Chandigarh

DF-II

CC/341/2021

Ruchi Aggarwal - Complainant(s)

Versus

M/s Amazing Real Estate Pvt. Ltd. - Opp.Party(s)

Somesh Gupta adv

15 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

(I)

Consumer Complaint No.	:	341/2021
Date of Institution	:	04.06.2021
Date of Decision	:	15.05.2023

 

                     

            

        

1.  Ruchi Aggarwal aged 43 years w/o Sh.Pardeep K.     Aggarwal

 

2.  Pardeep K. Aggarwal age 49 years s/o     Sh.B.K.Aggarwal

   

    Both r/o H.No.2261, Sector 35-C, Chandigarh

    ...  Complainants.

Versus

M/s Amazing Real Estate Pvt. Ltd. Corporate Office Unit No.B-107, Business Complex at Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh through its Managing Director/Authorized Signatory.

…. Opposite Party.

 

(II)

 

Consumer Complaint No.	:	367/2021
Date of Institution	:	15.06.2021
Date of Decision	:	15.05.2023

 

                     

                         

Indu Aggarwal age 41 years wife of Sh.Amit Aggarwal r/o H.No.2261, Sector 35-C, Chandigarh

    ...  Complainant.

Versus

M/s Amazing Real Estate Pvt. Ltd. Corporate Office Unit No.B-107, Business Complex at Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh through its Managing Director/Authorized Signatory.

…. Opposite Party.

 

BEFORE:-

SHRI AMRINDER SINGH SIDHU, PRESIDENT

SHRI B.M.SHARMA, MEMBER

 

Present:-

         Sh.Somesh Gupta, Counsel of complainants

         Sh.Vishal Singal, Counsel of OP.

 

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

1.     By dint of this common order, two (2) connected consumer complaints in which common questions of law and fact are involved, are being disposed off on merits. The particulars of the complaint and the details of the amount deposited by the complainant (s) in the scheme of the OP is as under:-

1. C.C. No.341/2021-Ruchi Aggarwal & Pardeep K. Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd.
2. C.C. No.367 /2021-Indu Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd.

2.     The facts are gathered from C.C. No.341/2021-Ruchi Aggarwal & Pardeep K. Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd..
3.     Brief facts of the complaint, as pleaded by the complainants, are that allured by rosy pictures shown by the OP to the complainants, on 26.10.2016, they applied for a flat of 1355 sq. ft., Unit No.A404, 4th Floor at Tower A in Project Joynest Moh 1, PR-7 Airport Ring Road, Near Aerocity, SAS Nagar (Mohali) against basic sale price of ₹30,00,000/-.   The OP promised basic amenities as well as luxury facilities but the same were not there in the project. The complainants opted for construction linked payment plan but neither the OP executed buyer’s agreement with the complainants nor issued the allotment letter dated 22.3.2017 to them. The grievance of the consumer complaint is that despite making payment of ₹32,56,152/-  including club membership and power backup on various dates, the OP vide possession reminder dated 15.02.2021 (Annexure C-8), raised outstanding demand of ₹8,34,410/-.  Subsequently vide possession reminder 2 letter dated 06.03.2021(Annexure C-9), the OP demanded Rs.8,40,625/-.   It has been averred that 3rd time termination letter dated 20.03.2021 (Annexure C-10), possession show cause letter dated 10.04.2021 (Annexure C-11), possession cancellation letter dated 26.04.2021(Annexure C-12) and possession cancellation letter dated 11.05.2021 (Annexure C-18) vide which besides other charges, the OP claimed holding charges on account of delay in taking over the physical possession of the flat. It has been averred that the OP cannot compel them to take possession of an apartment lacking basic facilities and is still incomplete.  The complainants met with the officials of the OP number of times and tried to persuade it that they have already paid the basic cost of the unit/flat plus other charges and were ready to deposit the last installment payable at the time of possession as well, provide, at least, the project complete with basic facilities. Averred, at the time of booking i.e. 26.10.2016, OP did not even have basic approvals to start the project.  However, instead of looking into the grievances of the complainants, OP started sending threatening letters and sent possession termination dated 11.05.2021 (Annexure C-18), despite the fact that the complainants were regularly paying the installments. However, OP vide possession cancellation letter dated 26.04.2021 raised total outstanding demand of ₹8,59,103/- from the complainants and ultimately vide letter dated 06.08.2018 (Annexure C-27), intimated possession cancellation of allotment. It has been alleged that the project complete in all respects was to be handed over by the OP within 24 months from the date of booking, but, it failed to do so and even has not provided the various promised basic amenities as detailed in the its brochure.  It has been averred that the construction is still going one at snail pace and the complainants have also annexed the photographs as Annexures C-39 to C-42.  The complainants have also alleged that the modular kitchen as promised in the brochure is also not complete. Alleging that the aforesaid acts amount to deficiency in service and adoption of unfair trade practice on the part of OP, complainants filed the instant consumer complaint.
4.     After service of the notice upon the OP, the OP appeared through Counsel and filed the written version wherein the OP admitted that the complainants were allotted the apartment/unit in question. The OP submitted that the project is RERA registered and was to be completed by 29.7.2022. Further stated that the complainants are not consumer as envisaged under Section 2(7) of the Consumer Protection Act, 2019; no cause of action has arisen to the complainants to file the present complaint; that the matter be referred to the Arbitrator as per Clause 27 of the Unit Application Form; that this Commission has no jurisdiction to entertain and try the present complaint.  It has further been stated that the complainants are liable to pay the GST charges as applicable by the Govt., the advance maintenance charges as per clause 10 of the application form and the upholding charges upon their failure to take the possession.  The Unit of the complainants was completed and offered for possession on 18.01.2021 along with the demand letter but the complainants failed to take the same. Accordingly, complainants’ unit stands cancelled on 11.05.2021 and the complainants are not entitled to possession of the unit and any refund is also subject to forfeiture of earnest money deposit without any interest and deduction of other charges as per the terms and condition of the application form.  As per the OP, the complainant was duly offered the possession on 18.01.2021 along with a possession demand letter dated 18.01.2021. Thereafter, the Complainants were duly served possession reminder letter dated 15.02.2021 possession reminder-1 letter dated 06.03.2021, possession termination letter dated 20.03.2021, possession show cause notice dated 10.04.2021 and possession cancellation notice dated 26.04.2021. Only thereafter the Unit of the complainant was duly cancelled on 11.05.2021. The allotment of the unit of the Complainant has got cancelled due to non-payment of dues and instalments by the Complainant. It is further submitted that the complainant unit already stands and for claiming any possession, a Civil Suit for Specific Performance of a Contract under The Specific Relief Act is only maintainable in the Civil Court. It has been denied that only an amount of Rs.1,50,000/- is only due from the Complainant as on 18.01.2021 along with possession demand. It is submitted that an amount of Rs.7,05,436/- was due from the Complainants as per possession demand letter on 18.01.2021 along with an offer of possession dated 18.01.2021. It is further submitted that the Complainants have been habitual defaulters and their unit allotment was on earlier occasions had been cancelled and terminated upon due to non-payments of instalments and dues in time. The Complainants were served upon with demand letter dated 09.10.2017, a reminder to the demand letters dated 05.01.2018 & 23.01.2018, the Complainant were served a termination letter dated 21.02.2018, show cause notice for cancellation of allotment dated 14.03.2018, show cause notice for cancellation of allotment dated 29.03.2018, and intimation of cancellation of allotment dated 18.05.2018.  The allotment was restored on the repeated requests of the Complainant who had assured of making timely payments henceforth but thereafter again the Complainant defaulted on several occasions and was served upon a cancellation of allotment letter dated 06.08.2018. The allotment was again restored on the repeated request of the Complainant who had again assured of making timely payments henceforth but thereafter again the Complainant, being a habitual defaulter, defaulted on several occasions and was served again a termination for the cancellation of allotment letter dated 09.09.2019 after having been served upon the Complainant various reminder demand letters. The Complainant are not entitled to possession of the unit and any refund is also subject to forfeiture of earnest money deposit and deduction of other charges as applicable as per the terms and conditions of the Application Form and of final possession cancellation letter dated 11.05.2021 where in an amount of Rs.20,33,715/- is only refundable to the Complainant after forfeiture of earnest money and deduction of other applicable charges and upon surrender of original documents with the opposite party. The remaining averments made in the complaint have been denied, being false and incorrect. Pleading that there is no deficiency in service or unfair trade practice on its part, the OP prayed for dismissal of the consumer complaint with costs.
5.     The Complainant filed replication to the written version of the OP controverting its stand and reiterated the averments made in the complaint.
6.           Parties led evidence by way of affidavits and documents.
7.     We have heard the learned counsel for the parties and gone through the record as well as written arguments of the parties.
8.     The first and foremost objection taken by the OP is regarding lack of pecuniary jurisdiction of this Commission. It is held that, as the complainants have paid an amount of less than 50 lacs in toto to the OP as sale consideration of the flat in dispute so this Commission has pecuniary jurisdiction to try and adjudicate upon the present complaint. The Ministry of Consumer Affairs, Food and Public Distribution, Centre notified the rules for Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 vide notification dated 30.12.2021 as under:-

“The revised pecuniary jurisdiction for entertaining consumer complaints shall be upto :

1.   50 lakh for District Commission.
2. & 3) xxxx.”

         In view of this, it can safely be concluded that this Commission has pecuniary jurisdiction to try and adjudicate upon the present complaint.

9.     The second objection of the OP is with regard to territorial jurisdiction. In the instant complaint, perusal of almost all the documents placed on record reveal that the same have been issued by the OP from their Chandigarh Corporate Office i.e. Unit No.B-107, Business Complex, Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh, meaning thereby that the OP was actually and voluntarily residing and carrying on business from their Corporate Office at Chandigarh and personally work for gain hereat. Thus, the objection taken in this regard is also overruled and the same is discarded. 
10.     Further, the OP objected that the complainants did not fall within the definition of ‘consumer’. In this regard, it is held that, as the complainants have availed the services of the OP for consideration so the complainants are the consumers qua the OP.
11.     The OP cancelled the allotment of the unit vide letter dated 11.05.2018, the OP have placed reliance on demand letters dated 09.10.2017 and 05.01.2018, termination letter dated 21.02.2018 and 29.03.2018 (show cause notice).
12.    The main question to be considered is whether the OP cancelled the allotment of the unit in question wrongly and arbitrarily or not?   

         At the time of arguments as well as perusal of the written version reveals that cancellation of the unit in question was solely on the ground that the complainants defaulted in making remaining payment which fact could have delayed the project.

13.     On the other hand, learned counsel for the complainants pleaded that the OP raised frequent demands and they have already deposited all the installments except one installment. As per the complainants, they were required to make payment as per construction linked payment plan but it has been alleged that the OP collected the booking amount qua the unit in question from the complainants before obtaining the necessary approvals/permissions from the competent Authorities. The OP has also failed to place on record the necessary documents on record to show that the necessary approvals/permissions were obtained prior to booking of the unit. Therefore, the objection of the OP that the complainants being defaulters in making payment is unreasonable and unjustified. 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 as under:- 

                “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. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

14.     Moreover, the right of OP to cancel the allotment as per terms and conditions of the agreement would arise only if OP had got the buyer’s agreement executed and project is complete with all the amenities and necessary approvals from the competent Authorities. However, in the complaint in hand, OP overcharged an amount of 10% of the sale consideration without getting the buyers agreement executed from the complainants which is in violation of Section 13 of RERA Act and Section 6(1) of the PAPRA Act.  Hence, it is observed that neither any right accrued to the OP to issue any demand notice nor for that matter complainants were legally bound to make any further payment in view of incomplete project. Though the OP alleged that they have offered the possession of the unit to the complainants on 18.01.2021 and the complainants have failed to take the same after payment of the outstanding amounts despite writing numerous letters yet it is relevant to mention that the complainants through application dated 21.10.2021 sought 12 points of important information from the OP during the proceedings of the present complaint to which the OP has simply filed the reply by stating the said information is available on the website of RERA without placing on record the relevant copies of the said documents which clearly proves the malafide intention of the OP being not in capacity to answer the genuine queries of the complainants/consumers.  As such, the act of non-submission of the above said documents alongwith latest photographs of the project site by the OP, which could have material bearing to the root of the complaint, inclines this Commission to draw an adverse inference against them that the project in question was launched  and units therein were sold without necessary approvals/sanctions from the competent Authorities and also that the demands raised from the complainants by the OP were contrary to the construction stages/payment schedule as explained above. As such, the complainants were well within their right not to make payment of remaining sale consideration, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee to go on paying installments to it. Similar view has also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.

         Under above circumstances, it is held that by cancelling the allotment of unit in question, on the ground that the complainants were defaulter in making remaining payment, especially when all the installments except one were paid; the OP adopted unfair trade practice and are also remained deficient in providing services to the complainants. So, it is held that the OP has cancelled the allotment of the flat in question wrongly and arbitrarily because it does not possess all the requisite permissions and approvals from the competent Authorities as per the requirement of law for offering possession to the complainants. Hence the cancellation of the allotment letter is set aside and it is held that the OP is liable to restore the allotment of the unit in favour of the complainants.

       Since, it has already been held that payments were received by the OP contrary to the payment schedule/stage of construction and almost all the installments except one last installment towards the basic sale price already stood paid by the complainants, as such, it is held that the complainants are not liable to pay any interest on delayed payment to the OP on the payments already made.

15.       As far as plea taken by the complainants to the effect that they are entitled to get 100% rebate on GST is concerned, it may be stated here that the complainants have failed to place on record any authentic document in the shape of gazette notification or any order having been passed by the Competent Authority, in that regard.
16.     In view of the above findings, this complaint is partly accepted along with compensation and the OP is directed as under:-

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.
2. To immediately hand over possession of the apartment/flat complete in all respects along with modular kitchen and designated car parking slot.
3. To issue fresh statement of accounts to the complainant after adjusting, interest, penalty and cost as imposed upon the OP in the present order.
4. To pay compensation for causing mental agony and physical harassment to the complainants on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of Rs.1,00,000/- (Rupees One lakh only), to the complainants, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,00,000/-(Rupees One lakh only), shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.

II)          C.C. No.367 /2021-Indu Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd.

17.     This complaint is also partly accepted along with compensation and the OP is directed as under:-

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.
2. To immediately hand over possession of the apartment/flat complete in all respects alongwith modular kitchen and designated car parking slot.
3. To issue fresh statement of accounts to the complainant after adjusting, interest, penalty and cost as imposed upon the OP in the present order.
4. To pay compensation for causing mental agony and physical harassment to the complainant on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of Rs.1,00,000/-(Rupees One lakh only), to the complainant, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,00,000/-(Rupees One lakh only), shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.

18.           The pending application (s), if any, stands disposed of accordingly.
19.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced in open Commission 15.05.2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER