Chandigarh

DF-II

CC/413/2021

Abhinash Srivastava - Complainant(s)

Versus

M/s Highland Park Homes - Opp.Party(s)

Snehdip Oberoy Adv

11 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	413 of 2021
Date  of  Institution	:	02.07.2021
Date   of   Decision	:	11.04.2023

 

 

 

 

 

Abhinash Srivastava s/o Sh.Pratap Narain Srivastava, r/o #3376, Sector 47-D, Chandigarh, employed at Punjab National Bank, Kishangarh, Manimajra, Chandigarh

             …..Complainant

Versus

1]  M/s Highland Park Homes, through its CEO/Managing Director/Authorized Signatory/ Authorized Representative, Registered Office at SCO No.393, 2^nd Floor, Sector 8, Panchkula 160009

    Alternate Address:- M/s Highland Park Homes, Site Office at Zirakpur Patiala Highway, Highland Marg, Zirakpur 140603 Mohali.

2]  M/s Indiabulls Housing Finance Limited, SCO No.347-348, Ground Floor, Sector 35-B, Chandigarh 160035

   ….. Opposite Parties

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA                 MEMBER

 

For Complainant : Sh.Snehdip Oberoy, Counsel of complainant

For OP(s)       : Sh.Simranjit Singh, Counsel of OP No.1

   Ms.Vijayta, Counsel of OP No.2.

 

PER B. M. SHARMA, MEMBER

        The case of the complainant precisely is that he was allotted one residential unit – 2 BHK Apartment NO.19-A, 1^st Floor, by OP No.1 in their project namely “Highland Park, situated at High Ground Road, Bhabat, Zirakpur (Punjab) vide allotment letter dated 2.4.2017 (Ann.C-1) on receipt of booking amount of Rs.2,71,000/-.  Thereafter, Apartment Buyer’s Agreement was executed between the complainant and OP No.1 whereby the total sale consideration of said Unit was fixed as Rs.27,10,000/- excluding other charges and the date of delivery of possession of the Unit was agreed by OP No.1 to be 30^th November, 2017 (Ann.C-2).  It is stated that on a site visit, the complainant found that dimensions of the Unit were not the same as was mentioned and shown at the time of allotment of the Unit and moreover, the Unit was nowhere close to its completion stage.   It is also stated that the complainant brought this discrepancy of reduction of size of unit as well as its non completion to the OP No.1 and sought cancellation and refund of amount vide letter dated 29.1.2018.  However, the OP No.1 instead vide letter dated 1.4.2018 asked the complainant to make remaining payment of the Unit and take possession of the same albeit in abstract form only.   It is submitted that the OP No.1 also sent legal notice to the complainant dated 7.1.2020 seeking balance amount of the unit in question, which was duly replied vide reply dated 19.1.2020 refuting the contents of the legal notice of OP No.1 and seeking refund of amount.  It is pleaded that the OP No.1 failed to deliver the Unit in question as per terms & conditions of the Apartment Buyer’s Agreement nor refunded the amount. Hence, this complaint has been preferred alleging the above acts & conducts of the OP No.1 as gross deficiency in service and unfair trade practice.

 

2]       The OP No.1-Highland Park Homes has filed written version and while admitting the factual matrix of the case about allotment of Unit in question and execution of Plot Buyer’s Agreement, stated that answering OP is a developer developing a land total measuring 2 Kanal 2 Marle 6 Sarsahi i.e. measuring 1290 sq. yards – Plot No.10 to 20 in Motia Greens.  It is stated that the complainant has paid only the earnest money of Rs.2,71,000/- and thereafter applied for loan of Rs.21,67,400/- with OP No.2 Company while executing a Tripartite Agreement.  It is stated that the complainant has made payment of Rs.16,84,000/- only to the answering OP out of the total sale consideration (Ann.R-3).  It is also stated that the answering OP had promised to deliver the possession by 30.11.2017 with an extended period of 3 months as per Buyer’s Agreement, whereas the possession by answering OP has been offered on 1.4.2018 with delay of merely a couple of days.   It is submitted that the complainant failed to comply with the payment schedule and has committed default in making payment despite sending a number of payment reminders (Ann.R-2 colly.). It is also submitted that answering OP had issued a legal notice to the complainant dated 9.7.2018 to clear the dues to the tune of Rs.12,11,733/- but the complainant instead sought refund of Rs.16,84,000/- along with interest vide reply.  It is asserted that there is no change in the overall area of 1060 sq. ft. of the Unit and only minor changes in the dimension of the kitchen have been made due to structural necessity, which do not lead to any major changes in the overall plan of the Unit.  It is pleaded that the complainant cannot be allowed to back out and seek refund and place the OP Company in a losing position without any fault on their part. Denying all other allegations, the OPs have prayed for dismissal of the complaint.

 

3]       OP No.2-Indiabulls Housing Finance Ltd. has also filed written version stating that the complainant approached the OP to avail a loan facility to the tune of Rs.22,00,000/- for purchasing the property and as such signed & submit Loan Application Form whereupon Loan Sanction letter dated 27.6.2017 was issued and an amount of Rs.21,67,400/- was sanction and accordingly, an amount of Rs.14,13,000/- was disbursed.  It is stated that the complainant himself had signed the loan disbursal request form to disburse the loan amount to OP NO.1.  It is also stated that as per Tripartite Agreement executed between the parties, it is specified that it is complainant’s obligation to repay the loan and shall have independent obligation in all circumstances. It is also stated that any dispute regarding the Flat Buyer’s Agreement/Allotment Agreement does not concern the answering OP.  Denying other allegations, it is prayed that complaint qua OP No.2 be dismissed.   

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written arguments.

6]      The thorough perusal of the record reveals that the OP No.1-Builder has failed to deliver the possession of the allotted unit/flat to the complainant despite receipt of an amount of Rs.16,84,000/- against its cost of Rs.27,10,000/-. The OP No.1-Builder has failed to fulfill its contractual obligation by offering possession of the Unit/flat to the complainant, having all basic amenities, within the stipulated time or within a reasonable time, so the complainant/purchaser cannot be compelled to kept on waiting indefinitely that too even after passing of more than 6 years since the year of allotment i.e. 2017.  Even in the Apartment Buyer’s Agreement executed between the complainant and OP No.1 Builder on dated 2^nd April, 2017, the date of handing over the possession is mentioned as 30.11.2017, but the same has not been delivered.  

7]       Pertinently, the OP No.1 Builder was not having all the required sanctions from the competent authorities when they took the initial amount from the complainant.  It is evident that the hard-earned money of the complainant is in the possession of the OP No.1 since long.

         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 handling 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.”

         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.

8]       Hence, the act of the Opposite Party No.1 to collect the money from the complainant before getting all the necessary approvals for the project from competent authorities; not delivering the possession of the Unit/Flat nor giving the confirm date of handling over possession of the plot in question, having all basic amenities and  completion certificate issued by concerned authority, certainly proves deficiency in service and its indulgence in unfair trade practice. 

9]       The complainant cannot be made to wait indefinitely for the possession of the Unit/Flat allotted to him and he is entitled to seek the refund of the amount along with compensation, after the agreed time period which is 30.11.2017 in the present case per Apartment Buyer’s Agreement (Ann.c-2).

10]      The OPs have accepted the money, but failed to honour the commitment/promise made with complainant, so they are liable to refund the amount alongwith interest from the respective dates of deposit till payment. Therefore, 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 him immense harassment & mental agony.

11]      In the light of above observations, we are of the considered view that the Opposite Party No.1 is found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint deserves to succeed against the Opposite Party No.1.  Accordingly, the present complaint is allowed with direction to OP No.1 to refund an amount of Rs.16,84,000/- along with interest @10% p.a. w.e.f. 29.1.2018 (i.e. from refund request Ann.C-4) till its actual payment. The OP No.1 is also directed to pay an amount of Rs.50,000/- to the complainant towards compensation for causing him immense mental agony and harassment, along with litigation cost of Rs.15,000/-.

         The above said order shall be complied with by the Opposite Party No.1 within a period of 45 days from the date of receipt of its copy, failing which it shall be liable to pay additional cost of Rs.20,000/-, apart from the above awarded amount.

12]      The complaint qua OP NO.2 stands dismissed.

13]      Pending applications, if any, stands disposed of accordingly.

          Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

11^th April, 2023                                                                        Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

(B.M.SHARMA)

MEMBER