Chandigarh

DF-II

CC/565/2020

Atul Kumar Goel - Complainant(s)

Versus

Chandigarh Green Fields Pvt. Ltd. - Opp.Party(s)

Ashish Gupta Adv

03 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	565/2020
Date of Institution	:	21.10.2020
Date of Decision	:	03.05.2024

 

                                       

               

Atul Kumar Goel, aged about 50 years, son of R.B. Gupta resident of 5/66, Ground Floor, Sector-2, Rajender Nagar, Sahibabad, Ghaziabad (UP)-201005 (Email ID: goel2u@gmail.com)

…..Complainant

Versus

1.     Chandigarh Green Fields Pvt. Ltd., Through its Director Sanjay Chugh, now having its registered office at SCO 324, (BASEMENT), Sector 37-A, Chandigarh;

Also at:

Acme Alvista- Smart Homes, Sector-126, Shivalik City, Chhaju Majra Road, Mohali, SAS Nagar, Punjab- 140301

e-mail address of concerned person: divya1.alvista@gmail.com

2.     Sanjay Chugh, Director Chandigarh Green Fields Pvt. Ltd., now having its registered office at SCO 324, (BASEMENT), Sector 37-A, Chandigarh;

Also at:

Acme Alvista- Smart Homes, Sector-126, Shivalik City, Chhaju Majra Road, Mohali, SAS Nagar, Punjab- 140301.

        e-mail address: sanjaychugh7@gmail.com

….Opposite Party(s)

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER

 

 

PRESENT:-
	Sh.Ashish Gupta, Counsel for complainant Sh.Kartik, Adv. Proxy for Sh.Sandeep Suri, Counsel for OPs.

       

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

1.         The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019, as amended up-to-date pleading therein that  in pursuance to his application, OP No. 1 vide letter dated 20.03.2023 made an allotment of a residential Three Bedroom apartment bearing no. 206-D having an area of approx. 1625 sq. ft. on 6th Floor in Block-2 in aforesaid project at 'Acme Alvista Smart Homes', at Chhajumajra, Kharar, District Mohali, Punjab (hereinafter 'flat'). The basic sale consideration for the unit was fixed at 36,56,250/- besides Rs.1,00,000/- as parking charges, ₹15,000/- club membership fee for a period of two years, Rs.10,000/- as Annual Club charges, Power Backup charges as to be ₹75,000/- and ₹25,000/- (misprinted as ₹ 2,50,000/- in agreement) as Refundable security deposit.  The total sale consideration of the unit was Rs.38,81,250/-. In view of pre-condition set up by OP No. 1 to deposit a sum in the form of booking amount/ earnest money before the allotment of the said residential flat an amount of 7,31,250/- ( Seven Lac Thirty-One Thousand and Two Fifty Only) i.e. @ 20% of the basic value of flat was deposited by the complainant.  Subsequently,  'Apartment Buyer's Agreement dated 27.03.2013 was executed between the parties and as per Clause of the agreement, the possession of the flat/ apartment  was to be delivered within a maximum period of 24 months' from the date of the execution of the Apartment Buyer's Agreement i.e. on or before 27.03.2015.  On the advice of OP No. 1, he got the loan sanctioned for Rs.29,43,192/-. The loan was granted by the Finance Company to the complainant under "No EMI Scheme" which in other words means 'Interest subvention scheme' whereby the OPs were mandated to bear the entire burden of loan interest during the construction of the project and till the time possession is delivered to the complainant. The said scheme was offered by the Finance Company through construction linked plan duly approved and consented by OPs. He had already made the total payment of Rs.11,51,250/- (which includes Rs.7,31,250/- paid by the complainant and Rs.4,20,000/- disbursed by Finance Company towards installment).  Along with the said amount, an amount of 1,43,192/- had been paid to ICICI Prudential towards home insurance; although later on the said amount had been recovered by the OPs from the complainant. The payment of ₹1,25,214/- was transferred by the complainant to the OPs directly and a waiver of Rs.17,978/- was approved by OPs vide his E-mail dated 28.11.2014, till June 2013.  Vide e-mail dated 27.05.2014, he complained about the status of construction of the flat and response to the said e-mail, OP No. 1 apologized the complainant for the deficiency on their part and offered another Flat bearing no. 106- B, Tower 1 in the aforesaid project at 'Acme Alvista Smart Homes', at Chhajumajra, Kharar, District Mohali, Punjab in place of the earlier flat. The basic sale price including parking charges of the said Flat was Rs.39,67,750/- besides this, he has to pay extra amount of Rs.15,000/- club membership fee for a period of two years, ₹ 10,000/- as Annual Club charges, Rs.75,000/- Power Back Up Charges and 25,000/- as refundable security deposit. The total sale consideration of the flat was Rs.40,92,750/- plus Service Tax Rs.1,18,407/- totaling to Rs.42,11,157/-. Left with no other alternative, he accepted the said offer whereby Rs.11,51,250/- already paid via previous Apartment Buyer's Agreement dated 23.07.2014 was agreed to be adjusted towards the new flat. A fresh 'Apartment Buyer's Agreement' enumerating the same terms and conditions, as were there in the previous agreement, was executed between the parties 23.07.2014. The loan taken by the complainant towards the previous flat no. 206-D was also adjusted and transferred to the new Flat No. 106-B. The total amount approved towards the new loan account was fixed at Rs.31,74,200/-. A tripartite agreement was executed between the parties on 29.09.2014 between the parties. As per Clause 9 of the agreement, OP No.1 was required to deliver the possession of the flat/apartment within a maximum period of '24 months' from the date of the execution of the Apartment Buyer's Agreement i.e. on or before 23.07.2016. The OPs have sent account statement dated 31.03.2018 thereby highlighting that the payment received from the complainant towards the questioned flat was Rs.38,79,122/- against the total receivable amount of ₹ 42,10,157/- and thereby have shown the balance due towards the complainant as to be Rs.3,31,035/-. As per calculation of the complainant, there was certain discrepancies in the calculation Annexure C-8 and therefore, he sent an email on dated 19.04.2018(ANNEXURE C-9) thereby seeking the clarification. Thereafter, after telephonic conversation between the parties and keeping in view the fact that the complainant was forced to pay the PEMIs and extra payment can be adjusted later on after possession, the complainant made the lump sum payment of Rs.1,51,770/- through NEFT dated 26.05.2018 (Annexure C-10) and subsequently final installment of Rs.1,58,770/- was paid by DHFL on 20.07.2018. Vide email dated 29.04.2019 (ANNEXURE C-11), the OPs had raised query regarding discrepancy in the payment of Rs.1,25,214/- as the said amount was not reflected in their record and in response to the said e-mail he forwarded the receipt of the payment of the said amount on the email thereby clarifying that the said payment had already been made vide receipt dated 10.12.2014 (Annexure C-12). As on date, the complainant alleged to have deposited Rs.43 ,14,816/- against the demands raised OP No. 1 towards the Flat in question.  It has further been stated that statement (Annexure C-13) reveals that the final payment of Rs.1,58,710/- was made by the Finance Company to the OPs on dated 20.07.2018. So, as on date, the sanctioned loan amount of ₹ 31,74,200/- has been paid by the DHFL to the OPs and rest of the amount has been paid by the complainant. It has further been stated that on enquiries, the complainant was assured that having received all payments, OP No. 1 have failed to take necessary steps in handing over the possession to the complainant and occupancy certificate has also not been obtained by the OPs. Despite the aforesaid non-compliances and incomplete status of construction of flat in question, the OPs, vide letter dated 15.02.2018 made an offer of possession to the complainant with the mala fide intention to prompt him to make payment towards installments of the loan. The complainant exchanged e-mails with the OPs and demanded the occupancy certificate but to no effect.  In terms of the agreement between the parties, the said PEMI i.e. installments towards loan could not have started till the possession is offered by the OPs. It has further been stated the Rs.9,51,453/- received by OP No.1 towards the EMI is inclusive of principal sum of Rs.1,89,078/- with interest component of Rs.7,62,375/-. It has further been stated that in order to transfer  the responsibility of making the payment of EMIs by the complainant, the OPs tries to create false grounds for offering possession vide letter (Annexure C-14) but thereafter no such effort as per Clause 9.4 of the agreement was made even till today as there is no occupancy certificate with the OPs. The complainant submitted a detailed letter to the OPs dated 05.12.2018 (Annexure C-16) detailing the entire dates and events and lapses on the part of the OPs.  Finally, the complainant got served a legal notice dated 05.07.2019 (Annexure C-17) whereby he sought refund of the deposited amounts with interest but to no effect.  It has further been stated that in order to cover up the lacuna on their part and as per the terms of the agreement, the OPs sent two cheques of Rs.56,416/- and Rs.14104/- on account of delayed payments which were encashed by the complainant under some wrong notion and the complainant is ready to adjust the same.  Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking refund of Rs.53,69530/- along with interest, compensation and litigation expenses.       
2.         In their written version, the OPs have been stated that the complainant had taken a loan from Diwan Housing Finance Ltd but he has not intentionally made finance company as party in the complaint.  It has further been stated as per Tripartite agreement , PRE EMI interest was opt to be paid for 24 months or date of offer of possession whichever is earlier. However, even more than 24 months Pre-EMIs have been paid as per the settlement between the parties. It has further been stated that once the complainant has received and encashed the cheques towards delayed delivery then he is not entitled to seek refund and state that there is an unfair trade practice on the part of the Ops. Subsequently, the complainant for his own reasons did not present the said cheques. It has further been stated that they have already offered the possession of flat on 15/8/2018 and he has not come forward to accept the possession and more than 25 families are already living in the said complex/building. It has further been stated that flat is complete in all respects. It has further been stated that non-obtaining of completion/occupation certificate shall not be a ground for seeking refund/delay. It has further been stated that though the possession was offered on 15.08.2018, and the complainant has implicitly waived his right to claim refund, and the matter was amicably settled and the OPs  even issued as per the same quarterly cheques, some of which he had encashed (showing his consent) and the others for his own reasons he did not. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.
3.         We have heard the Counsel for the parties and have gone through the documents on record.
4.         From the documentary evidence on record and submissions of the parties, it is observed that in response to the application of the complainant, OP No. 1 vide letter dated 20.03.2023 made the allotment of a residential Three Bedroom apartment bearing No. 206-D having an area of approx. 1625 sq. ft. on 6th Floor in Block-2 in aforesaid project at 'Acme Alvista Smart Homes', at Chhajumajra, Kharar, District Mohali, Punjab (hereinafter 'flat'). The basic sale consideration for the unit was fixed at 36,56,250/- besides Rs.1,00,000/- as parking charges, ₹15,000/- club membership fee for a period of two years, Rs.10,000/- as Annual Club charges, Power Backup charges as to be ₹75,000/- and ₹25,000/- (misprinted as ₹ 2,50,000/- in agreement) as Refundable security deposit.  The total sale consideration of the unit was Rs.38,81,250/-. As per pre-condition set up by OP No.1, the complainant deposited the earnest money of Rs.7,31,250/- i.e. @ 20% of the basic value of flat was with the OPs against receipt (Annexure C-2).   Later on the Apartment Buyer's Agreement dated 27.03.2013 was executed between the parties and as per Clause 9 of the agreement, the possession of the flat/apartment was agreed to be delivered within a maximum period of 24 months' from the date of the execution of the Agreement i.e. on or before 27.03.2015.  The complainant got the loan sanctioned to the tune of Rs.29,43,192/- from Dewan Housing Finance Ltd. against the flat from its Branch at Chandigarh and the same was granted to the complainant on 02.03.2013.  However, the OPs have failed to deliver the possession of the aforesaid unit to the complainant within 24 months  from the date of execution  of the agreement i.e. on or before 27.03.2015 and therefore, they induced and offered the complainant another flat No.106 in the same project instead of the earlier flat. Left with no other alternative, he accepted the said offer and a new Apartment Buyer’s Agreement was executed on 23.07.2014 and the amount paid towards the earlier flat was adjusted in the sale consideration of the new flat i.e. Rs.42,11,157/- including service tax.  The loan taken by the complainant towards the previous flat No.206-D was also adjusted and transferred to the new flat.  The possession of the new flat was agreed to be delivered on or before 23.07.2016. However, he OPs did not deliver the flat despite the entire payment of Rs.43,14,816/-.
5.          From the facts and circumstances of the case, it is observed that the OPs did not have any occupancy certificate or necessary permissions, approvals and sanctions from the concerned authorities before collection of the huge amount from the complainant towards the flat in question and therefore, the amount collected by the OPs towards the flat is illegal and unjustified on their part.  It is observed that the act of collecting the huge amount from the complainant towards the flat in question without any approvals/sanctions/permissions and occupancy certificate from the concerned authority not only amounts to deficiency in service but also unfair trade practice on the part of the OPs.   

                Reliance here is placed upon the judgment of the Hon’ble National Commission, New Delhi passed in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 wherein it has been observed as under:-

    “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. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

6. 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 that 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.
7. Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to deliver the possession of the flat complete in all respects have no right to retain the hard earned money of the complainant. The OPs are, thus, proved deficient in rendering the services to the complainant.
8.         For the reasons recorded above, the present complaint is partly allowed qua the OPs. The OPs are directed to refund Rs.43,14,816/- towards the flat in question to the complainant along with interest @ 10% p.a. from the respective dates of its deposit till the date of its actual realization.  However, it is made clear that since the complainant is awarded interest @ 10% on the deposited amount, so the complainant is not held entitled to Rs.1,03,261/- paid towards Pre-Equated Monthly Installments and Rs.9,51,453/- paid as interest towards the EMIs.
9. This order be complied with by the OPs, within 60 days from the date of receipt of its certified copy, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this Commission.
10.         The pending application(s) if any, stands disposed of accordingly.
11.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced in open Commission 03.05.2024
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER