Haryana

Panchkula

CC/4/2015

INDRA SINGH& ORS. - Complainant(s)

Versus

BHOOMI INFRASTRUCTURE COMPANY. - Opp.Party(s)

SANJEEV SHARMA.

01 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.             

                                                                  

Consumer Complaint No	:	4 of 2015
Date of Institution	:	01.01.2015
Date of Decision	:	01.05.2015

                                                                                          

1.       Indra Singh w/o Sh.Yateender Kundu, R/o C-39, Inderpuri, Delhi.

2.       Yateender Kundu s/o Sh.Bhup Singh, R/o C-39, Inderpuri, Delhi.

                                                                                          ….Complainants

Versus

1.       Bhoomi Infrastructure Company through its Managing Director/General Manager having its Corporate office at Gold City, Plot No.11, Sector 19-D, VASHI, Navi Mumbai.

2.       Bhoomi Infrastructure Company through its partner/proprietor Lt. Col. (Retd) S.S.Deswal having its branch office at House No.1411, Sector-21, Panchkula, Haryana.

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Mr.Mahesh Yadav, Adv., for the complainant.

Op No.1 already ex-parte.

Mr.Yash Pal Singh, Adv., for the Op No.2. (defence struck off).

ORDER

(Dharam Pal, President)

1. The complaint is filed by the complainants-Indra Singh & Yateender Singh under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that the representative of the Ops induced the complainants by presenting a very rosy picture of flats to be sold by the company and entire complex to be developed by Ops within a period of 3 years. The Ops assured the complainants that they were a prominent company of Mumbai and have executed several projects and have developed several complexes at Mumbai. The complainants were also looking for buying a flat in which they would have all comforts of dreams, overlooking the soothing greens and an open view of a well maintained parks, well established infrastructure and hassle free life. The Ops also assured the complainant of free membership of 5 star club, restaurant, card room, Billards room, Gym with health club, Banquet Hall/community centre, Mini theatre, Convenience shops, Dispensary, 24 hours power and water supply, primary school and the entire complex has been conceptualized. The Ops further assured the complainant that the project would be completed within 36 months and the possession of flat would be handed over with complete amenities and infrastructure. On assurance of Ops, the complainant booked a flat No.C-1/102 at 1^st floor, Type C in “Amazon-The Defence County” measuring 1100 sq. ft. for Rs.30,57,500/- in which included basic sale price of Rs.25,85,000/-, club membership charges of Rs.75,000/-, EDC/IDW charges of Rs.2,47,500/-, car parking charges of Rs.1,50,000/- and out of said amount, a discount of Rs.2,58,500/- (10% of basic) was given to the complainants and net price of flat was assessed at Rs.27,99,000/-. Provisional letter dated 24.10.2009 (Annexure C-2) was also issued by the Ops. The Ops assured the complainants that they have purchased the land at Sector-30, Panchkula to set up & develop an integrated township and change in land from agriculture to residential/group housing. The Ops further assured the complainants that they have all necessary approvals/permissions and exemptions to develop and promote township and make allotments of flats to intending purchaser. The Ops further committed that they have got the building plans & lay out plan approved from the competent authorities and have also been accorded necessary approvals & permissions. The Ops also committed that the flats were being constructed as per law and possession of flats would be given by end of year 2012 as the entire project would be completed by that time. On the assurances of the Ops, the complainant paid a sum of Rs.50,000/- vide cheque No.017176 drawn on HSBC Bank, Delhi and Rs.1,00,000/- vide cheque No.612448 drawn on HSBC Bank (Annexure C-3 & C-4) to the Ops for which the Ops issued receipt dated 07.10.2009. The complainant further paid Rs.3,50,000/- and Rs.2,00,000 so the complainant paid a total sum of Rs.7,00,000/-. The Ops confirmed the payments and issued the receipt dated 01.02.2010 (Annexure C-5 & C-6) and acknowledged to adjust a sum of Rs.1,37,500/- towards the favour of complainants. At the time of making the payment, the Ops assured the complainants that they have all the requisite permissions/sanctions from the State Government and showed some documents as to the effect that they have already got the building plans approved. The Ops assured the complainants that they have necessary permission from the municipal committee and maps have also been got sanctioned from the municipal committee/corporation. The Ops further assured the complainant that if they failed to offer the possession of flat within 36 months from the date of application, the company would refund the money alongwith interest. The company has time and again assured the complainants that they would sign the agreement within 15 days with the complainants and in case they failed to do so they would return the money alongwith interest. After making the payments as demanded by the Ops, the complainants performed their part of contract and had been waiting for the agreement to be signed between the parties. However, the Ops failed to get the agreement executed and have illegally retained the hard earned amount of the complainant. At the time of making the payments, complainants were assured that the project was progressing well and agreement to sell should soon be executed between the parties within one month and assured that possession of flat booked by the complainants would be delivered on time i.e. within 36 months of signing of provisional allotment letter. The complainants accepted the version of Ops and believed them, however, the Ops have not carried out the terms and conditions in letter and spirit as required under the provisional letter. The complainant requested several times the Ops for signing the agreement but the Ops did not sign the agreement and kept on assuring the complainant that construction was going on at full swing and possession of flats would be given by the end of year 2012, within 36 months of issuance of allotment letter but the company did not even start any construction at site upto April, 2011 and the complainants were surprised on getting information that the Ops were going to start construction in April, 2010. On 14.04.2010 a farce, bhoomi pojan was created to put up a facade of construction work. However, no actual construction was undertaken even thereafter. On being asked by the complainant about the construction, the Ops assured that construction would be started within a reasonable time of 2 months or in case of failure to do so the Ops would hand over/return the amount deposited with the company alongwith interest. In the year 2011, the Ops called the complainant for signing the buyer agreement and the buyers agreement was executed on 21.06.2011 (actual date is 27.06.2011) (Annexure C-7). Even the Ops did not let the complainants read the buyers agreement and assured the complainants that possession of flat would be handed over by the end of year 2012 but the Ops have failed to hand over the possession of flat rather the Ops were demanding more money. The Ops did not give the copy of buyers agreement to the complainants and told that a copy of buyers agreement would be sent to complainant’s home as the buyers agreement need to be sent to Ops office at Mumbai for signing and registration. After many visits and requests, the complainant got the copy of buyers agreement in October, 2013. After perusing the copy of agreement, the complainant was shocked to know that the Ops have unilaterally changed the date of possession of flat to 36 months from date of signing of buyer agreement dated 21.06.2011 (actual date is 27.06.2011) with an extension of additional 12 months. The Ops also changed the basic sale price of flat as per provisional letter which was Rs.27,99,000/-. The total sale price of flat was Rs.2350/- per sq. ft for 1100 sq. ft. whereas the Ops arbitrarily increased the price of flat by showing basic price of flat of unit/flat in clause 1 of the agreement and have also claimed Rs.75,000/- as club membership fee and Rs.3,23,125/- as EDC. Moreover, the Ops have not started the construction/development at site but arbitrarily raising demands for more money. On 07.03.2014, the Ops wrote a letter stating that they would hand over the possession within time frame of 2 to 2.5 years and assured that they would give a firm schedule for possession and start of construction after receipt of funds and positioning of infrastructure by contractor. The Ops further assured that they would intimate all the allottees about change in management, revised completion schedule and amended payment schedule, however, the Ops have not shared any of the details. The complainants requested the Ops to refund the amount deposited by him as they have failed to handover the possession of the flat in the Amazon-The Defence County but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. Notice was issued to the Op No.1 through registered post but none has appeared on behalf of the Op No.1. It was deemed to have been served. The Op No.1 was proceeded against ex-parte vide order dated 09.02.2015.
3. The counsel for the Op No.2 appeared before this Forum on 23.02.2013 and sought adjournment for filing written statement. On 19.03.2015, the counsel for the OP No.2 again sought adjournment for filing written statement and the case was adjourned to 24.03.2015 for filing written statement alongwith entire evidence. On 24.03.2015, none appeared on behalf of the Op No.2 nor filed any written statement after availing opportunities. Hence, the defence of OP No.2 was struck of vide order dated 24.03.2015. That order has been allowed by OP No.2 to attain finality.
4. During the pendency of the complaint, the Op No.2 filed an application for setting aside the order dated 24.03.2015 and the same was dismissed vide order dated 06.04.2015 on the ground that this Forum has no power to review or recall its own order.
5. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-8 and closed the evidence.
6. We have heard learned counsel for the complainant and have also perused the record and considered the written arguments submitted by the counsel for the Op No.2.
7. It is admitted that in the year 2009, the complainant booked a flat in “Amazon-The Defence County” measuring 1100 sq. ft. for Rs.30,57,500/- in which included basic sale price of Rs.25,85,000/-, club membership charges of Rs.75,000/-, EDC/IDW charges of Rs.2,47,500/-, car parking charges of Rs.1,50,000/-. The Ops allotted the flat No.C-1/102 at first floor, Type C and confirmed the same vide allotment letter dated 24.10.2009 (Annexure C-2).
8. The learned counsel for the complainant has submitted that the terms and conditions were to be as per agreement to be executed between the developer and allottee i.e. buyer. However, the Buyer Agreement was executed on 27.06.2011 (Annexure C-7) after 1½ years of allotment of flats whereas the agreement should be signed immediately after the allotment of flats. Till date execution of agreement, the complainant paid Rs.7,00,000/-. As per clause 26 of the Buyer Agreement, the construction was to be completed within a period of 36 months from the date of Buyer Agreement with addition of 12 months (on a no claim basis) but the Ops initially took almost 1½ years to execute the agreement so they can defer the liability to pay the penalty to the allottee due to non-construction of the flat within stipulated period and utilize the amount paid by the allottee. The learned counsel for the complainant further submitted that in their letter dated 07.03.2014 (Annexure C-8), the Ops admitted that due to some unforeseen reasons the project had got delayed and progress could not be made in the construction activity. After persistent efforts in this direction they had now been able to resolve all the management related issues. The partnership deed of the firm has been constituted and documents in this regard have been completed in all respect. They further admitted that after a series of visits and discussion, they have managed to finalize the road map and flow chart for the construction work to be carried out at the site with continental construction. Tests of work already completed to include steel and concrete tests have been carried out and reports obtained. Movement of plant and machinery coupled with skilled labour is expected to commence shortly.
9. In their written arguments, the Ops raised the objections regarding maintainability of the complaint on the grounds that complaint has been filed is absolutely false and most of the contents other than the facts basis on the documents are erroneous, misconceived, malafied, motivated and have been raised with ulterior motive and as such are unsustainable in the eyes of law and urged that the complainant has not only suppressed and misstated the facts but have also sought to misapply the provision of law. The Ops have failed to place on record any document to show that construction on the site is under progress and would be completed.
10. Moreover, the Op No.1 did not appear to contest the claim of the complainant and preferred to proceed against ex-parte. The Op No.2 appeared but did not file any written statement to contest the claim of the complainant and the defence of Op No.2 was struck off, which draws an adverse inference against them. The non-appearance of the Ops shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted. As such, the same are accepted as correct and deficiency in service on the part of the Ops is proved.
11. In this matter, the deferment of the execution of Buyer’s Agreement for a duration of about 1½ years deserves to be noticed and frowned upon because it is proved to have been done in order to evade liability to pay interest, the liability, therefore, on the part of the Ops was to come into being only after execution thereof.
12. In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are directed as under:-

(i)      To refund the amount of Rs.7,00,000/- to the complainant alongwith interest @ 9% per annum from the date of receipt till realization.

(ii)     To pay an amount of Rs.50,000/- as compensation for mental agony, harassment and deficiency in service.

(iii)    To pay Rs.10,000/- as cost of litigation.

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

Announced

01.05.2015           ANITA KAPOOR                            DHARAM PAL

                             MEMBER                               PRESIDENT

Note: Each and every page of this order has been duly signed by me.      

                                 

                                                         DHARAM PAL                                                                                          PRESIDENT