BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.121 of 2015
Date of institution: 16.03.2015
Date of Decision: 29.06.2016
1. Jaswinder Singh Cheema son of Late Gurdit Singh Cheema.
2. Mrs. Harinder Cheema wife of Jaswinder Singh Cheema,
Residents of 31, Sector-B, Defence Colony, Ambala Cantt., Haryana.
……..Complainants
Versus
1. M/s. Country Colonizer Pvt. Ltd., c/o Wave Estate, Sector 85, Mohali 140308 through its Managing Director, Manager/Authorised representative.
2. M/s. Country Colonizer Pvt. Ltd., Corporate Office at C-1, Sector 3, Noida, Uttar Pardesh.
3. Shri Abhishek (Sales Manager), c/o M/s. Country Colonizer Pvt. Ltd., c/o Wave Estate, Sector 85, Mohali 140308.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri R.K. Bhatia, counsel for the complainants.
Shri Tejeshwar Singh, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) refund the amount of Rs.6,18,540/- alongwith interest @ 18% per annum from the respective dates of deposit till realisation.
(b) pay them Rs.11,236/- paid by the complainants to the HDFC Bank towards process fee for sanctioning of loan.
(c) pay them compensation of Rs.2,00,000/- for mental torture, harassment etc.
(d) pay her Rs.35,000/- as costs of litigation.
The case of the complainants is that on the representations made by the Sales Department of the OPs, they booked independent residential floor bearing No.17 on First Floor in Sector 99 having saleable area of 1060 sq. ft. for a total sum of Rs.40.00 lacs. The complainants paid Rs.3.00 lacs vide cheque dated 21.01.2013 at the time of booking alongwith application for provisional allotment. Thereafter, the complainants paid another sum of Rs.3,18,540/- vide cheque dated 20.03.2013. Thus, in all the complainants paid a total sum of Rs.6,18,540/- till date. At the time of booking, the sales representatives of the OPs assured the complainants that the possession of the floor/flat shall be delivered within 24 months from the date of booking and the agreement alongwith payment plan shall be executed within 30 days from the date of provisional allotment. The complainants got sanctioned loan of Rs.30.00 lacs from the HDFC Bank for making balance payment to the OPs for which the complainants had to pay Rs.11,236/- to the bank as processing fee. The complainants had been approaching the OPs for execution of the buyers agreement but the OPs did not adhere to their requests. The complainants have also come to know that the OPs have got no approvals for construction and development of the project till date. Inspite of lapse of more than 18 months from the booking, there is no sign of any progress or development at the site. Thus the complainants vide letter dated 25.10.2014 requested the OPs to refund the entire amount paid by the complainants alongwith bank charges for sanctioning of loan. Inspite of receipt of this letter, the OPs have never reverted back nor refunded the amount. The complainants then sent legal notice dated 24.12.2014 but without any result. Hence, the complainants have filed the present complaint.
2. Upon notice, the OPs appeared and filed joint reply in which they took preliminary objections that the complainants do not fall within the definition of Consumer as defined under Section 2 (1) (d) (i) of the Consumer Protection Act. This Forum does not have jurisdiction to try the complaint in view of the arbitration clause in the application for provisional allotment. As per the application for provisional allotment, Independent Residential Floor Allottee Agreement/Arrangement was to be executed within 30 days from the date of intimation of provisional allotment. As per Clauses F and J of the application for provisional allotment, the responsibility for doing the same was with the complainants. They were informed on number of occasions to collect the Independent Residential Floor Allottee Agreement/Arrangement which they failed to do. The complainants were also told that under the Subvention Plan opted by them, they are required to submit the Loan Sanctioning Letter from the bank for collecting the Independent Residential Floor Allottee Agreement/Arrangement but they did not do so. As per Clause J of the application for provisional allotment and Clause 26 read with Clause 24 of the terms and conditions, if the complainants failed to execute the Independent Residential Floor Allottee Agreement/Arrangement or pay the amounts due within 30 days from the date of provisional allotment, then the application shall be treated as cancelled and the earnest money shall be deemed to be forfeited. Since the complainants failed to execute the Independent Residential Floor Allottee Agreement/Arrangement within 30 days of date of provisional allotment and failed to pay the due amounts, their money stands forfeited and no refund is tenable. On merits, the OPs have pleaded that they never allured the complainants to purchase the independent residential floor/flat. The complainants themselves approached the OP and applied for booking and allotment of an independent residential floor/flat at Wave Estate, Sector 99, Mohali. The OPs have all the required statutory approvals for constructing and developing the project. The sales representatives of the OPs never assured that the possession shall be delivered within 24 months from the date of booking. The construction and development at the site is going on and proceeding as per the decided plan of the OPs. The second floor slab of the building stands completed. The OPs sent reply to the legal notice dated 27.01.2015. Thus, denying any deficiency in service and unfair trade practice on their part, the OPs have sought dismissal of the complaint.
3. Evidence of the complainants consist of affidavit of complainant No.1 Ex.CW-1/1 and copies of documents Mark-A to D and Ex.C-1 to 7.
4. Evidence of the OPs consists of affidavit of Yadwinder Singh Bains Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-7.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. The booking of independent residential floor by the complainants with the OPs in their Wave Project in Sector 99 Mohali vide application Ex.OP-1 is not disputed. Further it is admitted that the provisional allotment letter for FF-17 has been issued by the OPs on the same day forming part of the application form. In pursuance of the application and provisional allotment the complainants have paid in all a total sum of Rs.6,18,540/- as on 31.03.2013 vide receipts dated 21.1.2013 and 31.03.2013 Ex.C-1 and Ex.C-2. As per the complainant till 25.10.2014 neither they have received the agreement papers nor there was any progress in the project. They have even got sanctioned the loan from HDFC Bank vide Ex.C-4 for making balance payment of sale consideration. Since there is no buyers agreement issued and signed by the OPs, therefore, vide Ex.C-5 the complainants showing loss of faith in the management of the OPs, requested them to cancel the booking and return the entire amount paid with interest and bank charges for sanction of loan. The said request of the complainants remained unanswered in the hands of the OPs. Further as per the complainants, the OPs have no sanctions and approvals in their favour till date though they have mislead them to believe vide condition No.4 of the provisional allotment letter where the OPs claimed to have got all approvals and sanctions from the competent authorities regarding layout plans of land measuring approximately 230.262 acres for the said project. The stand of the OPs is belied by their own document Ex.OP-2. The perusal of Ex.OP-2 clearly shows that Ex.OP-2 is a letter from Architect from the OPs to the Estate Officer, GMADA for sanctioning of proposed plans of Plot No.17, Sector 99, Wave Estate. The said letter has been sent by the Architect on 22.11.2014 whereas the provisional allotment letter dated 21.01.2013 claims all sanctions and approvals in favour of the OPs. The complainants sent the legal notice to the OPs vide Ex.C-6 and the same has been replied to by the OPs without addressing the issue of refund of the deposited amount as sought by the complainants vide their request letter dated 25.10.2014 Ex.C-5.
7. The limited question for determination is whether the complaints are entitled to refund of the deposited amount, in the event when the OPs have failed to show the delivery of buyers agreement to the complainants for signing and further absence of sanctions and approvals in their favour at the time of issuance of provisional allotment letter.
8. As stated above, the factum of booking by way of application and provisional allotment and further payment of Rs.6,18,540/- as on 31.03.2013 (Ex.C-1 and 2) is not disputed. The OPs have failed to show the delivery of buyers agreement within 30 days from the issuance of provisional allotment letter. Once the OPs have not provided the documents to the complainants it was beyond their reach and control to sign the buyers agreement. In the absence of duly executed buyers agreement, the complainants have not been able to get the loan amount released from the HDFC Bank though they have got the loan sanctioned as per Ex.C-4. Thus, they could not pay the further amounts to the OPs. The complainants have believed clause-4 of the provisional allotment letter at the time of booking the residential floor but were shattered to see the progress and development at site even after lapse of 18 months from the date of booking and provisional allotment letter. The OPs have relied on Ex.OP-2 to show that the building plan of Plot No.17, Sector 99, Mohali, the letter dated 12.11.2014 addressed by the Architect of the OPs to the Estate Officer, GMADA. The date of letter i.e. 12.11.2014 is vital to belie the claim of Clause-4 of the provisional allotment letter. Under the circumstances, the complainants have rightly exercised their option dated 25.10.2014 Ex.C-4 to seek the refund of the entire amount alongwith interest and the bank charges paid by them for sanctioning the loan and rightly the complainants are entitled to the refund of the deposited amount alongwith interest and compensation. The act of the OPs being unfair trade practice and deficiency in service has been amply proved by the complainants as is evident from the appreciation of facts and evidence on record.
9. Therefore, the complaint deserves to be allowed by issuing appropriate directions to the OPs to refund the deposited amount alongwith interest @ 18% per annum from the dates of deposit till the payment is made. For grant of interest on the deposited amount as well as costs of litigation and compensation, we rely upon the latest decision of the Hon’ble National Commission rendered in Ms. Krishna Malhotra Vs. Bajwa Developers Ltd., in Revision Petition No.2403 of 2015 decided on 06.04.2016.
10. In view of above discussions, the complaint is allowed with the following directions to the OPs to:
(a) to refund to the complainants the deposited amount of Rs.6,18,540/- (Rs. Six lacs eighteen thousand five hundred forty only) alongwith interest @ 18% per annum from the respective dates of deposit till actual refund.
(b) to refund to the complainants Rs.11,236/- (Rs. Eleven thousand two hundred thirty six only) paid by them to the HDFC Bank towards process fee for sanctioning of loan.
(c) to pay the complainants a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 29, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
