Chandigarh

DF-II

CC/398/2021

Uma Shankar Pant - Complainant(s)

Versus

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

Sanjeev Gupta adv

03 Jun 2024

ORDER

 

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

 

Consumer Complaint  No	:	398 of 2021
Date  of  Institution	:	25.06.2021
Date   of   Decision	:	03.06.2024

 

 

 

 

1]  Uma Shanker Pant son of Keshav Dutt,

2]  Nirmala Kumari wife of Sh.Uma Shanker Pant,

Both residents of H.no.1455, Sector 20-B, 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.

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

2]  Narinderbir Singh, Managing Director/ Director, M/s Manohar Infrastructure & Construction 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.Ripudaman Singh, Adv. proxy for Sh.Sanjeev Gupta, Counsel for the complainant

Sh.Nitesh Singhi, Counsel for the OPs No.1 to 3

 

 

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

1]       By this common order, we propose to dispose off Three connected consumer complaints i.e. present consumer complaint and other consumer Complaints bearing No.C.C.No.475/2021 – Harbans Singh vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors. & C.C.No.321/2022 – Arvind Kumar Soni vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors., having common questions of law & facts.

 

2]       The facts are gathered from C.C.No.398/2021 – Uma Shankar Pant & Anr. Vs. M/s Manohar Infrastructure & Construction Pvt. Ltd. & Ors.

 

3]       The complainants have filed the present complaint pleading that they booked a residential plot measuring 250 sq. yards @Rs.18800/- in the project namely ‘Palm Spring” being developed by the OPs in Mullanpur, New Chandigarh, District SAS Nagar, Mohali on 27.11.2013 vide separate application form (Ann.C-2).  The complainants made payment of Rs.14,10,000/- to the OPs through separate cheques against its basic sale price of Rs.47,00,000/- excluding additional charges (Ann.C-3 & C-4)).  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 22 months from the date of issuance of Letter of Intent and the Letter of Intent was issued on 03.05.2013.  Thereafter the complainants paid an amount of Rs.9,40,000/- to OPs on 27.1.2014 (Ann.C-5 & C-6) and another Rs.7,05,000/- on 29.8.2014 (Ann.C-8) and in this way, the complainant paid a total sum of Rs.30,55,000/- i.e. 65% of the sale consideration to the OPs by August, 2014.  It is pleaded that the OPs instead of issuing allotment letter or execution agreement, further demanded the amount and the complainants in the hope to get the plot further paid an amount of Rs.5 lacs to the OPs on 8.9.2015 (Ann.C-11) whereupon the OPs issued allotment letter allotting plot No.1203. It is also pleaded that after much persuasion, the OPs executed Buyer Agreement & Maintenance Agreement on 02.11.2018 (Ann.C-17) and the complainant were assured to deliver the possession firstly by 31.12.2019 and then by March, 2020.  However, despite several visits and requests made by the complainants, the OPs failed to deliver the possession of the plot in question.

         It is 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. It is pleaded that the complainants later came to know that the OPs kept on collecting the money from as well as other customer without having necessary approvals, sanctions for the project nor there was any development till the year 2020, as such the complainants stopped making further payment.  It is submitted that despite the deposit of substantial amount towards the plot the OPs failed to deliver it till date. Hence, this complaint has been filed alleging the said act & conduct of the OPs as gross deficiency in service and unfair trade practice with a prayer to accept the complaint present and direct the Ops to handover the actual physical possession of the plot in question, complete in all respect after completion of development work and after getting completion certificate, to pay interest for delayed period, compensation for harassment and litigation cost 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, execution of agreement 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 22 months, as alleged, as the project has already been approved.  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 development at the site is its full swing and almost complete in that area and many families are already residing there. 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 & allotted a residential Plot No.1203 measuring 250 Sq. Yards in the subject project of the OPs. It is also admitted fact that Plot Buyer’s Agreement was executed between the complainants and OPs for the plot in question and an amount of Rs.35,55,000/- had already been paid by the complainants to the OPs towards the said plot against its total cost of Rs.61,49,516/-   (Ann.C-17 Pg.129). However, the OPs failed to delivered the possession of the plot in question despite receipt of substantial amount from the complainants since long.  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 other connected complaints, detailed above, and similar evidence has been led in it. Therefore, in all 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 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(s) of deposit till its actual payment. 

14]      Similarly, the connected consumer complaint i.e. C.C.No.475/2021 – Harbans Singh vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors., also stands partly allowed and the OPs are directed to deliver to the complainant 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 complainant is 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(s) of deposit till its actual payment. 

15]      Also, the connected consumer complaint i.e. C.C.No.321/2022 – Arvind Kumar Soni vs. M/s Manohar Infrastructure & Constructions Private Limited & Ors., stands partly allowed and the OPs are directed to deliver to the complainant 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 complainant is 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(s) 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 above stipulated period from the date of receipt of its certified copy.

16]      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

03.06.2024                                                                      Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER