Chandigarh

DF-II

CC/291/2021

Kamlesh Rani - Complainant(s)

Versus

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

Adv. Sanjeev Gupta

08 Nov 2023

ORDER

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

======

Consumer Complaint  No	:	291 of 2021
Date  of  Institution	:	11.05.2021
Date   of   Decision	:	08.11.2023

 

 

 

 

1]  Kamlesh Rani alias Kamlesh Saryal wife of Dr.A.K.Saryal, daughter of Sh.Moti Ram Thakur,

2]  Aman Saryal son of Dr.A.K.Saryal,

    Both residents of House No.315, Sector 21-A, Chandigarh

             …..Complainants

 

Versus

1]  M/s Manohar Infrastructure & Constructions 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

[2]

Consumer Complaint  No	:	705 of 2020
Date  of  Institution	:	21.12.2020
Date   of   Decision	:	08.11.2023

 

 

 

 

 

1]   Chandra Bhushan Sah son of Sh.Shri Ram Sah,

2]  Bindu Devi wife of Chandra Bhushan Sah,

    Both residents of H.No.6, Type-3, PGI Campus, Sector 12, Chandigarh

                      …...Complainants

                          Versus

1]  M/s Manohar Infrastructure & Constructions 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

[3]

Consumer Complaint  No	:	641 of 2021
Date  of  Institution	:	17.09.2021
Date   of   Decision	:	08.11.2023

 

 

 

 

 

1]  Dr.Anil K Seth s/o P.N.Seth, R/o B-2/11, Vasant Vihar, New Delhi

 

2]  Dr.Chanda Seth w/o Dr. Anil K. Seth since deceased through her Legal representatives:-

 

2 (a) Vishal Seth s/o Dr. Anil K. Seth r/o B-2/11, Vasant Vihar, New Delhi currently residing at Starlite Dr ., Milipitas CA, 95035, USA through General Power of Attorney holder namely Dr. Anil K. Seth

 

2 (b) Anuradha Gupta d/o Dr. Anil K. Seth r/o B-2/11, Vasant Vihar, New Delhi currently residing at 88 Morgan ST, #2005, Jersey City, NJ, USA through General Power of Attorney holder namely Dr.Anil K.Seth

                      …...Complainants

                          Versus

1]  M/s Manohar Infrastructure & Constructions (P) Limited through its Director Tarninder Singh, Regd. Office at Manohar Campus, SCO No.139-141, 1st Floor, Sector 17-C, Chandigarh 160017

2]  Tarninder Singh, Director, M/s Manohar Infrastructure & Constructions (P) Limited, SCO No.139-141, 1st Floor, Sector 17-C, 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.Sanjeev Gupta & Sh.Ripudaman Singh, Counsel for the complainant

 

Sh.Nitesh Singhi, Counsel for the OPs

 

 

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

 

         By this common order, we propose to dispose off three (03) connected consumer complaints i.e. present consumer complaint and two other consumer Complaints bearing No.705/2020 – Chandra Bhushan Sah Vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors. And C.C. No.641 of 2021 – Dr.Anil K. Seth Vs. M/s Manohar Infrastructure & Construction Private Limited & Ors., having common questions of law & facts.

 

2]       The facts are gathered from C.C.No.291/2021 – Kamlesh Rani & Anr. Vs. M/s Manohar Infrastructure & Construction & Ors.

 

3]       The complainant has filed the present complaint pleading that the complainants booked a residential plot measuring 250 sq. yards @Rs.18500/- in the project namely ‘Palm Garden” being developed by the OPs in Mullanpur, New Chandigarh, District SAS Nagar, Mohali on 16.3.202 vide separate application form and made payment of 30% of the sale consideration i.e. Rs.13,87,500/- vide three separate cheques against its basic sale price of Rs.46,25,000/- excluding EDC & PLC (if any) charges. (Ann.C-2 colly.).  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 2 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 whereupon they demand 20% more amount and as such the complainants paid Rs.9,25,000/- to OPs vide cheques Ann.C-4 as 20% more amounting making it 50% payment of the plot but issued only acknowledgement dated 30.8.2013 ( Ann.C-5) and arbitrarily incorporated the condition of paying IDC (Internal Development Charges) which was not agreed at the time of booking.  When the complainants again requested the OPs to issue allotment, they issued letter  (Ann.C-6) stating that the plot would be allotted in Dec., 2014 and further raised demand of 15% more amount. Thereafter, the complainants paid further 15% amount i.e. Rs.6,93,750/- to the OPs through cheque on 13.6.2014 making it 65% payment of the sale price of plot.  The complainants kept on visit the OPs further in 2015 & 2016 demanding the allotment of plot as well as possession.  Ultimately, an Agreement was executed on 23.1.2017 (Ann.C-8) between the complainants and OPs and Plot bearing No.747-C was allotted to the complainant, but the complainants found that some one-sided and arbitrary clause in the said agreement was incorporated i.e. like IDC charges, IBMS charges etc. as well as PLC amount of Rs.4,62,500/- without mentioning how the plot falls in preferential location category.  It is submitted that since an amount of Rs.30,06,250/- was already paid at stage, the complainants had no option except to sign the agreement. Thereafter, the complainants, as per demand of OPs, paid another amount of Rs.21,56,250/- (Ann.C-9) and Rs.5,50,000/- vide cheque Ann.C-10.  The complainants further paid Rs.1,43,750/- vide Ann.C-11 to the OPs as per their demand in order to complete 95% of the sale consideration, 100% of development charges and 100% of PLC and taxes.  It is submitted that the OPs illegally charges Rs.4,62,500/- in advance towards PLC charges when it is not certain about whether the said plot would fall under any of the four category of preferentially locations as mentioned in the plan. Further the complainant are liable to pay IBMS charges of Rs.100/- per sq. yards as per the payment plan Ann.C-1 but in the agreement, the OPs arbitrarily mentioned the same to be Rs.598/- per sq. meters.  It is pleaded that the complainants were kept in dark since the date of booking and were not informed about the true picture of the project.  It is also pleaded that the complainants had already paid Rs.58,56,250/- against the total sale consideration of Rs.51,25,000/- (Rs.46,25,000+ Rs.500000 EDC) which is more than the agreed sale consideration, so the OPs are liable to refund the excess amount to the complainants.  The OPs failed to handover the possession of the plot on 16.3.2014 i.e. within 2 years of the booking as promised or even till date even after expiry of substantial time.  It is further pleaded that the demand of IDC charges, IBMS charges, PLC cannot be made by the OPs. Lastly the complainants prayed for acceptance of the complaint and issuance of directions to the OPs to handover the actual physical possession of plot bearing No.747-C measuring 250 sq. yards after obtaining completion certificate; to pay interest on the amount paid from 16.3.2014 till date of handing over the possession or from the date of booking; to refund the excess amount paid, not to charge IDC and other extra hidden charges contrary to the payment plan, to charged IBMS @Rs.100/- sq. yds as per payment plan; not to demand PLC charges till details about the plot falling in said category is cleared and to pay compensation & litigation costs etc.  

 

2]       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 allotment 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 that 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 31.7.2019, which was thereafter extended 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 completed part of the Project and possession has also been delivered pertaining to the flats and plots and remaining part is likely to be completed shortly. It is further pleaded that many families have already shifted in the said project of the OPs and residing happily. It is asserted that the complainants have never visited the site where the development is at its full swing and the development work for most of the area is complete and that the complainants have approached this Commission with malafide intention. Denying any deficiency in service or unfair trade practice as well as other allegations, the OPs have prayed for dismissal of the complaint. 

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

4]       Parties led evidence in support of their contention.

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

6]       The main question involved in the present complaint is that whether the complainants are entitled to get possession of the plot in question from the OPs or not ?

         In order to find out the answer to this question, the following facts & circumstances are necessary to be discussed:-

7]       It is observed from the record that the complainants were allotted the plot in question and the Ploy Buyer’s Agreement was executed between the parties on 02.02.2017 (Ann.C-8).  The perusal of the record reveals that the OPs admitted to have already received the complete sale consideration for the plot in question but still not have provided the possession of the plot to the complainants. 

8]       The OPs in their written version submitted that the possession of the plot is being handed over to the applicants who have executed the Plot Buyer’s Agreement, but they failed to justify as to why they did not deliver the possession of the plot in question to the complainants till date though the Plot Buyer’s Agreement was executed with them on 02.02.2017 and a period of more than 6 years have already lapsed till date.  Thus it is clear that the OPs have failed to fulfill their contractual obligation by offering possession of the plot to the complainants, having basic amenities, within the time stipulated in the agreement or within a reasonable time.

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]      In our opinion, the complainants are not obliged to accept any other offer of OPs when they failed to deliver the allotted plot. The OPs have accepted the money, but failed to honour the commitment/promise made with complainants by delivering the possession of the plot despite receipt of entire amount. 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 complainants, but also caused them immense harassment & mental agony.    

12]      In the instant case, the buying of plot at huge price by complainant and not getting it till date has caused immense pain, insecurity and nervousness to buyer/complainants who appear to be a helpless victim of OPs unethical business tricks.    

13]      Taking into consideration the above discussion and findings, we are of the considered view that the Opposite Parties No.1 to 3 are found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 to 3.

         Accordingly, the present complaint stands allowed against the OPs No.1 to 3. The Opposite parties No.1 to 3, jointly and severally, directed as under:-

a)  To deliver to the complainant the actual physical possession of Plot in question bearing No.747-C measuring 250 sq. yards in the project ‘The Palm’, Mullanpur, New Chandigarh, having all basic facilities & amenities, subject to balance payment, if any, and other charges agreed upon by the parties as per their agreement (Ex.C-8).

b)  To pay compensation to the complainant for the delay in delivery of possession at the rate of Rs.40/- per sq. mt. per month of the area of the unit in question, after the expiry of 42 months (36+6 months) from the date of signing of Plot Buyer’s Agreement i.e. from 2.2.2017 till the date of delivery of actual possession of the Plot to the complainants, as per clause 35 of the Agreement (Ex.C-8).

14]      Similarly, the connected Consumer Complaint No.705/2020 – Chandra Bhushan Sah Vs. M/s Manohar Infrastructure & Constructions Private Limited, stand allowed against OPs No.1 to 3 with following directions:-

a)  To allot & deliver to the complainant the actual physical possession of a Plot measuring 200 sq. yards in the project ‘The Palm’, Mullanpur, New Chandigarh, having all basic facilities & amenities, at the rate agreed between the parties (since no allotment or agreement was/is issued/executed between the parties), subject to balance payment, if any, and other charges.

         In case, the complainant(s) is/are not interested to take possession of the plot, for any reason, then OPs shall refund the entire deposited amount of the complainant(s) along with interest @9% per annum from the respective date of deposit till its actual payment. 

15]      Likewise, the connected Consumer No.641 of 2021 – Dr.Anil K. Seth Vs. M/s Manohar Infrastructure & Construction Private Limited & Ors. stand allowed against OPs No.1 to 3 with following directions:-

a)  To allot & deliver to the complainant the actual physical possession of a Plot measuring 500 sq. yards in the project ‘The Palm’, Mullanpur, New Chandigarh, having all basic facilities & amenities, at the rate agreed between the parties (since no allotment or agreement was/is issued/executed between the parties), subject to balance payment, if any, and other charges.

         In case, the complainant(s) is/are not interested to take possession of the plot, for any reason, then OPs shall refund the entire deposited amount of the complainant(s) along with interest @9% per annum from the respective date of deposit till its actual payment. 

         This order shall be complied with by the Opposite Parties No.1 to 3 jointly & severally, in all above referred cases, within a period of 90 days from the date of receipt of its certified copy.

16]      Pending application, 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

08.11.2023                                                      

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER