FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.498 of 2017 Date of Institution : 15.06.2017 Order reserved on: 22.03.2018 Date of decision : 28.03.2018
1. Ms. Cheenu wife of Mr. Manoj Bhalla.
2. Ms. Rabina wife of Mr. Amit Grover. Both resident of Varinda Medical Store, Shop No.4, Inside Delhi Gate, Ferozepur City 152002. Complainants Versus
1. Shivalik Infrastructure & Development Pvt. Ltd., SCO No.510, 1st Floor, Sector 70, SAS Nagar, Mohali (Punjab) through its Managing Director/Authorized Representative.
2. Daljit Singh son of Shri Sarja Singh, Managing Director/Authorized Representative, Shivalik Infrastructure & Development Pvt. Ltd., SCO No.510, 1st Floor, Sector 70, SAS Nagar, Mohali (Punjab).
3. Darshan Singh, Director, Shivalik Infrastructure & Development Pvt. Ltd., SCO No.510, 1st Floor, Sector 70, SAS Nagar, Mohali (Punjab).
4. Ghansam, Director, Shivalik Infrastructure & Development Pvt. Ltd., SCO No.510, 1st Floor, Sector 70, SAS Nagar, Mohali (Punjab) .... Opposite parties Complaint under Section17 (1) (a)
(i) of the Consumer Protection Act, 1986. Quorum:- Shri J. S. Klar, Presiding Judicial Member. Smt. Surinder Pal Kaur, Member Present:- For the complainants : Sh. Mukand Gupta, Advocate For the OPs No.1&4 : Sh. Munish Goyal, Advocate For the OPs No.2&3 : Ex-parte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C.C. No.498 of 2017 2 SURINDER PAL KAUR, MEMBER:- This complaint has been filed by the complainants on the averments that OPs floated a mega housing project in Shivalik City, Sector 127, SAS Nagar, Mohali, styled as M/s Shivalik Infrastructure & Development Private Limited in 10.3 acre land in Village Chhajjumajra, Tehsil Kharar and the name of the project was Paradise Apartment in Shivalik City, GMADA Region, SAS Nagar, Mohali. OP No.1 is the Managing Director-cum-authorized signatory of OP No.1-company having its registered office at Mohali, who has received the money form complainants and entered into agreement to allot the flat. OP No.2&4 are Directors of OP No.1-company. Complainants were in urgent need of a residential use for their personal use and they agreed to pay hard earned money to OPs to purchase a flat. OPs allotted flat no.96, 4th floor in Paradise Apartments in Shivalik City, having total super area 1225 square feet and covered area 1025 square feet in the above project. The total sale price of the flat was fixed as Rs.24.00 lakhs plus service tax and they were to make the payment, as per payment plan. As per the terms and conditions of flat buyers agreement, OPs were having tentative layout plan, as the final layout plan was not yet approved by the Director, Local Bodies, Punjab, Chandigarh. As per flat buyers agreement, OPs were required to complete the construction of the flats within 4 months from the date of execution of flat buyers agreement i.e. by 31.03.2012 and to deliver the possession of the said flat to them. Complainants have paid the total sale consideration of the flat to OPs as follows: C.C. No.498 of 2017 3 Sr. No. Date of receipt Receipt no. Amount in Rs.
1. 02.07.2011 1447 9,00,000/-
2. 02.07.2011 1448 3,00,000/-
3. 14.11.2011 1535 12,00,000/-
4. 14.11.2011 1537 61,8000/- Total 24,61,800/- Despite receipt of above amounts, OPs have failed to deliver the possession of the flat to complainants. The OPs were required to deliver the possession of the flat, complete in all respects to them by 31.03.2012, but OPs have failed to deliver the possession with complete amenities. Complainants further pleaded that they took photographs of the flat in question during their visit to the construction site on 13.05.2017, showing that OPs have not completed the construction. Even OPs have not requisites permission from competent authorities. Complainants served legal notice dated 16.05.2017 upon OPs to refund the deposited amounts for failure to raise the construction within scheduled time, as per flat buyers agreement. The complainants have, thus, prayed for direction to OPs to refund the amount of Rs.24,61,800/- along-with interest 20% per annum from the date of deposits till realization; further to pay Rs.10 lakhs as compensation for mental harassment; and to pay Rs.80,000/- as litigation expenses.
2. Upon notice, OP Nos.1 and 4 appeared and filed written reply raising preliminary objections that complaint is not maintainable, as this Forum has no territorial jurisdiction to entertain the complaint, which arose out of the contractual liabilities of the C.C. No.498 of 2017 4 parties. The OPs are ready to deliver the possession of the flat in question complete in all respects to complainants. The complainants made investment with the sole purpose of selling the property further for earning profits. The fact of execution of flat buyers agreement was admitted in the written reply. The rights and duties of the parties have been defined in buyers agreement, as averred in the written reply by answering OPs. The photographs allegedly taken by the complainants of flat in question are unilateral act without any information to OPs. It is further pleaded that there is an existing water, sewage connection, being used by the inhabitants of the apartment. The OPs have not violated any terms and conditions of the buyers agreement. The complaint is alleged to be barred by time and is not maintainable. The answering OPs prayed for dismissal of the complaint. OP No.2&3 was set exparte in this complaint, vide order dated 25.09.2017. Since the rate of the property has fallen down and due to this reason, the complainants are seeking the refund of the money. It is denied that complainants are consumer of OPs, because they purchased the property for speculative and investment purposes only. On merits all the averments made in the complainant were denied and above OPs prayed for dismissal of the complaint it with costs.
3. The complainant tendered in evidence her affidavit Ex.-A along-with copies of documents Ex.C-1 to C-5 and closed the evidence. As against it, OP No.1&4 tendered in evidence affidavit of Ghansham Sharma, Managing Director of OP company Ex.OP-A C.C. No.498 of 2017 5 along-with copy of Board resolution Ex.OP-1 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. The submission of counsel for OPs is that the complainants are not consumers of OPs, as defined in Section 2(1)(d) of the Act. On the other hand, the counsel for complainants contended that complainants purchased the flat for residential purposes and as such they are consumer. The complainants have specifically pleaded in para no.2 of the complaint that they were in dire need of residential accommodation for her personal use and agreed to buy the flat. The complainant also stated on oath this fact in her affidavit Ex.C-A in para no.2, the OPs have not led any evidence to discredit this evidence of the complainant. Consequently, it is held that since the complainants have purchased the flat for residential purposes, which is residential area and as such they are consumer of OPs. There is no element of commercial activity in this case for purchasing residential flat in residential project by them. Further complainants deposed that OPs were contractually bound to deliver the complete possession of flat No.96 allotted to them within 4 months from the date of buyers agreement dated 31.03.2012. Total price of the flat was fixed at Rs.24 lakhs, whereas they have paid Rs.24,61,800/- to OPs within time without any delay. The OPs have not obtained any occupancy certificate from the competent authority and have not completed the project till April 2017. The complainants took the photographs thereof, which have shown the project in incomplete stage. The C.C. No.498 of 2017 6 photographs taken by them reflected incomplete stage of construction. They also attributed deficiency in service to OPs in not delivering the legal and complete possession of the flat to them within scheduled time despite receipt of sale consideration amount from them. Ex.C-1 is the flat buyers agreement executed between the parties in July 2011. The total price of this flat was fixed as Rs.24 lakhs. The possession was agreed to be delivered by OPs to complainants by 31.3.2012, as per clause 2(ii) of buyers agreement. Clause 10.1 of buyers agreement Ex.C-1 is the relevant provision of law dealing with the delivery of possession by OPs to complainant. It lays down that OPs would complete the construction within a period of 4 months from the date of execution of buyers agreement. The buyers agreement was executed in July 2011 between the parties and OPs were contractually bound to deliver the possession within 4 months therefrom, as per clause 10.1 of the buyers agreement. The complainants have paid the entire amount of sale consideration to OPs within time and this fact has not been disputed before us. Even the receipts Ex.C-2(Colly) have proved this fact of making payment of sale consideration amounts by complainants to OPs. The complainants took the photographs Ex.C-3 (Colly) of allotted flat on 13.05.2017, showing the incomplete stage of construction. On 13.05.2017, the OPs have not completed the construction, as proved on the record by these photographs, which have not been argued to be fake by OPs. The agreed date for delivery of possession by OPs to complainant of this allotted flat had already rolled out. The OPs have not completed the project by raising C.C. No.498 of 2017 7 complete construction on 13.05.2017, even after passage of so many years, as proved by the photographs Ex.C-3 (Colly). Legal notice was served upon OPs by complainants vide Ex.C-5, calling upon them to refund the deposited amount with interest on account of their deficiency in service in not developing the project and in not delivering the possession of allotted flat to complainants within the agreed time.
5. We have also considered the affidavit of Ghansham Sharma, Managing Director of OP No.1 company Ex.OP-A on the record. He stated that he has been authorized to depose by resolution Ex.OP-1 by OPs in this case and he stated that project is almost complete. Only final touching is yet to be done. But no document there is no document on the record to prove this fact that OPs have completed the construction of the flat, which was ready for delivery with occupancy certificate to complainants by the agreed date. Even, in the year 2017, the construction was not completed by OPs, as the photographs have not been contended to be not showing the correct picture by OPs. There is no dispute of this fact that these photographs do not belong to the project, where the flat no.96 of complainants is located. The identity of the photographs has not been disputed by OPs before us in this arguments qua the allotted property.
6. From conclusion of entire evidence on the record and hearing the respective submissions of counsel for the parties at length, we have come to this conclusion that the fixed price of the allotted flat was Rs.24 lakhs and complainants have paid the C.C. No.498 of 2017 8 Rs.24,61,800/- to OPs. The possession was to be delivered by OPs complete in all respect to complainant within 4 months from the date of execution of buyers agreement in July .2011. The OPs failed to deliver the complete possession to the complainant within the stipulated period. The photographs Ex.C-3 (Colly) have proved this fact on the record that even on 13.05.2017, OPs have not yet completed the construction of the project, where the flat of the complainants has been located. The complainant rightly served legal notice dated 16.05.2017 upon OPs, vide Ex.C-5 in this regard. There is no deficiency in service on the part of complainants in making the payments of the sale consideration amounts to OPs. The OPs utilized the hard earned money of the complainants since July 2011 till present. Even at present, the counsel for the OPs could not show any completion certificate under section 14 of papra act for this project or other approvals granted by the competent authorities proving that the flats are operational and are ready for delivery. We find that receiving the sale consideration from consumer by the builder, but by not developing the project and not delivering the possession within stipulated period is gross deficiency in service, besides being an unfair trade practice as well. This tendency on the part of builders has been deprecated by the National Commission in many authorities. The National Commission has held in "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" 2015(IV)CPJ-294(NC) that the builders are enjoying the possession of the apartment as well as substantial amount of sale consideration paid by the consumers by not delivering the legal C.C. No.498 of 2017 9 physical possession of apartment within prescribed period and hence, are guilty of indulging in unfair trade practice. Such type of unscrupulous act on the part of builders should be dealt with heavy hands. The National Commission has also held in "EMAAR MGF Land Limited & another Vs. Dilshad Gill" III(2015)CPJ-329 (NC) as under: "Consumer Protection Act, 1986- Section 2(1)(g), 2(1)(r), 21(a)(ii)- Housing - Allotment of flat- Non-delivery of possession- Deficiency in service- Unfair trade practice- State commission partly allowed complaint- Hence appeal- Appellant did not offer possession within period prescribed under agreement- Appellants themselves have violated material conditions with regard to handing over of possession- Now it does not lie in their mouth to demand further payment from respondent - Appellants have been enjoying substantial amount of money received by them in year 2006, till 2013- Deficiency proved. On the basis of law laid down in the above authorities, we hold that OPs are deficient in service and also indulging in unfair trade practice, thereby entitling the complainant to seek refund of entire deposited amount with interest from OPs.
7. As a result of our above discussion, we accept the complaint of the complainant against OP Nos.1 and 4 after contest and against OP No.2&.3 ex-parte and direct them to refund the entire deposited amounts of Rs.24,61,800/- with interest @12% per annum from the date of their respective deposits till actual payment. We also award compensation of Rs.1,00,000/- for mental C.C. No.498 of 2017 10 harassment and Rs.30,000/- as costs of litigation to complainants. The above amounts shall be payable by OPs to complainants within two months from the date of receipt of certified copy of the order.
8. Arguments in this complaint were heard on 22.03.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases. (J.S. KLAR) PRESIDING JUDICIAL MEMBER March 28, 2018 (Surinder Pal Kaur) DB MEMBER