FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.46 of 2018
Date of Institution : 19.01.2018 Order Reserved on : 20.02.2019 Date of Decision : 05.03.2019 Nidhi Gupta d/o L.B Gupta, corresponding address : House No. 514, Sector 18-B, Chandigarh.
….Complainant
Versus
M/s Hero Realty Private Limited, Hero Homes, Sector 88, SAS Nagar, Mohali Punjab IInd Address :
E-2, Qutab Industrial Estate, Phase-III, New Delhi 110020 ….Opposite party
Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
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Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Shri. Rajinder Kumar Goyal, Member. Present:-
For the complainant : Sh.Sandeep Bhardwaj, Advocate For opposite party : Sh. Rajan Kohli, Advocate
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1) (a) of the Consumer Protection Act 1986 (in short the "Act) against opposite party (in short OP) on the allegations that OP advertised its project in the newspaper and telemarketing of the residential project. OP assured to be in possession of all the legal permissions and approvals for the sale of residential units in the project. The complainant is neither property dealer nor in the business of sale and purchase of property and she wanted to purchase the residential unit for her own use only. She paid amount of Rs.2,50,000/- vide cheque bearing no. 869558 dated 14.12.2015 and Rs.3 lac vide cheque no. 863983 dated 05.02.2016 to OPs, as per above receipts dated 06.02.2017 and 06.02.2016. The complainant visited the spot and found no development work to have been started there by OP. OP issued allotment letter dated 24.02.2016 allotting unit no. T-06/102 on First Floor in Tower T-06 to complainant. OP also obtained signatures of the complainant on application form without executing buyer's agreement till now of this unit. The complainant approached OP and requested it to supply the statutory permissions and approvals for development of the project held by it. The complainant also wrote letter dated 14.03.2017 to OP in this regard and further wrote another letter dated 03.05.2017 and they went unresponded by OP. She wrote letter dated 17.06.2017 to
OP
intimating about not providing requisite documents and further requesting to refund the deposited amounts with interest to her. OP received the amounts from complainant towards sale of the unit by violation of provisions of PAPRA Act 1995. OP was not in possession of requisite permissions and approvals at the time of receiving consideration from her. The complainant has filed complaint praying for below noted reliefs against OP:-
OP be directed to refund the amount of Rs.5,50,000/- along with 18% interest from the respective dates of deposits till realization along with suitable interest till realization. i.
OP be directed to pay Rs.2 lac as compensation for mental harassment and Rs.2 lac as cost of litigation.
ii.
2. Upon notice, OP appeared and filed written reply and contested the claim of the complainant by raising preliminary objections that Manish Singhal has been authorized to file written reply on behalf of OP, vide resolution passed by its Board of Directors on 08.11.2017, vide Annexure R-1. OP undertook the construction and development of residential Group Housing Site No. 1 Sector 88 SAS Nagar Mohali known as Hero Homes. The complainant submitted an Expression of Interest instrument along with part earnest money of Rs.2,50,000/- for booking of said property on 14.12.2015 and further undertook to pay further installments thereof to OPs. She also accepted this condition that in the event of failure of installments by her, OP is authorized to forfeit the earnest money deposited by her. The complainant submitted formal application on 06.02.2016 for allotting the said property and opted to book apartment under the regular
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construction linked plan as specified by her in the said application. As per Clause 13 of the said application, the complainant agreed for forfeiture of the earnest money and other charges in the event of cancellation of the allotment of the said property by OP. OP acknowledged the payment of Rs.2,50,000/- and Rs.3,00,000/- paid by complainant vide receipt dated 06.02.2016. Original receipts of the payment of amount of Rs.5,50,000/- were sent to complainant by OP along with welcome letter dated 06.02.2016.The complainant was informed regarding allotment of apartment no. T-06/102 in her favour, vide allotment letter dated 24.02.2016. OP raised demand for further repayment of Rs.5,39,989/- from complainant. OPs further requested demand of Rs.5,45,492/- from complainant followed by reminder dated 06.06.2016, but no response was received from her. OP raised demand for payment of Rs.5,50,641/- and Rs.8,26,091/- from complainant with photographs of excavation activities carried out in the project, but they went unresponded from her side. The complainant has not deposited the demanded amounts of Rs.8,53,042/- from her. OP also demanded the payment of Rs.14,39,245/- from complainant, vide letter dated 21.03.2017 and also sent the photographs of construction status of the project, but to no effect. OP sent reminder to complainant on 25.04.2017 for payment of Rs.14,52,211/-, but no response was received from her and second reminder was sent to her on 12.05.2017, vide which requested her to pay the outstanding dues in the sum of Rs.14,59,821/-
. OP also sent reminder dated 19.09.2017 to her in that regard, but to no effect. The OP denied the averments of the complainant embodied in the complaint and attributed the fault on the part of complainant only in the averments in the written reply and hence prayed for dismissal of the complaint.
3. The complainant tendered in evidence her affidavit Ex.C-A, affidavit of L.B Gupta as Ex.C-B along with copies of documents Ex.C-1 to Ex.C-9 and closed the evidence. As against it; OP tendered in evidence affidavit of Manish Singhal AGM of OP as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-19 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case.
5. The evidence on the record has also been appraised by us with the able assistance of counsel for the parties. Ex.C-1 is affidavit of Nidhi Gupta stating that OPs failed to provide the necessary sanctions, approvals to her for this project and violation of provisions of PAPRA Act 1995 has been committed by OP. She also relied upon affidavit of L.B Gupta Ex.C-B on the record. Her father stated that documents were not read over and explained to her by OP in this regard. He was asked to sign the documents at various places for the purpose of refund by OP only. It has nowhere transpired in his deposition contained in his affidavit Ex.C-B that he is GPA or SPA or authorized agent of the complainant. He is father of the complainant only. She further deposed in her testimony that she paid the amount of Rs.2,50,000/- on 14.12.2015 and Rs.3 lac on 05.02.2016 to OPs, vide receipt Ex.C-1 to Ex.C-2 on the record. OP sent welcome letter to her Ex.C-3. It has further appeared in her statement that OPs issued allotment letter Ex.C- 4 dated 24.02.2016 to her allotting unit no. T-06/102 on first floor in Tower T-06. She had deposed that OPs have not executed the buyers agreement in her favour. She wrote letters to OPs on 14.03.2017 and letter dated 03.05.2017 for supply of approvals and statutory permissions, but they went unresponded by OP and letters and reminders are Ex.C-2 to Ex.C-8 on the record. She moved letter Ex.C-9 to OPs for refund of the amount with interest thereupon. She alleged the violations of PAPRA Act 1995 in this case on the part of OPs.
6. To refute this evidence of the complainant, witness Manish Singhal has been examined by OPs, vide his affidavit Ex.OP-A, who has stated that board of directors of OP authorized him to defend the case as per resolution dated 08.11.2017 as Ex.OP-1. He admitted this fact that on 14.12.2015 an Expression Interest was submitted by complainant with part earnest money of Rs.2,50,000/- with OP to book the said property and undertaking to pay further installments and accepting the forfeiture clause in the event of failure of payment of installments on her part. The Expression of interest dated 14.12.2015 is Ex.OP-2. OP application for allotment of the apartment dated 06.02.2016 is Ex.OP-3. He further deposed that OP sent receipts to complainant for receipt of amount of Rs.5,50,000/-. OP intimated the complainant that apartment no.T-06/102 has been allotted to her in the project vide Ex.OP-5. The complainant was asked to pay further amounts of Rs.5,39,989/- by OP, vide demand letter cum service invoice Ex.OP-6 dated 26.04.2016. Another amount of Rs.5,45,492/- towards sale price of the unit vide another letter Ex.OP-7 dated 06.06.2016
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was also demanded by OP. This witness stated that no response was received from the complainant to above letters Ex.OP-5 to Ex.OP-8. Photographs for excavation work to initiate development on the project were sent to complainant vide Ex.OP-9 (colly). The complainant was asked to pay outstanding amount of Rs.8,53,042/- to OPs, vide reminder dated 28.10.2016, vide Ex.OP-10 and photographs of construction of status of the project were sent to complainant, but no response was received from her side despite sending reminders Ex.OP-11 to Ex.OP-18 on the record. OPs demanded further amounts from complainant by sending above letters, but they all went unresponded from complainant. OP has been registered under Real Estate (Regulation & Development), Act 2016 and Rules made thereunder by the Government of Punjab on 25.09.2017 vide Ex.OP-19 on the record.
7. From appraisal of material evidence on the record and hearing respective submissions of counsel for the parties, we find that it is a commercial project developed by OP and as such, complainant is consumer since she has applied for purchasing this commercial unit for her exclusive residence. There is no dispute of this fact that complainant paid Rs.5,50,000/- to OP on 06.02.2016. OP sent welcome letter to complainant on 06.02.2016 for applying in this project. Allotment letter Ex.C-4 allotting the unit no.T- 06/102 on Ist floor in Tower T-06 of 3 bedroom. This allotment was provisional subject to terms and conditions forming part of the application. The payment plan is Ex.C-5 on the record. The complainant was required to make payment of the sale amount to OP as per stages of constructions of the unit. The complainant paid only Rs.2,50,000/- for booking and Rs.3,00,000/- within 30 days of application only. The complainant has not paid further installments as per stages of the construction to OP as enjoined upon her by the documents. The complainant wrote letter Ex.C-6 demanding documents from OP as followed by reminder Ex.C-6/A and Ex.C-7 to Ex.C-9 on the record.
8. On the other hand, OP relied upon "Expression of Interest" Ex.OP-2 on the record. The submission of counsel for complainant is that it is only signed by father of the complainant and father of the complainant is recorded as GPA of complainant on it. OP must have allowed the father of the complainant to sign application being GPA of complainant at that time, as mentioned in the application. The basic case of the OP is that complainant has not released any payments to them as per payment plan undertaken by her at different stages of construction of the unit. The complainant only paid the amount of Rs.2,50,000/- at booking time and Rs.3 lac within 30 days of application only. No further amount has been paid by complainant as per stages of construction to OP. The complainant has not obtained any information under RTI Act from Public Relation Officer concerned that OP held no license to develop the project and held no sanctions or approval from the competent authorities for development of the project. The complainant has asserted this fact orally, which has not been specifically admitted by OP on the record. The complainant must have obtained the requisite information from Public Relation Officer under RTI Act to this effect to establish this point that OP received consideration amount without holding a license or without holding requisite approvals by the competent authorities. Unless there is specific admission to this effect of OP, it cannot be said that complainant has proved that OP developed the project without license and without holding approvals. The proper course for complainant was to obtain the information under RTI Act from GMADA to prove this fact on the record. Why complainant has not paid any of the installments at the stage of the construction to OP remained unexplained on the record by her. It has appeared in the evidence of OP that even photographs of excavation and other process with regard to development activity on the project were duly sent to the complainant. It seems that complainant is hellbent to run away from this allotment and is only interested to seek the refund of the amount.
9. The next point for adjudication in this case is whether the complainant is entitled to seek refund of the amount without any forfeiture or with forfeiture thereon. Clause 13 of general particulars of the application makes it clear that in case the applicant requests to cancel the allotment of the apartment , the earnest money together with interest paid shall stands forfeited by the company within 90 days of such cancellation, subject to receipt of all original documents of the allotment. It is evident from perusal of record that no payment of installments were made by complainant as per stages of construction to OP as specifically undertaken by her. The complainant wants to seek refund of the earnest money without any forfeiture on the part of OP. The complainant paid an amount of Rs.2,50,000/- on 14.12.2015 to OP for booking of this project. As per Clause 16, OP was to deliver possession to complainant within a period of 42
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months , which was to expire on 14.12.2019. The complainant filed complaint even before the date scheduled for delivery of possession of 42 months. The complainant has field this complaint in the year 2018 on 19.01.2018, when cause of action has not accrued to complainant as 42 months period stipulated for delivery of possession by clause 16 has not expired. The complainant relied upon law laid down by
State Consumer Disputes Redressal Commission U.T Chandigarh in case titled as "Dalip Goyal and another versus Omax Chandigarh Extension Developers Pvt. Ltd.", and another law laid down by State Commission U.T Chandigarh in Consumer Complaint no. 897 of 2016 decided on 01.05.2017 and another complaint case titled as "Jaspreet Singh versus M/s Manohar Infrastructure & Constructions Pvt. Ltd" in consumer complaint no.335 of 2018 decided on 29.01.2019. We find the fact situation of this case indicates the default on the part of the complainant herself in not making the payments of further amounts to OP. No installments has been paid by complainant to OP as per stages of construction, when construction started by OP. No photographs have been placed on record by complainant to substantiate her point of view. As per Clause 13 of the above documents, OP is authorized to forfeit the earnest money together with interest in case of cancellation of the allotment on account of failure of payments by complainant. We find no deficiency in service or unfair trade practice on the part of OP in this case and it is complainant who has not has paid installments to OP as per stages of the construction undertaken by her and she herself is to blame for not performing her part.
10. As a result of our discussion, there is no merit in the complaint and same is hereby dismissed.
11. Arguments in this complaint were heard on 20.02.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
(RAJINDER KUMAR GOYAL)
MEMBER
March 5 , 2019 (ravi)
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