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

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Kanta Jain w/o Sh. Arun Jain, r/o #283, Jail Nagar, Ropar.

              ---Complainant

Vs

Chandigarh Overseas Pvt. Ltd., Head Office at SCO No. 196-197, Top Floor, Sector 34-A, Chandigarh, through its Managing Director.

---- Opposite Party

BEFORE:    MRS.MADHU MUTNEJA               PRESIDING MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. A.S. Walia, Counsel for Complainant.

Sh. Shireesh Gupta, Counsel for Opposite Party.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.        The Complainant had been allotted a freehold unit in Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali for a price of Rs.5,00,000/- by the Opposite Party. The Complainant has stated that the said unit was being purchased for self-employment and that she had paid Rs.5,00,000/- to the Opposite Party in three installments (however as per receipts at Annexure C-2 to C-5, only a sum of Rs.4,75,000/- has been paid by the Complainant). The parties entered into a Developer Buyer Agreement on 17.01.2007, whereby the Developer was required to construct the above said Unit and hand it over to the purchaser within 30 months from the date of commencement of work. The work commenced on 19.07.2007. Clause 5 of the said agreement reads as under: -

“That both the parties have mutually agreed to give a mandate to Greenfield Sites Management Private Limited or any other company/ companies and/ or entities, persons, firm, association of persons etc. to take possession of the unit(s) on behalf of the buyer from the developer and manage lease transaction of behalf of the unit(s) owners. The possession so handed over shall be deemed to have been handed over to the Buyer. A separate lease agreement enumerating and elaborating the terms and conditions is also being executed between Greenfield Sites Management Private Limited and the Buyer.  

The Leasing of the unit(s) is essential and forms the integral part of the present “Small Investor Scheme” and of the Developer Buyer Agreement whereupon the present allotment of unit(s) has been made by the Developer.”

          The Complainant in pursuance of the aforesaid clause entered into the lease agreement with Greenfield Sites Management Pvt. Ltd. 

          Now, more than one year has passed, after lapse of the said 30 months, and the Complainant has visited the office of the Opposite Party a number of time for handing over of complete possession or refund of money. However, neither demand has been complied with by the Opposite Party. The Complainant has thus filed the present complaint, with a prayer that the Opposite Party be directed to refund the amount of Rs.4,75,000/-, along with interest and compensation for mental harassment, agony and suffering, besides cost of litigation.

2.        Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.        The Opposite Party in reply has taken the preliminary objection that the Complainant is not a consumer as the Unit was for industrial activity and the Complainant has entered into a separate lease agreement with a third party for the same unit. This third party has not been made a party to the lis. Also, the Complainant is not qualified to run a unit in the project of the Opposite Party. Opposite Party has further submitted that the present complaint is pre-mature as the amounts payable by the Complainant under the agreement have not been calculated so far, as the Opposite Party is awaiting final intimation from the government authorities regarding the same. After receipt of intimation from the government, the final amount will be calculated and if any amount is payable to/by the customer, it shall be paid to/by them.

          On merits, the Opposite Party has made similar pleadings as above while denying that the work on the project had commenced on 19.7.2007. Opposite Party has stated that the time period of 30 months specified in the agreement was only indicative in nature and the Opposite Party was to be allowed sufficient extension of time to account for delays beyond its control. Opposite Party has admitted the contents of para 5 of the complaint regarding clause 5 of the agreement, while reiterating that the Complainant is not a ‘Consumer’. Opposite Party has also denied that the Complainant has ever visited their office regarding the allegations made. All other material contentions of the complaint have been controverted. Pleading that there is no deficiency in service on their part, Opposite Party has made a prayer for dismissal of the complaint.

4.        Parties led evidence in support of their contentions.

5.        We have heard the learned counsel for the parties and have perused the record.

6.        The grievance of the Complainant is with regard to inability by the Opposite Party to hand over a unit in Industrial Knowledge (Fashion Technology Park), Sector 90, Mohali, which the Complainant has been allotted for self-employment. According to the Complainant the Opposite Party has not complied with its part of requirements as per the terms and conditions of the agreement placed on record. The Complainant is thus seeking refund of the amount paid.

7.        The Opposite Party has contended that the Complainant has entered into a further lease agreement with a third party. Lease agreement is on record though Greenfield Sites Management Private Limited is not a party to the lis. Also, the Opposite Party has taken a specific objection to the effect that the Complainant is not qualified to run a unit in the project. This objection too is devoid of any force, as we fail to comprehend as to why this objection was not taken by the Opposite Party at the time of allotment of the unit to the Complainant. Opposite Party has also submitted that the work did not commence on 19.07.2007 and the time period of 30 months was only indicative in nature. This defence is interestingly absurd and makes a clear pointer to the fact that the Opposite Party expects the allottee to wait indefinitely for possession, as and when the developer is ready to hand over the same.

8.        It is evident from the pleadings of both the parties that the Complainant is not interested any more in taking possession of the unit, which has not been made ready for use by the Opposite Party, till date. The reasons for the delay by the Opposite Party are absolutely absurd and need no consideration. We feel that failure/ refusal to refund the amount to the Complainant amounts to deficiency in service on the part of the Opposite Party. 

9.        We accordingly deem it appropriate to allow this complaint. The complaint is accordingly allowed and the Opposite Party is directed to:-

[a]  to refund an amount of Rs.4,75,000/- to the Complainant, along with interest @9% per annum from the date of respective deposits, till actual payment;

[b]  to pay a sum of Rs.7,000/- to the Complainant as costs of litigation.

10.       This amount be paid by the Opposite Party within 45 days of the receipt of this order, failing which Opposite Party shall be liable to refund Rs.4,75,000/- to the Complainant, along with interest @12% per annum, from the date of respective deposits, till the date of payment, besides the cost of litigation.  

11.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

12^th October, 2012.                                             

Sd/-

(MADHU MUTNEJA)

 PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

“Dutt”