Chandigarh

DF-II

CC/703/2021

Satbir Singh Sadana - Complainant(s)

Versus

Manohar Infrastrcture and Construction Pvt. Ltd. - Opp.Party(s)

Adv. R.C. Sharma

04 Jul 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	703 of 2021
Date  of  Institution	:	14.10.2021
Date   of   Decision	:	04.07.2024

 

 

 

 

 

Satbir Singh Sadana s/o Sh.Patwant Singh, resident of House No.4511-B, MIG Super, Sector 70, Mohali

 

             …..Complainant

 

Versus

Manohar Infrastructure & Construction Private Limited, SCO No.139-141, Sector 17-C, Chandigarh through its Managing Director

….. Opposite Party

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Present:      Sh.R.C.Sharma, Counsel for the complainant

Sh.Nitesh Singhi, Counsel for the OP

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

         The complainant has filed the present complaint pleading that he booked a residential plot measuring 350 sq. yards @Rs.18000/- per sq. yds. in the project namely ‘Palm Garden” being developed by the OP in Mullanpur, New Chandigarh, District SAS Nagar, Mohali by way of transfer from one Rohin Bansal vide Expression of Interest dated 22.2.2011 as well as application & acknowledgement dated 25.3.2013 (Ann.C-1 to C-4). The complainant made payment of Rs.18.90 lacs as 30% to the OP at the time of booking against the total cost of the Plot of Rs.63 lacs excluding additional charges (Ann.C-4)).  It is stated that additionally a sum of Rs.2 lacs as transfer fee along with Rs.35,000/- as demanded were paid to OP vide Ann.C-5.  Thereafter, the complainant made payment of Rs.22,05,000/- to OP (Ann.C-8) and thereafter the OP issued allotment letter to the complainant allotting Plot No.370 measuring 400 sq. yds. in the project vide letter dated 19.2.2018 (Ann.C-9) i.e. after 4 years period. It is pleaded that the OP issued letter dated 31.3.2018/9.4.2018   (Ann.C-10) for remitting outstanding payment but when the complainant visited the site, he found that there was no development.  It is also pleaded that the complainant did not sign the Draft Agreement (Ann.C-13) for want of corrections and clarification. It is pleaded that the complainant constantly remained in touch with the OP highlighting the development and other issues but the OP instead of settling the issues, issued letter dated 26.7.2019 referring to the notice of termination and also enclosed a cheque of Rs.33,75,000/- dated 26.7.2019 against the sum of Rs.40,95,000/- paid by the complainant.  It is submitted that the OP issued another letter dated 19.9.2019 asking the complainant to sign the agreement and provide more documents but they did not agree to correct the defects in the agreement. Hence, this complaint has been filed alleging the said act & conduct of the OP as gross deficiency in service and unfair trade practice with a prayer to accept the present complaint, set aside the letter dated 26.7.2019 with reference to preceding notice of cancellation of allotment dated 27.8.2018 and direct the OP to deliver the possession of the plot in question complete in all respect after completing the project and obtaining the completion certificate, to pay interest for delayed period, compensation for harassment and litigation cost etc.

 

2]       After service of notice upon the OP, the OP appeared before this Commission and filed written version and while admitting the factual matrix of the case about booking and allotment of plot measuring 400 sq. yards and receipt of amounts so paid by the complainant towards it, as matter of record, stated that the complainant only submitted expression of interest which did not entitle to final allotment of plot.  It is also submitted that the complainants were well aware about the facts that at the time of booking, the approvals from the concerned authorities/ government were awaited and only due to the said reason, he had submitted the expression of interest.  It is stated that the complainant is defaulters who had not come forward to deposit the remaining amount and further to sign the Plot Buyer’s Agreement despite repeated requests of OP.

It is also stated that any charges whatsoever are charged by the OP are levied as per the law and the same are uniform for all the customers who had invested in the project of the OP. Moreover, it is mentioned in the EOI that all layout plans, specification and other details are tentative and subject to variation and modification by the company or other competent authority.  It is stated that the competent authority has granted extension regarding completion of the Mega Project of answering OPs upto 31.12.2022. It is asserted that there was some procedural delay on the part of the Government in issuing the notification which is applicable to the project of the OP Company and formal notification in this regard has been issued.  It is pleaded that the complainant never visited the site where development is t full swing and development work for most of the area is complete.  It is stated that the complainant has not come forward to complete the formalities and to sign Plot Buyer’s Agreement and further to pay the remaining amount despite reminders and hence the OP under compelled circumstances cancelled the allotted plot of the complainant vide letter dated 27.8.2018 and a cheque for the refund of the amount was issued to him by the OP.  It is also stated that the developer can develop the project only when the purchasers will pay the proper installments well within time. It is asserted that the complainant has approached this Commission with malafide intention. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OPs have prayed for dismissal of the complaint. 

3]       Replication has also been filed by the complainant controverting the assertions of OP.

4]       Parties led evidence in support of their contention.

5]       We have heard the ld.Counsel for the parties and have gone through entire documents on record including written arguments.

6]       It is observed that the complainant has admittedly booked & allotted a residential Plot No.370 measuring 400 Sq. Yards in the subject project of the OP (Ann.OP/27). It is proved that the complainant had already paid an amount of Rs.40,95,000/- to the OP (Ann.C-4 & C-8) for the plot in question against its total cost of Rs.63 lacs (Ann.C-4). However, the OP failed to delivered the possession of the plot in question despite receipt of substantial amount from the complainant since long.  Moreover, the OP has also failed to justify collection of amount by it from the complainant and booked the Unit in question without having necessary approvals to do so from the concerned authorities. The OP neither gave legal possession nor refunded the complete amount to the complainant.  

 

7]       It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed:

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.

 

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

           Hence, the act of the Opposite Party to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice.    

8]       In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

    Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

 

9]       Under above mentioned facts, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainants but also caused him immense harassment & mental agony.

10]      Resultantly, the present consumer complaint is partly allowed and the OP is directed to deliver to the complainants the actual physical possession of the Plot in question having all basic facilities & amenities, subject to balance payment, if any, and other charges.  The letters dated 27.8.2018 & 26.7.2019 (Ann.C-14 & C-15) issued by the OP stands revoked.

         However, in case, the complainant is not interested to take possession of the plot, for any reason, then OP shall refund the entire deposited amount of the complainant along with interest @10% per annum from the respective date(s) of deposit till its actual payment. 

         This order shall be complied with by the Opposite Party within a period of 45 days from the date of receipt of its certified copy.

11]      The pending application(s) if any, stands disposed of accordingly.

         The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

04.07.2024                                                                      Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (B.M.SHARMA)

MEMBER