DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No: 458 of 2011] Date of Institution: 29.09.2011 Date of Decision : 31.05.2012 1. Navreet Sarkaria wife of Samarth U Kholkar resident of Satluj Public School, barnala Road, Sirsa, Haryana. 2. Samarth U Kholkar resident of Satluj Public School, Barnala Road, Sirsa, Haryana. …..Complainants VERSUS Emaar MGF Land Limited through its Managing Director, SCO No.120-122, First Floor, Sector 17-C, Chandigarh. ……Opposite Party BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued by: Sh. A. S. Walia, Advocate for the complainants. Sh. Ashim Aggarwal, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT Sh. Navreet Sarkaria and her husband Samarth U Kholkar have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 praying therein that the OPs be directed: - (i) To refund a sum of Rs.12,10,367/- paid towards the costs of the unit along with interest @18% per annum; (ii) To pay a sum of Rs.50,000/- for deficiency in service; (iii) To pay a sum of Rs.50,000/- as compensation for mental agony and harassment; (iv) To pay an amount of Rs.20,000/- as litigation costs. In brief the case of the complainants is that they were allotted a Unit No.J2-F-5-502 by the OP in the project known as “The Views” in Mohali Hills in Sector 105, SAS Nagar, Mohali. The cost of the said unit was Rs.41,98,056/-. The complainants paid Rs.7,00,000/- on 17.03.2008 at the time of booking vide receipt Annexure C-1. Subsequently, they paid a sum of Rs.1,06,912/- on 12.04.2008 as the second installment and further Rs.4,03,456/- as third installment vide receipts Annexures C-2 and C-3 respectively. Thus, the complainant deposited in total a sum of Rs.12,10,367/- with the OP. Apartment Buyer’s Agreement was executed between the parties on 17.03.2008 (Annexure C-4). According to the complainant, as per the terms and conditions of the Apartment Buyer’s Agreement, the possession of the Apartment was to be handed over by the OP within the period of 36 months from the date of allotment. It is further averred that as per Clause 4 of the Apartment Buyer’s Agreement, the balance amount of the sale price was to be paid in accordance with the payment plan (Annexure II to the agreement).According to the complainants, the next installment was to be paid by them on start of the construction. It is averred that till date, no demand for the installment due has ever been raised by the OP, which itself shows that the construction has yet not been started. According to the complainants, since, the OPs did not start the construction, they requested it to either complete the unit as promised or return the money. However, the OP refused to refund the amount. It was informed that the construction of the project would be resumed only when OP would be having enough money for construction. According to the complainant, non construction of the project and refused to refund of the amount deposited with the OP, amounts to deficiency in service. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the written statement filed by OP, it has been pleaded that the payment was to be made in accordance with the payment plan as detailed in Annexure II to the Agreement. It has been denied that the construction of the project has not started. However, it has been admitted that as per the Revised Layout Plan, the entire Block/Tower J2, in which the allotment had been tentatively made to the complainant, was not being constructed. It is averred that as such, due to the revised plans, the complainants were given option to re-locate to another unit in towers under construction, which they did not accept. In these circumstances, according to OP, there is no deficiency in service or unfair trade practice on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and perused the record carefully. 5. Admittedly, the complainants were allotted a Unit No.J2-F05-502 by the OP in the project known as “The Views” in Mohali Hills in Sector 105, SAS Nagar, Mohali. Admittedly also, they paid a total sum of Rs.12,10,367/- to the OP towards part payment of the price of the flat in question out of the entire sale consideration of Rs.41,98,056/-. It is also the admitted case of parties that a Apartment Buyer’s Agreement was executed between the complainants and the OP on 17.03.2008 (Annexure C-4). 6. The case of the complainant is that the possession of the allotted unit was to be handed over by the OP within 36 months from the date of allotment but it failed to do so. On the other hand, the OP has itself admitted that it failed to construct the tower in question, in which the complainants were tentatively allotted the unit in question due to the revised plans. However, the complainants were given option to re-locate to another unit in towers under construction, which they did not accept. Thus, from this admission itself on the part of OP of not constructing the tower in question, it is proved on record that the OP failed to construct the tower in question and handover its possession to the complainants within the stipulated period of 36 months from the date of allotment, as per the terms and conditions of the Apartment Buyer’s Agreement (Annexure C-4). Thus, the complainants cannot be forced to wait for indefinite period for the possession of the unit in question, which is yet not constructed by the OP. So, the complainants are entitled to the refund of the amount deposited by them with the OP from time to time along with interest as they have been deprived of use of their hard earned money for such a long period. 7. In view of the foregoing discussion, the present complaint is allowed and the OP is directed as under:- (i) to refund Rs.12,10,367/- to the complainants with interest @9% p.a. from the respective dates of deposit till the date of this order; (ii) to pay a sum of Rs.10,000/- as costs of litigation. 8. This order be complied with by the OP within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay the aforesaid amount of Rs.12,10,367/- along with penal interest @18% per annum from the respective dates of deposit till the date of actual payment besides payment of Rs.10,000/- as costs of litigation. 9. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced. 31st May 2012. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
DISTRICT CONSUMER FORUM-II C.C.No458 of 2011 ORDER Present: None. --- The case was reserved on 29.05.2012. As per separate detailed order of even date, this complaint has been partially allowed. After compliance file be consigned. Announced. 31.05.2012 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
