Haryana

Panchkula

CC/237/2014

KAPIL SHARMA. - Complainant(s)

Versus

M/S MOUNT KAILASH LAND BASE PVT.LTD. - Opp.Party(s)

VIJAY GOYAL.

25 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                                             

Consumer Complaint No	:	237 of 2014
Date of Institution	:	21.11.2014
Date of Decision	:	25.03.2015

                                                                                                                 

1.         Kapil Sharma s/o Sh.Jiwan Lal

2.         Jiwan Lal s/o Sh.Hans Raj

Both residents of House No.1667/2, Sector 30-B, Chandigarh.

                                                                                                             ….Complainants

Versus

1.         M/s Mount Kailash Land Base Pvt. Ltd., SCO No.18, 19, Silvercity Extn. Zirakpur, Distt. S.A.S. Nagar (Punjab) through its Director.

            2^nd Address

            Mount Kailash Land Base Pvt. Ltd., House No.654, Sector-21, District Panchkula (Haryana) through its Director.

2.         Branch Head, Mount Kailash Land Base Pvt. Ltd., SCO 231, First Floor, Sector20, District Panchkula (Haryana).         

                                                                                                      ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:                    Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                                    Mr.Anil Sharma, Member.

For the Parties:         Mr.Vijay Goel, Adv., for the complainant. 

                                    Mr.Rajnish Kumar Shelly, Adv., for the Ops.

 

ORDER

(Anita Kapoor, Member)

1. The complaint has been filed by the complainants with the averments that they were on a look out for suitable residential flat according to their choice, design and taste. The complainants contacted with the Ops and they were impressed by the claims/projections made by the Ops vide repeated advertisements/brochures for sale of flats and created a very rosy picture of the plots to be sold and complex etc. The Ops have committed to the complainants that they were builder, developer and owner of the residential land, Khata No.18/69-1, Khasra No.41//12/2(1-18) 19(3-12), 22(4-0), 47//2 (3-7), 9(0-5) total Rakba 13 Bighe 2 Biswa. The Ops also committed that the possession would be offered to the prospective buyers latest by 30.09.2013. The Ops also committed that they would provide the facilities as mentioned in para 3 of the complaint. The complainants visited the Ops before booking and it was committed that Ops were having all the required sanctions/permissions/approvals from the Competent Authority etc. and hence, the Ops were having fully legal status to do the business and sold the flats to the General Public. The said premiums were not shown to the complainants, but commitment was made that the same would be shown in due course. The complainants booked a flat No.15, Second Floor in Tower No.A, consisting of 2 Bedrooms, Drawing Dinning Hall, Semi Modular Kitchen with super area of 1100 sq. ft. for 25,00,000/- and the complainants paid a sum of Rs.4,50,000/- (Annexure C-2 to C-4) to the Ops. Agreement to sell dated 20.02.2012 (Annexure C-5) was executed between the parties but the agreement/allotment letter does not contain the proper/complete elaborate terms and conditions, commitment made by the Ops at the time of booking. The agreement was totally silent regarding maintenance works agency, regarding providing of electricity connections, security agencies and also it did not have any date for completion of flat. The complainants visited the office of Ops in the first week of October, 2013 and saw that there was no development made by the Ops. The complainants contacted the Director who told that there was some objection by the Government and the same has been removed and the file is under consideration and as soon as the same was cleared, work at site would resume. Thereafter, the complainants contacted the Ops many times but lame excuses were being given by the Ops. The complainants enquired the matter and came to know that there was dispute of the land between the Ops and 3^rd parties and the title of the Ops was not cleared. The complainants further came to know that flats have been sold without change of land user and without obtaining proper consents from the competent authority. The project of the Ops was not approved by the Government of Punjab and no license was issued to the Ops nor any registration certificate. The layout plan was not approved by the Authorities and the Ops have not forwarded the external development charges to the Government nor have bank guaranties etc. been given to the electricity department. Hence, the Ops are not in the position to offer possession of flat in near future. Thereafter, the complainants visited the office of Ops in the month of February, 2014, March, 2014, July, 2014 and second week of August, 2014 seeking for refund of entire amount alongwith interest @ 18% per annum plus compensation but the Ops refused to refund the amount of the complainant. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. In reply, the Ops filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable. It is submitted that as per conditions laid down in agreement to sell, it is the complainant who himself has not fulfilled the conditions of the agreement to sell. It is submitted that the complainant has executed the agreement to sell dated 20.02.2012 thereby opting the time linked plan and as per the plan laid down in condition No.3, the complainant has to deposit the consideration amount after every two months thereby depositing the amount of Rs.3,00,000/- w.e.f. 05.05.2012 till 05.01.2013 but the complainant after depositing the initial amount of Rs.4,00,000/- at the time of execution of the agreement to sell, has never deposited any amount in the account of the Ops which showed that the complainant had not willing to have flat in the society of the Ops. It is submitted that the complainant cheated the Ops as he has not deposited the installment in time and due to that, the Ops have suffered a huge loss for completing the project and have taken the loan from the financiers @ 3% flat per month. It is submitted that the Ops were ready and willing to give the possession of the flat to the complainant. It is submitted that the Ops had never stated that they were having all the required sanction/permission/approval from the competent authority rather the Ops have stated that they were already in the process of getting the project sanctioned from the competent authority and finally, the Ops have got the project sanctioned/approved from the Deputy Director Department of Local Bodies, Patiala on 20.11.2013. It is admitted that the complainant had paid Rs.4,50,000/-. It is submitted that after executing the agreement to sell dated 20.02.2012, he has never visited the project of Ops and has also not obeyed the terms and conditions of the time linked plan. It is submitted that the Ops have committed to all his promises whatever has been mentioned in agreement to sell. It is submitted that the Ops have provided all the amenities and facilities in the project. It is submitted that the complainant has not conversant with the Govt. laws as in the project, the buildings were only three storey building i.e. ground floor, first & second and the permission from the department of forest, pollution control board, electricity department etc were required to be taken in the project having multi story building i.e. more than five storey. Thus, there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.
3. The complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-5 and closed the evidence. On the other hand, authorized representative for the Ops has made a separate statement in which he stated that he does not want to file any more evidence. His written statement might be read as his evidence and closed the evidence.
4. We have heard the learned counsel for the parties and have also perused the record carefully and minutely.
5. Admittedly, the complainants booked a flat No.15 in Tower No.A, second Floor, consisting of 2 Bedrooms, Drawing Dinning Hall, Semi Modular Kitchen with super area of 1100 sq. ft. for 25,00,000/- and the complainants paid a sum of Rs.4,50,000/- (Annexure C-2 to C-4) to the Ops. Agreement to sell dated 20.02.2012 (Annexure C-5) was executed between the parties. The grievance of the complainant is that the agreement was totally silent regarding maintenance works agency, regarding providing of electricity connections, security agencies and also did not have any date for completion of flat. The complainants visited the office of Ops in the first week of October, 2013 and saw that there was no development made by the Ops. The complainants contacted the Director who told that there was some objection by the Government and the same has been removed and the file is under consideration and as soon as the same was cleared, work at site would resume. Thereafter, the complainants contacted the Ops many times but lame excuses were being given by the Ops. The complainants enquired the matter and came to know that there was dispute of the land between the Ops and 3^rd parties. The complainants further came to know that flats have been sold without change of land user and without obtaining proper consents from the competent authority. The project of the Ops was not approved by the Government of Punjab and no license was issued to the Ops or any registration certificate. The Ops have also not forwarded the external development charges to the Government nor have bank guaranties etc. been given to the electricity department. Thereafter, the complainants visited the office of Ops many times for seeking the refund of entire amount alongwith interest but to no avail. The complainants have also filed joint duly sworn affidavit (Annexure C-A).
6. The plea made by the OPs is that they have honoured the documented terms and conditions and that the default is that of the complainant who has not paid up the agreed installments at the scheduled period of time. The payment of installments by the complainant, the plea raised by the OPs proceeds to indicate, was time-linked and the non-payment thereof on the part of the complainant validates the pleas raised by the latter in the course of the written statement.
7. For facilitating appropriate appreciation of the controversy, we would first like to refer to Annexure-C5 which documents the terms and conditions governing the agreement between the parties herein. It would apparent from a perusal thereof that though the payment schedule indicated thereunder was time-linked, the OPs cannot wish away the fact that Clause-IV thereof did provide an obligation on the part of the OPs to the effect that the flat shall be ready for possession by 31.12.2012. It may also be noticed, at this stage, that a precise averment made by the complainant in the course of Para-2 of the complaint (“It was further committed that the possession will be offered to the prospective buyers by 31.12.2012”) was “admitted” by the OPs to be “correct”.
8. In the course of Para-4 of the complaint, the complainant averred that the OPs made a representation (before the booking of the flat) that they “are having all the required sanctions/permissions/approvals from the competent authority etc. and hence, they are having fully legal status to do the business and sell the flats to the general public”. In the corresponding para of the written statement, the OPs denied having stated that “they are having all the required sanctioned/permission/approvals from the competent authority etc.” and averred that they had only represented that “they are already in the process of getting the aforesaid project sanctioned from the competent authority”. That averment proceeds to indicate that “finally the answering/OPs have got the aforesaid projection sanction/approved from the Deputy Director Department of Local Bodies Patiala on dated 20.11.2013”.
9. In accord with the age-old adage that ‘Men may lie but the circumstances do not’, it can be validly inferred that a customer (complainant in this case) would not have gone in for the impugned transaction unless the OPs had made the attributed averment of being in possession of the relevant approval etc. We would, in the context, like to notice that the impugned agreement does not make a mention of things either way. Thus, on the own showing of the OPs, the relevant approval of the project came about only on 20.11.2013. That averment would lend veracity to the averment by the complainant that he repeatedly visited the OPs but was not shown the relevant approvals etc. It is, thus, natural that the complainant made an averment (in the course of Para-7 of the complaint) that he visited the office of the OPs in the first week of October, 2013 “and were shocked to see that no development was made by the OPs and the work was totally stand still”. This averment, which has a very relevant bearing upon the adjudication in this complaint, was not controverted at all in the course of corresponding para of the written statement. There was, thus, no justification on the part of the OPs to insist upon the payment of the installments due on 05.05.2012, 05.07.2012, 05.09.2012, 05.11.2012 and 05.01.2013, all of which were prior in point of time than the date on which the approval for the project was granted by the Deputy Director of the Local Bodies Department. In fact, the OPs just could not have been in a position to undertake any development work at a time prior to the approval of the project by the Government.
10. The OPs have been shrewd enough to ensure that the commitment about the completion of development work was conspicuous by its absence from agreement Annexure-C5 and the brochure Annexure-C1. That the complainant did not exhibit the prudence and diligence expected from a normal individual is also evident from the fact that he opted to book the flat by entering into the impugned agreement without satisfying himself about the relevant particulars etc.
11. Though it is to state the obvious that the adjudication in this complaint has come about on the basis of the facts and circumstances of this case, we are constrained to observe that the builders in the unexplored areas are being allowed by the authorities to take the gullible and needy prospective buyers for a ride. It would not be too much to expect that the concerned authorities (all of them in the context) would allow a builder to proceed with the booking of flats only after he is in possession of approval of the project. It is surely not a matter to be left to be dealt with between a customer and a builder. The booking of a flat, with time-linked schedule of payment, puts the customer to a financial risk which must not be countenanced by the quarters concerned. The issuance of a voucher without a mention of the approval of the relevant project too ought to be a matter of cognizable concern by the concerned department. For purposes of the observations in this para, we are not identifying the where is departments accountable for performance of a civic duty because there is lot of sub-compartmentalisation of functioning. We have, thus, advisedly referred to the quarters concerned by using the underlined nomenclature. We would stop at that but with the hope and trust that our observations shall be duly noticed and complied with by the competent quarters to prevent fleecing of the prospective customers by influential and uncharitable builders. Needless to assert, these observations relate to the aberrant builders and have no relatability to the good lot in the business of building activity.
12. The view we have obtained is in respectful accord with the law laid down by the Hon’ble National Consumer Disputes Redressal Commission in a ruling reported as 1(2009)CPJ136(NC) (Prasad Homes Private Limited Versus E.Mahender Reddy & Ors.).
13. We would, accordingly hold that the OPs committed deficiency in service by not handing over the possession of the flat to the complainant by 31.12.2012 and the mere non-payment of the installments relatable to the period prior to 20.11.2013 (i.e. on which date the relevant approvals were issued in favour of the OPs by the concerned Government Department, as per their own averment) does not validate the plea of the OPs for non-suiting the complainant.
14. We would, while allowing the complaint, direct the OPs to refund the amount of Rs.4,50,000/-, with interest @ 9% per annum from the date of payment till the refund thereof. (The complainant has restrictedthe relief to that extent only). The OPs shall also pay a sum of Rs.50,000/- to the complainant for the mental agony and harassment caused to him. A sum of Rs.5,000/- would be payable by the OPs to the complainant as the cost of litigation.
15. The OPs shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

ANNOUNCED

25.03.2015                ANIL SHARMA      ANITA KAPOOR             DHARAM PAL

                                    MEMBER                    MEMBER                      PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

     

                                         

                                                                        ANITA KAPOOR

                                                            MEMBER