Punjab

StateCommission

CC/216/2017

Surinder Kansal - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Sandeep Bhardwaj

19 Apr 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.216 of 2017

 

                                                          Date of Institution   : 10.04.2017              

                                                         Order Reserved on : 17.04.2018

                                                         Date of Decision     : 19.04.2018

 

 

Surinder Kansal s/o Sh. Banarasi Dass, corresponding address- House No. 1076-A, Sector 21, Panchkula.                                                                                                                                                                                                                                                                                                                                             ….Complainant

                                      Versus

 

 

1.      M/s Omaxe Chandigarh Extension Developers Private Limited,        Regional Office at SCO 139-140, Sector 8-C, Madhya Marg,         Chandigarh-160008, through its Managing Director /          Director/Authorized  Signatory.

 

2.      M/s Omaxe Chandigarh Extension Developers Private Limited,        Omaxe Sales Office, Chandigarh-Baddi Road, Mullanpur, New   Chandigarh, District Mohali, Punjab 140901, through its     Chairman/Managing Director/Director/Authorized Signatory.

 

                                                                       …. Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. Sandeep Bhardwaj, Advocate

          For opposite parties         :  Sh. Bhupender Singh, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that he planned to purchase a plot in order to construct a house thereon for his own use and for his family members. He started searching for a project, wherein he could fulfill the above dreams. OPs made number of assurances through various newspapers, media, marketing emails and telemarketing with regard to launching of their project named 'INDIA TRADE TOWERS, CHANDIGARH EXTENSION, situated in Mullanpur LPA (GMADA) District SAS Nagar Mohali. OPs informed the complainant that plot has already been purchased by one Sushma Monga and Surita. On asking about possession of the plot, it was specifically told to him  that possession of the plot would be given within 18 months from the date of  signing of allotment letter and subject to force majeure conditions.  On the assurances and promises made by OPs, he agreed to purchase the plot, which was already sold to one Sushma and Surita. The predecessor in interest of complainant have paid an amount of Rs. 9,25,000/- towards booking amount and receipt dated 17.12.2010 about it was got issued to complainant. OPs received an amount of Rs. 5 lac from the predecessor of the complainant and issued receipt thereof on 27.06.2011. OPs further received an amount of Rs.5,21,800/- from his predecessors  and issued receipt thereof on 30.06.2011. OPs issued a provisional allotment letter in the name of his predecessors and plot bearing no. 448-C measuring 300.90 sq. yard in the project namely Omaxe New Chandigarh situated at Mullanpur Punjab was allotted. Provisional allotment letter was issued on 12.12.2011. The predecessors of the complainant further deposited an amount of Rs.10,00,000/- and receipt thereof was issued on 29.01.2013 by OPs. His predecessors requested OPs to assign the rights in respect of unit no. OCE/448-C in the name of the complainant and OPs issued NOC dated 14.12.2013 to his predecessors about assignment of the allotted property to complainant. The OPs did not supply the proper account statements to complainant to verify the amounts paid and due in his account to OPs. OPs received an amount of Rs.10,39,498/- on 18.02.2013 towards installment, IFMS, club charges and further an amount of Rs.1,51,425/- was  received towards interest and receipts was issued on 18.02.2013. The OPs supplied an account statement, wherein an interest @ 12% to 24% was charged from the account of the complainant. OPs received the amounts in contravention to the provision of PAPRA Act 1995 and as such, they were not entitled to charge any interest, as no buyers agreement was executed between them. OPs further received an amount of 16,904/- as endorsement fee and receipt thereof was issued on 27.02.2013. The complainant was unable to pay huge amounts towards the plot, as he applied for a loan facility to the tune of Rs.30,00,000/- and a tripartite agreement dated 28.02.2013 was executed between the parties. Account statement dated 11.03.2013 was issued, wherein total amount including charges was mentioned as Rs.49,62,873.51  and an amount of Rs.39,86,298.81 was shown as cleared amount, equal to demanded amount, as such there was no default on his part for payment of installments. As per clause, 24(a) of the allotment letter /agreement, OPs promised to complete the construction work within 18 months or within an extended period of six months from the date of signing of allotment letter by the alltotee. In this way, possession of the plot was to be delivered till  11.03.2015. On 14.08.2013, OPs further received an amount of Rs.4,88,288/- from complainant towards the part payment and IFMS and issued receipt thereof on 14.08.2013. Thereafter, OPs remained silent and on repeated visits of complainant, OPs issued a demand letter, wherein an amount of Rs.2,44,143.68 was demanded from him. OPs issued account statement in the letter dated 22.07.2014, acknowledging receipt of an amount of Rs.44,74,586/- against the total price of plot i.e. Rs.49,62,873.52 from complainant against this allotted property. The complainant immediately replied to letter dated 20.07.2014 through email dated 11.08.2014 and challenged the amount of Rs.32,106/- towards interest and also raised grievance of delay in delivery of  possession and loss suffered therefrom.  He deposited an amount of Rs.2,44,144/- to OPs and receipt thereof was issued on 21.08.2014. OPs did not hand over the possession of the plot in time even after receiving the entire consideration from him. OPs without obtaining necessary permissions and approvals such as completion certificate from the competent authority sent a vague demand letter dated 10.02.2017 and raised demand of Rs.5,01,956.54 under various heads from complainant. OPs levied certain charges, which were not a part of contract between the parties, like power backup equipment cost, infrastructure cess, electrical sub station cost, dual source energy meter etc. Aforesaid act of OPs, in not offering possession of the plot by stipulated date or even till date and on the other hand receiving Rs.47,18,130/- out of Rs.49,62,873.52 not only amounts to deficiency in service and also unfair trade practice on their part.  The complainant has, thus, filed complaint against OPs praying for below noted directions :-

a)      OPs be directed to hand over the possession of the  plot with           all amenities, as promised with completion certificate.

b)      OPs be directed to refund an amount of Rs.1,51,425/- received       towards delayed interest on 18.02.2013 along with 18%      interest       from the date of deposits till realization and to     withdraws the     illegal charges as mentioned in letter dated           10.02.2017.

c)      OPs be directed to pay interest on the deposited amount @    18% from the date of deposits till handing over the possession   of the plot with all basic amenities

d)      OPs be directed to pay compensation of Rs. 5 lac for mental harassment and financial loss  and Rs. 1 lac as costs of          litigation.

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that this complainant is not consumer of OPs, as he purchased the unit for investment purposes.  This Commission has no territorial jurisdiction to entertain this complaint. On merits, any deficiency in service was denied by OPs. It was averred that the project namely India Trade Towers Chandigarh Extension is a commercial project, in which the complainant has booked the residential plot. Instant residential plot, which has been purchased by complainant in open market, is in Omaxe Chandigarh Extension New Chandigarh. The complainant along with original allottees namely Sushma Monga and Surita approached OPs and submitted documents seeking transfer of rights in his favour. Accepting his request, rights in the allotted properties were transferred in favour of complainant and allotment letter dated 12.03.2013 was executed between the parties. Since the complainant sought transfer of rights in his favour, the balance amount, as due on that date including interest on delayed installment, was required to be paid by him, which was paid by him. No provision of PAPRA Act has been contravened by OPs and interest on the delayed installment, was charged as per terms and conditions of the original booking. At the time of seeking endorsement of rights in his favour, he executed affidavit-cum-undertaking clearly agreeing that the period of development has to be reckoned from the date of transfer of rights in his favour, which fact has been concealed by complainant herein. There was delay in payment of installments by complainant, therefore, amount of Rs.32,106/- was charged towards interest and same was calculated, as per terms and conditions of allotment letter. After payment on 21.08.2014, possession was to be delivered, as per agreement. The complainant instead of making payment of the balance installments, has filed the instant complaint to harass the OPs. The possession has already been offered after getting occupation certificate. Rest of the averments were denied by OPs and they prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-26 and closed the evidence. As against it; OPs tendered evidence affidavit of Sh. Deepanjit Singh Authorized Representative of OPs as Ex.OP-A along with copies of document  Ex.OP-1 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                The first submission of counsel for OPs is that complainant is not consumer and hence complaint is not maintainable, but we find no force in it. It is residential project and it cannot be said that complainant is a property dealer dealing in sale and purchase of properties. There is no evidence by OPs to prove the initial evidence of complainant that he is a property dealer. Consequently, complainant is held to be consumer, as it is residential project and he purchased it for residence and he is held to be consumer.

6.                Admittedly, the residential unit was earlier allotted to one Sushma Monga wife of Brij Lal by OPs. Sushma Monga is the previous allottees of this residential unit and deposited the amounts with OPs towards sale consideration of it. She deposited amount of Rs. 5 lac at the time of booking on 17.12.2010, vide receipt Ex.C-1. Sushma Monga was earlier allottee of this residential unit. She further deposited amount of Rs. 3 lac with OPs on 27.06.2011, vide receipt Ex.C-2. In addition to above receipts, Sushma Monga earlier allottee deposited amount of Rs. 2 lac with OPs on 27.06.2011, vide receipt Ex.C-3. The amount of Rs.3,21,800/- deposited on 30.06.2011, vide receipt Ex.C-4. The amount of Rs. 2 lac on 30.06.2011, vide receipt Ex.C-5. The amount of Rs.8 lac, vide receipt Ex.C-7.  The amount of Rs. 2 lac on 29.07.2013, vide receipt Ex.C-8. The amount of Rs. 6,39,498/- on 18.02.2013, vide receipt Ex.C-10. The amount of Rs. 4 lac on 18.02.2013, vide receipt Ex.C-11. The amount of Rs.151,425/- on 18.02.2013, vide Ex.C-12. The amount of Rs.15,044.50 on 27.02.2013, vide Ex.C-14. In this way, allottee Sushma Monga paid the considerable amount of sale consideration to OPs uptill 27.02.2013. OPs issued provisional allotment plot no. 448-C of 300.90 sq. yards to her, vide provisional letter Ex.C-6 dated 12.12.2011. The complainant was assigned the rights in the above plot by Sushma Monga with the consent of OPs. This point is not disputed in this case that the complainant became assignee of Sushma Monga, the previous allottee of the residential unit in question. Consequently, OPs issued allotment letter dated 12.03.2013  to assignee Surinder Kansal the present complainant recording the terms and conditions of the allotment. Subsequent to assignment, Surinder Kansal also paid some amounts towards  the balance sale consideration to OPs in this case. Assignment of allotment right is Ex.C-16 on the record. Statement of account of complainant Surinder Kansal issued by OPs is Ex.C-17 on the record. The basic sale price of the residential unit has been recorded as Rs.48,82,873.51 and OPs received amount of Rs.4152767.50  uptill 27.02.2013 from the complainant by tagging the payments made by his predecessor as well. Allotment letter Ex.C-18 has been issued by OP to complainant of this residential unit and he has entered into shoes of Sushma Monga after getting assignment rights from her. The complainant Surinder Kansal paid the amount of Rs.244144.00 to OPs on 21.08.2014, vide Ex.C-23. The statement of account issued by OPs is placed on record. So far as the factum of payment of amounts, as referred to above is concerned, there is no dispute of this fact. The submission of counsel for OPs is that complainant is still in arrears of payment towards the sale consideration and as such, the delay took place in delivery of possession to him. On the other hand, submission of counsel for complainant is that OPs have not carried out any development in the project, as such due to this reason, the residential unit could not be allotted to him within time. Since allotment letter was issued to complainant by OPs and they admitted the fact of previous receipts by Sushma Monga payable from complainant and as such parties are bound by the terms and conditions of the allotment letter Ex.C-18 dated 12.03.2013 on the record. Clause 23(a) of allotment letter lays down that OP/Company shall put its best efforts to complete the development of the plot/project within 18 months or within an extended period of six months from the date of signing of this allotment letter. It is, thus, clear from perusal of clause 23(a) of allotment letter that OPs were to complete the construction at the most within two years from the date of allotment letter. The allotment letter is dated 12.03.2013 and construction should have been completed at the most by 12.03.2015 by OPs. The grievance of the complainant is that despite receipt of substantial sale amount, OPs have not completed the project and delivered the possession within scheduled time of two years from the date of allotment letter. On this point, counsel for OPs brought our attention to partial completion certificate Ex.OP-1. From perusal of this partial completion certificate Ex.OP-1, it is clear that it was issued by the authorities on 28.04.2017, subject to compliance of certain conditions thereafter. This is conditional completion certificate only and it cannot be said that the project has been fully completed by OPs even in the year 2017. Scheduled time for delivery of possession by completing construction was uptil 12.03.2105, but OPs have failed to deliver the possession thereof to the complainant. Most of the sale consideration amount has been paid by the earlier allottee Sushma Monga and her assignee complainant within the scheduled time without any fault on their part. Consequently, the inference is clear that it is OPs who failed to complete the project, so as to deliver the possession thereof within the scheduled time duly accompanied by occupancy certificate, as required under Section 14 of PAPRA Act 1995. The sheet-anchor of the case of OPs is partial completion certificate, but it is conditional in nature and has been issued in 2017 only, whereas the agreed date of delivery of possession was 12.03.2015. It is settled principle of law that if builder despite receipt of substantial sale amount, fails to hand over the possession to the allottee by developing the project, then it is deficiency in service and unfair trade practice. OPs cannot be permitted to utilize the hard-earned money of the complainant for an indefinite period. The consumer cannot be made to cool his heals off for an indefinite period in waiting for delivery of the possession of the allotted plot. Even otherwise, we have noticed that despite receipt of more than 25% amount, OPs have not executed any buyer's agreement in this case, which is mandate of PAPRA Act 1995. OPs have violated this mandate of PAPRA Act 1995 by not executing the buyer's agreement even after receipt of 25% of the sale consideration amount. Even the money received from the complainant and his predecessor in interest have not been deposited in some nationalized bank in a separate account, as required by Section 9 of the PAPRA Act 1995 by OPs. Non-delivery of the possession by OPs within the scheduled time tantamounts to unfair trade practice and deficiency in service on their part. We find support from law laid down by National Commission  in "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" 2015(IV)CPJ-294(NC) that the builders are enjoying the possession of the apartment as well as substantial amount of sale consideration paid by the consumers by not delivering the legal physical possession of apartment within prescribed period and hence are guilty of indulging in unfair trade practice. Such type of unscrupulous act on the part of builders should be dealt with heavy hands. The National Commission has also held in "EMAAR MGF Land Limited & another Vs. Dilshad Gill" III(2015)CPJ-329 (NC) as under:

          "Consumer Protection Act, 1986- Section 2(1)(g), 2(1)(r),         21(a)(ii)- Housing - Allotment of flat- Non-delivery of   possession- Deficiency in service- Unfair trade practice- State    commission partly allowed complaint- Hence appeal- Appellant        did not offer possession within period prescribed under        agreement- Appellants themselves have violated material         conditions with regard to handing over of possession- Now it      does not lie in their mouth to demand further payment from           respondent - Appellants have been enjoying substantial          amount of money received by them in year 2006, till 2013-        Deficiency proved.

On the basis of law laid down in the above authorities, we hold that OPs are deficient in service and also indulging in unfair trade practice.

7.                In view of facts and circumstances of the case, the complaint of the complainant is accepted and below noted directions are issued to OPs:-

i)        the complainant is directed to make payment of remaining       balance sale consideration, if any due to OPs, within a period     of one month from the date of receipt of certified copy of the       order and on receipt of this due payment by complainant, if    any, OPs shall deliver the  complete possession of the           allotted unit to complainant with completion certificate         /occupancy certificate as mandated by Section 14 of PAPRA      Act 1995 within a period of two months from the date of           receipt of the balance sale consideration amount from the       complainant, if any due, because the complainant seeks the       delivery of the possession of the allotted unit to him in the relief           clause.

ii)       OPs are directed  to pay interest compensation to complainant        on the deposited amount @ 12% per annum from 12.03.2015 the    scheduled date of delivery of possession till actual   delivery of complete possession with occupancy certificate of         allotted unit.

iii)      OPs are further directed to pay compensation of Rs. 50,000/-           for mental harassment and Rs.20,000/- as  costs of litigation.

          The letter dated 10.02.2017 stands covered in the above reliefs, as sought by the complainant.

8.                Arguments in this complaint were heard on 17.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

9.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

April 19,  2018                                                               

(ravi)