BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.318 of 2014
Date of institution: 07.05.2014
Date of Decision: 30.06.2015
1. Arun Kumar son of H.R. Singla, resident of House No.356, Sector 37-A, Chandigarh.
2. Himanshu Kohli son of M.M. Kohli, resident of House No.1163, Sector 37-B, Chandigarh.
……..Complainants
Versus
Chandigarh Royale City Promoters Pvt. Ltd., through its Director, Site Office Chandigarh Patiala Highway, Village Karala, District Mohali (Punjab).
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Saurabh Garg, counsel for the complainants.
Shri Anish Garg, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund the amount of Rs.5,50,000/- with interest @ 24% per annum.
(b) pay Rs.2.00 lacs as compensation for loss of income, mental torture and agony and Rs.17,000/- towards cost of litigation.
The complainants have pleaded in the complaint that in response to wide publicity of its project by the OP, they visited the office of the OP and the marketing executive of the OP told the complainants that the OP had already applied for license for the project and it would be issued shortly. The project is fully approved by the concerned authorities and the executive also showed certain project papers, narrating the type of plots and price. The executive also promised timely delivery alongwith best modern amenities and facilities. Upon this complainants applied for allotment of a residential plot measuring 200 sq. yards in the project of the OP at a price of Rs.10,000/- per sq. yard. The total cost of the plot was Rs.20,00,000/-. As per the demand of the OP, the complainants paid advance sum of Rs.5,50,000/- vide receipt dated 09.06.2011 to the OP in anticipation that the OP would allot the plot very soon. After this Advance Registration Form was also got executed by the OP from the complainants on 24.06.2011 wherein it was mentioned that the OP would refund the booking amount or any paid up amount to the complainant with 12% interest per annum on the request, if the OP does not get license within 12 months from the date of booking. The OP also promised that it would intimate the status of the project to the complainant from time to time. Even after completion of one year from the date of booking, the OP failed to get the license, then the complainants in October, 2012 approached the OP for refund of the money but the OP assured that the possession of the plot would be delivered within 6 months. Thereafter, the OP did not intimate any progress of the project. However, in February, 2013 the OP sent letter dated 05.02.2013 asking upon the complainants to execute the buyers agreement and also demanded Rs.13,10,000/-. Upon this the complainant visited the site and found that there was no sign of any work being carried out by the OP. The OP again vide letter dated 18.10.2013 demanded the entire balance amount of the plot and in this letter it was falsely mentioned that the development work at the site was in full swing whereas there is no work going on at the site. The complainants vide letter dated 09.12.2013 requested the OP to refund the entire payment alongwith interest. However, instead of refunding the amount, the OP vide letters dated 09.01.2014 and 21.02.2014 demanded the entire balance payment from the complainants. Thus, on these allegations the complainants have filed the present complaint.
2. Upon notice, the OP appeared and filed reply by way of affidavit. In the preliminary objections the OP has pleaded that the complaint is time barred as the payment was deposited by the complainants on 09.06.2011 and the complaint has been filed in May, 2014. The complainants have never demanded their money back. The complainants do not fall under the definition of Consumers. This Forum does not have the jurisdiction to entertain and adjudicate the dispute involved in the complaint. The complaint is bad for non joinder of necessary and proper party. The complainant booked the plot through one agency and has not impleaded that agency as party in the complaint. At the time of booking, the complainants opted Installment Plan. The OP demanded from the complainants due installments through telephone calls and by letters dated 05.02.2013, 18.10.2013, 09.01.2014 and 25.02.2014 but the complainants failed to pay the installments as per the plan opted by them. The OP got the CLU on 28.11.2013 and since then it is developing the site which is continue since then till today. The complainants became defaulter and have no right to file the present complaint. The complainants were bound to pay the installments within one year from the date of booking. Even after re-schedule the payment plan, the complainants never paid the due installments till today. The OP got the first approval in the form of change of land use from the Govt. on 15.12.2011 just after six months from the booking paid by the complainants. The OP got the letter of intent on 03.08.2012 and paid the license fee on 01.10.2012 and EDC on 01.10.2012 and thereafter got the license on 31.12.2012. Denying all other allegations of the complainants, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-8.
4. To rebut the allegations of the complainants, the OP tendered the affidavit of Raman Garg, its authorized representative Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-19.
5. We have heard learned counsel for the parties and have also carefully gone through the evidence and their pleadings.
6. The OP in the written reply raised preliminary objection that the complainants are not consumers as they did not fall within the definition of consumer as defined in Section 2 (1) (d) of the Consumer Protection Act. Before we proceed further, it will be appropriate to deal with the preliminary objection at the outset. The complainants booked the plot as is evident from advance registration form Ex.C-2 as well as their affidavit Ex.CW-1/1. Further the plot has been booked by the complainants in the residential colony to be developed by the OP as is evident from Ex.C-3 which shows that the complainants have booked the plot for raising construction thereon for their residence. Under these circumstances, the complainants fall under the definition of consumer as in Section 2 (1) (d) (ii) of the Consumer Protection Act. As per the complainants the they have been held to be consumers as the similar facts were before the Hon’ble UT State Commission in First Appeal No.480 of 2013 titled as M/s. Chandigarh Royal City Vs. Lt. Col. (Retd.) Piyush Bahuguna decided on 08.11.2013.
7. The advance registration form Ex.C-2 filled up by the complainants is admitted. In pursuance of the advance registration form the complainants have agreed to get allotment of 200 sq. yard plot at the proposed rate of Rs.10,000/- per sq. yard. The complainant has paid a total sum of Rs.5,50,000/- as on 09.06.2011 for hiring the services of the OP for consideration, in respect of the plot in question as is evident from receipt dated 09.06.2011. As per the advance registration form, it is evident that a condition was stipulated therein that in case the OP failed to get license within 12 months from the date of registration i.e. 24.06.2011, the OP shall be liable to refund the deposited amount alongwith interest @ 12% per annum. Admittedly by 09.06.2011 the complainant has deposited a total sum of Rs.5,50,000/- with the OP. Admittedly, by 24.06.2012 i.e. within 12 months from the date of registration i.e. 24.06.2011, the OP had not been able to obtain license from GMADA. However, the OP has issued a fresh demand notice dated 05.02.2013 Ex. C-3 of Rs.13,10,000/- and asked the complainant to execute buyers agreement. The OP has not shown the appropriate sanctions/ license from GMADA to develop the project prior to the expiry of 12 months period from 24.06.2011. No doubt the OPs have got the change of land use from the Govt. of Punjab on 25.06.2012 vide Ex.OP-14, yet it did not mean that it got the approval from GMADA on that date. Therefore, the OPs failed to comply with the condition referred to above stipulated in advance registration form i.e. failed to get the sanctions/licenses within 12 months from the date of registration. Hence, it was the bounden duty of the OP to refund the amount paid by the complainants alongwith agreed interest @ 12% per annum instead of refunding the amount alongwith interest, the OP has raised further demand of Rs.13,10,000/-. The act of the OP in non refunding the deposited amount is an act of unfair trade practice and deficiency in service.
8. The stand of the OP that after obtaining the sanctions, they have taken all necessary steps to develop the area and are willing and ready to handover the physical possession of the fully developed plot to the complainant is totally demolished by the report of the Local Commission. The local commissioner in its report alongwith photographs revealed that there is no development work at the spot. Only some cosmetic greenery and layout at the entrance to deceive the prospective buyers and there is no demarcation of the plot, no road signs, some area in the project is still under cultivation, total area is water logged unabling the access to the road. Therefore, the act of the OP for not even developing the area even after having the proper sanctions and approvals in its favour is an act of deficiency in service and unfair trade practice on its part.
9. According to law the OP could not start booking of the residential plot and obtain money from the innocent consumer, before actually the license and all permissions and sanctions have been granted to them by the competent authority. In case Kamal Sood vs. DLF Universal Ltd reported as CPJ 2007 (3) 7 (NC), it was held that a builder should not collect money from the prospective buyer, without obtaining the required permission such as zoning plan, layout plan and schemematic building plan. It is the duty of the builder to obtain requisite permission or sanctions such as sanction for construction etc. in the first instance and thereafter recover the consideration money from the purchasers of the flat. The ratio of law laid down in Kamal Sood vs. DLF Universal Ltd (supra) is squarely applicable to the facts and circumstances of the case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions permission, license and without getting the necessary approval, the same amounts to indulgence in unfair trade practice on the part of the builder. In the instant case the complainants have definitely got trapped into clandestine act of the OPs and deposited their hard earned money without allotment of property in question and are further deprived of refund of the same as per agreed terms. Due to the unfair trade practice indulged by the OP, the complainant is entitled to refund of the deposited amount alongwith agreed rate of interest@ 12% per annum after expiry of one year i.e. from 24.06.2012 till realization.
10. In view of above discussion, the complaint is allowed with the following direction to the OP to:
(a) refund to the complainants Rs. Rs.5,50,000/- (Rs. Five lacs fifty thousand only) with interest thereon @ 12% per annum w.e.f. 24.06.2012 till actual payment.
(b) pay to the complainants a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 30, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
