DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:453 of 2010] Date of Institution : 21.07.2010 Date of Decision :16.12.2011 ----------------------------------------- Sh. Vivek Kakkar son of Sh. Sham Sunder Kakkar resident of House No.21, Sector 13, Urban Estate, Kurukshetra, Haryana. ---Complainant. V E R S U S 1. Greenview Land and Buildercon Ltd., SCO No.854, NAC, Manimajra, Chandigarh through its Managing Director. 2. Sh. Sandeep Bansal, Director of Greenview Land and Buildercon Ltd., SCO No.854, NAC, Manimajra, Chandigarh. 3. Sh. Anil Bansal, Director of Greenview Land and Buildercon Ltd., SCO No.854, NAC, Manimajra, Chandigarh. ---Opposite Parties. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Varun Katyal,Advocate for the complainant. Sh. A. K. Jaiswal, Advocate for the OPs. PER LAKSHMAN SHARMA, PRESIDENT 1. Sh. Vivek Kakkar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to :- i) Refund the amount of Rs.7,31,000/- or in alternative to provide the flat to the complainant; ii) Pay a sum of Rs.10,000/- as compensation for mental pain and agony. iii) award any other relief, which the Forum deems fit. 2. The case of complainant is that on the verbal assurances of OPs No.2 and 3, he booked a flat No.13-B with OP No.1 on 15.12.2005 in the proposed Greenview Apartments, NAC, Zirakpur. He paid Rs.50,000/- at the time of booking the said flat. It has been averred that after accepting the booking amount, OP No.1 allotted Flat No.13-B in the proposed apartments. As per the terms of the allotment letter dated 20.1.2006 (Annexure C-2), the total price of the flat was fixed at Rs.22,75,000/-. An agreement to Sell dated 20.1.2006 was also executed between the parties. According to the complainant, he paid three installments of Rs.2,27,500/- each on 20.01.2006, 23.2.2006 and 09.04.2006 respectively vide receipts (Annexures C-3 to C-5). It has further been pleaded by the complainant that despite the fact that the complainant has already paid a sum of Rs.7,32,500/-, the construction of the allotted flat had not started at all. In the month of September 2006, when the complainant along with his friend Yogesh approached the office of OP No.2, he was told that permissions for pollution NOC, electricity and other requisite formalities are still awaited. So possession of the allotted flat could not be delivered. The complainant again enquired about the status of his flat in the month of January 2007 and on 08.05.2009 too the position remained the same. Lateron, he came to know that OPs have sold his flat to someone else without any notice and without obtaining his consent. Thereafter, the complainant sought refund of his entire amount but the OPs flatly refused to refund the same. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the written statement filed by OPs No.1 to 3, the fact regarding allotment of Flat No.13-B in the said proposed Greenview Apartments at Village Dhakauli, NAC, Zirakpur has been admitted. It has also been admitted that the complainant has paid a sum of Rs.7,32,500/-. It has been pleaded that after making the admitted payments, the complainant stopped making any further installment. According to OPs, timely payment was the essence of the allotment letter and agreement to sell for timely completion of the project. According to OPs and as per the terms and conditions of the allotment, in case, the purchaser fails to pay the installment with interest after 3 months, the promoter shall forfeit the total money deposited by the purchaser without any further notice and the allotment shall stand cancelled with no lien on the apartment. It has been asserted that OP No.1 was suffering huge losses due to recession in the real estate market. The allegation as regards the non-obtaining of required permissions have been categorically denied. According to the OPs, the project was completed by paying huge amount of interest to the Bank. It has been next pleaded that as a good will gesture, the complainant was offered the possession of the flat subject to clearing the outstanding balance amount along with interest @24% per annum within ten days but he failed to make the payment. As OPs were to pay heavy interest to the Bank, the plot of the complainant was sold to some other prospective buyer to clear the debt. According to OPs, there is no deficiency in service or unfair trade practice on the part. In these circumstances, OPs have prayed for dismissal of the complaint. 4. We have heard the learned counsel for the parties and have perused the record. 5. It is the admitted case of the parties that OPs allotted Flat No.13-B at the proposed Greenview Apartment situated at Village Lohgarh, Ph-II, NAC Zirakpur for Rs.22,75,000/- vide allotment letter (Annexure C-2). It is also an admitted fact that out of the said amount of Rs.22,75,000/-, the complainant had paid a total sum of Rs.7,32,500/- to the OPs vide receipts (Annexures C-3 to C-5). 6. The case of the complainant is that since, the necessary and required permissions for pollution NOC, electricity and other requisite formalities were not there with the OPs, they failed to start the construction of the allotted flat in time, which resulted in delay of completion of project. According to the complainant, it is a clear deficiency in service, which has resulted into huge financial loss to the complainant. The next allegation of the complainant is that the OPs sold his flat to some other prospective buyer without any notice to him and without his consent, which is an unfair trade practice on their part. 7. The case of the OP is that the possession of the flat could not be delivered to the complainant as he failed to deposit the subsequent installments, which led to the cancellation of his allotment and the amount was forfeited. 8. Annexure-2 is a copy of letter dated March 2009 written by the Chief Engineer/Commercial, PSEB, Patiala to the Executive Officer-cum-Competent Authority, Nagar Panchyat Zirakpur. Vide this letter, the Chief Engineer/Commercial, PSEB, Patiala intimated to the Executive Officer that they have checked the Layout plan/drawings submitted by the Promoter with the underground system of electrification and have granted the NOC/Clearance subject to the certain conditions. The relevant conditions as enshrined in this letter are reproduced as below:- “9) It is made clear that in case the Promoter/EO Zirakur fails to provide the requisite electrical LD system, PSEB will consequently not be able to give electric connection(s) to the prospective consumer(s) (owners/residents of the plots), responsibility of which shall lie solely on EO Zirakpur/Promoter. 10) The Electric connections to the colony shall be released after obtaining NOC from Punjab Pollution Control Board as required under ESR 8.1.7.” 9. From the bare reading of this letter, it is undoubtedly proved on record that OPs were not having the necessary required permissions, NOC from Punjab Pollution Control Board, electricity and other requisite formalities, which were conditionally granted in the month of March 2009. Therefore, in absence of the required permission, OPs were not in a position to construct the flat in question and handover its possession to the complainant as per the terms and conditions of the allotment. In these circumstances, non-obtaining the above necessary permission by the OPs before the start of the project amounts to deficiency in service as well as unfair trade practice on their part as has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7 (NC). 10. At this stage, reference may be made to the judgment of Hon’ble National Consumer Disputes Redressal Commission in the case of Prasad Homes Private Limited Vs. E. Mahender Reddy & Others reported as I (2009) CPJ 136 (NC). In this case, the payment of further installments were stopped by the complainant as no development work had been carried out at the proposed site. The possession was not delivered to the complainant as the approved layout plans were not supplied. Even the agreement clause was heavily loaded in favour of builder and against the purchasers as it entitles forfeiture of deposited amount even if fault is on part of builder himself. The Hon’ble National Commission held that the builder cannot be allowed to take shelter under agreement clause to usurp money deposited by the complainants. Such agreement clearly amounts to unfair trade practice. Refund of the deposited amount with interest directed by the Fora was upheld by the Hon’ble National Commission. The ratio of this case is squarely applicable to the fact of the case in hand. 11. In the facts and circumstances of the case and in view of the law settled by the Hon’ble National Commission, OPs are deficient in service as they had not obtained the necessary permissions before start of the project and further forfeited the amount of the complainant. Further, the OPs sold the flat of the complainant without any notice to the complainant and his consent to some another prospective buyer, which also amounts to unfair trade practice on their part. Therefore, the complainant is entitled for the refund of the amount along with the interest. 12. In view of the above findings, this complaint is allowed with the following direction to the OPs: - (i) to refund an amount of Rs.7,32,500/- to the complainant along with interest 9% per annum from the date of respective deposits till actual payment. (ii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 13. This order be complied with by the OP, jointly and severally, within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.7,32,500/- to the complainant along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation. 14. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced. 16th December, 2011 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/- C.C.No.453 of 2010 Present: None. --- As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 16.12.2011 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
