Punjab

Faridkot

CC/16/119

Chamkaur Singh - Complainant(s)

Versus

M/s Nature Height Infra Ltd. - Opp.Party(s)

Naresh Kumar Gupta

18 Jul 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       119

Date of Institution :  2.05.20616

Date of Decision :    18.07.2016

Chamkaur Singh aged about 60 years s/o Sh Mall Singh r/o 169-A, Green Avenue, Faridkot, Tehsil & District Faridkot.                                                                                 

...Complainant

Versus

1. Nature Height Infra Ltd, 9, Sunder Nagri, Hanumangarh Road, Abohar, District Fazilka, (Punjab) through its Managing Director.

2. Nature Height Infra Ltd. 9, Sunder Nagri, Hanumangarh Road, Abohar, District Fazilka, (Punjab)through its Directors:

3. Amit Kukkar, Director, r/o Sidhu Nagri, Street No. 9, Abohar-152116, district Fazilka, Punjab.

4. Neeraj Thatai, r/o Street No. 9, Abohar-152116, district Fazilka, Punjab.

5. Nature Height Infra Ltd., Branch Office at Mohalla Talab , Near Bus Stand, Faridkot-151203, through its Branch Manager. Now, shifted to 9, Sunder Nagri, Hanumangarh Road, Abohar, District Fazilka.

                                              ........ OPs

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:       Sh N K Gupta, Adv. Ld Counsel for Complainant,

                        OPs-Exparte.

    

   (Ajit Aggarwal,  President)

                                           Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to refund the amount of Rs.6,07,500/-with interest besides Rs.5,00,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.11,000/-.

   2                                             Briefly stated the case of complainant is that Ops launched a project namely “ Nature Heights, Western Homz, at Sector 125, Mohali adjoining Sunny Enclave & Shivalik Avenue, Punjab, representing and holding out that it was developing an integrated township, duly approved by PUDA in village Jhungian, Tehsil Kharar, District Mohali, consisting of residential tower, comprising of apartments and flats with different specifications. After enquiry and assurance given by Ops that it would be completed in time, complainant applied for  booking of one flat and paid Rs.6,07,500/-in three instalments to OPs. He paid Rs.20,000 and 1,00,000/-on 9.09.2011 and 11.09.2011 respectively in cash and Rs.4,87,500/-through cheque dt 26.11.2011 against receipt no. 846972 dt 26.11.2011. Cash amount and cheque was handed over to OPs at Faridkot through the agent of OPs. OPs allotted flat no. 433 measuring 1530 square feet at ground floor and total price of land was 40,50,000/-and agreement of sale/purchase was executed on 4.11.2011. After some time, when complainant visited the site, he was shocked to see that no construction work was started at the site. Then, complainant visited the office of GMADA, where he was informed that GMADA has not issued any permission or license to OPs for raising any colony at said place. Thereafter, complainant wrote a detailed representation to Ops asking them to clear the whole position, but despite long waiting they did not sent any reply. OPs neither started construction work nor have obtained any permission to develop the colony, whereas as per latest pronouncement of Hon’ble Apex Commission, it has been held that at the time of floating such like schemes, OPs should have requisite permission and infrastructure, but till date Ops have not obtained any such permission from Government Authorities. As per agreement, OPs have not developed the site yet. Complainants visited the office of OPs at Faridkot and requested them to show requisite permission and necessary certificates, but all in vain. Complainant requested OPs to return his principal amount, by they did not pay any heed to their requests. Complainant approached Ops many times with request to refund his amount with interest, but every time they kept putting off the matter on one pretext or the other. Ops kept the complainant in dark as they have not taken any permission for floating such scheme. This act of OPs has caused financial loss, great harassment and mental tension to complainant, which amounts to deficiency in service and unfair trade practice. Complainant has prayed for directing OPs to pay Rs.6,07,500/- with interest and has also prayed for compensation of Rs.5,00,000/- besides cost of litigation. Hence, the complaint.

   3                                                 The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 6.05.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                           Despite service of registered cover containing notice and copy of complaint, no body appeared in the Forum either in person or through counsel on date fixed and then, after long waiting till 4.00 pm, OPs were proceeded against exparte on expiry of statutory period vide order dt 30.06.2016.

   5                                       Ld Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-10 and then, closed the evidence on behalf of complainant.

   6                                              In ex parte arguments, ld counsel for complainant contended that Ops launched a project namely “ Nature Heights, Western Homz, at Sector 125, Mohali adjoining Sunny Enclave & Shivalik Avenue, Punjab, representing and holding out that it was developing an integrated township, duly approved by PUDA in village Jhungian, Tehsil Kharar, District Mohali, consisting of residential tower, comprising of apartments and flats with different specifications. After enquiry and assurance given by Ops that it would be completed in time, complainant applied for  booking of one flat and paid Rs.6,07,500/-in three instalments to OPs. He paid Rs.20,000 and 1,00,000/-on 9.09.2011 and 11.09.2011 respectively in cash and Rs4,87,500/-through cheque dt 26.11.2011 against receipt no. 846972 dt 26.11.2011. Cash amount and cheque was handed over to OPs at Faridkot through the agent of OPs. OPs allotted flat no. 433 measuring 1530 square feet at ground floor and total price of land was 40,50,000/-and agreement of sale/purchase was executed on 4.11.2011. After some time, when complainant visited the site, he was shocked to see that no construction work was started at the site. Then, complainant visited the office of GMADA, where he was informed that GMADA has not issued any permission or license to OPs for raising any colony at said place. Thereafter, complainant wrote a detailed representation to Ops asking them to clear the whole position, but  despite long waiting they did not sent any reply. OPs neither started construction work nor have obtained any permission to develop the colony, though as per latest pronouncement of Hon’ble Apex Commission, it has been held that at the time of floating such like schemes, OPs should have requisite permission and infrastructure, but till date Ops have not obtained any such permission from Government Authorities. As per agreement, OPs have not developed the site yet. Complainants visited the office of OPs at Faridkot and made many requests to make payment of his entire amount, but they did not hear his requests. Ops have caused huge monitory loss to complainants besides causing harassment and mental tension. Counsel for complainant has prayed for accepting the complaint and also to pay compensation and litigation expenses. Complainant has stressed on documents  Ex C-1 to 10.

   7                                       In order to prove his case on the point of limitation, ld   counsel for complainant has placed reliance on judgment passed by Hon’ble National Commission New Delhi in case law 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd, wherein our Hon’ble National Commission, New Delhi observed that Consumer Protection Act, 1986, Sec 2(1) (g), 2 (1) (o) and 24-A Housing Construction-Limitation-Delay in construction and possession by the builder-Plea of Op that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24A- Held- it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum- it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would begin to run- In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. Ld counsel for complainant also produced case law cited as 2015(3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr Vs Dilshad Gill, wherein our Hon’ble National Commission, New Delhi observed that, “ Consumer Protection aCt, 1986, Section 2 (i) (g)- Housing Construction-Delay in possession by appellant/Builder-Complainant/respondent defaulted in payment-Held-Appellants themselves have violated the material conditions with regard to handing over of the possession, now it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Hon’ble Nation Commission held that if OPs have failed to hand over the possession at time, then they can not demand further payment from complainant. In the present case also, complainant has made payment of Rs6,07,500/- and total price of land purchased by complainant was Rs.40,50,000/-.

   8                                                 In the absence of any rebuttal, we have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.

   9                                                 From the careful examination of document Ex C-5 an 6 the payment receipts, it is clear that Ops received amount of Rs.6,07,500/-from complainant both in cash as well as through cheque. On the face of it, these documents prove that complainant made payment of huge amount to OPs, which was duly received by them. Ex C-2 is Agreement of sale executed in favour of complainant, which clears the point that in lieu of receiving payment from complainant, Ops entered into an agreement with complainant and both the complainant party as well as Ops are bound by the terms and conditions of same. This document gives strength to the pleading of complainant that he paid the amount of Rs.6,07,500/- to Ops. Documents Ex C-5 and C-6 are cogent evidence, authenticity of which cannot be ignored. Through Ex C-1 complainant has reiterated his pleadings and it explains the grievance of complainant.

   10                                               The main contention of complainant is that complainant paid Rs.6,07,500/-to Ops, but in turn Ops neither paid any interest to complainant nor gave possession of any plot as per their earlier promise, thereby depriving them of the interest on principal amount of Rs.6,07,500/-, which is a trade mal practice on the part of Ops and amounts to clear cut deficiency in service. It is observed that agreement between complainant and Ops is executed in their office at Faridkot and payment is also made at Faridkot, which falls within the territorial jurisdiction of this Forum and therefore, this Forum is fully competent to settle the dispute arisen under its territorial jurisdiction. We fully agree with the arguments advanced by complainant counsel.

   11                                                          All these documents prove that Ops have been deficient in services and they did not come up to fulfil the terms of deed, which is evident from Ex C-5 and Ex C-6, which are receipts issued by Ops in lieu of payment received from complainant. All this proves that Ops have caused great harassment to complainant by retaining his large amount of Rs.6,07,500/-depriving him of the interest, which was to be accrued on it. All this has caused harassment and mental tension to complainant, which entitles him for compensation and litigation expenses.

   12                                                      From the careful perusal of the record and in view of documents placed on file, this Forum is fully convinced with the arguments advanced by ld counsel for complainant and is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not handing over the possession of plot as per their promise and have also failed to return the amount of Rs.6,07,500/- received from complainant. Hence, the present complaint is hereby allowed. The OPs are directed to refund the amount of Rs.6,07,500/-to complainant with interest at the rate of 12% per anum from the date of payment till realization. Ops are further directed to pay Rs.5,000/-as compensation for harassment and mental agony suffered by him besides Rs.3000/-as litigation expenses to complainant. OPs are further directed to comply with the order within one month from the date of receipt of the copy of this order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copies of order be supplied to the parties free of costs under the rules. File be consigned to record room.

   Announced in Open Forum

   Dated : 18.07.2016

                                                      Member                             President

                       (P Singla)                           (Ajit Aggarwal)