Chandigarh

DF-II

CC/24/2021

Amit Talwar - Complainant(s)

Versus

M/s Palm Homes - Opp.Party(s)

Ramesh Kumar Bamal

06 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/24/2021
Date of Institution	:	11/01/2021
Date of Decision	:	06/11/2024

 

1. Amit Talwar son of Mr. Akarshan Talwar.
2. Mrs. Vandana Talwar w/o Sh. Amit Talwar, both residents of House No.1617, First Floor, DMC, Dadu Majra, Sector 14, Chandigarh.

                                ...  Complainants

V E R S U S

1.M/s Palm Homes, a partnership Firm, having its  Regd. Office at SCO No.31-32, Palm City, Haibatpur Road, Sector-5, Derabassi, SAS Nagar, Mohali through its partner/authorized signatory Shri Sarjan Singh son of late Shri Mihan Singh.

2.Shri Harjinder Singh Rangi, partner of M/s Palm Homes, a partnership Firm, having its  Regd. Office at SCO No.31-32, Palm City, Haibatpur Road, Sector-5, Derabassi, SAS Nagar, Mohali.

3.Shri Sarjan Singh son of late Shri Mihan Singh, resident of House No.134/4, Adarsh Nagar, Derabassi, authorized signatory/partners of M/s Palm Homes, a partnership firm.

4.The ICICI Bank, SCO No.9-10-11, Sector 9-D, Chandigarh through its Branch Manager.

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI BRIJ MOHAN SHARMA	MEMBER

 

ARGUED BY:
	Sh. Ramesh Kumar Bamal, Counsel for complainants
	Sh. Parminder Singh, Counsel for OPs 1 to 3
	Sh. Hitesh Kalra, Advocate Proxy for Sh. Sandeep Suri, Counsel for OP-4.

       

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

1.        The complainants have filed the present consumer complaint alleging that with a dream to have their own house, they booked a floor in “Palm Homes” VIP Enclave, Mubarakpur, Derabassi for a total sale consideration of ₹16,20,000/- and paid ₹80,000/- as booking amount vide receipt (Annexure C-2).  At the time of booking complainants were assured and allotted floor No.VIP/22 but at the time of execution of buyer’s agreement dated 22.7.2017 complainants were allotted another independent floor No.VIP/27.  On the asking of OPs 1 to 3, complainants got financed the amount from OP-4.  OPs 1 to 3 had undertaken to pay entire interest on the entire loan amount till handing over the possession of complete constructed floor to the complainants but ultimately they refused to pay the same. As agreed, possession of the complete constructed floor was to be handed over within 18 months i.e. by 22.1.2019 and OPs 1 to 3 had agreed to pay interest on the deposited amount for the period of delay beyond the possession date. It is averred that when the complainants examined the account statement pertaining to the loan account, they found that a sum of ₹86,000/- had been debited by way of insurance premium without any consent by the complainants. The account statement further revealed several unilateral illegal entries as detailed in the consumer complaint. However, OPs 1 to 3 miserably failed to adhere to the undertaking and obligation to deliver and hand over possession of complete constructed floor to the complainants. When the complainants visited the site lastly on 29.12.2020 they were shocked to see that there was no development despite paying total amount of ₹12,46,000/- i.e. ₹11,66,000/- by way of loan amount and ₹80,000/- as earnest money to OPs 1 to 3.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainants have filed the instant consumer complaint.
2.        In their written version OPs 1 to 3 admitted that the complainants made booking in the project of the OPs and made the payments. It is denied that the OPs had undertaken to pay the entire interest on the entire loan amount to the bank till the handing over of the possession.  It is averred that the flat is ready for handing over of the possession subject to payment which has to be made by the complainants. The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs 1 to 3 prayed for dismissal of the consumer complaint.
3.        In its separate written version OP-4 averred that the OP/bank is involved in the business of granting loans and the complainants had applied to it for obtaining loan facility.  It is admitted that the complainants got financed the amount from the OP bank which was disbursed to OPs 1 to 3.  It is further averred that since no charges had been illegally charged, no reversal is required to be made.  No excess interest had been levied to customer’s loan account at any point of time.  The remaining allegations have been denied being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-4 prayed for dismissal of the consumer complaint.
4.        In separate replications, complainants controverted the stand of the OPs and reiterated their own.
5.        The parties filed their respective affidavits and documents in support of their case.
6.        We have heard the learned Counsel for the parties and have gone through the documents on record, including written arguments.
7.        It is observed from the record that the complainants had paid total amount of Rs.12,46,000/- to OPs 1 to 3/builder on different dates towards purchase of the flat in question by taking loan from OP-4/bank.  The case of the complainants is that though the OPs were obligated to deliver the possession of the flat in question within 18 months i.e. by 22.1.2019, but they failed to do so and further OPs 1 to 3 even did not obtain the requisite sanctions/permissions etc. before launching their project.   In support of their case, complainants have placed on record photographs of the flat/project to prove that the construction work was not complete even till 14.12.2021. 
8.        On the other hand, defence of OPs 1 to 3/builder is that the flat is ready for handing over possession subject to payment which has to be made by the complainants.  However, in support of their defence OPs have not placed on record any documentary evidence in the shape of photographs or account statement etc. to prove that the flat in question is ready for delivery as well as the payment due, if any, from the complainants.  The OPs have even not paced on record anything to prove that they had obtained the requisite permissions/approvals/sanctions etc. from the competent authorities before launching the project in question. Therefore, in the absence of any cogent documentary evidence the bald averments made by the OPs in their written version cannot be believed and it is safe to hold that neither the flat in question was ready for delivery nor OPs 1 to 3 had obtained the requisite permissions/ sanctions/approvals etc. from the competent authorities when they collected the amount from the complainants.
9.        Pertinently, collection of amount from consumers without having requisite sanctions/permissions/approvals etc. is not only illegal and wrong but also amounts to unfair trade practice as per the Consumer Protection Act, 2019.  The relevant provisions of the Punjab Apartment and Property Regulation Act, 1995 mandates that OPs should have obtained all the necessary sanctions/ permissions/ approvals etc. from the concerned authorities before collection of the amount from the consumers and thereafter they were legally bound to execute the buyer’s agreement mentioning therein the specific date of delivery of possession to the consumers, failing which a reasonable time is considered to be just and fair to deliver the agreed apartment to the complainant/consumer as upheld in many cases by the higher authorities from the date of buyer’s agreement between the parties. However, in the present case, till today (i.e. even after lapse of more than 7 years from the date of buyers agreement), neither the possession of the flat in question, complete in all respects, has been delivered by OPs 1 to 3 to the complainants nor the deposited amount been refunded to them. Thus, collecting payment from consumers without having necessary approvals from all the concerned authorities amounts to not only deficiency in service but also unfair trade practice for which the consumer should be compensated adequately.   
10.        The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 & 683 of 2003 titled as Kamal Sood Vs. DLF Universal Ltd. decided on 20.04.2007 has observed as under:-

                        “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. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

 

              The Hon’ble National Commission in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 observed as under:-

“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.”

              The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

“15. 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. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/ complainants is entitled to?”

              Further, the Hon’ble National Commission in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 held that non delivery of possession of plots/ units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid.

11.        Hence, the act of OPs 1 to 3 in collecting money from the buyers (i.e. the complainants in the present case) before getting all the necessary approvals for the project and not handing over possession of the flat in question within the stipulated period and even not honouring their promises/commitments certainly proves deficiency in service and indulgence in unfair trade practice on their part, which not only caused financial loss but also immense harassment & mental agony to the complainants.
12.        The buyers to have a comfortable life and having paid their hard earned money to have a flat are not supposed to wait indefinitely for possession. Thus, the complainants cannot be made to wait indefinitely for the possession of the flat and they are entitled to seek the refund of the amount paid along with interest. 
13.        In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs are directed to refund the total deposited amount i.e. ₹12,46,000/- to the complainants alongwith interest @ 10% per annum from the date of respective deposits till the date of its actual realization. OPs 1 to 3 shall also pay compensation of ₹50,000/- (Fifty Thousand Only) to the complainants for the harassment caused to them.
14.        This order be complied with by OPs 1 to 3 within 60 days from the date of receipt of its certified copy.
15.        Since no deficiency in service or unfair trade practice is proved against OP-4, consumer complaint against it stands dismissed with no order as to costs.
16.        The pending application(s) if any, stands disposed of accordingly.
17.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

 

ANNOUNCED 06/11/2024 hg	[AMRINDER SINGH SIDHU] PRESIDENT
	[BRIJ MOHAN SHARMA] MEMBER