MANISH KUMAR PATNI & ANR. V. EMAAR MGF LAND LIMITED
S/O DR.M.K.PATNI R/O A-153, BELVEDERE PARK, DLF
PHASE-3,
GURGAON
HARYANA
2. MRS. MONIKA PATNI
W/O SHRI MANISH KUMAR PATNI R/O A-153, BELVEDERE
PARK, DLF PHASE-3,
GURGAON
HARYANA
Versus
1. EMAAR MGF LAND LIMITED
THROUGH ITS DIRECTORS, REGD. OFFICE AT: 306-308,
SQUARE ONE, C-2, DISTRICT CENTRE, SAKET, SOUTH
DELHI,
NEW DELHI-110017
Case No: CONSUMER CASE NO. 1613 OF 2018
Date of Judgement: 12 Jan 2023
Judges:
For the Complainant : Mr. Aditya Parolia, Advocate
Mr. Nithin Chandran, Advocate
Ms. Ishita Singh, Advocate
For the Opp.Party : Mr. Aditya Narain, Advocate
Mr. Mishra Raj Shekhar, Advocate
Facts:
Complainants booked an apartment in Palm Garden project of opposite party (Emaar MGF) in Oct 2011 and paid Rs. 1.01 Crores till Sept 2015. Possession was to be given by Aug 2018 as per the construction linked plan but was offered only in Nov 2019. Complainants allege unfair trade practice, deficiency in service and seek refund with interest, compensation and costs.
Arguments by Parties:
Complainants:
OP:
Complainants defaulted in installments so construction was delayed. Interest already charged for late payments. Complainants own multiple properties so they are not consumers. Dispute should go to Arbitrator/RERA instead of consumer forum.
Complaint allowed partly. OP directed to refund entire amount paid by complainants with interest @9% p.a. within 2 months. OP can first satisfy loan dues of Tata Capital from the refund amount.
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Full Text of Judgment:
1. Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Aditya Narain, Advocate, for the opposite party.
2. Manish Kumar Patni and Mrs. Monika Patni have filed above complaint for directing the opposite party to
@Rs.7.5/- per sq.ft. per month on super area was payable. The opposite party sought revision of map in May, 2015 although by that time construction would have been completed. The complainants raised an objection for revision of map. The opposite party realized 90% of sale consideration but failed to give possession on due date as such there was deficiency in service. The opposite party promised for impeccable amenities of power back up, security, club, 8 acres landscapes green area, 1.5 acre mini golf course, 24 mtrs. wide road connectivity to exit/entry, Bowling Alley, Formal concept Gardens, ratio of 84% super area to apartment area etc. But none of the above amenities were completed. The complainants have taken loan from the bank and were burdened to pay its EMI. The complaint was filed on 17.07.2018, alleging unfair trade practice and deficiency in service.
4. The opposite party filed its written reply on 24.09.2018. The opposite party did not dispute, booking of the apartment, allotment of apartment and deposits made by the complainants. However, the opposite party stated that the complainants were defaulters and made payments of instalment with delay. The opposite party issued payment reminders dated 19.12.2011, 05.01.2012, 28.06.2012, 18.07.2012, 21.01.2013, 06.02.2013, 28.02.2013, 20.03.2013, 28.03.2013, 02.01.2014, 01.08.2014, 19.08.2014, 21.10.2015, 06.11.2015, 12.12.2016, 02.04.2017, 03.10.2017 etc. Some of the instalments were not deposited even on issue of reminders, then final notices dated 14.02.2012, 14.08.2012, 09.04.2013 etc. were issued to the complainants. Clause-10(a) of the agreement was subject to timely payment of the instalments and force majeure reasons. As the complainants committed default in payment of the instalments, time schedule for construction was also delayed. Total payment made by the complainants includes Rs.654973/- as interest for delayed payment. Allegation that the PLC has been collected and thereafter green area in front of the apartment was reduced, was incorrect. The opposite party never promised for provide 24 mtrs wide road and entry/exit. Preliminary objections that the complainants were not a consumer inasmuch as they owned a residential house i.e. house No.153 Belvedere Park DLF, Phase-3, DLF cyber city Gurgaon and they booked two flats i.e. other Flat No.PGN-02-1102, Tower-
2 in project Palm Garden. According to own allegations, both the complainants were working as consultants in real estate business since 2003-2004. Therefore, it is apparent that they booked these apartments only for the purpose of getting better return and not for their residence. The complainants took loan from Tata Capital Housing Finance, mortgaging the property in dispute on 20.06.2013. Preliminary issues that the complainants owned a house and booked two apartments as such they are not consumers. The agreement contains an arbitration clause, therefore, the complainants be relegated to go before an Arbitrator. After enactment of Real Estate Regulatory and Development Act, 2016, the RERA Authority has been constituted under the said Act, as such, the complainants be relegated to submit their claim before the RERA Authority. The complaint is liable to be dismissed.
5. The complainants filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Manish Kumar Patni and Ms. Monika Patni (the complainants). The opposite party filed Affidavit of Evidence of Shipra Saboo. In the Affidavit of Evidence of Shipra Saboo, the opposite party stated that the construction was completed and the application for issue of “occupation certificate” was filed on 11.02.2019, which was issued on 17.09.2019. The opposite party issued letter of offer of possession to the complainants on 19.11.2019. Both the parties have filed their written submissions.
6. After hearing arguments and reserving the complaint for judgment, the opposite party filed an Interim Application on 25.11.2022, stating that the complainants had taken loan of Rs.75/- lacs from Tata Capital Housing Finance Ltd., mortgaging Unit No.PGN-02-1102. The complainants committed default in payment of loan. Tata Capital Housing Finance Ltd. has filed an application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest, Act, 2002, before District Magistrate Gurugram, for taking over possession of Unit No.PGN-02-1103, which was allowed on 17.12.2021 (corrected on 08.02.2022). Tata Capital Housing Finance Ltd. sent to statement of account of the loan to the complainants on 04.11.2022.
7. We have considered the arguments of the parties and examined the record. The opposite party raised preliminary issue that the complainants are not consumer. For excluding a buyer from the definition of ‘consumer’ as defined under Consumer Protection Act, 1986, it is required to be proved that goods was bought or service was availed for ‘commercial purpose’. Number of flats/houses owned or booked by the buyer is not decisive as held by Supreme Court in Lilavati KirtilaL Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265. In the present case the opposite party has not adduced any evidence that the apartments were booked for commercial purpose. In Emaar MGF Land Limited Vs. Aftab Singh, (2019) I CPJ 5 (SC), Supreme Court held that arbitration clause does not exclude the jurisdiction of consumer fora. RERA authority has concurrent jurisdiction and the complainants have right to elect remedy of their choice.
ORDER
In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants including loan amount advanced by Tata Capital Housing Finance Ltd. with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two month from the date of this judgment. It shall be open to the opposite party to satisfy the dues of Tata Capital Housing Finance Ltd. first and return balance amount to the complainants.