Chandigarh

DF-I

CC/698/2021

Raj Kumari - Complainant(s)

Versus

Greater Mohali Area Development Authority - Opp.Party(s)

Rajinder Singh Sidhu

05 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                                     

Consumer Complaint No.	:	CC/698/2021
Date of Institution	:	13/10/2021
Date of Decision	:	05/04/2023

 

Raj Kumari aged about 55 years, daughter of Sh. Ved Parkash Arya, resident of House No.614/1, Sector 41-A, Chandigarh

… Complainant

V E R S U S

1. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Chief Administrator.
2. Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Punjab through its Estate Officer (IT City), Mohali, Punjab.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Ranjinder Singh Sidhu, Counsel for complainant
	:	Sh. Tushar Arora, Counsel for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Ms. Raj Kumari, complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the OPs developed a residential colony called IT City Mohali situated in SAS Nagar Mohali, Punjab with 750 residential plots and the said scheme opened on 18.7.2016 and was closed on 19.8.2016.  It was promised through the said scheme that excellent connectivity spread over 1685 acres world class infrastructure, convenient payment plan and possession within one year in vicinity of international airport will be provided regarding which advertisement/brochure (Ex.C-1) was also issued by the OPs.  It is further alleged that the complainant had applied for allotment of a residential plot as it was promised through brochure/advertisement that possession shall be delivered within one year and accordingly the complainant had applied in category A scheme namely IT City for personal use and necessity for allotment of a residential plot and had deposited an amount of ₹5,13,320/- on 8.8.2016 which was duly acknowledged (Ex.C-2).  The complainant was found successful in the draw of lots and vide Sr.No.122 in the draw of lots held on 21.9.2016, OPs had issued Letter of Intent dated 18.11.2016 (Ex.C-3) for allotment of a residential plot measuring 256.66 sq. yards in Category-A (hereinafter referred to as “subject plot”).  The complainant was already having three bedroom flat in the society at Panchkula, but, as there was no provision of lift, she started residing in House No.614/1, Sector 41A, Chandigarh with her parents. On receiving Letter of Intent (Ex.C-3), complainant made balance payment to the OPs as per the payment plan and in this way she had paid an amount of ₹52,35,864/- after availing 5% rebate.  However, even as per the property ledger dated 11.10.2021 (Ex.C-4) downloaded from the official website of OPs, ₹1,79,662/- has been lying deposited with the OPs in the account of the complainant in excess which the OPs are liable to refund to the complainant.  It is further alleged that after receiving the Letter of Intent, numbering draw for the allotment of plots was held on 20.12.2019 and as per the result of the same, plot No.1214, Sector 83, Alpha, Block-B was allotted to the complainant vide allotment letter dated 20.12.2019 (Ex.C-5).  Since it was agreed upon by OPs through clause 15 of the Letter of Intent  that physical possession of the subject plot shall be handed over to the allottee within a period of one year from the date of letter of intent and the same had not been delivered within the said period, complainant is entitled for compensation on account of delay of possession as in fact the possession has been handed over to the complainant on 29.12.2020 after three years one month and twelve days of the issuance of letter of intent which was issued on 18.11.2016. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, jurisdiction, concealment of facts and limitation.  On merits, admitted that the subject plot was allotted to the complainant and possession of the same was also handed over to her.  However, it is denied that there is any deficiency in service on the part of the OPs.  It is further alleged that the excess amount of ₹1,79,662/- was deposited by the complainant of her own without any demand having been made by the OPs and she is not entitled for interest on the same, especially when she had never made any request for refund of the excess deposited amount.  It is further alleged that in fact the project of the OPs could not be completed due to reasons beyond the control of the authority as the amended environmental clearance by the State Level Environment Impact Assessment Authority was not issued to the OP and the general public was accordingly intimated through notice dated 14.6.2019 (Annexure OP-2/1) published in “The Tribune”.  It is only upon receipt of the amended environmental clearance on 28.3.2019, the development works of this pocket could be undertaken by the OP and after completion of development works at the site, numbering draw of plots of 256.66 sq. yards size could be conducted on 20.12.2019.  Not only this, even the allotment letters of plots could not be issued immediately thereafter due to outbreak of COVID-19 and the consequent nationwide lockdown imposed by the Govt.  It is further alleged that vide clause 9 of the terms and conditions of the allotment letter dated 29.12.2020, complainant was also offered possession of the plot which she was bound to take within the given time of 90 days.  It is also alleged that in case the complainant was aggrieved by the development works of the aforesaid scheme, then as per clause 27 of the allotment letter, she could have refused to accept the offer of allotment within 30 days so that the deposited amount could have been refunded to her as per rules.  After accepting possession of the subject plot and getting sale deed executed in her favour, complainant cannot raise the issue of delay in delivery of possession of plot and in this manner, complainant is estopped from filing the present consumer complaint by her act and conduct.  It is further alleged that the consumer complaint was required to be filed only within a period of two years from the stipulated date of possession and after 10/17.11.2019, the present consumer complaint of the complainant is beyond limitation. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. Admittedly, the complainant had applied for the subject plot in the scheme launched by the OPs on 8.8.2016, by paying an amount of ₹5,13,320/-, as is also evident from Ex.C-2.  It is further an admitted case of the parties that as per the payment plan, complainant had paid an amount of ₹53,25,864/-, including earnest money of ₹5,13,320/-, as is also evident from the copy of the property ledger (Annexure C-4).  It is further an admitted case of the parties that an amount of ₹1,79,662/- is the excess payment made by the complainant to the OPs against the total payment of ₹52,35,864/-, which was actually payable by the complainant to the OPs, as is also evident from Ex. C-4 i.e. copies of details of payment.  It is further an admitted case of the parties that the Letter of Intent (Ex.C-3) was issued by the OPs on 18.11.2016 to the complainant through which OPs had agreed to deliver the possession of the subject plot to the complainant within a year, from the date of its issuance.  It is also admitted case of the parties that the allotment letter for allotment of residential plot No.1214 for the aforesaid project was issued by the OPs to the complainant on 29.12.2020, as is also evident from Ex.C-5. 
   2. The case of the complainant is that as the OPs have failed to deliver the possession of the subject plot in terms of the Letter of Intent (Ex.C-3) within one year from the date of its issuance i.e. 18.11.2016 and there is delay of three years one month and twelve days in delivering the possession of the subject plot and also that an amount of ₹1,79,662/- is still lying in excess with the OPs, which has not been refunded to her despite of repeated requests, the complainant is entitled for the refund of the aforesaid amount alongwith interest @ 18% per annum for the period of delay as per terms and conditions of the LOI alongwith compensation.
   3. On the other hand, the defence of the OPs is that as the possession could not be delivered to the complainant on account of non issuance of the amended environmental clearance by the State Level Environment Impact Assessment Authority and all the concerned were informed through public notice dated 14.6.2019 published in The Tribune English newspaper and immediately on receipt of the said amended clearance certificate, OPs had handed over the possession to the complainant, who has accepted the possession without any objection, through allotment letter and also the said amount of ₹1,79,662/- was deposited by the complainant of her own and she had never applied for the refund of the same, the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed.
   4. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions as set up in the Letter of Intent dated 18.11.2016 (Ex.C-3) and allotment letter dated 29.12.2020 (Ex.C-5).
   5. The learned counsel for the complainant contended with vehemence that as it stands proved on record that the OPs had failed to deliver the possession of the subject plot to the complainant within one year from the date of issuance of the letter of intent dated 18.11.2016 and in fact letter of allotment was only issued by the OPs on 29.12.2020 i.e. after three years one month and twelve days from 17.11.2017, and further an amount of ₹1,79,662/- has been wrongly kept by the OPs, the complainant is entitled for interest @ 18% for the said period of delay from the OPs.
   6. On the other hand, learned counsel for the OPs contended with vehemence that as it stands proved on record that despite of the sincere efforts by the OP, amended environment clearance by the State Level Impact Assessment Committee was not issued to the OPs and only on receipt of the clearance certificate by the aforesaid authority on 29.3.2019, OPs had completed the development works at the spot and thereafter allotted the subject plot to complainant on 20.12.2019 and further due to outbreak of COVID-19 and nationwide lockdown imposed by the Govt., the subject plot could not be allotted to the complainant within the stipulated period, the consumer complaint of the complainant is liable to be dismissed being not maintainable. 
   7. There is no force in the contention of the learned counsel for the OPs as the OPs have failed to clarify this Commission as to why they received huge amount from the complainant, knowing fully well that necessary clearances have not been given by the competent authorities, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject plot.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are themselves to blame for the same as the purchaser of the subject plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

It has thus been proved by the admission of the OPs themselves that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required approvals/clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

8. So far as the defence of the OPs with regard to COVID 19 is concerned, we do not find any substance in the same, being a subsequent event, as the COVID-19 pandemic had gripped the entire world in the year 2020 whereas the booking of plot was made by the complainant in the year 2016 and the possession thereof was to be delivered within a period of one year from the date of issuance of LOIs i.e. by 17.11.2017. Hence, the OPs cannot take shelter behind the force majeure circumstances, referred to above.
9. The OPs also cannot evade their liability on the ground that time was not the essence of contract, especially in the face of clause 15 of the Letter of Intent which reveals that it has been committed by the OPs that physical possession of the plot shall be handed over to the allottee within a period of one year from the date of issuance of Letter of Intent, which in the present case was to expire in the year 2017 itself. In this view of the matter plea taken by the OPs in this regard stands rejected.
10. Be that as it may, it is not in dispute that the complainant has taken over possession of her plot. In her complaint also the complainant has sought compensation for the period of delay in delivery of possession of the said plot i.e. from the committed date till deemed possession as per the allotment letter. Thus, under these circumstances, now the question that falls for consideration is, as to what amount of compensation, the complainant is entitled to get, for the period of delay in delivery of possession of her plot. It may be stated here that recently the Hon’ble National Commission in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture Hubtown Sunstone, Consumer Case No.12 of 2017, decided on 4.5.2022, has awarded interest @9% p.a. on the deposited amount, for the period of delay. Relevant part of the said order reads as under :-

“…Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today…”

Similar view has been expressed by the Hon’ble National Commission in Shreya Kumar Vs. M/s. Ansal Housing & Construction Ltd, Consumer Case No. 1021 of 2017, decided on 5.5.2022. In view of the observations made by the Hon’ble National Commission, in the above noted cases, we are of the considered view that if we award simple interest @ 9% per annum on the entire amount deposited by the complainant from the due date of possession till the date when possession thereof has been delivered to her, that will meet the ends of justice.

11. The complainant has also sought refund of the amount of ₹1,79,662/- on the ground that the same has not been refunded to her despite requests which fact has been resisted by the OPs on the ground that as the said refund was never sought by the complainant by approaching the OPs, the complainant is entitled for the same.  Admittedly, there is no evidence on the part of the complainant that she ever sought refund of the aforesaid excessive amount lying deposited with the OPs, and it is only by way of filing the present consumer complaint that the complainant has sought refund of the aforesaid amount.  As it has further come on record that even after filing of the present consumer complaint, OPs have not refunded the aforesaid amount by transferring the same in the account of the complainant, it is safe to hold that the aforesaid amount is being enjoyed by the OPs till date even after filing of the present consumer complaint when the complainant has sought refund of the said amount.  Hence, it is safe to hold that the complainant is entitled for the refund of the aforesaid amount of ₹1,79,662/- alongwith interest @ 9% from the date of filing of the present consumer complaint till its realization.
12. The present consumer complaint is also resisted by the OPs on the ground that the same is barred by limitation.  However, there is no merit in the defence of the OPs as admittedly the possession of the subject plot was handed over to the complainant on 29.12.2020 and the present consumer complaint has been filed by the complainant on 13.10.2021 i.e. well within the prescribed period of two years from the accrual of the cause of action, hence it is unsafe to hold that the consumer complaint of the complainant is barred by limitation, rather it is safe to hold that the consumer complaint is very much within time.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to pay to the complainant interest @ 9% per annum on the entire deposited amount for the delay in delivery of possession w.e.f. the 18.11.2017 (i.e. after due date of one year as per clause 15 of the LoI) till 29.12.2020.
2. To refund the aforesaid excess amount of ₹1,79,662/- to the complainant alongwith interest @ 9% per annum w.e.f. the date of filing of the instant consumer complaint i.e. 13.10.2021 till its realization.
3. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to her;
4. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) to (iii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iv) above.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 05/04/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member
			Sd/- [Suresh Kumar Sardana] Member