DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.115 of 2015
Date of institution: 13.03.2015 Date of decision : 16.03.2018
Amit Chauhan son of Late Baldev Singh Chauhan, resident of 51/B, Sector 32-A, Chandigarh.
…….Complainant
Vs
Hanumanta Land Promoters Pvt. Limited, through its Director, Site Office Address: Mr. Anand Kumar/Raj Veer Singh c/o Hanumanta Land Promoters Pvt. Ltd., Micro Homes, Site Office, Near Sunny Heights & Galaxy Towers, Adjoining Kinder Pride School, Sector 125, Kharar, Mohali (Punjab) M-9878316000
2nd Address:
Hanumanta Land Promoters Pvt. Limited, through its Director
House Address:
Mr. Anand Kumar s/o Manohar Lal Rampal, H.No.326, Sector 10, Panchkula (Haryana), Mobile 9216551234.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Deepak Aggarwal, counsel for complainant.
OP Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
OP represented as if after acquiring and purchasing land in village Desumajra, Jandpur and Kharar, it is developing residential complex known as Micro Homes after getting the plots carving approved from Governmental authorities. OP also offered to hand over possession on completion of development works and after obtaining completion certificate/occupation certificate from the competent authority, but within two years from the date of booking. Flat buyers agreement was to be executed before accepting any amount from the customers/purchasers. On completion of slab of first floor, 10% of the amount of buyers agreement to be paid by the purchaser, but another 10% on achievement of slab of second floor. However, no schedule of payment was ever supplied to complainant, despite the fact that he after believing the allurements and representations of OP through advertisements in leading newspapers/brochure for sale of flats, agreed for booking of flat on payment of sum of Rs.2,68,000/-, paid through cheques at the time of booking. Those cheques were encashed by OP. Thereafter, complainant kept on calling upon the OP to enter into flat buyer’s agreement, so that balance payment may be made, but OP kept on procrastinating the matter. That act of OP amounts to unfair trade practice. Despite numerous visits by complainant to office of OP, flat buyers agreement not executed. Moreover complainant came to know as if various authorities including Punjab Pollution Control Board; Forest Department etc. have raised objections. OP threatened to forfeit the entire deposited amount by complainant by claiming as if complainant himself wants to cancel the booked flat for personal reasons. Complainant refused to submit the undertaking in that respect for cancellation as demanded by OP. Complainant came to know as if there is land dispute between OP and third party, due to which title of the land under the project of the OP not clear. No promoters licence for carrying out development works issued in favour of OP and even revised lay out plan has not been approved by the authorities, as per case of complainant. As OP is not in a position to offer possession of the flat in near future, and as such complainant sought refund of the entire deposited amount with interest @ 18% per annum from the dates of deposit till realisation. Compensation for mental agony and harassment of Rs.2.00 lakhs also sought, besides litigation expenses of Rs.20,000/-.
2. OPs filed reply by claiming that complainant is not consumer because no allotment was made in his favour because of the failure of complainant to pay further installments. Rather it is claimed that complainant at the most was a prospective investor and not a consumer because act of submission of application for allotment does not render complainant as a consumer. Moreover it is claimed that transaction between complainant and OPs is for sale of flat for total sale consideration of Rs.17,90,000/- and as such this Forum has no jurisdiction. Complainant himself is not in a position to deposit the balance amount and as such already deposited earnest amount by complainant liable to be forfeited. Present complaint filed just for seeking refund of deposited amount of Rs.2,68,000/- by adopting a novel method. Moreover complainant alleged to be estopped by his act and conduct from filing the complaint because of default committed by him in payment of installments. No cause of action accrued in favour of complainant, particularly when legal notice has not been served on the OPs. No relationship of consumer/service provider exists between the parties. Complaint alleged to be filed on misconceived and groundless basis for harassing OPs. OPs claims to be running project successfully. Admittedly complainant approached OP on 01.09.2013. As per the standard, agreement to be signed by all the buyers, possession was to be delivered within two years from the date of singing of flat buyers agreement or from the date of booking of the proposed plan, whichever is later. It is claimed that flats are almost ready for delivery of possession and OPs ready to handover possession provided complainant deposits the balance amount with interest. It is claimed that complainant was informed as if the approvals from the competent authorities are in the pipeline and the same will be got immediately. OPs received approval from Deputy Director Local Govt. -cum- competent authority on 20.11.2013 and thereafter lay out plan was received on 20.11.2013. After receipt of these approvals, project work is in full swing and almost nearing completion. Complainant never approached OPs after booking of the flat for purpose of entering into written agreement and as such by denying each and every averment of the complaint, prayer made for dismissal of the complaint.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter closed evidence. Counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Rajveer Singh, Director alongwith documents Ex.OP-1/1 to Ex.OP-1/4 and thereafter closed evidence.
4. Written arguments in this case submitted by both the parties. Application for additional evidence filed by complainant was dismissed vide orders dated 21.03.2016. Thereafter Shri Kulwinder Singh, counsel for the OP withdrew his authority for appearance on behalf of OP on 29.04.2016 and notice to OP was ordered to be issued. None appeared for OP despite service through Daily Punjabi Tribune and as such OP was proceeded against exparte on 13.02.2017. Oral arguments of counsel for complainant heard and written arguments already submitted taken into consideration and records gone through.
5. Ex.C-1 is brochure providing information regarding price of the flats to be developed by OPs alongwith other specifications. Ex.C-2 is receipt dated 09.09.2013 produced on record by complainant to establish that he deposited Rs.2,68,000/- with OPs for booking of 2 BHK flat in second floor of project of OPs. Even OPs has not denied receipt of above said amount from complainant and as such complainant able to establish as if he deposited Rs.2,68,000/- with OPs.
6. On receipt Ex.C-2 = Ex.OP-2 itself it is mentioned that in case of non payment of any installment by due date, the money deposited shall stand forfeited and as such it is submitted through affidavit of Shri Rajveer Singh, Director of OPs placed on record as Ex.OP-1/1 that due to non deposit of the balance installments by complainant, deposited amount liable to be forfeited. However, it is not a single endorsement on receipt Ex.C-2 = Ex.OP-1 that is to govern the terms and conditions of allotment, but over all terms and conditions to be taken into consideration.
7. Application form for unit allotment is produced on record as Ex.OP-1 by OP itself. After going through Ex.OP-1 it is made out that complainant was to be allotted two BHK flat on second floor on payment of Rs.17,90,000/- by him on execution of agreement. In Ex.OP-1 itself it is mentioned that this writing to be not construed as an allotment, but this letter in fact is for reserving the unit. In Ex.OP-1 itself it is mentioned that EOI in the upcoming project “Micro Homes” shall become definitive only after due acceptance of the same by OPs in writing and the same will be subject to terms and conditions stipulated by OPs. Confirmation regarding reading the terms and conditions received from complainant through letter Ex.OP-1 itself. So virtually retention or non retention of amount of booking by OPs depended on terms and conditions to be specified by OP.
8. Ex.OP-3 letter issued by Deputy Director Local Govt. to OP of date 20.11.2013 shows that regularization certificate for colony to be developed by OP is issued under Section 4 of Punjab Laws (Special Provision) Act, 2013 with respect to location of the site in village Desumajra with areas specified in Ex.OP-3 itself. This certificate Ex.OP-3 is issued subject to verification of information and the bank draft submitted by OPs with competent authority. At the footnote of certificate Ex.OP-3 it is mentioned that if any information provided by OPs found to be false/incorrect at any stage, then penal action will be started against OPs. No material regarding obtaining of verification of information by competent authority produced on record by OP, albeit they are bound to receive intimation in that respect. So OP has withheld the best evidence available with it for proving that it remained eligible to develop the project in question throughout till filing of complaint. Copy of terms and conditions referred in Ex.OP-1 even not produced by OPs, despite the fact that they are bound to be with it. So it is obvious that OPs seeking forfeiture of deposited amount without making known the terms and conditions, on the basis of which forfeiture of the deposited amount claimed by it. However, it is the positive case of complainant that he had been visiting OP office time and again for execution of flat buyers agreement, but OP is not executing the same because of pending litigation of OP with third party. It is the positive case of complainant that OP claimed that as soon as development work on the site will be resumed, then the flat buyer’s agreement will be executed. So it is obvious that complainant through his affidavit able to establish that due to pending dispute of OPs with third party regarding title of the property forming the subject matter of project in question, buyer’s agreement is not executed by OPs. so fault lays with OPs in not completing the project for long, despite the fact that it accepted the booking amount from complainant in October, 2013. Complainant cannot be expected to wait for long, moreover when possibility of starting of project in question is not there due to pending litigation between OP and third party and as such certainly complainant entitled for refund of the deposited amount with interest @ 12% per annum from the date of issue of legal notice Ex.C-4 dated 16.02.2015 till payment. In case OPs allowed to retain the amount deposited by complainant as booking amount, then it will cause unjust enrichment of OPs because it itself is not in a position to prove the terms and conditions providing for forfeiture of the deposited amount by complainant with it and nor it is able to establish that actually the project work is in progress.
9. In Para No.13 of case titled as Emaar MGF Land Pvt. Ltd. & Anr. Vs. Krishan Chander Chandna, IV (2014) CPJ 589 (NC) it has been specifically held that onus to prove that the project had been completed and the area/site, in question, where the plot of complainant is located, had been fully developed having all the basic amenities, was on the OP/builder-cum-developer, but if it failed to prove the same by leading cogent and convincing evidence, then mere mention of completion of development works at the site is not enough. Same is the position in the case before us because here OP unable to bring on record any material to prove that the project work is in progress or nearing completion and as such in view of the fact that in case of void or voidable contracts even, a person cannot be allowed to enrich himself, it has to be held that complainant entitled to refund of the deposited amount by him with interest. The same will be in consonance with provisions of Sections 64 and 65 of the Indian Contract Act, each of which provides for reimbursement of money got by a party challenging the contract as void or voidable. Present is a case in which OPs claiming forfeiture of the deposited amount because of non deposit of installments by complainant and as such virtually OPs seeking declaration of contract of purchase as voidable. So OPs are liable to refund the received amount.
10. As per law laid down in case of Resident Engineer, Rajasthan Housing Board & others Vs. Ram Niwas Changal, bearing Revision Petition No.4530 of 2014 decided on 31.10.2017 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, a person who has applied for allotment of a building/flat is covered under the definition of potential user, due to which he is a consumer. So submissions advanced through written arguments to the contrary has no force. Complainant due to deposit of booking amount for allotment of one BHK flat is potential buyer and as such he is consumer. The complaint is not false or frivolous, more so when the fault lies with OPs in not completing the project work for the last more than 4 years till today, even after receipt of booking amount from complainant. Though OPs claims through written arguments that they are ready to handover the possession, but evidence regarding readiness of the project is not adduced and as such vague submission in that respect are made through written arguments. If really the project work is in full swing as claimed through written arguments, then OP could have produced the photographs of the completed works or it could have produced the report of an expert for proving that. However, the photographic evidence produced on record as Annexure-1 to Annexure-8 (not exhibited in evidence) shows as if construction work is not completed, but the same is going on. Completion of the flats in question not shown in any of these photographs Annexure-1 to Annexure-8 and moreover as per news item published in paper clipping Annexure-9, Anand Kumar Director of OPs Company has been taken in custody in connection with case of cheating and as such this material produced on record enough to show as if virtually false pleas taken by OPs regarding completion of project work. As the project work is not complete and as such question of delivery of possession by OP to complainant does not arise. Though complainant submitted writing Ex.C-3 dated 03.09.2014 for cancellation of allotment and refund of the earlier paid amount of Rs.2,68,500/-, but Ex.C-3 does not bear signatures of anyone on behalf of OPs and as such refund of mentioned amount therein with effect from this date cannot be ordered. However, notice Ex.C-4 sent by complainant through counsel is of date 16.02.2015 and as such virtually request first time for refund put forth through this notice served through postal receipts Ex.C-5 to C-7. So entitlement of complainant for refund of the amount mentioned in Ex.C-4 will be with effect from 16.02.2015 till payment.
11. As a sequel of above discussion, complaint allowed with direction to the OPs to refund the received amount of Rs.2,68,000/- with interest @ 12% per annum from the date of legal notice Ex.C-4 dated 16.02.2015 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation costs of Rs.5,000/- more allowed in favor of the complainant and against the OPs. Payment of these amounts of compensation and litigation costs be made within 30 days from date of receipt of certified copy of order. Certified copies of the order be supplied to the parties free of costs as per rules.
Announced
March 16, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
