. No other point, was urged, by the Counsel for the parties.
19. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:
(i). The Opposite Parties are directed to refund the amount of Rs.34,66,535/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits, within 45 days, from the date of receipt of a certified copy of this order.
(ii). The Opposite Parties are further directed to pay interest @12% P.A., on the amount of Rs.5,39,086/-, already refunded, in favour of the complainant, from the respective dates of deposit, till the respective dates of refund, within 45 days, from the date of receipt of a certified copy of this order.
(iii). The Opposite Parties are further directed to pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices of the real estate, within 45 days, from the date of receipt of a certified copy of this order.
(iv). The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
(v). In case the payment of amounts, mentioned in Clauses (i) and (ii) and (iii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15 % P.A., instead of 12 % P.A., from the respective dates of deposits, till realization, interest @ 15 % P.A., on the amount mentioned in Clause (ii), from the respective dates of deposit to the respective dates of refund, and interest @12% P.A., on the amount of compensation, mentioned in Clause (iii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.