Haryana

Panchkula

CC/2/2021

SANGITA. - Complainant(s)

Versus

M/S GREEN SPACE INFRAHEIGHTS PVT.LTD. - Opp.Party(s)

VISHAL MADAAN

13 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

 

Consumer Complaint No	:	02 of 2021
Date of Institution	:	01.01.2021
Date of Decision	:	13.10.2023

 

 

Sangita, wife of Sh. Shree Kant Roy, Resident of H.No.60-B, Village Bhainsa Tibba, MDC Complex, Sector-4, Panchkula.

 

                                                                         ….Complainant

 

Versus

1.     M/s Green Space Infraheights Private Limited, Registered Office: 306, Indra Parkash Building, 21-Barakhamba Road, New Delhi- 110001 through Managing Director Sh. Sandeep Jain.  

2.     M/s Green Space Infraheights Private Limited, Corporate Office, SCO- 406, Ist & 2^nd Floor, Sector-20, Panchkula through its Director Sh. Sachin Jain.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person with Sh.Raj Kumar, Advocate for the complainant.  

                        Sh.Manoj Lakhotia, Advocate for OPs No.1 & 2.

ORDER

(Satpal, President)

1.             The brief facts, as alleged in the present complaint, are that the OPs, who are the builder, had floated an affordable Group Housing Colony “Shree Vardhman Green Space situated at NH-73, Sector-14 Panchkula Extension II Panchkula Haryana, the complainant being allured by the advertisement made by the OPs qua providing of several amenities in the said project, had applied for a flat in the said project and deposited a sum of Rs.1,05,948/- vide receipt no.4075 dated 06.03.2019 wherein she was allotted a flat no.0108 in tower ‘F’, Ist Floor having Super Area 730 sq.ft. and Carpet Area 478sq.ft for a total consideration of Rs.19,12,000/-; she had deposited another sum of Rs.4,23,792/- vide receipt no.4109 dated 15.04.2019 and was assured by the Ops that the possession of the flat would be delivered to her till December 2019. It is alleged that at the time of booking of the flat only the basic structure of tower ‘F’ was raised and plastering work had been started. It is alleged that, upon visits of the site by her, it was found that no construction work was going on and thus, the Ops had failed to fulfill their commitments qua delivery of possession till December 2019. It is also alleged that due to ill health of complainant, she was not able to make the further payments and thus, she requested the Ops to refund her deposited amount but the Ops has neither refunded her deposited amount nor have completed the construction work at site. A legal notice dated 27.11.2020 was sent to the Ops seeking the refund of her deposited amount but to no avail.  Due to the act and conduct of Ops, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.Upon notice, the Ops No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; the consumer commission lacks territorial jurisdiction to entertain and adjudicate the present complaint. It is stated that the OPs are engaged in the business of real estate development and it proposed to develop an affordable residential housing scheme/colony, namely, “Shree Vardhman Green Space” at Panchkula extension, District Panchkula, Haryana. The complainant had submitted an application to the Ops for booking/allotment of two BHK flat having super built up area of 730 sq.ft. in the said scheme. The application form also contained the payment plan, in accordance to which, the complainant had to make the due installments. The payment plan clearly that stated at the time of application, 5% of the Basic Sale Price within 15 days from the issuance of allotment letter and 20% of the BSP, and thereafter, at intervals of 6 months, 12.5% of the total BSP, was to be paid respectively. The allotment was required to be made through draw of lots to be held in the presence of a committee consisting of Deputy Commissioner or his representative Senior Town Planner, DTP of the concerned District.  The complainant was informed by the OPs about the draw of lots, which was conducted in the presence of above said committee, wherein the complainant was found successful for the allotment of a flat and accordingly, vide letter dated 29.04.2019, she was informed that she had been allotted flat no.0108 on I^st Floor in Tower ‘F’ in the said project. It is averred that the complainant was asked several times to make the due installments as per agreed scheduled so as to execute the agreement to sell. It is alleged that the complainant had made a payment of Rs.5,29,740/- and thereafter, she had changed her mind and stopped making further payments to Ops despite issuance of several demand letter followed by reminders dated 20.09.2019, 15.05.2019 and 21.09.2020 and reminder dated 21.10.2020 to make the payment but the complainant failed to make any further payment in response to the said notices. Thus, it is alleged that there was no deficiency or unfair trade practice on the part of OPs. It is submitted that the complainant herself had breached the term plan as she had failed to make the further payment and thus, caused losses to the Ops as they kept reserved one of the flat for the complainants for a considerable period of time without payment of the agreed installments on time. In the real estate projects like the project in question, the development being multi-storied group housing development, the default in payment committed by even one allottee adversely affect and thereby causing impediment in the development and overall delay in delivery of the project. On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed. So, there is no deficiency in service on the part of the OPs No. 1 & 2 and prayed for dismissal of the present complaint.

3.Rejoinder to the written statements of the OPs No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.The learned counsel for the complainants has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-13 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 tendered affidavit Annexure R-A along with Annexure R-1 to R-4 and closed the evidence.

5.We have heard the learned counsels for the parties and gone through the entire record available on file including the written arguments filed by the learned counsel for the OPs No.1 & 2, minutely and carefully.

6.Admittedly, the complainant had applied for the allotment of a flat having super area 730 sq.ft. and carpet area 478 sq.ft., vide her application no.003733(Annexure C-1) by paying  a sum of Rs.1,05,948/- to OPs as booking amount, vide acknowledgment/receipt(Annexure C-2), in the housing project, namely, “Shree Vardhaman Green Space” located in Village Billa, Sector-14 Panchkula, Extn.II, District Panchkula, to be developed by the OPs, wherein she was allotted the flat no.0108, I^st Floor,  tower ‘F’ vide letter dated 29.04.2019(Annexure C-4). The total payment amounting to Rs.5,29,470/- made by the complainant to the OPs is not in dispute.

                During arguments, the learned counsel on behalf of the complainant reiterated the averments as made in the complaint and contended that the OPs had failed to fulfill their commitments qua the completion of the project till December 2019 as assured by them at the time of the booking of the flat in question and thus, the complaint is liable to be accepted by granting the relief as prayed for in the complaint.

7.The OPs have contested the complaint, apart from merits, by raising the preliminary objections that the complainant has concealed the material facts and that the Consumer Commission at Panchkula has no territorial jurisdiction.

                The above said objections are rejected being baseless and meritless as it has not been clarified by OPs as to what the material facts has been concealed by the complainant. The complainant is resident of Village Bhainsa Tibba, MDC Complex, Sector-4, Panchkula and the project in question is also located within the jurisdiction of Panchkula and this consumer Commission has territorial jurisdiction to decide the present complaint.

8.The next objection raised by the learned counsel is that the complainant does not fall under the category of a consumer as defined under Section 2(7) of the Consumer Protection Act, 2019. It is contended that the complainant is engaged in the sale and purchase of plots as she had sold her plot no.367 at Victoria City, Zirakpur.

                This objection is also rejected because the complainant had booked the flat in question by selling her plot no.367, at Victoria City, Zirakpur so as to make the payment of the flat in question. It is not the case of the Ops that the complainant is engaged in the sale and purchase of plot/flats on large scale and thus, the objection, having no merit in it, is hereby dismissed/rejected.

9.On merits it is vehemently contended that it was incumbent upon the complainant to make timely payments of the installment qua the basic price of the flat and other charges as the same is/was the essence of the agreed terms.        It is contended that the complainant had failed to deposit any further installment except the booking amount of Rs.1,05,948/- on 06.03.2019 and another sum of Rs.4,23,792/- on 15.04.2019. It is argued that the complainant herself breached the terms of the agreed settlement, while not making the payment. It is contended that the default in payment committed even by one allottee in the multi-storied group housing project adversely affected the development of the other units as well as financial planning and the pace of the project etc. The learned counsel denying  any lapse and deficiency on the part of the Ops invited our attention towards the submissions made in Clause A(iii) of para ‘B’ of the written submissions, wherein it is contended that the project has got delayed on account of force majeure conditions, which had arisen w.e.f. Jan.2020. It is further contended that the refund of the amount to the complainant would jeopardize the completion of the project and impact the remaining home buyers as the project is nearing the completion. Concluding the arguments, the learned counsel prayed for dismissal of the present complaint being baseless and meritless.

10.As per the rival contentions raised by the learned counsel for the complainant on one hand and the learned counsel for the OPs on the other hand, the question that arises for adjudication before the Commission, is, whether the project in question stands completed by the OPs by making provisions therein of all necessary amenities.

11.As per written arguments placed on record by the OPs, it was incumbent upon the Ops to offer the possession of the flat within a period of 4 years from the approval of building plan or from the grant of environmental clearance.

12.Undisputedly, the environmental clearance was granted by the competent authority on 15.03.2016 and thus, the project was liable to be completed till 14.03.2020 as per Clause 8(a) of the agreement.

13.As per version of OPs, the project is at the final stage and nearing completion; however, no documentary evidence in support of contention of OPs has been placed on record. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value. Further, it is also not the case of the OPs that they have applied for the occupation certificate qua the completion of the said project, wherein the flat of the complainant is located. Needless to mention here that occupation certificate is granted by the competent authority on the basis of certificates/clearances issued by the various authorities e.g. stability certificate issued by the structural engineer, NOC from Fire Authorities & electrical fitness certificate etc. 

14.Recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022  has held that plot  purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. The Para No.14 of the said order is reproduced as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

15.In view of the aforementioned factual and legal position, we conclude that OPs are liable to refund the amount as deposited by the complainant along with interest, jointly and severally.

16.As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.5,29,740/- to the complainant along with interest @ 9% per annum(simple interest) w.e.f. the date of each deposits  till actual realization.
2. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

17.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:13.10.2023

 

 

 

Dr. Barhm Parkash Yadav      Dr.Sushma Garg          Satpal       

                     Member                                Member             President

 

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

 

                                                Satpal                                

        President