Haryana

Panchkula

02/2015

JIT KAUR. - Complainant(s)

Versus

M/S BHOOMI INFRASTRUCTURE CO. - Opp.Party(s)

SANJEEV SHARMA.

01 May 2015

ORDER

BEFORE  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                            

Consumer Complaint No	:	2 of 2015
Date of Institution	:	01.01.2015
Date of Decision	:	01.05.2015

                                                                                          

Jit Kaur w/o Lt. Col. Swaran Singh, R/o 401-A, Bihta Society, GH-10, Sector-24, Panchkula.

                                                                                          ….Complainant

Versus

1.       Bhoomi Infrastructure Company through its Managing Director/General Manager having its Corporate office at Gold City, Flat No.11, Sector 19-D, VASHI, Navi Mumbai.

2.       Bhoomi Infrastructure Company through its partner/proprietor Lt. Col. (Retd) S.S.Deswal having its branch office at House No.1411, Sector-21, Panchkula, Haryana.

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Mr.Mahesh Yadav, Adv., for the complainant.

Op No.1 already ex-parte.

Mr.Yash Pal Singh, Adv., for the Op No.2. (defence struck of).

ORDER

(Dharam Pal, President)

1. The complaint is filed by the complainant-Jit Kaur under Section 12 of the Consumer Protection Act, 1986 against the Op with the averments that the representative of the Ops induced the complainant by presenting a very rosy picture of flats to be sold by the company and entire complex to be developed by Ops within a period of 3 years. The Ops assured the complainant that they were a prominent company of Mumbai and have executed several projects and have developed several complexes at Mumbai. The complainant was also looking for buying a flat in which he would have all comforts of dreams, overlooking the soothing greens and an open view of a well maintained parks, well established infrastructure and hassle free life. The Ops also assured the complainant of free membership of 5 star club, restaurant, card room, Billards room, Gym with health club, Banquet Hall/community centre, Mini theatre, Convenience shops, Dispensary, 24 hours power and water supply, primary school and the entire complex has been conceptualized. The Ops further assured the complainant that the project would be completed within 36 months and the possession of flat would be handed over with complete amenities and infrastructure. On assurance of Ops, the complainant booked a flat No.A-1/701 at 7^th floor, Type A in “Amazon-The Defence County” measuring 1915 sq. ft. for Rs.54,62,525/-in which included basic sale price of Rs.48,06,650/-, club membership charges of Rs.75,000/-, EDC/IDW charges of Rs.4,30,875/-, car parking charges of Rs.1,50,000/- and stilt under club house for Rs.1,25,000/- (Annexure C-2). The Ops assured the complainant that they have all necessary approvals/permissions and exemptions to develop and promote township and make allotments of flats to intending purchaser. The Ops further committed that they have got the building plans & lay out plan approved from the competent authorities and have also been accorded necessary approvals & permissions. The Ops also committed that the flats were being constructed as per law and possession of flats would be given by end of year 2013 as the entire project would be completed by that time. The complainant paid a sum of Rs.6,50,000/- vide cheque No.125495 dated 18.02.2010, cheque No.210399, cheque No.210398 and cheque No.088798 dated 25.03.2010 at the time of signing of application for allotment of sale of residential apartment. The complainant paid a sum of Rs.70,998/- vide cheque No.013108 and Rs.5,88,383/- vide cheque No.125449 dated 05.04.2010 and 31.05.2010 respectively. The complainant further paid a sum of Rs.1,73,751/- on 01.11.2011 to the Ops so the complainant paid a total sum of Rs.14,83,132/- (Annexure C-3) before signing the buyer agreement. The Ops assured the complainant that if they failed to offer the possession of flat within 36 months from the date of allotment of flat, the company would refund the money alongwith interest. The company has time and again assured the complainant that they would sign the agreement within 15 days with the complainant. After making the payments as demanded by the Ops, the complainant performed his part of contract and has been waiting for the agreement to be signed between the parties. The complainant requested several times the Ops for signing the agreement but the Ops did not sign the agreement and kept on assuring the complainant that construction was going on at full swing and possession of flats would be given by the end of year 2013, within 36 months of issuance of allotment letter but upto April, 2011, the company did not even start any construction at site. On 14.04.2010 a farce, bhoomi pojan (Annexure C-4) was created to put up a facade of construction work. However, no actual construction was undertaken even thereafter. On asking the complainant on being asked by the complainant about the construction, the Ops assured that construction would be started within a reasonable time of 2 months or in case of failure to do so the Ops would hand over/return the amount deposited with the company alongwith interest. On 26.04.2011, the Ops issued a letter about change in area of flat from 1915 sq. ft. to 2085 sq. ft. and also demanded increased EDC amount (Annexure C-5). The Ops called the complainant through a letter dated nil (Annexure C-6) for signing the buyer agreement and the buyers agreement was executed on 25.08.2011 (Annexure C-7). Even the Ops did not let the complainant read the buyers agreement and assured the complainant that possession of flat would be handed over by the end of year 2013 but the Ops have failed to hand over the possession of flat rather the Ops were demanding more money. The Ops did not give the copy of buyers agreement to the complainant and told that a copy of buyers agreement would be sent to complainant’s home as the buyers agreement need to be sent to Ops office at Mumbai for signing and registration. After many visits and requests, the complainant got the copy of buyers agreement in October, 2013. After perusing the copy of buyers agreement, the complainant was shocked to know that the Ops have unilaterally changed the date of possession of flat to 36 months from date of signing of buyer agreement dated 25.08.2011 with an extension of additional 12 months. The Ops also changed the basic sale price of flat as per provisional letter which was Rs.48,06,650/- whereas in buyers agreement the Ops changed it to Rs.55,09,150/-, EDC charges of Rs.5,73,375/- and club membership fee Rs.75,000/-, The Ops has increased the price of flat from Rs.54,62,525/- to Rs.61,57,525/-. Moreover, the Ops have not started the construction/development at site but arbitrarily raising demands for more money. On 07.03.2014, the Ops wrote a letter stating that they would hand over the possession with next 2 to 2.5 years and assured that they would give a firm schedule for possession and start of construction after receipt of funds and positioning of infrastructure by contractor. The Ops further assured that they would intimate all the allottees about change in management, revised completion schedule and amended payment schedule, however, the Ops have not shared any of the details. The Ops again wrote a letter on 26.05.2014 to the complainant stating therein that the construction work has commenced in the month of April, 2014 and work was being carried out by continental construction company but the Ops have failed to show any agreement with the continental construction company. The complainant requested the Ops to refund the amount deposited by him alongwith interest at the rate of 18% and damages/compensation as they have failed to handover the possession of the flat in the Amazon-The Defence County but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. Notice was issued to the Op No.1 through registered post but none has appeared on behalf of the Op No.1. It is deemed to be served.  The Op No.1 was proceeded against ex-parte vide order dated 09.02.2015.
3. The counsel for the Op No.2 appeared before this Forum on 23.02.2013 and sought adjournment for filing written statement. On 19.03.2015, the counsel for the OP No.2 again sought adjournment for filing written statement and the case was adjourned to 24.03.2015 for filing written statement alongwith entire evidence. On 24.03.2015, none appeared on behalf of the Op No.2 nor filed any written statement after availing opportunities. Hence, the defence of OP No.2 was struck of vide order dated 24.03.2015. That order has been allowed by Op No.2 to attain finality.
4. During the pendency of the complaint, the Op No.2 filed an application for setting aside the order dated 24.03.2015 and the same was dismissed vide order dated 06.04.2015 on the ground that this Forum has no power to review or recall its own order.
5. The counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-10 and closed the evidence.
6. We have heard learned counsel for the complainant and have also perused the record and considered the written arguments submitted by the counsel for the Op No.2.
7. It is admitted that in the year 2010, the complainant booked a flat in “Amazon-The Defence County” measuring 1915 sq. ft. for Rs.54,62,525/-in which included basic sale price of Rs.48,06,650/-, club membership charges of Rs.75,000/-, EDC/IDW charges of Rs.4,30,875/-, car parking charges of Rs.1,50,000/- and stilt under club house for Rs.1,25,000/-. The Ops allotted the flat No.C-1/701 at 7^th floor, Type A on 18.02.2010.
8. The learned counsel for the complainant has submitted that the terms and conditions were to be as per agreement to be executed between the developer and allottee i.e. buyer. The Ops informed the complainant vide letter dated nil (Annexure C-6) that after obtaining the requisite approval for the required building plan, the construction work at the site has commenced and tendered their apologize for the delay and assured that the delay will sure be overcome by expediting the work progress. The Ops informed the complainant that Buyer Seller Agreement is ready for execution and complainant was asked to visit any working day not later than on 15.05.2011. He further submitted that the letter might be written in May, 2011 almost after one year of the allotment of flat. The Ops further informed the complainant vide letter dated 26.04.2011 (Annexure C-5) that due to change in density, some changes in flat area required resulting in increase of area of flat. They also informed that the Government dues i.e. EDC charges were also increased. However, the Buyer Agreement was executed on 25.08.2011 (Annexure C-7) after 1½ years of allotment of flats whereas the agreement should be signed immediately after the allotment of flats. Till date execution of agreement, the complainant paid Rs.14,83,132/-. As per clause 26 of the Buyer Agreement, the construction was to be completed within a period of 36 months from the date of Buyer Agreement with addition of 12 months (on a no claim basis) but the Ops initially took almost 1½ years to execute the agreement so they can defer the liability to pay the penalty to the allottee due to non-construction of the flat within stipulated period and utilize the amount paid by the allottee. The learned counsel for the complainant further submitted that in their letter dated 07.03.2014, the Ops admitted that due to some unforeseen reasons the project had got delayed and progress could not be made in the construction activity. After persistent efforts in this direction they had now been able to resolve all the management related issues. The partnership deed of the firm has been constituted and documents in this regard have been completed in all respect. They further admitted that after a series of visits and discussion, they have managed to finalize the road map and flow chart for the construction work to be carried out at the site with continental construction. Tests of work already completed to include steel and concrete tests have been carried out and reports obtained. Movement of plant and machinery coupled with skilled labour is expected to commence shortly. The Ops further admitted vide letter dated 26.05.2014 that construction work at project commenced in the last week of April. In their letter dated 26.05.2014 (Annexure C-8), the Ops informed the allottees that the installment plan remains the same and revised payment schedule is being finalized and will be sent to the allottees separately. But the Ops had never issued any such revised payment schedule to the allottees.
9. In their written arguments, the Ops raised the objections regarding maintainability of the complaint on the grounds that complaint has been filed is absolutely false and most of the contents other than the facts basis on the documents are erroneous, misconceived, malafied, motivated and have been raised with ulterior motive and as such are unsustainable in the eyes of law and urged that the complainant has not only suppressed and misstated the facts but have also sought to misapply the provision of law. The Ops have failed to place on record any document to show that construction on the site is under progress and would be completed.
10. Moreover, the Op No.1 did not appear to contest the claim of the complainant and preferred to proceed against ex-parte. The Op No.2 appeared but did not file any written statement to contest the claim of the complainant and the defence of Op No.2 was struck off, which draws an adverse inference against them. The non-appearance of the Ops shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted. As such, the same are accepted as correct and deficiency in service on the part of the Ops is proved.
11. In this matter, the deferment of the execution of Buyer’s Agreement for a duration of about two years deserves to be noticed and frowned upon because it is proved to have been done in order to evade liability to pay interest, the liability, therefore, on the part of the Ops was to come into being only after execution thereof.
12. In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are directed as under:-

(i)      To refund the amount of Rs.14,83,132/- to the complainant alongwith interest @ 9% per annum from the date of receipt till realization.

(ii)     To pay an amount of Rs.50,000/- as compensation for mental agony, harassment and deficiency in service.

(iii)    To pay Rs.10,000/- as cost of litigation.

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

Announced

01.05.2015           ANITA KAPOOR                            DHARAM PAL

                             MEMBER                               PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.      

                                 

                                                         DHARAM PAL                                                                                                   PRESIDENT