Chandigarh

DF-II

CC/688/2020

Brij Mohini - Complainant(s)

Versus

M/s Land Mark. Apartments Pvt. Ltd. & anr. - Opp.Party(s)

Adv. Aman Dhir & Kanwal Goyal

12 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

Consumer Complaint  No	:	688/2020
Date  of  Institution	:	16.12.2020
Date   of   Decision	:	12.12.2023

 

 

 

 

Brij Mohini wife of Amarjit Markan @ Amarjit Kumar Markan resident of House No. 1603, Sector 33-D, Chandigarh 160020 (E mall babymarkan@gmaill.com (MOB NO-9878758899)

...Complainant

Versus

 

1. M/s Land Mark Apartments Pvt. Ltd. 4, Vipul Square, Sushant Lok I, Gurugram (Haryana) through its Directors having e-mail ID Info@landmarkgoc.com

2. M/s Land Mark Apartments Pvt. Ltd, A-11, Chitranjan Park, New Delhii (South) Registered office DL-PIN-110019 through its Directors and having e-mail ID cs.landmarkgoc@gmail.com

3. M/s Land Mark Apartments Pvt. Ltd, Landmark House Plot, Plot No. 65, Sector 44, Gurugram, Haryana PIN 122003 through its Directors having e-mail ID info@landmarkgoc.com (9910065616)

4. Sandeep Chillar, Director of Land Mark Apartments Pvt. Ltd, A-11 Chitranjan Park, New Delhi (South) Registered office DL-PON 110019 and having e-maill ID cs.landmarkgoc@gmail.com

5.  Dinesh Kumar, Director of Land Mark Apartments Pvt. Ltd, A-22, Chitranjan Park, New Delhi (South) Registered Office DL-PIN-110019 and having e-mail ID cs.landmarkgoc@gmail.com

….. Opposite Parties

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

        MR.B.M.SHARMA                 MEMBER

 

PRESENT:-

 

          Sh.Kanwal Goyal, Counsel for the complainant

          Sh.S.S.Bedi, Counsel for the OPs

 

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

1.     The complainant has filed the present complaint pleading that in order to have a house nearby Gurgaon, she booked an apartment 3BHK (Typa) measuring 170 sq. feet (1^st Floor) in Sector 103, Gurgaon by paying Rs.2.00 lacs through cheque  to OPs No.1 and 2. As per the payment plan, the total cost of the unit was Rs.61.56 lacs including BSP, EDC, IDC and IFMS. The complainant was also issued provisional allotment letter dated 22.02.2011. Apart from the above, the complainant paid Rs.4,15,600/- through cheque dated 19.03.20211 and Rs.9,23,400/- on 11.05.2011 against receipts dated 26.03.2011 and 12.05.2011. On 6th June, 2012, the complainant was given provisional allotment of her 3BHK-A residential flat on 15th floor instead of 1st floor as mentioned in the allotment letter dated 22.2.2011. However, at the time of booking, it was conveyed that the apartments was to be constructed upto 10th floor only.  The complainant paid the rest of the amount through different receipt between the period from 22.02.2012 to 25.08.2014. The complainant in all deposited a sum of Rs.65,29,583/-  against the total amount of Rs.61,56,000/- vide different receipts (Annexure C-7 to C-17 (Colly.). But the OPs have failed to execute the agreement in favour of the complainant as stipulated in the provisional allotment letter.  Subsequently, the complainant vide letter dated 11.09.2020 sought the information  from the OPs regarding the latest status of the project and non-intimating the status of the project despite receipt of the huge amount. It has been further averred that since there was inordinate delay in completion of the project/delivery of the possession, therefore, the complainant sough the refund of the deposited amount vide email dated 11.09.2020 and demand notice dated 16.09.2020 [Annexure C-19 Colly.]. To the contrary, the complainant received a reminder dated 08.10.2020 from the OPs requiring her to pay Rs.20,43,238/- on account of various heads including previous installment dues, Prev. FFC, PBIC and EEC Balance, Club registration charges, LPG infrastructure charges and Labour Cess. Finally, the complainant vide another registered reply/ legal demand notice dated 24.10.2020 requested the OPs to refund the deposited amount and she is not ready to accept the allotment of flat at this belated stage. Instead of responding to the said legal demands made by complainant, she has received another "final reminder" dated 12.11.2020 whereby the opposite party threatened the complainant with levying of holding/ non occupancy charges etc in case possession is not taken. It was stated that the unit is ready for fit out/ handover as the Occupation certificate of the project has been issued. It has been averred that the OPs offered the possession of the unit, which is merely a formality, and contrary to the factual position at the spot. On receipt of said threatening letter dated 12.11.2020, the complainant got clicked photographs through relatives which showed an abandoned project at the spot. Being shocked by such blatant lies and threats, the complainant replied to the said Final reminder vide registered notice dated 30.11.2020 through her counsel whereby all the tall claims made by opposite party were rebutted. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund the deposited amounts along with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.     After service of notice upon the OPs, they filed their written version and took preliminary objections inter alia that the complaint is not maintainable; the same is barred by time and the all the disputes in respect of the unit should be referred to the arbitration being conducted as per Arbitration Conciliation Act, 1996.  It has been stated that the complainant being investor approached them for allotment of a unit in the project in question.  It has admitted that the complainant was allotted 3-BHK residential unit measuring 1710 Sq. ft. bearing unit no. B-153 on 15th floor in the project. The complainant agreed to terms and conditions allotment dated 22.02.2011 in accordance to which the said unit was allotted to the complainant. It has further been stated that in accordance the terms and conditions of the allotment letter dated 22.02.2011, they raised subsequent demand letters as per the agreed payment plan. It has further been stated that the complainant was supposed to take over possession as per Clause 17 of the said terms and conditions whereby 30 days period was given to the complainant for taking over possession from the date of the final notice. It has further been stated that they completed the construction of the said unit and obtained occupation certificate from the concerned department on 25.09.2020 (Annexure R/3). Subsequently, they sent reminder dated 08.10.2020 to the complainant whereby demand of pending dues was raised (Annexure R/4). In pursuance of the terms and conditions of allotment dated 22.02.2011, they offered the possession of the said unit through letter dated 12.11.2020, whereby the complainant was required to pay the remaining dues/outstanding amount to the OPs and takeover possession (Annexure R/5). However, the complainant has failed to take over the possession.  It has further been stated that the total price of the said unit in question is Rs.86,98,086/- out of which the complainant already paid an amount of Rs.65,39,503/- to the opposite party. The complete ledger of payments receipts and outstanding dues with regard to the said unit is Annexure R/6 which shows that the complainant is yet to pay Rs.20,68,583/- with regard to balance of total sale price, Rs.2,92,444/- as interest for delayed payment of installments charged @ 10.78% per annum and Rs.1,71,000/-  towards IFMS charges are payable by the complainant.  The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.
3.     The complainant has filed replication to the written reply of the OPs controverting their stand and reiterating her own.
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 submissions.
6. The submission of OPs is that the complaint is barred by limitation. However, the Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has also held that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action.    So in view of availability of recurring cause of action in favour of complainant till refusal, certainly the complaint is not barred by limitation and submission of Counsel for OPs to the contrary has no force and the same is rejected accordingly.
7. The next plea taken by the OPs is that the dispute between the parties is liable to be referred to arbitration, as per the Arbitration and Conciliation Act, 1996 is also without merit as law on this point has already been settled by the Hon’ble Apex Court in the case of Aftab Singh Vs. Emmar MGF Land Limited & Anr., Consumer Case No.701 of 2015 decided on 13.7.2017 in which it was held that arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Fora notwithstanding the amendment made to Section 8 of Arbitration Act.
8.     The facts with regard to the booking of the unit in question in the project of OPs; the receipt of Rs.65,39,503/- by the OPs in respect of the unit in question and issuance of the provisional allotment letter dated 22.02.2011 by the OPs have not been disputed between the parties. It is also not in dispute that the complainant booked the flat in question in the year 2011 and the OPs have failed to deliver the possession of the unit in question to the complainant till date. The OPs have relied upon Clause 17 of the terms and conditions but no such agreement duly signed between the parties has been placed on record to show that the complainant is bound the terms and conditions of the said agreement. Moreover, the occupation certificate attached with the written version as Annexure R-3 is only upto  14^th floor whereas the flat of the complainant is situated upon 15^th Floor and thus, the entire basis of the case set up by the OPs falls flat on their face.
9.     The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. 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. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

10.     Further, 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 as under:-

    “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.”

11.     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 as under:- 

“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. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

12.     Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to deliver the possession within the reasonable period of three years from the date of its booking have no right to retain the hard earned money of the complainant.   A buyer to have a comfortable life and having paid his/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the unit allotted to her and the complainant is entitled to seek the refund of the amount paid along with interest.
13.     It is submitted that the Hon’ble National Commission in the case titled as Surendra Kumar Tyagi Vs. Jagat Nursing Home & Hospital, IV (2010) CPJ 199 (NC) has held that the compensation  should be comensaure with loss and injury suffered by the complainant. The Consumer For as are not meant  to enrich the consumers, at the hands of the service providers, by awarding unfair, unjust and excessive compensation.
14.     In the light of above observations, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is partly allowed with following directions to the OPs to refund the deposited amount of Rs.65,29,583/- along with interest @ 12% per annum from the respective dates of its deposit till the date of its actual payment to the complainant. The OPs shall also pay Rs.1,00,000/- as lump sum compensation on account of mental agony and physical harassment and Rs.25,000/- as litigation expenses to the complainant.
15.     The above said order shall be complied with by the OPs jointly and severally within a period of 60 days from the date of receipt of copy of this order.
16.     The pending application(s) if any, stands disposed of accordingly.
17.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission.

12.12.2023                                

Sd/-

(AMRINDER SINGH SIDHU)

PRESIDENT

cmg

sd/-

(B.M.SHARMA)

MEMBER