Chandigarh

DF-II

CC/524/2020

Rushmi Chaudhry - Complainant(s)

Versus

M/s Landmark Apartments Pvt. Ltd. - Opp.Party(s)

Rajiv Sharma

20 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	524 of 2020
Date  of  Institution	:	15.10.2020
Date   of   Decision	:	20.03.2024

 

 

 

 

1]  Rashmi Chaudhry w/o Captain Suresh Chaudhry,

2]  Captain Suresh Chaudhry s/o Late Chaudhry Roop Chand,

Both resident of H.No.4, Sector 9-A, Chandigarh 160009

.... Complainants

VERSUS

1]  M/s Landmark Apartments Private Limited, through Director/Chairman/Authorised signatory, 65, Landmark House, Sector 44, Gurugram 122003

2]  Sh.Sandeep Chhillar, Director/Chairman, Landmark Apartments Private Limited, 65, Landmark House, Sector 44, Gurugram 1220003

Second Address: Regd. Office:- A-11, Chitaranjan Park, New Delhi 110019

.....Opposite Parties

 

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Rajiv Sharma, Counsel for the complainant         Sh.S.S.Bedi, Counsel for OPs (Through V.C.)

 

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

 

1]       By this common order, we propose to dispose off two connected consumer complaints i.e. present consumer complaint as well as another consumer complaint No.525 of 2020 – Rushmi Chaudhry Vs. M/s Landmark Apartments Pvt. Ltd. & Anr.

2]       The facts are gathered from C.C.No.524/2022 – Rushmi Chaudhry Vs. M/s Landmark Apartments Pvt. Ltd. & Anr.

3]       The complainants have filed the present complaint pleading that they booked a 500 Sq. ft. Serviced Office, on 4^th & 5^th Floor of Landmark Corporate Centre, Sector 67, Gurugram, Haryana, a project of the OPs for their personal use and self employment to earn livelihood, at the rate of Rs.7600/- per square feet and paid entire sale price of Rs.38 lacs to OPs on 02.06.2010. A Memorandum of Understanding/Agreement was also executed between the parties on 05.06.2010, which acknowledge the receipt of complete price and the clause about providing assured return of Rs.40,000/- per month till possession to the complainant by the OPs (Ann.C-1 & C-2).  It is stated that the OPs paid the assured return of Rs.40,000/- per month only upto June, 2013 and did not pay it thereafter since July, 2013.  The complainants were also surprised to note that the said project of the OPs is totally incomplete, no construction work had begun there nor basic infrastructure or basic amenities are provided.  The complainants sent legal notice to the OPs (Ann.C-4 to C-6) but they did not reply it nor paid any heed. Hence, this complaint has been filed by the complainants alleging the said act & conduct of the OPs as deficiency in service and indulgence into unfair trade practice with a prayer to direct the OPs to refund the deposited amount, assured return, interest as well as compensation for mental agony & harassment and litigation expenses.

4]       After service of notice, OPs No.1 & 2 have appeared before this Commission, filed written version and while admitting the factual matrix of the case stated that the present complaint has been preferred by mis-representing the true and correct facts. It is submitted that the Project in question stands completed by the OPs and the possession of the space in I.T. Park (Commercial) booked by the complainants is also available for possession. It is also submitted that the OPs had offered possession of the space in question to the complainants way back in year 2015 vide letter dated 22.06.2015 (Ann.R-2) and also the Occupation Certificate was applied by the OPs in the same year i.e. 17.04.2015 to the Director General Town and Country Planning, Haryana and accordingly, the occupation certificate has been issued to the OPs on 26.12.2018 (Ann.R-5). It is stated that the OPs are is ready to handover the possession of the space in question, subject to the complainants clearing the payment of pending previous tax, Basic Balance, CGST, SGST, External Developmental Charges, Interest free Maintenance Security Deposit, FFC, Electric Meter Connection charges, etc. It is pleaded that it was open for the complainants to take possession of the space in the year 2015 itself but they never approached them to clear the dues and take the possession and instead filed the present complaint to evade the liability of paying the balance pending amount. It is denied that the project in question have not be constructed till today, infact the project is complete and has already been issued Occupation Certificate by the government on 26.12.2018 (Ann.R-5). It is pleaded that after the answering OPs paid the assured return till July, 2023 and did not pay thereafter due to the defaults committed by the complainants.  It is also pleaded that the complainants vide letter dated 6.9.2019 were asked to take over the possession of the unit in question after paying outstanding dues of Rs.40,11,987/- on account of development charges, EDC, IDC, FFC, PLC etc. and maintenance charges but the complainants neither made payment nor took possession and preferred the present complaint. The remaining allegations have been denied, being false. Lastly, the OPs have prayed for dismissal of the complaint.

 

5]       Parties led evidence in support of their contentions.

6]       We have heard the ld.Counsel for the contesting parties and have gone through the entire documents on record including written submissions.

7]       From the documents on record as well as pleadings of the parties, it is observed that the OPs admitted to have received an amount of Rs.38 lacs from the complainants in respect of the Unit in question. A Memorandum of Understanding was also executed between the complainants and OPs on 05.06.2010 (Ann.C-1) in respect of the Unit in question and it also mentions the payment of Rs.38 lacs to OPs for the said Unit. It is also admitted by the parties that assured return of Rs.40,000/- was also paid by the OPs to the complainants upto July, 2013.

8]       It is relevant to mention here that the OPs have not only failed to deliver the possession of the Unit in question to the complainants, within a reasonable time period, despite receipt of complete amount from them but also failed to refund the deposited amount to the complainants which itself amounts to deficiency in service and also unfair trade practice on the part of OPs.

9]       It is also relevant to mention that the OPs stated to have offered paper possession to the complainants in the year 2015 but undisputedly at that time they were not having Completion or Occupation Certificate in respect of said project/Unit.

10]      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?”

         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.”

         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”.

 

11]      Keeping in view the facts and circumstances of the case, we are of the considered view that the OPs who failed to deliver the possession of the subject Unit within a reasonable period to the complainants has no right to retain the hard earned money of the complainants.  Thus, the complainants cannot be made to suffer for the fault of OPs and they are fully entitled to seek the refund of the amount paid along with interest.

12]      Similar facts have been pleaded in another connected complaint and similar evidence has been led in it.  Therefore, in both the consumer complaints, deficiency in service as well as unfair trade practice on the part of the OPs No.1 & 2 is proved.

 

13]      Resultantly, both the consumer complaints of the complainants stands partly allowed against OPs No.1 & 2. Accordingly, the OPs No.1 & 2 are jointly & severally directed to refund the deposited amount of Rs.38 lacs in CC No.524/2020 & Rs.9,47,625/- in CC No.525/2020 to the respective complainant(s) along with interest @10% from the respective dates of deposit/payment till the date of its actual payment to the complainant(s).

         This order be complied with by the OPs No.1 & 2 jointly & severally within 90 days from the date of receipt of its certified copy.

 

14]      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 & Act accordingly. After compliance file be consigned to record room.

Announced

20.03.2024                                                 

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

sd/-

 (B.M.SHARMA)

MEMBER