| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 310 of 22-11-2019 Decided on : 16-05-2023 Satwant Kaur aged about 55 years, Widow of Gurcharan Singh S/o Balbir Singh; Harpal Singh aged about 61 years, S/o Balbir Singh Both residents of village Alika Tehsil Mandi Dabwali, District Sirsa.
Versus BCL Industries & Infrastructures Limited, D.D. Mittal, Tower, Multania Road, Bathinda through its M.D./ General Manager/ Authorized Signatory. .......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member. Present For the complainants : Sh. Rajan Singla, Advocate For the opposite party : Sh. Sandeep Baghla, for opposite party. ORDER Lalit Mohan Dogra, President The complainants Satwant Kaur and Harpal Singh (here-in-after referred to as complainants) have filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against BCL Industries (here-in-after referred to as opposite party). Briefly stated, the case of the complainants is that the opposite party has developed a site at Multania Road, Near Over Bridge, Bathinda in the name & style of M/s D.D. Mittal Tower-I and assured the complainants and other vendees to construct 12 storey flats in 12 blocks at the economical rates i.e. Rs.13,00,000/- per flat subject to escalation of costs of Rs.10,000/- each floor, the rates may be varied subject to floor and the project will be completed till 31.03.2013. The opposite party has described that the site/flats will be approved from the competent authority with the facilities of lift, parks, play ground for children, club, water-sewerage supply etc. will be provided at site. It is alleged that being allured by opposite party, the complainants have booked a flat and paid the registration amount of Rs.50,000/- and by way of draw of plot the opposite party allotted flat No.931 situated on 9th Floor in 7th block and the complainants also paid Rs.1,75,000/- being earnest money. The opposite party executed agreement bearing No.AGR/931/2011 dated 27.05.2011 and allotment letter vide No.ALT/931/2011 dated 27.05.2011. The opposite party also given various options for making the balance payment and the complainants have opted to make the payment as per payment plan IV i.e. fifty-fifty as such the complainants have deposited 50% amount of Rs.5,64,827/- with the opposite party vide receipt No.199 dated 01.10.2011. The remaining amount was to be paid by the complainants at the time of delivery/taking of possession of the plant in question i.e. on 31.03.2013 as agreed between the parties as per clause 15 of the agreement. As per clause 15 the opposite party shall Endeavour to complete the construction of Flat/SCO/shop in question within a period of 2 years from the date of signing of the agreement or date of commencement of construction of the said unit whichever is later. After 31.03.2013 the complainants approached the opposite party time and again for the delivery of possession of the above said flat but the opposite party kept on postponing the matter on one pretext or the other as the project was not completed at that time. It is alleged that opposite party wrote letter No.Site/DDM/931/7 dated 09.11.2015 to the complainants regarding changeover of present flat to ready to move in another flat which clearly proves that the block No.7 was not completed, as such the complainants refused to changeover the flat with flat in question booked by the complainants. The opposite party failed to deliver the possession of the booked flat rather issued reminder letter No.Site/DDMT/931/7-RE dated 06.01.2016 intimating to make due payment on possession and take over possession of flat by 31.12.2015 which date was already elapsed. It is also alleged that complainants waited for taking delivery of possession of their booked flat till 2017. The opposite party failed to provide the completion/occupancy certificate from the competent authority rather the opposite party has illegally and arbitrarily deducted amount of Rs.2,36,289/- from the amount deposited by the complainants and illegally issued cheque No.900555 dated 15.09.2017 for Rs.5,52,538/-. This act on the part of opposite party has caused great mental tension, harassment, agony and botheration as well as financial loss to the complainants, The opposite party is bound to refund the entire amount i.e. Rs.7,89,827/- i.e. Rs.50,000/- deposited at the time of booking and Rs.1,75,000/- as earnest money and Rs.5,64/827/- as 50% of the costs of the flat. It is also alleged that the complainants were interested to take the possession of their booked flat and also ready to make the balance amount subject to delivery of possession but due to non delivery of possession, the complainants are entitled to interest against the amount deposited by them as such the complainants returned the cheque in question to the opposite party vide letter dated 04.12.2017 with the request to deliver the possession of flat No.931 after depositing the balance amount after deducting the interest on the deposited amount of the complainants for delay in delivery the possession, but however, the opposite party did not reply to the said letter till date. It is further alleged that the opposite party is not having any clear title over property/site because the opposite party has executed a registered Sale deed for the said property in his favour from PIDB vide registered sale deed No.11471 dated 31.03.2016, which also clearly proves deficiency in service on the part of the opposite party. On this backdrop of facts, the complainants have prayed for directions to the opposite party to refund Rs.7,89,827/- (Rs.50,000/- +Rs.1,75,000/-+ Rs.5,64,827/-) so deposited by the complainants along with interest @ 18% P.A. from the date of deposit till payment and pay compensation of Rs.1,00,000/- besides Rs.50,000/- as litigation expenses. Upon notice, opposite party put an appearance through counsel and contested the complaint by filing written reply raising legal objections that the complaint is not maintainable in the present form; complainants have grossly misrepresented the true and correct facts; complainants are not "consumer" and that the complaint is false, frivolous and vexatious to the knowledge of the complainants. On merits, the opposite party has pleaded that construction of the Blocks has been completed and more than 400 families are already residing in the said Flats. The Layout plan has been approved by the competent authority. The opposite party has admitted that complainants had booked Flat No.931. It has been pleaded that complainants had opted for 50:50 plan i.e. the complainants had to pay 50% of the balance 85% of the price of Flat within six months of allotment and the balance 50% of 85% was payable on the completion of the project. As per Clause 15 of the said agreement the date of 31.3.2013 was merely a tentative date and it has been specifically agreed between the parties that the vendor shall not incur any liability in case of any delay in construction of the Flats, to which the complainants had specifically agreed to. Furthermore, the possession was to be delivered only on the payment of balance amount. payable by the complainants to the replying opposite parties. The complainants have concealed this material part of the agreement in this para. Rest para of the para is repudiated. That para No. 4 of the complaint as alleged is repudiated. The allegations are false, vague, baseless and repudiated. Rather the complainants had no funds available for the payment of balance consideration amount which is revealed from the correspondence so held amongst the parties. Letter issued to complainants was merely an offer floated by the opposite party to all the customers in case if any intended to change the site of the Blocks. However, the same does not draw any inference that Block Le No.7 was not completed as alleged by the complainants. The opposite party has pleaded that they issued letter dated 30.11.2015 intimating the complainants about the Flat in question to be ready for delivery by end of December, 2015 and also to pay the balance amount at the time of possession. However, the complainants had failed to respond to the said letter nor had they ever approached the opposite party seeking for the possession of the Flat in question much less the payment of the balance amount that clearly highlights the default on part of the complainants themselves. Further, the said letter was followed by reminder dated 6.1.2016 requesting the complainants to take over the possession of the Flat on or before 1.1.2016 on making the balance payment. However, the complainants had failed to respond to the said letter. Accordingly, the opposite party issued letter dated 15.9.2017 to the complainants in reference of the previous letters and reminders vide which the opposite parties had informed the complainants about the cancellation of the allotment and the amount payable as per terms of agreement had also been refunded to the complainants vide Cheque No. 900555 dated 15.9.2017 for Rs.5,52,538/-. The complainants despite the receipt of the impugned letter of cancellation had failed to respond or reply to the said letter as well as the previous letters so sent to the complainants that clearly highlights that the complainants have themselves committed breach of terms of contract and never intended to comply with their part of the agreement in question and to take the possession of the Flat in question. The opposite party has denied that they illegally and arbitrarily deducted the amount of Rs.2,36,289/-. It has been pleaded that complainants have defaulted in complying with their part of agreement, so the opposite party is well within its right to deduct the amount as per terms of agreement. After controverting all other averments of the complainants, the opposite party prayed for dismissal of complaint. In support of their complaint, the complainants have tendered into evidence affidavit of Satwant Kaur dated 21.11.2019 (Ex. C-1) and the documents (Ex.C-2 to Ex.C-10). In order to rebut the evidence of complainants, opposite party tendered into evidence affidavit of Sunil Kukar dated 19.2.2020 (Ex. OP-1/1) and the documents (Ex. OP-1/2 & Ex. OP-1/16). We have heard learned counsel for the parties and gone through the record. The learned counsel for the complainants has argued that since the flat was not completed within time as per agreement and as such, the complainants are entitled to receive complete refund of Rs. 7,89,827/- alongwith interest @18% from the opposite party. However, the opposite party had tried to refund the amount of Rs. 5,52.538/- vide cheque Ex. C-7, which is unjustified and amounts to deficiency in service. On the other hand, learned counsel for the opposite party has argued that as per buyer's agreement, there is nothing on record to prove that opposite party was under obligation to complete the construction and develop the project within any stipulated period rather Clause 15 of the agreement states that vendor shall make endeavour to complete construction of Flat within a period of 2 years from the date of signing of this agreement or date of commencement of construction of the said unit whichever is later. It was also made clear that this is just tentative date and not a fix binding dead line. As such, version of the complainants that project was not completed upto 31-3-2013 is itself falsified rather the complainants were offered possession vide letter Ex. C-5 but complainants failed to deposit the remaining amount and take possession of the flat. Accordingly, opposite party was not left with any other alternative and under compelled circumstances, issued letter dated 16-9-2017 to complainants in reference of the previous letter and reminder vide which the complainants were informed regarding cancellation of the allotment and the amount payable as per terms of agreement. The opposite party had refunded the amount of Rs. 5,52,538/- to the complainants vide cheque Ex. C-7 but complainants refused to accept the same and breach has been committed by the complainants. It is further argued by the counsel for the opposite party that complaint filed by the complainant is hopelessly time barred. We have considered the rival contentions and gone through the file carefully. The first point for discussion is regarding limitation to file the complaint. Admittedly, the allotment of flat in favour of complainants was cancelled vide letter dated 12-12-2017 (Ex. OP-1/9) and the present complaint was filed on 22-11-2019, which is within 2 years and as such, this Commission is of the view that since the complaint has been filed within 2 years after cancellation of flat by the opposite party on 12-12-2017, the complaint is very much within time/limitation. The second question for discussion is whether the complainant is entitled to receive the complete refund of amount of Rs. 7,89,827/- alongwith interest @18% p.a. alongwith compensation. The admitted facts are that the opposite party developed site known as M/s D D Mittal Tower-I and complainants were allotted Flat No. 931 situated on 9th Floor in 7th block and agreement was executed between complainants and the opposite party on 27-5-2011 and allotment was also issued on the same date. It is further admitted fact that complainants opted for payment plan No. IV i.e. 50-50 and as such, complainants deposited 50% of the amount of Rs. 5,64,827/- with the opposite party. As per agreement clause No. 15, the opposite party was under obligation to complete the constructions of the flat within 2 years from the date of signing of agreement or date of commencement of construction of said unit whichever is later. From the perusal of letter Ex. C-3 & Ex. C-4 which are of 29-6-2015 and 9-11-2015 respectively, it is proved that block No. 7 in which the complainants were allotted flat was not completed even upto 9-11-2015 and as such, the opposite party offered change-over of the present flat to the complainants. Further perusal of reminder Ex. C-5 as per which, the complainants were directed by the opposite party to take over possession after making payment of pending dues, shows that opposite party has simply offered the posession of flat and demanded the amount from the complainants but the opposite party has not been able to prove or show that opposite party has obtained requisite occupancy certificate from the authorities. It is relevant to mention that in the case titled A.R.G. Housing Pvt. Ltd., Vs. Amit Kumar & Another (2019 (III) CPJ 382 (NC), relied upon by learned counsel for the complainants, Hon'ble National Commission has observed that : “No house can be allowed to be occupied without obtaining requisite Occupancy Certificate. Appellant ought to have obtained requisite Occupancy Certificate before it could offer possession of allotted Villa to complainant.” Therefore, in the light of above observations, it is to be seen whether the opposite party was able to offer possession of flat in question by claiming its completion. The onus was upon the opposite party to prove completion of project. A perusal of entire file shows that opposite party has not placed on record any permission or Occupancy Certificate from the concerned authorities of Municipal Corporation, Bathinda, on record. As such, this Commission is of the view that offer of delivery of possession by the opposite party to complainants without obtaining requisite Occupancy Certificate and refusal to refund the complainants amount alongwith interest, amounts to deficiency in service. Hence, this Commission is of the considered opinion that opposite party has failed to prove that project was complete for offer of possession to the complainants. Since the opposite party on their own cancelled the allotment of flat vide letter dated 12-12-2017 (Ex. OP-1/9), without placing on record any document regarding completion of project having been obtained from Municipal Corporation, it itself amounts to deficiency in service, Thus, this Commission is of the view that complainants are entitled to refund of the amount of Rs. 7,89,827/- alongwith interest. In the result, this complaint is partly allowed and the opposite party is directed to refund Rs. 7,89,827/- alongwith interest @9% P.A. from the date of deposit of the amount till realization. The complainants are also held entitled to receive Rs. 10,000/- on account mental tension, harassment and cost of litigation. The compliance of this order be made by the opposite party within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced 16-05-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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