STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.      Greenview Land & Buildcon Ltd., SCO No.854, NAC, Manimajra, Chandigarh through its Managing Director.

2.    Sh. Sandeep Bansal, Director of Greenview Land & Buildcon Ltd., SCO No.854, NAC, Manimajra, Chandigarh.

3.    Sh. Anil Bansal, Director of Greenview Land and Buildcon Ltd., SCO No.854, NAC, Manimajra, Chandigarh.

……Appellants

V e r s u s

Arun Kumar Chhabra, son of Late Dr. A.D.Chhabra, resident of House No.405, Hal Township, Kanpur, Uttar Pradesh

              ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Sh. A. K. Jaiswal Advocate for the appellants.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.               This appeal is directed against the order dated 16.12.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, and directed the Opposite Parties, as under:-

“ (i) to refund an amount of Rs.7,32,500/-  to the     complainant along with interest 9% per annum        from the date of respective deposits till actual        payment.

  (ii)to pay a sum of Rs.7,000/- to the complainant          as costs of litigation. 

This order be complied with by the OP, jointly and severally, within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.7,32,500/- to the complainant along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation”.

2.               The facts, in brief, are that the complainant, on the verbal assurance of Opposite Parties No.2 and 3, booked a flat No.14-B with Opposite Party No.1, on 15.12.2005, in the proposed Greenview Apartments II, at Village Lohgarh, NAC, Zirakpur. He paid Rs.50,000/-, at the time of booking the said flat. After accepting the booking amount, Opposite Party No.1 allotted Flat No.14-B, First Floor, in the proposed Greenview Apartments II, at Village Lohgarh NAC, Zirakpur, vide allotment letter dated 20.1.2006 (Annexure C-2). The total price of the flat, was fixed at Rs.22,75,000/-. The possession of the flat was to be delivered by October, 2006. An agreement to sell dated 20.01.2006, was executed between the parties. The complainant paid three installments of Rs.2,27,500/-, each on 20.01.2006, 22.02.2006 and 31.03.2006 respectively,  vide receipts (Annexures C-4 to C-6). It was stated that despite the fact that the complainant had already paid, a sum of Rs.7,32,500/-, the construction of the allotted flat, had not started at all. In the month of September 2006, when the complainant, alongwith his friend Yogesh, approached the office of Opposite Party No.2, he was told that the requisite permissions, as also the No Objection Certificate(hereinafter to be referred as NOC), from pollution angle, were still awaited from the competent authorities, and, therefore, the construction could not be started and possession of the allotted flat, could not be delivered to him, by the stipulated date. The complainant again enquired about the status of his flat, in the month of January 2007, and on 08.05.2009. Even, by that time, the construction of the flat, in question, had not been started. Later on, the complainant came to know, that the Opposite Parties had sold his flat, to someone else, without any notice and without obtaining his consent.      It was further stated that the Opposite Parties, were asked to refund the amount, deposited by the complainant, alongwith interest, but to no avail. 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 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for refund of Rs.7,32,500/- or in the alternative for possession of the flat, in question, and compensation in the sum of Rs.10,000/-, for mental agony and physical harassment, was filed.

3.               In the written version, filed by the Opposite Parties, the factum regarding the allotment of Flat No.14-B, First Floor, in the proposed Greenview Apartments II, at Village Lohgarh, NAC, Zirakpur, vide allotment letter dated 20.1.2006 (Annexure C-2),  was admitted. It was also admitted that the complainant had paid a sum of Rs.7,32,500/-, out of the total sale price of Rs.22,75,000/-. It was stated that, thereafter, in violation of the terms and conditions of the allotment letter further payment of  installments, towards the price, of the flat, were stopped by the complainant. It was further stated that  the payment of installments, as per the terms and conditions of the allotment letter, was the essence, for timely completion of the project. It was further stated that, in case, the purchaser failed to pay any installment, with interest within 3 months, when the same became due, no further notice was required to be given to him, and the flat was liable to be cancelled. It was further stated that Opposite Party No. 1, was suffering huge losses, due to recession, in the real estate market. It was further stated that the project was completed, by paying huge amount of interest, to the Bank. It was further stated that the complainant was offered the possession of  flat, within 10 days from 06.01.2010, subject to clearance of the outstanding balance amount alongwith interest @24% per annum, but he (complainant) failed to do so. It was further stated that since the Opposite Parties, had to pay heavy interest, to the Bank, the flat of the complainant was sold to some other prospective buyer, to clear the debt.  It was denied that the requisite permissions for raising construction, and the NOC, from the Pollution Control Board, had not been obtained by the Opposite Parties, before launching the project. 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. It was further stated that the entire fault lay, on the shoulders of the complainant, as he stopped making payment of installments, aforesaid. The remaining averments, were denied, being wrong.

4.               The Parties led evidence, in support of their case.

5.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

6.               Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

7.               We have heard the Counsel for the appellants, and, have gone through the evidence, and record of the case, carefully. 

8.               The Counsel for the appellants, submitted that the requisite permissions, had already been granted, to the Opposite Parties, for raising necessary construction. He further submitted that even NOC, by the Pollution Control Board, had been granted to the Opposite Parties, before starting the construction. He further submitted that, no doubt, the flat, in question, was allotted to the complainant, but after making payment of Rs.7,32,500/-, he failed to make payment of the remaining installments, towards the price of the flat, and, as such, he was at fault. He further submitted that, as per the terms and conditions of the allotment letter aforesaid, in case any installment was not paid by the complainant, within 3 months,  on the date, it became due, then the allotment stood automatically cancelled. He further submitted that, even from copy of the sale deed, Annexure R-4, it was evident that the construction of flats had been completed, in the Greenview Apartments, Lohgarh, NAC Zirakpur, and the possession of one flat was handed over to one of the vendees. He further submitted that the appellants were neither deficient, in rendering service, nor indulged into unfair trade practice, but the District Forum, fell  into a grave error, in accepting the complaint. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.

9.               Undisputedly, the complainant booked a flat, with Opposite Party No.1, on the assurance of Opposite Parties No.2 and 3 on 15.12.2005, and paid a sum of Rs.50,000/-, as booking amount, vide receipt Annexure C-1. The allotment letter Annexure C-2 dated 20.01.2006, of flat number 14-B, First Floor, in the proposed Greenview Apartments II, at Village Lohgarh, NAC, Zirakpur, was issued, in favour of the complainant. The total price of the flat was Rs.22,75,000/-. Admittedly, a sum of Rs.7,32,500/-, by way of installments, was paid by the complainant, to the Opposite Parties. The offer of possession, as per this allotment letter, was to be made in October 2006. Annexure C-6 is the letter dated 08.05.2009, which was written by Yogesh Chawla, through whom, the complainant, contacted Opposite Parties No.2 and 3, to the Director of Opposite Party No.1, to the effect, that the possession had not been delivered to the complainant. The Opposite Parties failed to produce any documentary evidence, to the effect, that the requisite permissions, from the competent authorities, for raising construction and NOC from the Pollution Control Board, had been obtained by them, before booking the flat, and issuance of allotment letter, to the complainant. The case of the complainant was that the requisite permissions  from the competent authorities,  and  NOC  from the Pollution Control Board, had not been obtained by the Opposite Parties, therefore, the construction in the absence of the same, could not be started and, thus, the question of possession of the flat to him, by the stipulated date, did not at all arise. In case, the Opposite Parties were in possession of the documentary evidence, of having obtained the aforesaid permissions and NOC, then they could very well produce the same. Annexure R-4, copy of the sale deed dated 15.06.2007, vide which possession of the flat in the proposed Greenview Apartments at Village Lohgarh, NAC, Zirakpur, was given to Mr.Roopak Aggarwal, does not relate to the proposed Greenview Apartments II, at Village Lohgarh, NAC, Zirakpur. Greenview Apartments II and Greenview Apartments, are two different apartments, at different locations, at Village Lohgarh. If, the Opposite Parties, gave possession of some flat to  one Roopak Aggarwal, located in Greenview Apartments, village Lohgarh, NAC Zirakpur, that did not have any concern or connection, with the allotment letter dated 20.01.2006 Annexure C-2, issued in favour of the complainant, in Greenview Apartments II at Village Lohgarh, NAC, Zirakpur. No help, therefore, can be sought, by the Counsel for the appellants/Opposite Parties, from Annexure R-4, aforesaid.

10.            Annexure C-2 is the letter dated 16.03.2009 regarding the grant of PSEB clearance for licence u/s  5 of PAPR Act 1995 to M/s Greenview Land and Buildcon Ltd., Chandigarh, for 4840 sq. yards colony Green View Heights at Village Bhabat, Zirakpur. Annexure C-2, does not relate to Greenview Apartments II, at village Lohgarh, wherein the flat, in question, was allotted to the complainant. Since the Opposite Parties, failed to prove that necessary permissions from the competent authorities and NOC, from the Punjab Pollution Control Board, had been obtained by them, before launching the project, it could be said that they collected money, from the prospective  vendees, just with a view to cheat them, without an intention to abide by the commitment, to deliver possession, by the stipulated date. In Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7 (NC), it was held that non-obtaining of the requisite permissions, from the competent authorities, for raising construction and NOC from the Pollution Control Board, before launching the project, amounted to indulgence into unfair trade practice, on the part of the builder. The District Forum, was, thus, right in recording the findings, that the Opposite Parties, indulged into unfair trade practice, by obtaining part payment from the complainant, in respect of the flat, in question, especially, when they had no permissions for raising construction, as also NOC from the Pollution Control Board. The findings of the District Forum, in this regard, being correct, are affirmed.  

11.            No doubt, it was submitted by the Counsel for the appellants, that since the complainant failed to deposit the remaining installments, towards the price of the flat, he committed default, as per the terms and conditions of allotment letter Annexure C-2, and as such, the allotment was cancelled and he (complainant), was not entitled to the refund of any amount. It may be stated here, that when upto 2009, the complainant waited for the delivery of possession of the flat, in question and came to know that necessary permissions from the competent authorities, as also NOC from the Pollution Control Board,  had not been obtained by the Opposite Parties, for raising construction etc., nor the construction in the absence, thereof could be started, he was, within his right, to stop making payment of further installments. In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. The possession was not delivered to the complainant, as the approved layout plans were not supplied. Thus, the payment of further installments was stopped by the complainant. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the consumer/complainant. It was further held that the builder cannot forfeit the entire money, paid by the complainant, on account of his own fault, in not carrying out the development work. It was further held that such a Clause, in the agreement, amounted to unfair trade practice. Ultimately, the Hon’ble National Consumer Disputes Redressal Commission, ordered the refund of amount with interest. The observations made in Prasad Homes Private Limited`s case (supra),are fully applicable to the facts of the instant case. The District Forum, was, thus, right in holding that the complainant was legally correct, in stopping the payment of further installments, as no construction at the site, had been carried out by the Opposite Parties. The appellants/Opposite Parties, by not refunding the amount, deposited by the complainant, alongwith interest thereon, were grossly deficient, in rendering service. The order of the District Forum, being legal and valid, is liable to be upheld.

12.            No other point, was urged, by the Counsel for the appellants.

13.            The order, passed by the District Forum, being based on the correct appreciation of evidence, and, law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

14.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

15.            Certified Copies of this order be sent to the parties, free of charge.

16.            The file be consigned to Record Room, after completion

Pronounced.

February 1, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Rg