Chandigarh

DF-II

CC/278/2015

Sh. Naresh KUmar Bhandari - Complainant(s)

Versus

M/s Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

Sh. R.C. Sharma Adv.

17 Feb 2016

ORDER

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

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Consumer Complaint  No	:	278 of 2015
Date  of  Institution	:	29.5.2015
Date   of   Decision	:	17.02.2016

 

 

 

 

 

1. Sh. Naresh Kumar Bhambri s/o Sh. Mulak Raj Bhambri resident of H. No.1601, Block A, Pushak Complex, Sector 49B, Chandigarh.

 

2. Sh. Rajiv Bhambri resident of house No.1601, Bolck A Pushak Complex Sector 49-B, Chandigarh.

 

                …..Complainant

Versus

 

1. M/s Ansal Properties & infrastructure Ltd. 115, Ansal Bhawan 16, Kasturba Gandhi Marg, New Delhi 110001 through its Managing Director.
2. Regional Manager M/s Ansal Properties and infrastructure Ltd. SCO No. 183-184, Sector 9C, Madhya Marg, Chandigarh.

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh. R.C. Sharma, Advocate

 

For Opposite Party(s)   :     Sh. Subhash Chand, Advocate.

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the complainants jointly purchased a residential unit in the project of the OPs, which was allotted to them vide allotment letter dated 11.11.2010. The basic price of the floor was Rs.28,20,000/-. The complainants paid a sum of Rs.4,23,000/- to the OPs towards the price of the unit in question. It is averred that at the time of offering the floor the  OPs assured that all the necessary approvals have been obtained by the company. In the allotment letter also it was mentioned  that building plans have already been sanctioned by the authorities.  As per clause 12 of the allotment letter the construction of the floor was likely to be completed within 24 to 30 months of commencement of work, which shall be date of all the requisite sanctions /approvals /permissions/clearances.  The payments were to be made as per schedule provided in allotment letter comprising construction linked installments. It is alleged that the Opposite Parties started demanding installments without starting any construction at the site. Even no requisite approvals were obtained by them before offering the flats for sale.  The complainants asked the Opposite Parties to show the requisite approvals but they failed to do so. The Opposite Parties did not complete the work at the site despite lapse of more than one year. Left with no alternative the complainants sought refund of the amount but to no avail. Hence this complaint alleging the said act of OPs as deficiency in service, this compliant has been filed.

 

2]       Opposite Parties in the reply stated that complaint is barred by time as the cause of action arose to the complainants from the date of cancellation of the unit i.e. on 21.8.2012, whereas they had filed the complaint in June 2015. It is averred that the complainants are not consumer under section 2(d) (ii) of the Consumer Protection Act.  It is alleged that the complainants are defaulter in making payments to the OPs as they failed to make payment as per payment schedule despite repeated demands from the OPs. Resultantly the allotment was cancelled vide letter dated 21.8.2012.  It is denied that the Opposite Parties had not necessary approvals. It is averred that the complainants after satisfying themselves regarding the approvals and sanctions  booked the unit. It is further averred that since the complainants failed to make the payments within stipulated period as such the amount deposited by them was forfeited in accordance with clause 5A of the allotment letter. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]       The Complainant also filed rejoinder thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in the reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld. Counsel for the parties and have also perused the record.

 

6]       Before coming to the merits of the complaint, it will be appropriate to look into the preliminary objections of the Opposite Party. The Opposite Party in preliminary objections have stated that the complainant is not ‘Consumer’ as defined under section 2 (1) (d)  (ii) of Consumer Protection Act. As per Opposite Party, the complainants have nowhere pleaded that they purchased the unit for their self use and they are end users and therefore, they are not covered under the definition of ‘consumer’.  We have gone through the documentary evidence led by the parties in this regard. Opposite Party have failed to show the indulgence of the complainants in the business activity of buying and selling properties in order to gain any benefit. Therefore, this objection of Opposite Parties is not sustainable and the same is rejected accordingly. 

7]       As far as the objection of Opposite Parties that the complaint being barred by time is concerned, the same is also devoid of merit because as per averments of the complainants, the alleged cancellation letter dated 21.8.2012 was never received by them. It is pertinent to mention here that the amount deposited by the complainants has not been refunded to them so far, and as such the cause of action is recurring one and the complaint is well within limitation. Hence, the objection of Opposite Party in this regard is rejected accordingly.

 

8]       The Opposite Parties claimed that taking recourse under Clause 5a of the allotment letter, they cancelled the allotment of the unit in question way back in the year 2012 due to the non-payment of the installments by the complainants despite repeated reminders.  This claim of the OPs is altogether against the terms & conditions mentioned in the allotment letter which states that the construction of the said independent floor is likely to be completed within 24 to 30 months of commencement of work, which shall be tentatively the date of receipt of all requisite sanction/approvals/permissions/clearance, subject however to force majure circumstances.  There is no averment of the OPs that their project has timely been completed and they are ready to handover the unit in question to the complainant or they had fulfilled their part of promise as agreed.  As the Opposite Parties failed to fulfil their part of promise, so they cannot cancel the allotment of the unit in question or forfeit amount deposited by the complainants acting arbitrarily. 

9]       Now coming to the question, as to whether, the complainants are entitled to refund of deposited amount with interest or not. The answer to this question is in the affirmative. A perusal of the copy of Receipt dated 26.8.2010 (Page No.20 of complaint) reveals that the company received an amount of Rs.4.23 lacs from the complainants towards booking of Unit No.933, SF in Exclusive Floors.

 

10]      The Opposite Parties failed to produce the copy of Advance Registration Form, filled by the complainants, at the time of booking of the plot in question by paying an amount of Rs.4.23 lacs.  The complainants have made specific arguments in this regard vide present complaint that complainants were not provided with any document including the Advance Registration Form.  This act of omission to produce the necessary document shows malafide of the Opposite Parties.

 

11]      As per the arguments submitted, one thing is clear that the Opposite Parties have not been granted all necessary permissions/approvals from the departments concerned, necessary for the establishment of the project at the time of taking the booking amount from the complainants. 

 

12]      According to law, the Opposite Party could not start booking of the residential plots, and obtain money from the innocent consumers, before actually the license and all the permissions and sanctions had been granted to them, by the Competent Authority. In case Kamal Sood Vs. DLF Universal Ltd., reported as  III(2007) CPJ-7 (NC), it  was held by the Hon’ble National Commission, that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/building.

 

13]      The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licenses and without getting the necessary approvals, the same amount to indulgence into unfair trade practice, on the part of the builder.

 

14]      In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Parties are jointly & severally directed as under ;-

1. To refund the amount of Rs.4.23 lacs  to the complainants along with interest @12% p.a. from the date of its deposit i.e. 26.8.2010 till actual payment.
2. To pay a sum of Rs.25,000/- as compensation to the complainant on account of mental tension, agony, harassment.
3. To pay Rs.10,000/- as litigation expenses.

         This order shall be complied with by the Opposite Parties jointly & severally within one month from the date of receipt of its certified copy, failing which, they shall be liable to refund the amount of Rs.4.23 lacs to the complainants along with interest @18% p.a. from the date of its deposit i.e. 26.8.2010 till actual payment and compensation amount of Rs.25,000/- alongwith interest @ 18% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation.

        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17.02.2016                                       

                                                                                      Sd/-  

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 

 (JASWINDER SINGH SIDHU)

MEMBER

                                                                                                                     

 

                                                                                Sd/-

(PRITI MALHOTRA)

                                                                        MEMBER