Chandigarh

DF-II

CC/102/2021

Kusum Gupta - Complainant(s)

Versus

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

Nand Ram Purohit adv

08 May 2024

ORDER

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

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Consumer Complaint  No	:	102 of 2021
Date  of  Institution	:	10.02.2021
Date   of   Decision	:	08.05.2024

 

 

 

 

1]  Kusum Gupta W/o Sh.Sanjiv Gupta,

2]  Sanjiv Gupta s/o Late Sh.Rajinder Parsad,

    R/o H.No.502, Sector 20-A, Chandigarh

             …..Complainant

 

Versus

1]  M/s Manohar Infrastructure & Constructions Pvt. Ltd. having its Registered Office at S.C.O. No.139-141, Sector 17-C, First Floor, Chandigarh through its Managing Director/Authorized Signatory.

2]  Tarninder Singh, Managing Director/ Director, M/s Manohar Infrastructure & Constructions Pvt. Ltd., having its Registered Office at S.C.O. No.139-141, Sector 17-C, First Floor, Chandigarh

3]  Narinderbir Singh, Director, M/s Manohar Infrastructure & Constructions Pvt. Ltd., having its Registered Office at S.C.O. No.139-141, Sector 17-C, First Floor, Chandigarh

    ….. Opposite Parties

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Present:      Complainant No.2 in person

None for OPs

 

 

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

 

1]       The complainants have filed the present complaint pleading that they had booked a residential plot measuring 250 sq. yards @Rs.18000/- for total Sale price of Rs.45 lacs, in the project namely ‘Palm Garden” being developed by the OPs in Mullanpur, New Chandigarh, District SAS Nagar, Mohali on 16.01.2012 vide separate application form and made payment of 30% of the sale consideration i.e. Rs.13,50,000/- through cheque and duly acknowledged by the OPs vide receipt dated 24.1.2012 (Ann.C-2 & C-3).  It is stated that the complainants booked the said plot for their personal use 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 the OPs though assured to issue allotment letter as well as to execute agreement but they neither issued allotment letter nor executed the Plot Buyers Agreement since long.  It is also pleaded that the complainants came to know that the OPs while accepting booking amount had not obtained necessary approvals/sanctions/CLU from the competent authorities. Ultimately, the complainants sought refund of the amount from the OPs but the same has not refunded.  It is submitted that the period of more than 9 years had lapsed since the deposit of 30% amount on 16.1.2012 but the OPs have failed to issue the allotment letter and offer the possession of the plot. Hence, the present complaint has been filed alleging the said act & conduct of the OPs as deficiency in service and unfair trade practice with a prayer to direct the OPs to issue allotment letter, execute Buyer Agreement and handover the possession of the vacant plot, executed & register sale deed and to pay compensation and litigation cost 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 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 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]       Parties led evidence in support of their contention.

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

5]       From the documents on record & pleadings of the parties, it is observed that the complainants admittedly has booked a residential plot measuring 250 sq. yards in the subject project of the OPs by paying Booking Amount of Rs.13,50,000/- on 16.01.2012 against its Basic Sale Price of Rs.45 lacs (Ann.C-2). However, the OPs neither issued allotment letter nor executed Plot Buyer’ Agreement with the complainants despite receipt of booking amount. Moreover, the OPs have failed to justify valid reason for not allotting and delivering the possession of the booked plot to the complainants till date despite receipt of booking amount even after a period of more than 12 years had already lapsed till date since the date of booking i.e. January, 2012. Thus it is clear that the OPs have failed to fulfill their contractual obligation by allotting & offering the possession of the plot to the complainant, having basic amenities, within a reasonable time period nor refunded the amount.

         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. 

6]       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.

 

7]       In our opinion, the complainant is not obliged to accept any other offer of OPs when they failed to deliver the possession of the plot despite receipt of part payment and 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.    

8]       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/complainant who appear to be a helpless victim of OPs unethical business tricks.    

9]       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.  Therefore, the present complaint stands partly allowed against the OPs No.1 to 3 with directions to allot & deliver to the complainants the actual physical possession of the Plot in question within a year having all basic facilities & amenities, subject to balance payment, if any, and other charges.

         However, in case, the complainants are not interested to take possession of the plot, for any reason, then OPs shall refund the entire deposited amount of the complainants along with interest @10% 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.

10]      Pending application(s), 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

08.05.2024                                            

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER