Chandigarh

DF-II

CC/636/2021

Deepak Sharma - Complainant(s)

Versus

M/s Manohar Infrastructure & Constructions Private Limited - Opp.Party(s)

Adv. Arun Dogra

24 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	636 of 2021
Date  of  Institution	:	22.09.2021
Date   of   Decision	:	24.05.2024

 

 

 

 

1]  Deepak Sharma son of Sh.Pawan Kumar Sharma

2]  Raman Sharma son of Sh.Pawan Kumar Sharma,

Both residents of House No.851/1, Second Floor, Sector 41-A, Chandigarh

             …..Complainants

 

Versus

1]  M/s Manohar Infrastructure & Construction Private Limited having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh through its Managing Director/Authorised signatory.

2]  Tarninder Singh, Managing Director/ Director, M/s Manohar Infrastructure & Constructions Private Limited, having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh

3]  Narinderbir Singh, Director, M/s Manohar Infrastructure & Constructions Private Limited, having its registered Office at SCO No.139-141, Sector 17-C, First Floor, Chandigarh 

    ….. Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Present:      Sh.Arun Dogra & Sh.Gaurav Kant Goyal, Counsel for the complainant

Sh.Nitesh Singhi, Counsel for the OPs

 

 

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 and another consumer Complaint bearing No.496 of 2022 – Dr.Amanish Singh Vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors., having common questions of law & facts.

 

2]       The facts are gathered from C.C.No.636/2021 – Deepak Sharma & Anr. Vs. M/s Manohar Infrastructure & Construction & Ors.

 

3]       The complainants have filed the present complaint pleading that the complainants booked a residential plot measuring 200 sq. yards @Rs.18000/- in the project namely ‘Palm Garden” being developed by the OPs in Mullanpur, New Chandigarh, District SAS Nagar, Mohali on 10.12.2011 vide separate application form.  The complainants made payment of 10,80,000/- to the OPs through separate cheques against its basic sale price of Rs.36,00,000/- excluding additional charges (Ann.C-3).  It is stated that the complainants booked the said plot for their personal use & occupation and it was assured by the OPs that the possession of the plot will be delivered within 3 years from the date of booking.  It is also stated that before booking of the said plot, the OPs had assured the complainants that the said project has already been approved and it has received most of the approvals and sanctions for the development of the project except layout plan approval. Thereafter, the complainants requested the OPs to issued allotment letter as well as to execute the buyer’ agreement but the OPs kept on delaying it. The complainants further paid an amount of Rs.7,20,000/- to the OPs towards the said plot on 11.6.2013 (Ann.C-4) and another amount of Rs.5,40,000/- on 25.6.2014 (Ann.C-7). The complainants kept on visit the OPs since the year 2014 demanding the allotment of plot, execution of buyer agreement as well as delivery of possession but they did not pay any heed. It is pleaded that the complainants later came to know that the OPs have collected the money from them without having necessary approvals, sanctions for the project nor there was any development till the year 2019, as such the complainants stopped making further payment.  It is submitted that despite the deposit of 65% of the value of the plot the OPs failed to either allot the plot to the complainants or execute buyer’s agreement.   Ultimately, the complainants demanded refund of their amount from the OPs but they neither refunded the amounts nor offered the possession of plot. Lastly, the complainants prayed for acceptance of the complaint and issuance of directions to the OPs to refund the deposited amount along with interest and to pay compensation & litigation costs etc.  

 

4]       After service of notice upon the OPs, the OPs appeared before this Commission and filed written version and while admitting the factual matrix of the case about booking of plot and receipt of amounts so paid by the complainants towards it, as matter of record, stated that the OPs never assured the complainants that the possession of the said plot will be handed over within 2 years as the project has already been approved and received most of the approvals and sanctions except the layout plan as alleged.  It is submitted that the complainants only submitted expression of interest which did not entitle to final allotment of plot.  It is also submitted that the complainants were well aware about the facts that at the time of booking, the approvals from the concerned authorities/government were awaited and only due to the said reason, they had submitted the expression of interest.  It is stated that the complainants are defaulters who had not come forward, despite request of OPs, to deposit the remaining amount and remained silent for years. It is also stated that any charges whatsoever are charged by the OPs are levied as per the law and the same are uniform for all the customers who had invested in the project of the OPs. Moreover, it is mentioned in the EOI that all layout plans, specification and other details are tentative and subject to variation and modification by the company or other competent authority.  It is stated that the competent authority has granted extension regarding completion of the Mega Project of answering OPs upto 31.12.2022. It is asserted that there was some procedural delay on the part of the Government in issuing the notification which is applicable to the project of the OP Company and formal notification in this regard has been issued.  It is pleaded that the OP Company has almost completed the development in that area and many families have already shifted in the said area of the project of the OPs and residing happily. It is asserted that the complainants have never visited the site and that the complainants have approached this Commission with malafide intention. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OPs have prayed for dismissal of the complaint. 

5]       Replication has also been filed by the complainants controverting the assertions of OPs.

6]       Parties led evidence in support of their contention.

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

8]       It is observed that the complainants have admittedly booked a residential Plot measuring 200 Sq. Yards in the subject project by the OPs. It is also admitted fact that an amount of Rs.23,40,000/- had already been paid by the complainants to the OPs towards the said plot against its cost of Rs.36 lacs. However, the OPs neither issued allotment letter nor executed Plot Buyer’ Agreement with the complainants in respect of the plot in question despite receipt of substantial amount from them.  Moreover, the OPs have also failed to justify collection of amount by them from the complainants and booked the Unit in question without having necessary approvals to do so from the concerned authorities.  They neither gave legal possession nor refunded the amount to the complainants.  

 

9]       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.”

           Hence, the act of the Opposite Parties to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice.    

10]      In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         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.

 

11]      Under above mentioned facts, 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 complainants but also caused them immense harassment & mental agony.

 

12]      Similar facts have been pleaded in another connected complaint, detailed above, and similar evidence has been led in it. Therefore, both in complaint cases, deficiency in service as well as unfair trade practice on the part of the OPs is proved.

13]      Resultantly, the present consumer complaint is partly allowed and the OPs are directed to refund the deposited amount i.e. Rs.23,40,000/- to the complainants alongwith interest @10% per annum from the date of respective deposits till the date of its actual realization.. 

14]      Similarly, the connected consumer complaint i.e. C.C.No.496/2022- Dr.Amanish Singh vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors., also stands partly allowed and the OPs are directed to refund the deposited amount i.e. Rs.23,75,000/- (Ann.C-1 & C-2 colly.) to the complainant alongwith interest @10% per annum from the date of its respective deposits till the date of its actual realization. 

         This order be complied with by the OPs, within 90 days from the date of receipt of its certified copy.

15]      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

24.05.2024                                                                      Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER