BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.151 of 2015

                                 Date of institution:          07.04.2015

                                                    Date of Decision:            25.05.2016

1.     Neelu Singh wife of Baljit Singh, resident of Flat No.403, Tower No.15, Royale-Estate, Chandigarh – Ambala Highway, Zirakpur, District Mohali, through her power of attorney holder Baljit Singh son of Dale Ram, resident of Flat No.403, Tower No.15, Royale-Estate, Chandigarh – Ambala Highway, Zirakpur, District Mohali.

2.     Baljit Singh son of Dale Ram, resident of Flat No.403, Tower No.15, Royale-Estate, Chandigarh – Ambala Highway, Zirakpur, District Mohali.

                                             ……..Complainants

                                        Versus

Chandigarh Royale City Promoters Pvt. Ltd., Royale Estate, Chandigarh – Ambala Highway, Zirakpur, District Mohali through its Chairman/Managing Director.

                                                                        ………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Gaurav Singla, counsel for the complainant.

                Shri Savinder Singh, 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:

1. refund them the amount of Rs.5,50,000/- with interest @ 18% per annum from the date of receipt till payment.

2. To pay them Rs.1.00 lac for harassment, mental agony and loss of precious time including travelling and other expenses.

(c)    to pay to them Rs.22,000/- as costs of litigation.

                The complainants had purchased/booked 200 sq. yard plot with the OP which was earlier allotted to Sanjay Mehta and Mrs. Uma Mehta of Kharar. The complainants paid a sum of Rs.50,000/- to aforesaid Sanjay Mehta and Mrs. Uma Mehta which they had paid to the OP at the time of booking of the plot.  Thereafter, the complainants paid a further sum of Rs.5,00,000/- to the OP vide cheque dated 21.06.2011. On 18.07.2011 the OP had endorsed the name of both the complainants on the receipt No.455 for Rs.50,000/- and had also issued receipt No.894 for Rs.5,00,000/-.   At that time the OP had also executed one advance registration form dated 27.06.2011 with the complainants in which all the terms and conditions were mentioned.  On the 3^rd page of the advance registration it was mentioned that ‘company will refund the booking amount or any paid up amount to the customer with 12% interest on request of customer if company does not get the approval of project within 12 months from the date of booking.’ Thereafter more than one year lapsed but the OP has failed to get approval for the project. The complainants approached the OP and requested for refund of the initial paid up amount alongwith interest but the OP has not paid any heed to the requests of the complainants. The complainant sent letter dated 20.10.2013 through registered post to the office at its corporate office address, which was received undelivered with the remarks ‘addressee left’.  The complainants again sent letter dated 02.12.2013 to the OP at its site office but no response has been given by the OP. The complainants also visited the site office on 15.12.2013 but found that the site office was locked. After lot of efforts the complainants found that the office of the OPs was in Sector 35 Chandigarh and at Royal Estate at Zirakpur and the complainants went there several times and requested for refund of the amount but the OP has refused to return the initial paid up amount. Finding no alternative, the complainants sent legal notice to the OP on 07.03.2015 but till date no reply was given by the OP. Thus, with these allegations the complainants have filed the present complaint.

2.             The OP in the preliminary objections of the written statement has pleaded that the complainants had purchased the plot from Sanjay Mehta and Mrs. Uma Mehta and had paid the amount to them. Thus, the complainants had purchased the plot from market just for getting profits. The complainants had booked the plot just for resale purpose as complainant No.1 is not residing in India.  Sanjay Mehta and Mrs. Uma Mehta from whom the complainants had purchased the plot have not been impleaded as party. Moreover, the complainants purchased the plot in August, 2011 from the above said persons who only can file the complaint being the original purchasers.  The complainant No.1 has also filed another complaint No.149 of 07.04.2015 in which she claimed that she booked the plot measuring 200 sq. yards in resale from Haravtar Singh and Davinder Kaur. It seems that the complainant No.1 used to purchase and sell the properties by investing the money in market by booking of plots in pre launch. Thus, the complainants are not consumers as defined under the Consumer Protection Act. The complainants are defaulter because they have not paid the amount/installment as agreed by them.  The complainants cannot ask for refund of the booking amount. The OP got all the approvals to develop the project. The development at the site is completed and the basic infrastructure with basic amenities has also been established.  On merits, the OP has denied the averments made by the complainants and sought dismissal of the complaint.

3.             Evidence of the complainants consists of affidavit of Baljit Singh Ex.CW-1/1 and copies of documents Ex.C-1 to C-8.

4.             Evidence of the OP consists of affidavit of Anup Kumar, its authorised signatory Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-34.

5.             We have heard learned counsel for the parties and have gone through the written arguments filed by them.

6.             The OP in the written reply raised preliminary objection that the complainants are not consumers as they do not fall within the definition of consumer as defined in Section 2 (1) (d) of the Consumer Protection Act.

7.             Before we proceed with the merits of the complaint, 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-4 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-4 which shows that the complainants have booked the plot for raising construction thereon for their residence. As per Section 2 (d) (i) a consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment. In the present complaint the complainants have paid the booking amount of Rs.5,50,000/- for a plot of 200 sq. yards at the rate of Rs.10,000/- per sq. yard under the system of deferred payments for the remaining amount.  Thus, the complainants are held to be consumers.

8.             The advance registration form Ex.C-4 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 complainants have paid a total sum of Rs.5,50,000/- as on 21.06.2011 for hiring the services of the OP for consideration, in respect of the plot in question as is evident from receipt dated 21.06.2011.  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.  29.06.2011, the OP shall be liable to refund the deposited amount alongwith interest @ 12% per annum. Admittedly by 21.06.2011 the complainants have deposited a total sum of Rs.5,50,000/- with the OP. Admittedly, by 29.06.2012 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 29.06.2011.  No doubt the OP has got the change of land use from the Govt. of Punjab on 28.11.2011 vide Ex.OP-2, yet it did not mean that it got the approval from GMADA on that date.  Therefore, the OP 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 act of the OP in non refunding the deposited amount is an act of unfair trade practice and deficiency in service.

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 29.06.2012 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. 29.06.2012 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 the above directions 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.                           

May 25, 2016.     

                                 (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                     Member