Chandigarh

DF-II

CC/31/2020

Archana Devi - Complainant(s)

Versus

M/s Dara Buildtech & Developers Limited - Opp.Party(s)

Adv. G.S.Ahluwalia

18 Oct 2024

ORDER

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

======

Consumer Complaint  No	:	31 of 2020
Date  of  Institution	:	15.01.2020
Date   of   Decision	:	18.10.2024

 

 

 

 

Archana Devi w/o Raman Kumar, r/o H.No.410, Sector 52, Kajheri, Chandigarh.

             … … … Complainant

Versus

1.  M/s Dara Buildtech & Developers Limited through Mr.Rahul Dara (M.D.) Head Office: SCF 30, Sector 16-D, Chandigarh.

2.  M/s Dara Buildtech & Developers Limited, Corp. Office; SCO 3-4, First Floor Surya Enclave, ADJ, Yes Bank, Sector 115, Mohali, Kharar Landran Road, through its Manager.

3.  M/s Dara Buildtech & Developers Limited through its Project Manager Mr.Amrik Singh, Reg.Office Village Khooni Majra, Sante Majra, Sector 115, Mohali.

4.  Sanjeev Singh Dhariwal @ Sanjay, R/o House No.1524, Sector 25-B, Chandigarh.

   … … … Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.BRIJ MOHAN SHARMA,     MEMBER

                               

Argued by:    Sh.Gaurav Bhardwaj, Advocate Proxy for Sh.G.S.Ahluwalia, Counsel for Complainant.

Ms.Manju Goyal, Counsel for OP No.1 to 3.

OP No.4 ex-parte.

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

 

1]       By this common order, we propose to dispose off three connected consumer complaints i.e. present consumer complaint and two other consumer complaints, detailed below, having common questions of law & facts:-

 

1	2	3		4	5
Sr. No.	C.C. No.	Complainant’s Name	Vs.	Opposite Party(s)  Name	Date of Filing
	CC/31/2020	Archana Devi	Vs.	M/s Dara Buildtech & Developers Limited & ors.	15.01.2020
	CC/32/2020	Bharti	Vs.	M/s Dara Buildtech & Developers Limited & ors.	15.01.2020
	CC/33/2020	Suchi Gupta	Vs.	M/s Dara Buildtech & Developers Limited & ors.	15.01.2020

 

 

2]       The facts are gathered from C.C.No.31/2020 – Archana Devi Vs. M/s Dara Buildtech & Developers Limited & ors.

 

3]       As alleged in the complaint, in May 2017, OP No.4, who is the representative of OP No.1 to 3 Company, approached the complainant and believing his representation, the complainant booked 2BHK flat in the project of OP No.1 to 3 namely ‘Dara Affordable Homes’ at Sector 115, Mohali and paid the booking amount of Rs.11,000/- vide receipt dated 01.09.2017 (Annexure C-2). It is alleged that the total cost of the flat was Rs.8,75,000/- against which the complainant paid further amount of Rs.39,000/- vide receipt dated 22.11.2017 (Annexure C-3). It is stated that OPs had never issued any receipt of extra payment of Rs.10,000/- made by the complainant. The OP No.1 to 3 also issued Confirmation of Booking Letter dated 01.12.2017 (Annexure C-4) in respect of the booked flat.

    It is pleaded that when OP No.1 to 3 never demanded the balance amount to be deposited nor informed about the completion of the project, the complainant approached the OPs by visiting their office many times to know about the progress of the construction of the flat and also about the possession of the flat but no effect. It is also pleaded that the complainant having no option, also prayed to the OPs for refund of booking amount vide letter dated 19.11.2019 (Annexure C-5) but that too, has not been done by them. Hence, this complaint has been filed alleging the said act and conduct of the OPs as deficiency in service and unfair trade practice with a prayer to direct the OPs to refund the amount of Rs.60,000/- (including extra amount paid to OP No.4) along with interest and to pay compensation for mental agony & harassment as well as litigation cost. 

 

4]        OP No.1 to 3 filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of fact. On merits, while admitting the factual matrix of the case about booking of flat and receipt of amounts so paid by the complainant towards it, as matter of record, stated that in fact the complainant has shown her inability to make payment and the complainant could not make the payment as per payment schedule. The cause of action set up by the complainant is denied. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OP No.1 to 3 have prayed for dismissal of the complaint.

 

5]       Since notice sent to OP No.4 was received back with the remarks ‘refused’ and none put in appearance before this Commission on its behalf, OP No.4 was proceeded ex-parte vide order dated 10.05.2022.

 

6]       Complainant did not file replication to the written version of OP No.1 to 3.

7]       Parties led evidence in support of their contention.

8]       We have heard the learned counsels for the contesting parties and have gone through entire documents on record.

9]       It is observed from the record that the complainant has admittedly booked 2BHK flat in the subject project of the OP No.1 to 3 and OP No.1 to 3 issued Confirmation of Booking Letter dated 01.12.2017 (Annexure C-4) in respect of the booked flat. It is also admitted fact that an amount of Rs.50,000/- (Rs.11,000/- vide receipt dated 01.09.2017 Annexure C-2 + Rs.39,000/- vide receipt dated 22.11.2017 Annexure C-3) had already been paid by the complainant to the OP No.1 to 3 towards the flat. However, OP No.1 to 3 have not only failed to deliver the possession of the flat in question to the complainant despite receipt of the initial amount but also failed to refund the deposited amount to the complainant despite her request which itself amounts to deficiency in service as also unfair trade practice on the part of OP No.1 to 3.  

 

10]      As alleged in the complaint, the complainant had also paid extra amount of Rs.10,000/- to OP No.4, who had been agent of OP No.1 to 3 for booking and selling the flats as there was written agreement between OP No.1 to 3 and OP No.4 (Annexure C-1). Alongwith Memorandum of Understanding/Agreement Annexure C-1, the complainant has also annexed copy of one letter dated 12.05.2017 with regard to Offer of Business vide which OP Company offered OP No.4 Sanjeev Singh to become their associates in selling their ‘Affordable Units’ located in Sector 115, Mohali. The OP No.4, on whose assurance the complainant had booked the flat, neither paid any heed to the request of complainant to get the booking amount refunded or to get the possession of flat nor refunded the amount of Rs.10,000/- to the complainant which amounts to deficiency in service as well as unfair trade practice. The OP No.4 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte. This act of the OP No.4 draws an adverse inference against him. The non appearance of the OP No.4 shows that he has nothing to say in his defence against the allegations made by the complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted.

 

11]      It is settled law by 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:

“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.

 

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed:-

    “The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

           Hence, the act of the OPs to collect the money and not deliver the possession of the flat certainly proves deficiency in service and their indulgence in unfair trade practice.    

12]      In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

    Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

 

13]      Under above mentioned facts, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainant but also caused her immense harassment & mental agony.

 

14]      Similar facts have been pleaded in other connected complaints, detailed above, and similar evidence has been led. Therefore, in all the three complaint cases, deficiency in service as well as unfair trade practice on the part of the OP(s) is proved.

15]      Resultantly, the present consumer complaint is partly allowed and the OPs are directed as under:-

a)  OP No.1 to 3 are directed to refund the deposited amount i.e. Rs.50,000/- to the complainant alongwith interest @10% per annum from the date of respective deposits till the date of its actual realization. 

b)     OP No.4 is directed to refund the amount i.e. Rs.10,000/- to the complainant alongwith interest @10% per annum from the date of filing of the complaint i.e. 15.01.2020 till the date of its actual realization.

16]      Similarly, the connected consumer complaint i.e. C.C.No.32/2020 – Bharti vs. M/s Dara Buildtech & Developers Limited & ors., also stands partly allowed and the OPs are directed as under:-

a)  OP No.1 to 3 are directed to refund the deposited amount i.e. Rs.50,000/- (Rs.11,000/- vide receipt dated 23.06.2017 Annexure C-2 + Rs.39,000/- vide receipt dated 17.10.2017 Annexure C-3) to the complainant alongwith interest @10% per annum from the date of respective deposits till the date of its actual realization. 

b)             OP No.4 is directed to refund the amount i.e. Rs.10,000/- to the complainant alongwith interest @10% per annum from the date of filing of the complaint i.e. 15.01.2020 till the date of its actual realization.

17]      Similarly, the connected consumer complaint i.e. C.C.No.33/2020 – Suchi Gupta vs. M/s Dara Buildtech & Developers Limited & ors., also stands partly allowed and the OPs are directed as under:-

a)  OP No.1 to 3 are directed to refund the deposited amount i.e. Rs.50,000/- (Rs.11,000/- vide receipt dated 05.07.2017 Annexure C-2 + Rs.39,000/- vide receipt dated 17.10.2017 Annexure C-3) to the complainant alongwith interest @10% per annum from the date of respective deposits till the date of its actual realization. 

b)             OP No.4 is directed to refund the amount i.e. Rs.10,000/- to the complainant alongwith interest @10% per annum from the date of filing of the complaint i.e. 15.01.2020 till the date of its actual realization.

 

18]      The above said order shall be complied with by the OPs within a period of 45 days from the date of receipt of certified copy of this order.

 

19]      The pending application(s) if any, stands disposed of accordingly.

 

         The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules 2020 & Act 2019 respectively. After compliance file be consigned to record room.

Announced

18.10.2024                                                                         

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (BRIJ MOHAN SHARMA)

MEMBER

as