Chandigarh

StateCommission

A/86/2016

DLF Homes Panchkula Pvt. Ltd. - Complainant(s)

Versus

Deepak Kumar Singal - Opp.Party(s)

Gaurav GS Chauhan, Ekta Jhanji, Adv.

19 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	86 of 2016
Date of Institution	:	18.03.2016
Date of Decision	:	19.05.2016

 

1. DLF Homes Panchkula Pvt. Ltd. Regd. Office 12^th Floor, DLF Gateway Tower, DLF City, Phase III, NH-8, Gurgaon-122002, Haryana
2. The Regional Manager M/s DLF Homes Panchkula Pvt. Ltd. Shop No. 101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh (U.T.)-160101.

……Appellants/Opposite Parties

 

V e r s u s

Deepak Kumar Singal s/o Shri Kamal Kumar Singal, 629-B, Aggar Nagar, Ludhiana (Punjab).

              ....Respondent/Complainant

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Ekta Jhangi, Advocate for the appellants.

                  Sh.D.V. Sharma, Senior Advocate and Ms.Eshjyot                          Walia, Advocate, for the respondent.

 

               

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By filing a consumer complaint bearing No.141 of 2015, before the Forum, the respondent had sought refund of an amount of Rs.6 lacs, paid by him, towards purchase of a flat, from the appellants. It was an allegation of the respondent that as per terms and conditions of the application for allotment of the unit, by not offering Buyer’s Agreement for signing and also by not raising any construction at the spot, within the reasonable time, the appellants have committed deficiency in providing service and further they had also indulged themselves into unfair trade practice, by offering units for sale, without obtaining mandatory permissions from the Competent Authorities, to float the project.

2.         The Forum on analyzing the evidence on record and on hearing arguments of the parties, granted following relief to the respondent, against the appellants, vide order dated 10.11.2015:-

 “i)   To refund the amount of Rs.6.00 lacs/- to the complainant along with interest @12% per annum from the respective dates of deposit till realization.

ii)  To make payment of Rs.50,000/- to the complainant towards compensation for causing mental and physical harassment.

iii) To make payment of Rs.10,000/- to the complainant as litigation expenses.

This order shall be complied with by the Opposite Party within one month from the date of receipt of its certified copy; thereafter, the Opposite Parties shall pay the amount at Sr. No.(ii) above with interest @ 12% per annum from the date of filing of the complaint till realization, besides complying with directions at Sr. No.(i) and (iii) above.”

3.         Facts of the case are not disputed.
4.         The respondent moved an application to the appellants, to purchase a built-up flat, for an amount of Rs.1,13,68,087.50Ps. He paid an amount of Rs.6 lacs, towards earnest money, vide cheque dated 26.03.2011. Vide letter dated 01.04.2011, the respondent was intimated that he had been allotted an independent floor bearing no.D2/35-SF, in a project named DLF Valley, to be developed by the appellants. It was specific case of the respondent that without obtaining mandatory permissions to develop the project, the unit was sold to him, by the appellants. Prayer was made to order refund of the amount deposited, alongwith interest and compensation.
5.         It was case of the respondent/complainant that the project was sold without any permission to do so, from the Competent Authorities. The Hon'ble Supreme Court of India had ordered status-co to be maintained qua the land in question, vide order dated 13.08.2010. It was stated that necessary permissions including CLU certificate was granted in favour of the appellant, after sale of the units, on 01.06.2011 and 09.02.2012. To say so, documents Annexures C-4 to C-9 have been placed on record, showing that necessary permissions were granted between 01.06.2011 to 29.02.2012. As per letter for payment of installments, the respondent was given an option of construction linked plan. Because no construction had started at the spot, the respondent did not make any further payment.

                Vide email dated 04.03.2013, the respondent made a prayer for refund of his amount paid, but to no avail. Thereafter, he was intimated that that the unit allotted to him, already stood cancelled on 04.08.2011 and the amount deposited to the tune of Rs.6 lacs was forfeited and further, that an amount of Rs.14,38,219.25Ps., is still due from him. It was specific case of the respondent that he never received any cancellation notice in respect of the said unit. By stating as above, prayer was made to refund the amount paid by him, alongwith compensation and litigation expenses.

6.         Upon notice, joint reply was filed by the appellants/ opposite parties. Sale of unit and payment made by the respondent was admitted. It was said that the unit allotted was cancelled on 04.08.2011, when further amount was not paid by the respondent, despite various notices. It was further said that as per application for allotment signed by the respondent, it was known to him that necessary permissions to develop the project, are yet to be obtained from the Competent Authorities. By stating as above, prayer was made to dismiss the complaint.
7.         The Parties led evidence, in support of their case.
8.         After hearing Counsel for the parties, and, on going through the evidence, and record of the case, the Forum held the appellants guilty of deficiency in providing service and also indulgence into unfair trade practice, by observing as under:-

“It is an admitted case that the Opposite Parties received a sum of Rs.6 lacs from the Complainant towards the part price of the flat in question. As per the Complainant, the Opposite Parties despite receiving a hefty amount of Rs.6 lacs from him did not start the construction at the site on the ground that they have applied for the necessary approvals.

It is evident from Annexure C-1 the receipt that the Opposite Party took Rs.6.00 lacs as part payment on 30.3.2011 from the complainant. But, a careful perusal of Annexure C-4 to C-9, which are the copies of various approval letters by various necessary authorities to the Opposite Parties show that all necessary permissions were taken by Opposite Party subsequent to deposit of the amount by the complainant till 29.2.2012 as per Annexure C-9. Since the Opposite Parties did not start any construction at the site even after raising the issue by its clients,  nor they refunded the deposited amount to the complainant, we feel the Complainant rightly did not pay the remaining amount towards the price of the flat in the absence of required progress over the site of the flat in question.

In our view, once the Opposite Parties received a consideration of Rs.6 lacs from the Complainant, it was its bounden duty to offer possession of the flat in question to the Complainant after duly developing the same within a reasonable time, failing which to refund the amount with interest. The Opposite Parties have utilized the amount deposited by the complainant for its use and must have got appreciation on the same. The complainant is not expected to wait indefinitely for no fault of his.  Hence, there is deficiency in service on the part of the Opposite Parties and they are liable to refund the amount deposited by the Complainant, along with interest.”

9.         The view taken by the Forum is perfectly justified. As per established law, it is not open to a realtor, to float project and sell it, without getting necessary permissions/approvals from the Competent Authorities. In the present case, in terms of the order passed by the Hon’ble Supreme Court of India, on 13.08.2010, status co, qua construction was ordered to be maintained on the land, where the project was to be developed. Admittedly, none of the mandatory permissions were available with the appellants, to launch the project, in question, when unit was sold to the respondent. In a similar matter, in Consumer Complaint No.800 of 2012 decided on 29.05.2013 (at page 42 of the Forum File), the Forum while noting facts of this very project, granted following relief to the purchaser therein:-

“In view of the foregoings, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed to refund the entire deposited amount of the complainant i.e. Rs.10.00 lacs as well as to pay compensation amount of Rs.50,000/- for causing him mental & physical harassment, apart from paying litigation cost of Rs.15,000/- ”

10.         Feeling aggrieved against the order dated 29.05.2013, the appellants/builder came in appeal bearing no.348 of 2013, which was dismissed by this Commission, at the preliminary stage, vide order dated 23.08.2013, by observing as under”-

“The Opposite Parties launched the project, without taking prior permissions and approvals from the concerned Authorities/Departments and, thus, indulged into unfair trade practices. These acts on the part of the appellants/ Opposite Parties, also amounted to deficiency, in rendering service, on their part. One could really imagine the plight of a person, who had deposited his hard earned money to the tune of Rs.10 Lacs, for the allotment of a flat, to reside therein, but later on came to know that there were no permissions and approvals for raising construction”. 

11.         At the time of arguments, to a pointed question, to Counsel for the appellants, she failed to controvert the above said fact, qua non-obtaining of necessary permissions, when the project, in question, was sold. She has only stated that this fact was known to the respondent, as such, he cannot raise any grievance at this stage. We are not convinced with the argument raised by Counsel for the appellants. Application for allotment is heavily loaded in favour of the builder/appellants. In a very small letters/print, the above said fact has been shown at page no.1 of the application. The said like stipulation will not overcome the pronouncement of law that the project can be sold only after getting necessary permissions from the Competent Authorities. It was so said by the National Commission, in a case titled as Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC). In that case also, it was observed and held as under:-

“The main questions which require consideration in the appeal are—

(i)  Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And,

(ii)   Secondly, whether the consumer should suffer by paying escalation cost due to such delay?

2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.

3. Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.”

 

                The principle of law, laid down in the aforesaid case, is fully applicable to the present case. As such, it is held that the appellants were deficient in rendering service and also adopted unfair trade practice on this count.

12.         Further contention of the appellants that the unit, in question, was cancelled for want of making further payment of installments by the respondent is also devoid of any merit. It is not in dispute that the payment to be made, was construction linked. It was reflected at page 97 of the Forum file, wherein it is specifically stated that payment was to be made in installments, as per construction of the unit. In the face of order passed by the Hon’ble Supreme Court of India, on 13.08.2010, construction was not raised. When above fact came to the notice of the respondent, he was justified in not making any further payment of amount of the installments. Future of the project was not known, as such, it was not open to the appellants, to cancel the unit and forfeit an amount of Rs.6 lacs, paid by the respondent. At the maximum, they could forfeit 10% of the amount deposited and should have refunded the remaining amount thereafter, in the year 2011, when allotment of the unit was cancelled but they failed to do so. Be that as it may, as has been held in earlier part of this order, ordering cancellation of the unit, was not even justified, on the part of the appellants. No ground, whatsoever, has been made out by the appellants, to make interference in the order under challenge.
13.         No other point, was urged, by Counsel for the parties.
14.         For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
15.         Certified copies of this order, be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

19.05.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg