Punjab

Ludhiana

CC/19/556

Bipan Kumar Jain - Complainant(s)

Versus

M/s Finstem Infrastructure IndiaPvt.Ltd. - Opp.Party(s)

Kuldeep Singh Mand Adv.

23 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:556 dated 04.12.2019.                                                         Date of decision: 23.08.2023.

 

Bipan Kumar Jain, aged about 60 years old, son of Mr. Sohan Lal Jain, resident of House No.4014, Ward No.7, Tehsil Jagraon, District Ludhiana, Punjab.                                                                                            ..…Complainant

                                                Versus

1. M/s. Finstem Infrastructure India Pvt. Ltd., Regd. Office at 603, A.R. Elysinm Homes, Sector-9, Judge Colony, Vaishali, Ghaziabad, Uttar Pardesh-201010, through its Director/Authorized Signatory.
2.  
2. Mr. Manish Kumar Shoundik, Director cum Authorized Representative of M/s. Finstem Infrastructure India Pvt. Ltd., Regd. Office at 603, A.R. Elysinm Homes, Sector-9, Judge Colony, Vaishali, Ghaziabad, Uttar Pardesh-201010.
3. M/s. Palace Infratech Pvt. Ltd., Regd. Office at B-19, 546, College Road, Civil Lines, Ludhiana through its Director Mr. Sorav Jain.
4. Mr. Sorav Jain, Director of M/s. Palace Infratech Pvt. Ltd., Regd. Office at B-19, 546, College Road, Civil Lines, Ludhiana.                                                                                                          …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. K.S. Mand, Advocate.

For OP1 and OP2          :         Exparte.

For OP3 and OP4          :         Sh. Gurmeet S. Anand, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that in the year 2013, opposite party No.4 being Director of opposite party No.3 approached the complainant and informed about his plan to carve out various sizes of residential plots in a colony in the name and style of “Palace Enclave” on land approximately 8 acres in Village Agwar Gujhjran-2, on National Highway, Tehsil Jagraon, District Ludhiana and convinced the complainant to invest or purchase the plot with assurance to get huge amount of returns on his investment. The complainant stated that on the allurement of opposite party No.4, he invested and paid Rs.19,80,658/- to opposite party No.4 in presence of his son for purchase of pot in the said colony. According to the complainant, he kept on following with opposite party No.4 for development of the colony and for timely delivery of the possession of pot so purchased by him but opposite party No.4 dilly delayed the matter on one pretext or the other by giving false promise of development in a very short span of time. In the year 2014, opposite party No.4 approached the complainant and informed him that M/s. Palace Infratech Pvt. Ltd. has handed over its land to one company namely M/s. Finstem Infrastructure India Pvt. Ltd. i.e. opposite party No.1 for development of group housing residential project in the name and style of “Fin Castle Residency” and further asked the complainant to purchase one flat in the said project. Opposite party No.4 further told the complainant that his amount of Rs.19,80,658/- would also be adjusted by opposite party No.1 and also threatened the complainant that he would not be able to recover his money from him. The complainant had to purchase Flat No.801, Tower Sigma in the said project at a hefty price of Rs.41,59,750/- and at that time opposite party No.2 Mr. Manish Kumar Shoundik, Director of opposite party No.1 issued a Provisional Allotment Letter vide consumer ID No.FIN00013 dated 31.03.2015 and issued various payment receipts for a total amount of Rs.19,80,658/- to the complainant. As per the Provisional Allotment Letter dated 31.03.2015, opposite party No.2 promised to deliver the possession of flat within 24 months from 31.03.2015. Thereafter, the complainant requested opposite party No.2 to provide him copy of all approvals, change of land copy of road layout plan etc. but it did not pay any heed nor assured the complainant regarding completion of project and delivery of possession of the flat despite the fact that the complainant had already paid a hefty amount as advance. Opposite party No.2 has failed to deliver the possession of competed flat in time even after expiry of more than four years from the date of possession  mentioned in Provisional Allotment Letter dated 31.03.2015. The complainant further stated he approached the office of Senior Town Planner, District Town Planner and GLADA, Ludhiana and after enquiry from there, he shocked to know that the approvals for the project are pending and the development on the site is totally unauthorized and illegal. The complainant filed various applications to the departments i.e. Senior Town Planner, District Town Planner, GLADA, Ludhiana, RERA, Punjab, Chandigarh to know about exact status of the project developed by the opposite parties. According to the complainant, the opposite parties in connivance with each other have committed fraud with him and usurp the money of the complainant by giving false promises etc.  The complainant also approached opposite party No.2 asking for explanation about the unauthorized development on the site but to no avail. Even opposite party No.3 and 4 sold a substantial chunk of land measuring approximately 4900 sq. yards out of the project land to one Ajay Jain without getting any permission or approval from the competent authorities. The complainant also served a legal notice dated 12.07.2019 upon the opposite parties through Sh. Kuldeep Singh Mand, Advocate to which opposite party No.3 and 4 filed an evasive reply but opposite party No.1 and 2 did not reply to the said legal notice. Hence this complaint, whereby the complainant requested for issuing direction to opposite parties to refund the entire amount of Rs.19,80,658/- along with interest and to pay cost of the complaint.

2.                Upon notice, none appeared on behalf of opposite party No.1 and 2 despite service and as such, opposite party No.1 and 2 were proceeded against exparte vide order dated 27.10.2020.

 

 

2.                However, opposite party No.3 and 4 appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; complaint being barred by limitation; bad for mis-joinder of parties; the complaint is an abuse of process of law; the complainant is estopped by his act and conduct.

                   On merits, the contenting opposite parties averred that opposite party No.4 did not know the complainant and as such, there is no question of giving any promise nor any colony in the name of Palace Enclave was ever carved out by them. Even opposite parties have not received any amount of Rs.19,80,658/- from the complainant for sale of any residential plot nor issued any Provisional Allotment Letter and payment receipts to the complainant. Opposite party No.3 and 4 further stated that opposite party No.3 entered into a development agreement dated 23.02.2017 with opposite party No.1 for development of land measuring 16 kana (2 Acre) comprising of Khasra No.108//12, 13, 14/1, 17/2, 18, 19/2, 19/1 situated in village Agwar Gujran, Tehsil Jagraon, Distt. Ludhiana for a total sum of Rs.1,55,00,000, which was paid through cheques/RTGS. Now opposite party No.3 has left with no concern with the land measuring 2 acres. In the development agreement, it has been specifically clarified that opposite partyNo.1 shall always be fully competent to negotiate for transfer any part of portion of un-built up areas in the said complex to any person at any time either before or after the construction of the complex and shall be fully competent to enter into any agreement and accept cash, cheques, pay orders, draft etc. from al such transferees in the name of opposite party No.1 company or in its own name and can issue receipts for such payment in its own name and the contesting opposite parties have no claim, title or right there upon. Opposite party No.3 and 4 denied the other allegations being wrong and incorrect and in the end, prayed for dismissal of the complaint.

3.                The complainant filed replication to the written statement of the opposite party reiterating the facts mentioned in the complaint and controverting those made in the written statement.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of provisional allotment letter dated 31.03.2015, Ex. C2 is the copy of Standard specifications for Fin Castle Apartments, Ex. C3 is the copy of details of consideration, Ex. C4 is the payment plan, Ex. C5 to Ex. C9  are the payment receipts, Ex. C10 is the copy of cheque of Rs.5,95,850/-, Ex. C11 is the copy of legal notice dated 12.07.2019, Ex. C12 to Ex. C15 are the postal receipts, Ex. C16 is the copy of reply dated 01.08.2019 to legal notice, Ex. C17 is the copy of sale deed, Ex. C18 is the copy of jamabandi for the year 2014-15 and closed the evidence.

5.                On the other hand, counsel for the opposite party No.3 and 4 tendered affidavit Ex. RA of Sh. Sorav Jain, Director of M/s. Palace Infratech Pvt. Ltd. along with documents Ex. R1 i.e. copy of development agreement dated 23.02.2017 and closed the evidence. 

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replication, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

7.                On 04.04.2013, opposite party No.3 and 4 (contesting opposite parties) purchased a land measuring 4 Kanal 1/3 Marla  situated in revenue area of village Agwar Gujran, Tehsil Jagraon from one Mahesh Kumar and Sons HUF Karta  Mahesh Kumar for a sum of Rs.11,30,000/-  vide sale deed dated 28.03.2013 Ex. C17  and the possession of the land was also taken. Thereafter, another chunk of land was also purchased from Pritpal Singh so of Jodh Singh and as per Jamabandi for the year 2014-15 Ex. C18, mutation No.7860 and 7862 was entered in the revenue records. Thereafter, the contesting opposite parties received an amount of Rs.1 Crore through cheques from 07.07.2014 till 04.12.2014 from opposite party No.1 and 2, the details of which are mentioned in Development Agreement dated 23.02.2011 (Ex. R1) and the same reads as under:-

i.        Rs.25,00,000/- through cheque No.000003 dated 07.07.2014 drawn on HDFC Bank. 

ii.       Rs.35,00,000/- through cheque No.000039 dated 16.10.2014 drawn on HDFC Bank

iii.      Rs.10,00,000/- through cheque No.000061 dated 28.11.2014 drawn on HDFC Bank

iv.      Rs.20,00,000/- through cheque No.000076 dated 04.12.2014 drawn on HDFC Bank

v.       Rs.10,00,000/- through RTGS dated 25.12.2014 drawn on HDFC Bank.  

Even on 28.05.2015, a power of attorney was also executed by the contesting opposite parties being the owner of land in favour of opposite party No.1 and 2. Later on, on 23.02.2017, the opposite parties executed a development agreement (Ex. R1) between them. All these aforesaid facts and circumstances duly documented by the contesting opposite parties themselves, reveals that they were jointly dealing in sale, purchase and development of the properties. The complainant like other prospective buyers were firstly in the year 2013 were allured to purchase a residential plot in a colony known as “Palace Enclave” by the contesting opposite parties and received a sum of Rs.19,80,658/- from the complainant. When the opposite parties were not in position to meet the deadline as promised, they again joined hands and launched another group housing residential project in the name of “Fin Castle Residency” and prevailed upon the complainant to purchase Flat No.801, Tower Sigma for an exorbitant price of Rs.41,59,750/-. This amount also shown to have been transferred to opposite parties No.1 and 2 vide receipt Ex. C6 and Ex. C7. Perusal of these receipts will show that the said huge amount was received in ‘cash’ and rules and regulations governing the such huge payments in cash appears to have been defied.

8.                Opposite party No.1 and 2 issued a provisional allotment letter on 31.03.2015 along with Schedule Annexure-I Standard Specifications for Fin Castle Apartments, Annexure-II Details of Consideration, Annexure-III Payment Plan to the complainant. As per this provisional allotment letter Ex. C1, the opposite parties were to deliver the possession of the apartment within 24 months and in case of default, the opposite parties were liable to pay Rs.10 per sq. ft/per month as compensation. It is evident from the payment plan Annexure-III Ex. C4 that it was a construction linked plan (CLP) and the payments were to be made as per completion of each stage of the construction.  Opposite party No.1 and 2 did not complete the project nor got the sale deed of the apartment got registered from the contesting opposite parties. As such, the complainant was constraint to serve a legal notice dated 12.07.2019 Ex. C11 upon the opposite parties whereby he specifically stated that even after the lapse of more than 4^th year, the possession has not been delivered to him. The complainant further pointed out in his legal notice that the contesting opposite parties had also sold a substantial chunk of land measuring 4900 Sq. yards out of the project to one Mr. Ajay Jain without getting any prior permission or approval from the concerned authorities which amounts to playing a fraud with the complainant. The contesting opposite parties responded to the notice and labeled their reply to be “Befitting Reply” but in the said reply, the contesting opposite parties made a vague denial with regard to selling a chunk of land to Ajay Jain. Similarly, in their written version and affidavit, they did not deny the selling of land to one Ajay Jain. From the above said events, it is crystal clear that the contesting opposite parties and opposite party No.1 and 2 were hand in glove and all were alluring the complainant and other unsuspecting prospective buyers to invest money in their project with sole ulterior motive to gain wrongful and to cause wrong full loss from the such prospective buyers. The document of the development agreement Ex. R1 is nothing but a proof of their collusion and motive. The said document was prepared to evade legal consequences that may arise on account of non-execution of the promised projects. So certainly there is adoption of unfair trade practice and deficiency in service on the part of the opposite parties. As such, all the opposite parties are jointly and severally liable to refund the amount so received from the complainant along with compensation etc.

9.                Now the point of determination arises that how much compensation is to be awarded?

10.              In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.”

11.              In this regard, it was has been held by the Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain”

                   In the given set of facts and circumstances, it would be just and appropriate if the opposite parties are jointly and severally directed to refund the amount Rs.19,80,658/- along with compensation of Rs.10/- per sq. ft./per month on the said amount from 01.04.2015 till date of actual payment   within 30 days from the date of receipt of copy of order. The opposite parties are further directed to pay litigation expenses of Rs.20,000/- to the complainant.

12.              As a sequel of above discussion, the complaint is allowed with direction to the opposite parties to refund the amount Rs.19,80,658/- along with compensation of Rs.10/- per sq. ft./per month on the said amount from 01.04.2015 till date of actual payment  within 30 days from the date of receipt of copy of order. The opposite parties are further directed to pay litigation expenses of Rs.20,000/- to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order failing which the opposite parties shall pay interest @8% per annum on the awarded amounts. The opposite parties are jointly and severally held to pay the above said awarded amounts to the complainant. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:23.08.2023.

Gobind Ram.

 

 

Bipan Kumar Vs M/s. Finstem Infrastructure                  CC/19/556

Present:       Sh. K.S. Mand, Advocate for the complainant.

                   OP1 and OP2 exparte.

                   Sh. Gurmeet S. Anand, Advocate for the OP3 and OP4.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with direction to the opposite parties to refund the amount Rs.19,80,658/- along with compensation of Rs.10/- per sq. ft./per month on the said amount from 01.04.2015 till date of actual payment  within 30 days from the date of receipt of copy of order. The opposite parties are further directed to pay litigation expenses of Rs.20,000/- to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order failing which the opposite parties shall pay interest @8% per annum on the awarded amounts. The opposite parties are jointly and severally held to pay the above said awarded amounts to the complainant. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:23.08.2023.

Gobind Ram.