BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 490 of 2014
Date of institution: 01.08.2014
Date of Decision: 16.09.2015
1. Sumit Ghosh son of Shri B.N. Ghosh,
2. Mrs. Sunanda Ghosh wife of Sumit Ghosh
Residents of House No.5781, Modern Housing Complex, Manimajra, U.T. Chandigarh.
……..Complainants
Versus
1. M/s. Mount Kailash Land Base Pvt. Ltd., through its Director, Gagandeep Singh, Office at Mount Kailash Apartments, Vishranti City, Zirakpur, District SAS Nagar, Mohali (Punjab).
2. Satnam Singh, Director.
3. Himmat Singh, Director, M/s. Mount Kailash Land Base Pvt. Ltd., c/o Himmat Properties adjoining Panta Homes, VIP Road, Zirakpur, District SAS Nagar, Mohali (Punjab).
4. Arvinder Singh Chhabra, Director M/s. Mount Kailash Land Base Pvt. Ltd., Shop No.414-415, Main Market, Ambala Road, Zirakpur, District SAS Nagar, Mohali (Punjab).
5. Vikash Nagpal, Director M/s. Mount Kailash Land Base Pvt. Ltd., r/o House No.5850, Duplex MHC, Manimajra, U.T. Chandigarh.
All Directors having registered office at # 717, Sector 21, Panchkula (Haryana).
2nd Address of Regd. Office
# 1460, Sector 15, Panchkula (Haryana).
6. Amit Dua, Director, Mount Kailash Land Base Pvt. Ltd., r/o House No.48, Silver City Extension, Zirakpur Ambala Highway, Zirakpur (Punjab).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Manmohan, Singh, counsel for the complainants.
OP Nos.1, 2 and 3 exparte.
Shri Balwinder Singh, counsel for OP No.4.
Ms. Gurmeet Kaur, counsel for OP Nos.5 and 6.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):
(a) to refund them Rs.5,00,000/- with interest @ 12% per annum from the date deposit till payment.
(b) to pay them Rs.2,00,000/- as compensation for mental agony and harassment.
(c) to pay them Rs.33,000/- as litigation expenses.
The complainant’s case is that they jointly booked a residential flat in the project of the OPs namely ‘Vishranti City’ on 06.08.2011 by paying Rs.1.00 lac through cheque No.265509. Subsequently Rs.3,00,000/- and Rs.1,00,000/- were paid by the complainant on 10.08.2011 and 27.08.2011 respectively. The total cost of the flat was Rs.23,50,000/- and flat No.B/1C/C was allotted to the complainant by the OP with the promise that the possession would be delivered to the complainants by 31.12.2012. Buyers agreement was signed on 06.08.2011 between the parties. Till date the OPs have not handed over the possession of the plot to the complainants. The complainants met Vikash Nagpal OP No.5 who informed that the construction of the flat has been stalled due to some legal dispute with one of the landowners of the land where the flats were to be constructed. The complainants came to know that the flat allotted to them has been allotted to some other buyer who booked the flat with the OPs in November, 2011. The complainants approached OP No.6 from whom they had purchased the flat but he informed the complainants that the entire project of flats has been transferred to OP No.5 and only OP No.5 would resolve the dispute. OP No.5 was approached by the complainants in January, 2014 but instead of resolving the dispute he demanded Rs.2.00 lacs and told the complainants that the project had not been approved and on denial of the complainants to pay this amount, he stated that the flat of the complainants had already been allotted to someone else who has given more money. The OPs sought permission to regularize the unauthorized colony in 2013 whereas the possession of the flat was to be delivered in 2012 as promised and agreed by the OPs. The OPs have delivered the possession of flat No.B/1C/C which originally allotted to the complainants, to some other person. The residents of the project formed an association and submitted a complaint to SHO PS Zirakpur in April, 2014 but till date local police has not taken any legal action against the OPs. The association also met the local MLA who visited the complex and found certain abnormalities/anomalies in the project. The complainants approached OP No.5 on 25.06.2014 to refund their deposited amount with interest @ 12% per annum, who refused to return the amount and threatened the complainants. OP No.4 intervened and offered to the complainants alternate flat instead of allotted flat No.B/1C/C. The said offer being not acceptable to the complainants, the complainants reiterated their request to the Ops to refund the amount deposited by them. The OPs have failed to refund the deposited amount of Rs.5,00,000/-, alongwith interest from the date of respective deposit till date. Thus, alleging deficiency in service and unfair trade practice, the complainants have initiated the present complaint against the OPs.
2. Notice issued to all the OPs for appearance and filing their version to the complaint. OP No.4, 5 and 6 appeared. Notice to OP No.3 received back with the report of refusal. Presuming the refusal as knowledge of the notice and none having appeared for it, OP No.3 was proceeded against exparte on 30.09.2014.
3. Service to OP No.1 and 2 was not complete as the postal article received back with the remarks that office of OP No.1 and 2 has been closed and, therefore, the matter was posted for furnishing the correct address of OP No.1 and 2. When Ms. Gurmeet Kaur, Advocate has put in appearance for OP No.5 and 6, she being representing two of the Directors of OP No.1 i.e. OP No.5 and 6, was asked the correct address of OP No.1 and 2 i.e. the company and its director as the company and its directors were to be served on the addresses given in the memo of parties. Ms. Gurmeet Kaur, counsel accepted the notice on behalf of OP Nos.1 and 2 on 20.01.2015 and the matter was posted for 13.02.2015 for filing the version of OP No.1,2,5 and 6. The counsel did not file reply of OP No.1 and 2 pleading no instructions. Therefore, presuming the service of summons complete in favour of OP No.1 and 2 through counsel Ms. Gurmeet Kaur, and their non filing the version on the given date, the complaint against OP No.1 and 2 was proceeded against ex-parte. Therefore, OP No.1, 2 and 3 were proceeded against exparte whereas OP No.4, 5 and 6 have filed their written statement.
4. OP No.4 in the written statement has pleaded in the preliminary objections that when the complainants booked the flat OP No.4 was neither director nor looking after the affairs of M/s. Mount Kailash Land Base Pvt. Ltd. OP No.6 is liable to pay the amount and other charges to the complainant. The legal notice was sent to other director of the company. On merits, it is pleaded that OP No.4 joined as Director on 14.02.2013 and resigned on 20.06.2014. The land for construction of the flats was purchased in 2011 and construction was started in 2011 by OP Nos.1, 2, 3, 5 and 6 and thereafter flats were allotted to the buyers and sale deeds of some the flats were execute. Thus, there is no deficiency in service or unfair trade practice on the part of OP No.4 and complaint against it liable to be dismissed.
5. OP No.5 and 6 in the written statement have took up preliminary objections that the complainants became defaulter in making the payment. The project is based on financial structure and if the payments are not received in time, then there is likelihood that everything will go out of order and control. Now the flats are complete and if the complainants make the remaining payment with 18% interest, the flat would be handed over to them within 30 days. The flat of the complainants is ready for the last one year and the complainants have not come forward for taking over the flat. No notice was ever served upon the OPs before filing the present complaint. The complainants after making last payment on 31.12.2012 neither wrote any letter nor made the payment. On merits, OP No.1 became director of the OPs on 15.01.2012 and resigned on 08.07.2014 and the flat was booked with the OP No.5. The building plans and other necessary permissions were taken by the OPs. The complainants were failed to deposit the balance payment and in that eventuality the OPs were compelled to sell the flat of the complainants to someone else. The OPs applied for permission in 2012 and requisite fee was deposited with MC Zirakpur. The Govt. of Punjab floated the scheme for regularization of colonies and then the Ops applied for the same and project of the OPs was approved in 2013. Thus, denying any deficiency in service on their part, OP Nos.5 and 6 have sought dismissal of the complaint.
6. To succeed in the complaint, the complainants proved on record affidavit Exb.CW-1/1 and tendered in evidence documents Ex.C-1 to C-11.
7. Evidence of OP No.4 consists of affidavit of Arvinder Singh Chhabra, Ex.OP-4/1 and copies of documents Ex.OP-4/2 to Ex.OP-4/8.
8. Evidence of OP No.5 and 6 consist of affidavit of Amit Dua their Director, Ex.OP-5/1 and copies of documents Ex.OP-1 to Ex.OP-8.
9. We have heard learned counsel for the parties and we have also gone through written arguments filed by them.
10. The main grievance in the complaint against the OPs is regarding non construction of the flat and seeking deposit from the complainants without having proper sanctions and plans in their favour. Once they have failed to show their bonafides of constructing the flat and handover the possession by agreed date of 31.12.2012, as per buyers agreement dated 06.08.2011 duly executed between the parties, the complainants have sought refund of the deposited amount on various dates alongwith interest and non delivery of possession by the agreed date and further non refund of the deposited amount alongwith interest by the OPs, the complainants have alleged deficiency in service and unfair trade practice on the part of the OPs.
11. The OP No.4 has claimed, in its reply, no relationship with the complainant and has prayed for dismissal of the complaint against him. As per OP No.4 he was the Director of the company from 14.02.2013 to June, 2014 and upon his registration of Directorship of the company, OP No.6 has taken over all the responsibilities and liabilities of the company and, therefore, has prayed for dismissal of the complaint against him.
12. OP No.5 and 6 took categoric stand in the reply and raised the contentions that the OPs are ready with the flats and the complainants who are defaulter in making the payment cannot take the benefit of their own wrongs. The OPs are ready and willing to handover the flat to the complainant provided they make the remaining payment with 18% interest. There is nothing on record to show by the OPs that the flats are ready or the complainants are in default in making the payment. The OP No.5 and 6 have further admitted inter se change of directors of the company and owned the responsibilities of OP No.4 as is evident from the affidavit of Shri Amit Dua OP No.5 Ex.OP-4/3. Thus, the inter se dispute between the Directors/resigning or joining new directors in no manner can impair the rights of the complainant arising out of the duly executed agreement dated 06.08.2011. Thus, OP No.5 and 6 have failed to adduce any rebuttal evidence against the complainant.
13. The buyer’s agreement dated 06.08.2011 Ex. C-2 for purchase of flat No. C, Floor-C, Block-B in Tower-1 of Vishranti Apartments, Vishranti City, village Gazipur, Zirakpur is not disputed. As per the buyers agreement, the OPs were to handover 2 bed room, drawing dinning room, modular kitchen complete in all respect, having super area of 1200 sq. ft. to the complainants by 31.12.2012 upon payment of consideration of Rs. 23,50,000/-as per schedule from 06.10.2011 to 06.06.2012. As per the complainants they have paid Rs.1.00 lac through cheque No.265509 on 06.08.2011 at the time of booking and subsequently Rs.3,00,000/- and Rs.1,00,000/- were paid by the complainant on 10.08.2011 and 27.08.2011 respectively. Thereafter, the OPs have never raised any demand of payment of balance amount nor issued them any offer of possession. Since the complainants have learnt that the OPs have no sanctions and approvals in their favour from the competent authority at the time of executing the buyers agreement Ex.C-2 with the complainants the OPs have allured them to buy the flat in an unauthorized colony though the OPs were claiming in the newspapers that they have approvals from GMADA. The fact that the OPs have got the regularization certificate for unauthorized colony from the office of Deputy Director, Local Govt. Patiala on 30.11.2013 as is evident from Ex.C-4 clearly goes to show that the OPs were not having any approvals and sanctions in their favour as claimed by them in the advertisements floated in the newspapers. Further the fact that no project under the name and style Mount Kailash Land Base Pvt. Ltd. has been approved by the Nagar Council, Zirakpur is fully corroborated by the information submitted before the State Information Commission Punjab by Public Information Officer, office of Executive Officer, Nagar Council, Zirakpur Mohali in CC No.183 of 2013. The order dated 12.02.2013 is produced as Ex.C-9 by the complainant. Thus, the act of the Ops per se is an act of unfair trade practice. The complainants were ready with the finance as they have got loan sanctioned from HDFC Bank on 29.11.2011 to the tune of Rs.18,50,000/- as is evident from credit information report issued by Credit Information Bureau Ex.C-7. Therefore, the complainants have proved their complaint to the extent that the OPs were not having proper approvals and sanctions at the time of execution of buyers agreement and inviting applications by giving false advertisement and alluring the complainants to purchase the flat, receipt of amount of Rs.5.00 lacs being part sale consideration, non delivery of possession as per agreed cutoff date, non refund of the deposited amount, all acts of the OPs except OP No.4 are fairly proved by the complainants, the acts of unfair trade practice and deficiency in service against the OPs except OP No.4 which writ large on their part.
14. It is well settled law as has been held by the Hon’ble National Commission in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440 that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission.
15. Therefore, the complainants deserve to receive back their deposited amounts alongwith interest @ 12% per annum w.e.f. from the dates of respective deposit till realisation. The grant of said rate of interest on the deposited amount is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.
16. The complaint, therefore, is allowed against the OPs except OP No.4 with the following directions:
(a) to refund to the complainant the total deposited amount of Rs.5,00,000/- (Rs. Five lacs only) with interest thereon @ 12% per annum from the respective dates of deposit till actual realisation.
(b) to pay to the complainant lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
September 16, 2015. (Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
