Chandigarh

DF-II

CC/69/2021

Amarjit Kaur - Complainant(s)

Versus

M/s Manohar Infrastructure & Constructions Pvt. Ltd. - Opp.Party(s)

Savinder Singh Gill adv

19 Apr 2024

ORDER

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

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Consumer Complaint  No	:	69 of 2021
Date  of  Institution	:	02.02.2021
Date   of   Decision	:	19.04.2024

 

 

 

 

Amarjit Kaur w/o Late Sh.Jagjit Singh, R/o House No.2853, Old Sunny Enclave, Kharar, SAS Nagar, Mohali, Punjab 140301

             …..Complainant

 

Versus

M/s Manohar Infrastructure & Constructions Private Limited having its Office at SCO No.139-141, Sector 17-C, through its Director Sh.Tarninder Singh and Sh.Narinderbir Singh.

    ….. Opposite Party

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Present:     Sh.Ranjan Lohan, Counsel for the complainant

Sh.Nitesh Singhi, Counsel for the OP

 

 

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

         The complainant has filed the present complaint pleading that initially she and her husband booked five residential plots with OPs of different sizes in their project namely “Palam Spring” & “Palm Garden” at Mullanpur, District SAS Nagar, Punjab, in the year 2012 and paid an amount of Rs.95,62,500/-.  Unfortunately, the husband of the complainant expired in Sept., 2016 and thereafter, the complainant requested to the OP to allot her a single plot after adjusting the amount already paid.  Accordingly, the OP adjusted the said amount against one plot and allotted her Plot No.418 measuring 402.32 sq. yds. vide allotment letter Ann.C-3 dated 24.5.2018.  It is submitted that the OP tried to get a Buyer’s Agreement executed in 2018 whereby it tried to impose unfair terms & conditions and tried to prolong the possession date by another 4-5 years due to which the complainant refused to sign it since the initial booking was made in the year of 2012. It is submitted that the complainant later came to know that the OP was not having required sanctions from the competent authorities in the year 2011 when it took the initial amounts from the complainant, even the layout plans of the project are not final till date.  It is also submitted that at the time of collecting money from the complainant the OP was not authorized to sell/advertise the sale of plots and receive money thereof.  Further, the OP while taking money from the complainant did not give any confirm date of handing over of the possession of the said plot and therefore, the complainant sought refund of the amount from the OP but the same has not refunded. Hence, the present complaint has been filed alleging the said act & conduct of the OP as deficiency in service and unfair trade practice with a prayer to direct the OP to refund an amount of Rs.95,62,500/- with interest as well as to pay compensation for harassment and mental agony and litigation cost.

 

2]       After service of notice upon the OP, the OP appeared before this Commission and filed written version. The OP while admitting the receipt of amount as alleged by the complainant and allotment of one plot in favour of the complainant after the death of her husband, as a matter of record, stated that at the time of EOI (Expression of Interest) of the complainant and her late husband, the development at the project site was going on and now the development is at full swing and almost complete in that area and many of the happy families are already residing there.  It is submitted that the complainant and her husband are themselves defaulter who had not come further to enter into an agreement to sell with the answering OP and to pay the remaining amount. It is also submitted that it was for the complainant to come forward to execute the Plot Buyer’s Agreement but they never came forward. It is pleaded that OP never promised or disclosed the complainants that all sanctions of the Government were obtained by it rather it was disclosed that the sanction/approvals are required to be taken, which is clear from the mentioning of “upcoming project”, which indicates that the project was in pre-launching situation.  It is also pleaded that the complainant and her husband was well aware about the facts that the approvals from the concerned authorities/government were awaited and only due to this reason they submitted Expression of Interest. It is asserted that the complainant did not turn up to make payment of the balance amount.  It is also asserted that the complainant is not entitled for possession of plot or recover the amount under the false complaint. Denying any deficiency in service or unfair trade practice as well as other allegations, the OP has prayed for dismissal of the complaint. 

3]       Parties led evidence in support of their contentions.

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

5]       From the record & pleadings, it is observed that the complainant has admittedly been allotted a residential Plot bearing No.418 measuring 402.3 sq. yds. in the subject project by the OP.  It is also admitted that an amount of Rs.95,62,500/- had already been paid by the complainant to the OP, though paid against different plots, but adjusted by the OP against one plot in question i.e. Plot No.418. However, the OP neither executed Plot Buyer’ Agreement with the complainant despite receipt of substantial amount nor offered her possession. More so, the OP have failed to justify as to how they collected the money from the complainant and her husband and booked the plot in the year 2011-12 though they were not having necessary approvals to do so from the authorities concern nor delivered the possession of the said plot to the complainant till date the despite receipt of substantial amount even after a period of more than 12 years had already lapsed till date since the date of booking i.e. 2012. 

6]       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 Party 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. 

7]       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.

 

8]       Under above mentioned facts, the complainant is not obliged to accept any other offer of OP when they failed to honour the commitment/promise made with complainant. 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 her immense harassment & mental agony.    

9]       Taking into consideration the above discussion and findings, it is proved on record that the Opposite Party is deficient in rendering required service to the complainant and indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party.  Therefore, the present complaint stands partly allowed against the Opposite Party with directions to refund to the complainant the deposited amount of Rs.95,62,500/- along with interest @10% per annum from the respective dates of its deposit, till the date of its actual payment to the complainant.

         This order shall be complied with by the Opposite Part within a period of 90 days from the date of receipt of its certified copy.

10]      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

19.04.2024                                                      

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER