PER PADMA PANDEY, MEMBER
This appeal is directed against the order dated 17.10.2018, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short 'the Forum' only), vide which, it allowed Consumer Complaint bearing No.557 of 2017 qua Opposite Parties No.1 to 4, which reads as under :-
"10] Taking into consideration the facts & circumstances of the case, as discussed in the preceding paragraphs, the complaint is hereby allowed. Accordingly, the OPs No.1 to 4 are jointly & severally directed to refund the total amount of Rs.10,80,689/- to the complainants, with interest @12% per annum from the respective date of deposit(s) and also to pay compensation of Rs.50,000/- for causing them mental & physical harassment along with litigation cost of Rs.10,000/-, within a period of 30 days from the date of receipt of copy of this order."
2. The Forum noted down the following facts narrated by the complainants :-
"The case of the complainant, in brief is that, they on 8.5.2014 applied with OPs No.1 & 2 for residential flat in the project namely "Premium Homes" of OPs No.3 & 4 in Gulmohar Valley, Lalru, District SAS Nagar, Punjab for personal use and the total cost of the flat was Rs.12,39,000/-. The complainant paid Rs.60,000/- to the Opposite Parties on 14.5.2014 along with the application form and then paid Rs.1,20,000/- on 23.6.2014 and Rs.1,20,000/- on 20.8.2014 respectively with Opposite Parties No.1 & 2 against receipt. Thereafter, the complainants and Opposite Parties NO.3 & 4 have entered into Apartment Buyer Agreement on 17.10.2014 and paid Rs.39,000/- in cash to OPs No.3 & 4. It is averred that the Opposite Parties NO.3 & 4 allotted Flat No.347-C, measuring 645 sq. ft. on 2ndFloor, Premium Homes, Gulmohar Valley, Lalru, District SAS Nagar, Punjab vide Allotment letter dated 25.2.2015. It is also averred that as per Clause No.10 of the Apartment Buyer Agreement, the Opposite Parties NO.3 & 4 were to deliver the possession of said flat to the complainant within 24 months from the date of execution of the Agreement. It is submitted that the complainants also availed loan from Opposite Party NO.5 for the said flat and paying the regular installment to the Opposite Parties as well as of loan amount and in this way, the complainant paid a total sum of Rs.10,80,689/-(i.e. Rs.6,39,000/- + Rs.4,41,689/- vide Ann.C-4 & C-7) to the OPs. It is also submitted that the complainants visited the site in 2016 & 2017, but the work at the site as well as of the allotted flat has not been completed. As such, the complainants sought refund from the Opposite Parties of their deposited amount, but to no avail. Hence, this complaint has been filed for claim of Rs.10,80,689/- with interest, along with compensation and litigation cost alleging deficiency in service and unfair trade practice on the part of Opposite Parties."
3. The Forum noted down the following facts narrated by Opposite Parties No.1 & 2 to the complaint filed by the complainants :-
"2] The Opposite Parties No.1 & 2 have filed reply stating that they were engaged to monitor, supervise and to receive the payments on behalf of M/s Punjab Empires Pvt. Ltd./OPs No.3 & 4. It is stated that the OPs No.1 & 2 simply took Rs.6 lacs and further paid
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it to Opposite Parties No.3 & 4 before the execution of the Apartment Buyer Agreement, which is the actual developer of Premium Homes. It is stated that the OPs No.1 & 2 did not gave any assurance about the delivery of the flat. It is also stated that the payments were made to Opposite Parties NO.3 & 4, the agreement was also executed with Opposite Parties No.3 & 4 and the possession was to be delivered by OPs No.3 & 4 only. Pleading no deficiency in service and denying rest of the allegations, the Opposite Parties No.1 & 2 have prayed for dismissal of the complaint qua them."
4. The Forum noted down the following facts narrated by Opposite Parties No.3 & 4 to the complaint filed by the complainants :-
"The Opposite Parties No.3 & 4 have also filed reply and while admitting the factual matrix of the case, denied that they have failed to deliver the possession of the flat to the complainants. It is submitted that the flat in question has been fully finished in all respects within a stipulated period of two years and it is the buyers i.e. complainant, who did not come forward to pay the balance amount of more than Rs.2 lacs plus registration charges, to take the possession in time. It is stated that the flat in question, so applied by the complainant was not for their personal use, rather, it has been applied with intention to make profits by selling it further. The payment of Rs.10,41,689/- is admitted to have been made by the complainants against the flat in question. It is submitted that the flat in question was ready in all respect, in the year 2016 and fully finished for possession of the complainants, but they themselves did not turn up to take possession and to make balance payment due to recession in the real estate market. It is further submitted that the OPs NO.3 & 4 are still willing to give possession to the complainants subject to clearance of all dues. Denying other allegations and pleading no deficiency in service, the Opposite Parties have prayed for dismissal of the complaint."
5. The Forum noted down the following facts narrated by Opposite Party No.5 to the complaint filed by the complainants :-
"The Opposite Party No.5 has filed short reply stating therein that the flat in question has been mortgaged to it and against it an amount of Rs.4,41,689/- is payable by the complainant. It is stated that Opposite Party No.5 is only a financer who, on the application of the complainants has agreed to finance a loan facility to them and as such paid an amount of Rs.4,41,689/-. Denying other allegations, the Opposite Party No.5 has prayed for dismissal of the complaint qua it."
6. The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
7. The parties led evidence, in support of their case.
8. After hearing Counsel for the contesting parties and, on going through the evidence, and record of the case, the Forum, allowed the complaint qua Opposite Parties No.1 to 4, as stated above.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants.
10. We have heard the Counsel for the appellants, and have gone through the evidence and record of the case, carefully.
11. Counsel for the appellants has submitted that the Forum has wrongly came to the conclusion that the appellants failed to execute and develop the project, as per their commitment, which is contrary to the Agreement executed between the parties. He further submitted that the respondents/complainants cannot force the appellants to develop the whole project, which spreads into many acres of land and that too in the eventuality when the block in which the flat, in question, is situated, is fully finished in all respect. He
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further submitted that the report of the Local Commissioner has been misread by the Forum, whereas, actual position is that the flat, in question, is fully finished in all respects, except an electricity, which is to be taken by the complainants after getting the sale deed executed in their favour and water connection, which is to be connected with the main water line only when they agreed to take the possession. He further submitted that the complainants have not paid the full consideration amount to the appellants and still an amount of Rs.2 lakhs is still against them, therefore, due to non payment of the requisite amount, as per the Agreement, the amount stands forfeited. He further submitted that the flat, in question, had been got fully finished, as such, prayed for setting aside the impugned order and allowing the appeal.
12. After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter.
13. The core question that falls for consideration before us is as to whether the Forum has rightly passed the impugned order. The answer to this question is in the affirmative. Exhibit C-1 is a copy of application form. From this document, it is proved that the complainants booked the unit in the project of Opposite Parties No.3 & 4, namely, "Premium Homes", Gulmohar Valley, Lalru, District SAS Nagar, Punjab through Allied Infrazone & Developers Pvt. Ltd. Exhibit C-4 is a copy of Apartment Buyer Agreement dated 17.10.2014. From this document, it is proved that apartment No.347-C was booked in the project of the Builder for total consideration of Rs.12,39,000/-. It is also the admitted fact that the complainants paid the total amount of Rs.10,80,689/- in respect of the unit, in question. According to Clause 10 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement, failing which, compensation @Rs.5/- per sq. Ft. of the super built up area per month as holding charges for the entire period of such delay was to be given. In the instant case, Agreement was executed on 17.10.2014, as such, if we counted 24 months from 17.10.2014, the possession would be delivered to the complainants latest by 16.10.2016 and not more than that. However, the developer failed to offer possession of the unit, in question, to the complainants. A perusal of the zimini order dated 19.07.2018 of the Forum clearly reveals that Sh.Arjun Sharma, Advocate was appointed as Local Commissioner by the Forum, who directed to visit the spot on 22.07.2018 at 12.00 O'clock and give status report as to whether the flat in question is ready for possession or there is still any shortcomings therein. The Local Commissioner submitted his report on 31.07.2018, in which, the relevant portion of the said report reads thus :-
"The flat shown was basically complete in structural sense but there were certain discrepancies, which are as follows :-
a. Sanitary fittings are provided in both the bathrooms and the kitchen but the same were not yet operational due to lack of water connection. The said fact further got substantiated after I inspected the terrace, as though the terrace did have water tanks for all the 6 flats in the building but these water tanks were not connected to any water source from the outside.
b. Toilet commodes provided in both the bathrooms were old and used and were not fixed. The same were just as a mere eye wash.
c. Electrical sockets were provided but there was no electricity connection, as of now. On asking from the Opposite Parties representative, Mr.Vinod Kumar, it was informed that the same is provided only when the party gives an actual date of moving in the flat.
d. Cupboards provided in the room and the kitchen needs to be polished.
e. In the front and rear balconies, paint needs to be done. The plaster already done is completely worn out.
f. Even the window panes need to be painted and there were no glasses on the window panes."
Not only this, the Local Commissioner also mentioned that even the project is incomplete in various sense and there are lot of towers that still needs to be constructed. He also placed on record photographs of the building and flat to prove the said fact. A bare perusal of the afore-extracted report of the Local Commissioner and photographs clearly reveal that the said flat is in shabby condition and not completed in all respects.
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It may be stated here that non-delivery of possession of the unit, in question, complete in all respects, by the stipulated date, is a material violation of the terms and conditions of the Agreement. It is not the case of the Builder that the said delay occurred, on account of force majeure circumstances, met by them, on account of some stay or any other valid reason. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
"I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest."
Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.
Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
In view of the above, it is held that since there was a material violation on the part of the Builder, in not handing over physical possession of the unit, complete in all respects, within the stipulated date, as mentioned in the Agreement, the complainant was at liberty, not to accept the offer made after a long delay, and on the other hand, was right by seeking refund of the amount deposited, alongwith interest and compensation, by way of filing the instant complaint.
14. As far as the plea taken by the appellants, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (appellants) case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints due to deficiency in service rendered by the appellants or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the appellants, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and
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conditions of the Agreement. In this view of the matter, the plea taken by the appellants, in this regard, has no legs to stand and is accordingly rejected.
15. For the reasons recorded above, we are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity. Hence, the appeal, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the Forum is upheld.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion. Pronounced.
09.01.2019.
[JUSTICE JASBIR SINGH (RETD.)]
[PRESIDENT]
(PADMA PANDEY)
MEMBER
(RAJESH K. ARYA)
MEMBER
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