Chandigarh

DF-II

CC/242/2022

Sanjay Kakar - Complainant(s)

Versus

ATS Estates Pvt.Ltd. - Opp.Party(s)

Adv.Jasjit Singh Rattu

10 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	242 of 2022
Date  of  Institution	:	10.03.2022
Date   of   Decision	:	10.05.2024

 

 

 

 

 

Sanjay Kakar son of Sh. Satish Chandra Kakar, r/o House No. 1036, Sector 27-B, Chandigarh.

 

             …..Complainant

 

Versus

1]  ATS Estates Pvt. Ltd. 711/92, Deepali, Nehru Place, New Delhi-110019 through its Authorized Signatory.

2]  ATS Tower, Plot No. 16, Sector 135, NOIDA, UP through its authorized signatory.

3]  General Manager, ATS Golf Meadows Lifestyle, Village Madhopur, Tehsil Dera Bassi, District SAS Nagar (Mohali)

4]  Getamber Anand Managing Director ATS Tower, Plot No.16, Sector 135, NOIDA, UP

5]  Poonam Anand Director ATS Tower, Plot No.16, Sector 135, NOIDA, UP

6]  HDFC Bank Limited, SCO No. 153-155, Madhya Marg, Sector 8-C, Chandigarh through its authorized representative Nandan Singh/Aditya Kochar/Sanjeev Chugh/Sachin Kapoor.

    ….. Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Present:     Complainant in person

None for OPs No.1 to 5

Ms.Neetu Singh, Counsel for OP No.6.

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

         The complainant has filed the present complaint pleading that the complainant booked one flat No.10123 on 12^th Floor of Tower/Building No.10 of OP Company having super area of appro. 1900 sq. ft. (176.51 sq. mt.) along with 01 No. of car parking in ATS Gold Meadows Lifestyle-1 on 01.10.2016 and paid a sum of Rs.7,40,644/- as booking amount (Ann.C-1 & c-2).  Thereafter, Buyer Agreement was entered into between the complainant and OP Company on 05.10.2016 (Ann.C-3) in respect of the booked flat and basic price of the flat was fixed at Rs.47,25,000/- plus Rs.50,000/- as IFMS (Interest Free Maintenance Security) i.e. total Rs.47,75,000/- and he also been issued Provisional Allotment Letter dated 05.10.2016 (Ann.C-4).  It is stated that as per said Buyer Agreement dated 05.10.2016, the possession of the apartment/unit/flat was to be delivered by the OP Company within a period of 42 months with grace period of six months.  It is averred that the complainant approached HDFC Bank to avail loan and for that a Tripartite Agreement dated 17.10.2016 was executed between the complainant, OP Company and HDFC Ltd. (Ann.C-6) and at that time the OP Company informed the HDFC that they have obtained necessary permission. Approvals/sanctions for construction of said building from all concerned competent authorities.  Accordingly, the HDFC issued cheque of Rs.15,48,549/- in the name of OP Company /ATS Gold Meadows Lifestyle (Ann.C-8) and complainant paid Rs.74,419/- on 28.10.2016 to OP Company for service tax in the name of OP Company (Ann.C-9).  However, the OPs No.1 to 5 failed to offer the possession of the apartment in question despite several emails sent by the complainant from 11.2.2019 till 51.1.2022 (Ann.C-11 colly).  Ultimately, the complainant, after arranging momney from his near and dears, repaid the loan amount to HDFC on 24.11.2019 (Ann.C-12), which the bank confirmed vide letter dated 14.12.2019 (Ann.C-13).  It is submitted that though the possession of the unit in question was to be delivered  within 42 months from the agreement but the OPs No.1 to 5 neither deliver the possession of the unit it even after a period of more than 6 years nor made any payment of compensation in lieu of delay in handing over the possession. Hence, the present complaint has been filed alleging the said act & conduct of the OPs No.1 to 5 as deficiency in service and unfair trade practice with a prayer to direct the OPs No.1 to 5 to refund an amount of Rs.23,63,612/- with interest as well as to pay compensation for harassment & mental agony, penalty for delay and litigation cost.

 

2]       After service of notice upon the OPs, the OPs No.1 to 5 appeared before this Commission and filed their written version raising some preliminary objections that the complainant is not consumer as the unit in question as purchased by him for commercial purposes etc. The OPs while admitting the allotment of apartment, execution of Buyer Agreement and receipt of Rs.23,63,000/- from the complainant in respect of the apartment in question against its sale price of Rs.47,75,000/-, stated that the complainant had made the said payment in the year 2016 and thereafter did not pay any amount i.e. almost since seven years towards the balance sale consideration of the Unit in question and therefore not entitled to any relief. Denying all other allegations, the OPs No.1 to 5 have prayed for dismissal of the complaint. 

 

3]       The OP No.5-HDFC Limited has filed short reply stating that the complainant had availed a long of Rs.16,53,750/- from it in respect of the unit in question and as on date, the loan availed by the complainant stands prepaid (Ann.OP-6/1).  It is stated that there are not allegations against answering OP No.5, hence it is prayed that the complaint qua it be dismissed.

 

4]        Replication has also been filed by the complainant controverting the assertions of OPs No.1 to 5 as made in their written version.

 

5]       Parties led evidence in support of their contentions.

4]       We have heard the ld.Counsel for the contesting parties and have gone through entire documents on record including written arguments.

5]       The perusal of the record establishes that the complainant has admittedly been allotted one Flat bearing No.10123, Type-C, 12^th Floor, Tower No.10 in ATS Gold Meadows Lifestyle, Tehsil Derabassi, Distt. Mohali, Punjab, by the OPs No.1 to 5 (Ann.C-4) and a Buyer Agreement was also executed between the complainant and OPs on 05.10.2016 (Ann.C-3) in respect of the apartment in question.  It is also admitted by the OPs No.1 to 5 that they had received an Rs.23,63,000/- from the complainant in respect of the apartment in question against its sale price of Rs.47,75,000/-.  It is observed that the OPs No.1 to 5 have not denied that the possession of the flat in question was to be delivered to the complainant within 42 months with extension of 6 month grace period from the date of agreement dated 05.10.2016.  It is also observed that the OPs No.1 to 5 have failed to justify valid reason for not delivering the possession of the allotted flat to the complainant till date despite receipt of substantial amount even after a period of more than 7 years had already lapsed till date since the date of booking & allotment i.e. October, 2016. Thus it is clear that the OP No.1 Company failed to fulfill its contractual obligation by offering the possession of the plot to the complainant, having basic amenities, within a reasonable time period nor refunded the amount. Moreover, the OP No.1 Company has failed to justify its act of collecting of amount from the complainant without getting necessary approvals and sanctions from all the concerned authorities required as per law before collection of amount for the allotment of the apartment in the year 2016.

6]       It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed:

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

          Hence, the act of the Opposite Party No.1 Company to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the unit in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

7]       In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

 

8]       Under above mentioned facts, the complainant is not obliged to accept any other offer of OP No.1 Company when its failed to honour the commitment/promise made with complainant. Therefore, the deficiency in service as well as unfair trade practice adopted by the OP No.1 Company is clearly established, which not only caused huge financial loss to the complainant but also caused immense harassment & mental agony.    

9]       Taking into consideration the above discussion and findings, it is proved on record that the Opposite Party No.1 Company is deficient in rendering required service to the complainant and indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.1 Company.  Therefore, the present complaint stands partly allowed against the Opposite Party No.1 Company with directions to refund to the complainant the entire deposited amount of Rs.23,63,612/- along with interest @10% per annum from the respective date(s) of its deposit, till the date of its actual payment to the complainant.

         This order shall be complied with by the Opposite Party No.1 Company within a period of 90 days from the date of receipt of its certified copy.

 

10]      The complaint qua remaining OPs stands dismissed.

11]      Pending application(s), if any, stands disposed of accordingly.    

         The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

10.05.2024                                                      

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER