JUDGMENT 16.9.2010 Justice Pritam Pal, President 1. The aforementioned three appeals arise out of one and the same order dated 20.10.2009 passed by the District Consumer Forum-I, U.T.Chandigarh whereby three complaints bearing No.515 of 2009, 516 of 2009 and 517 of 2009 filed by Ashwani Anand (hereinafter to be referred as complainant) were allowed against Gee City Builder Pvt. Ltd. (hereinafter to be referred as OP) and OP was directed to complete the construction in all respects and deliver possession of the premises to the complainant in all the three complaints within 6 months from the passing of order i.e. 20.10.2009. If the construction was not completed or the possession was not delivered, the OP was made liable to refund the amount of all the three flats of Rs.9,07,250/- + 9,07,250/- + 9,07,250/- total Rs.27,21,750/- to the complainant along with interest at the rate of 9% per annum since 5.11.2008 till payment. The OP was also directed to pay a sum of Rs.5,000/- as litigation costs within 30 days from the date of receipt of copy of the order. 2. In fact Complainant Ashwani Anand was allotted three flats in November,2006 but possession was not offered to him by OP within the stipulated period,so he filed three separate complaints before the District Forum which were decided by common order dated 20.10.2009 passed in complaint case No.515 of 2009. Against that order, now three appeals have emerged. Since, in all these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 3. The facts are culled out from Complaint case No.515 of 2009 titled Ashwani Anand Vs Gee city Builders Pvt. Ltd. which are epitomized as under ; The Complainant in response to a scheme floated by OP in the year 2006 for allotment of flats in Rishi Apartments, Baddi, Distt. Solan (H.P.), booked a flat on depositing an amount of Rs.1.00 lac whereupon he was allotted Flat No.C-6-301 and an Agreement to Sell in respect of the said flat was also executed between the parties. On the assurance of OP that the possession of flat would be delivered immediately on payment of 95% of the price, he had deposited Rs.9,07,250/- being 95% payment of the flat in question. Thereafter, he requested OP to deliver the possession, but when no satisfactory reply was received, he served a legal notice dated 25.8.2008 upon the OP. Still it failed to give any satisfactory reply about the time which required to complete the flat. It was alleged that as per information obtained by him under the RTI Act, 2005, from the H.P. Housing & Urban Dev. Authority, the license to start construction was granted on 26.8.2006 and Agreement to Sell was executed on 4.11.2006 which was a later event, so, according to Condition No. 11 of the Agreement to Sell OP was liable to deliver the physical possession on 4.11.2008, but it failed to deliver the same, which amounted to deficiency in service & unfair trade practice. On similar facts complaint Nos.516 of 2009 and 517 of 2009 were filed in respect of flats bearing No.C-4-301 and C-6-301respectively. 4. On the other hand, OP contested the complaint before the District Forum and filed reply inter-alia stating therein that the complainant had failed to adhere to the payment schedule as per the allotment letter as well as the Agreement to Sell. It was pleaded that OP never assured the complainant that on making the down payment of 95% of the price of the flat, possession would be given immediately. The complainant himself changed his option from installment to down payment and claimed discount which was already given as per Clause 8(b) of Agreement to Sell. As per Clause 11 of the Agreement to Sell between the parties, the possession of the flat/apartment was to be delivered to the complainant within 24 months from the date of commencement of said units if the completion certificate by the competent authority, release of sewerage connection, water connection and electric connection by the concerned authorities were issued without any delay. However, the completion certificate as well as the electric connection had not been supplied to the OP by the concerned authorities and hence the possession could not be delivered to the complainant. A letter dated 16.4.2009 was also issued to the complainant that the construction of the flats was complete but electric connection from the Board was awaited and the possession would be delivered to him as soon as the electric connection was released. It was further stated that the consent of the Pollution Board was also awaited for the sewerage treatment plant, which had already been established. The complaint was stated to be premature as the completion/occupation certificate and electric connection had not been supplied by the competent authorities and even if the date of environment clearance i.e. 4.1.2008 was taken as the date of commencement of work, the two years were yet to complete. It was pleaded that when the complainant failed to make the payment as per the schedule inspite of issuing reminders, he ultimately sought permission to mortgage the flat in order to raise loan for payment to OP, which was ultimately granted to him and a discount of Rs.45,000/- per flat was also given to him. As per the revised payment schedule, the complainant was required to pay Rs.5.50 lacs as registration amount and Rs.3,57,250/- as balance amount upto 95% within 15 days of revised schedule. The remaining payment of 5% to the tune of Rs.47,750/- was to be paid at the time of possession. Since the payment was made under the revised schedule on 10.7.2007, 14.7.2007 and lastly on 13.8.2007, so the date of the Agreement to Sell was to be considered w.e.f. 13.8.2007 as per the payment under the revised schedule and the period of 24 months came to an end on 12.8.2009. Similar pleas were taken in other two complaints and it was pleaded that there was no deficiency in service on their part and a prayer was made for dismissal of the complaints. 5. The District Consumer Forum after going through the evidence and hearing the learned counsel for parties allowed the three complaints vide common order dated 20.10.2009 as indicated in the opening part of this judgment. Still dissatisfied, complainant has come up in these appeals. 6. We have heard learned counsel for the parties and gone through the file carefully. The fore and foremost point of arguments raised on behalf of the complainant in all these three appeals is that the District Forum instead of passing the impugned order regarding delivery of the possession within six months should have only allowed the complaints for the refund of the entire cost price of flats deposited with OP together with interest as prayed for in the complaints. The second limb of his arguments was that the OP had played a fraud and cheated the complainant by mentioning in the first clause of the Agreement to Sell dated 4.11.2006 that all the requisite permissions required for raising the construction of flats were already with OP but this fact was proved to be wrong as the final permission for raising the construction was obtained only on 4.1.2008. At the last leg of his arguments, it was submitted that in fact the agreement dated 4.11.2006 is a void contract and not enforceable under any law inasmuch as no clause regarding the refund of amount on account of any breach of condition on the part of OP has been incorporated therein. On the other hand, learned counsel for OP has repelled the aforesaid arguments raised on behalf of the complainant and at the same time he submitted that as per directions in the impugned order passed by the District Forum, construction of the flats was completed within six months from the date of passing the impugning order and thereafter the possession was duly offered to the complainant and then he prayed for dismissal of the appeals. 7. We have given our thoughtful consideration to the above submissions putforth on behalf of the parties and find that admittedly the possession of flats was offered to the complainant within six months of the passing of the impugned order dated 20.10.2009 of the District Forum but the complainant is adamant only for the refund of the cost price of three flats together with interest as stated above. A perusal of the agreement dated 4.11.2006 entered between the parties goes a longway to show that there was no such clause regarding the refund of the deposited amount. The agreement was duly signed by the parties in the year 2006. The terms and conditions incorporated in the agreement had been no where challenged by the complainant However, now the contention of learned counsel for complainant is that non-inclusion of the term and condition regarding the refund of the amount makes the agreement void and unenforceable. For that, a great deal of evidence is required to be led by the parties for coming to the conclusion that the agreement entered into between the parties is void and this fact, we feel, can be gone into by the civil court. 8. Further, here in the instant case the complainant is stated to have been cheated as in the opening para of the agreement it was stated that the requisite permissions had already been obtained regarding raising of the construction. However, the material placed on the file indicates that the permission for raising the construction was finally obtained on 4.1.2008. This question of cheating and playing fraud by OP raised before us during the course of arguments should be left to be decided by the civil court as held in many pronouncements made by the Hon’ble National Commission. 9. Now coming to the judgment rendered by this Commission in Shamsher Singh Sidhu Vs Parsvnath Developers Limited etc. in Complaint case No.4 of 2009 decided on 19.8.2010, relied upon by the complainant. We have gone through this judgment also and find that there was a specific clause in the Agreement vide which an allottee/buyer was entitled to get refund of the amount in case any breach of condition was shown on the part of OP/developer/builder. Here in the instant case, as discussed above, the position is quite contrary to the facts of the above cited case. In this view of the matter, no benefit can be derived by the learned counsel for complainant from the observations made by us in the above said ruling. 10. In view of the foregoing discussion, we find no illegality or impropriety in the impugned order passed by the District Consumer Forum. However, we before parting with this order observe that complainant would be at liberty to knock at the door of appropriate civil court for seeking redressal of his grievance regarding the refund of the amounts together with interest deposited by him with OP, in accordance with law. 11. In the result, all the aforesaid three appeals are disposed in the aforesaid terms, leaving the parties to bear their own costs. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
