Chandigarh

DF-II

CC/137/2020

Bharti Khanna - Complainant(s)

Versus

M/s Sahara India Pariwar - Opp.Party(s)

Adv. Amandeep Bindra

25 Jul 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	137/2020
Date of Institution	:	25.02.2020
Date of Decision	:	25.07.2022

 

                             

 

Bharti Khanna Daughter of Late Shri Madan Lal Kuhurana, Resident of H.No. 17/B, Vikas Vihar, Civil Line, Patiala Punjab at present Resident of #2220A, Sector-42C, Chandigarh. Mobile No.8054408982. E-Mail:bhartikhanna@gmail.com

...Complainant

VERSUS

 

1.  M/s Sahara India Pariwar, Sahara City Homes, SCO No.1110-1111, Sector 22-B, Chandigarh through its Regional Manager/Authorized Signatory.(Contact:0172-2707387/E-Mail:info@saharacityhomes.in)

 

2.  M/s Sahara India Pariwar, Sahara City Homes, at SCF No. 40-41, Phase-5, Mohali, Punjab through its Manager/Authorize Signatory. (Contact:0172-2707387/E-Mail:info@saharacityhomes.in)

 

3. M/s Sahara City Homes, Marketing and Sales Corporation, Command Office Sahara India Bhawan 1, Kapoorthala Complex, Lucknow-226024 through its Managing Director/Director/Authorized Signatory. (Contact:0172-2707387/ E-Mail:info@saharacityhomes.in)

 

…. Opposite Parties.

 

 

 

BEFORE:
	SHRI S.K.SARDANA,	PRESIDING MEMBER
	SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Gaurav Bhardwaj, Adv. for the complainant Sh.Navneet Jindal, Advocate for the OPs.

 

PER B.M.SHARMA, MEMBER

1.     Briefly stated, the facts of case as alleged by the complainant are that the OPs launched the project under the name and style “Sahara City Homes” Chandigarh in the year 2004 and invited applications from general public for booking of the flats. She booked a 2 BR+STD flat measuring 116.11 sq. mtr. under Type C Category  by depositing Rs.1,14,350/- against receipt dated 31.12.2004 for personal use and occupation, which was earlier surrendered by the customer.  Subsequently, she paid numerous visits to OP No.1 to find out as to when the relevant documents was to be executed and the construction was to be finalized and the possession thereof was to be offered but the OPs lingered on the matter on one pretext or the other.  Even after passing of 15 years, there was not even a whisper of constructions by the OPs.  The complainant requested the OPs either to offered the possession of the unit as she was ready to pay the agreed sale consideration or in the alternative to refund the deposited amount. On enquiry from GMADA, the complainant came to know that no license has ever been issued to the OPs for the construction of the colony.  Finally, the complainant got served a legal notice dated 23.04.2019 upon the OPs requiring them either to offer the possession of the unit or in the alternative to refund the deposited amount but the same has failed to yield any result.  Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.  
2.     In its written statement, the OPs have stated that the present complaint is a second round of litigation.  It has further been stated that the affordable houses were to be given on the leasehold basis. It has further been pleaded that the OPs offered to refund the entire amount with interest @ 8% p.a. but she remained associated with the project on her wish and will and filed the case after a gap of more than 9 years after such an offer.  It has further been pleaded that the complainant has failed to discharge the burden by bringing her within the definition of consumer and thus raising any consumer dispute. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.     The complainant filed rejoinder to the written reply of the OPs controverting its stand and reiterating his own.    
4.     We have heard the Counsel for the parties  and have gone through the documents on record as well as written submissions.
5.     The Counsel for the OP(s) has submitted that this Commission does not have the jurisdiction to entertain and try the present complaint. However, we express our regret to accept this submission of the OP(s) as in the receipt at page 20 of the complaint, the location/place of the unit is mentioned as “Chandigarh”.        In this view of the matter, this Commission has got jurisdiction to entertain and try the present complaint and the objection of the OP(s) in this regard, being devoid of any merit, is rejected accordingly.
6.      The  next preliminary objection, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined under the Act, or not. It may be stated here that the mere objection of the OP(s) that the investment in the property by the complainant is purely for commercial purposes and speculative investments and that the complainant is not in need of the unit for personal use but is purely investor, does not carry any weight and the same is liable to be rejected because there is nothing on record that the complainant is property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the OP(s), to prove that the complainant owned a number of other properties, in the tricity, and, as such, the unit, in question, was purchased for speculative gains and is a commercial transaction. The complainant, thus, falls within the definition of a consumer, as defined under the Act. Such an objection, taken by the OPs, in its written statement, therefore, being devoid of merit, is rejected.  
7.     As regards, the objection of the OP(s) regarding relationship of lessor and lessee is concerned, the same is also deserves to be dismissed as the OP(s) have itself failed to deliver the possession of the unit to the complainant as promised till date and as such no question arises for the relationship of the lessor and lessee between the complainant and the OPs
8.      The complainant had booked the unit in ‘Sahara City Homes Scheme’ at Chandigarh in the year 2004 and made the payment against receipt attached with the complaint as Annexure C-1. The OPs offered the complainant to take back the money with simple interest @8% per annum, in case of option for cancellation of booking. Pertinently, the OPs after receiving of money in the year 2004 from the complainant virtually did nothing at site to develop the project.  The OPs definitely has utilized the amount of the complainant for its commercial purposes and might have earned a lot thereof.  The OPs should have suo-motto returned the money to the complainant with interest if it is so serious, rather it chose to file Writ Petition in the Hon’ble Punjab & Haryana High Court and slept over the matter waiting for the outcome of the litigation without any eagerness to pay back the money to the complainant/beneficiary.  There is prima facie clear unfair trade practice as well as deficiency in service on the part of OP(s) in failing to meet out its commitments as agreed to at the time of receiving of booking amount from the complainant. 
9.     The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “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.”
10.     The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: - 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.
11.     Keeping in view the facts and circumstances of the case, we are of the considered view that after waiting for such a long period, the complainant is right in seeking refund of her hard earned money from the OPs because the complainant cannot be made to wait for indefinite period and deprived of the use of her hard earned money without any fault on her part.
12.     In the light of above discussion, this consumer complaint deserves to succeed. The same is accordingly partly allowed.  The OP(s) are directed as under :-

(i)    To refund the amount of Rs.1,14,350/- to the Complainant with interest @ 9% per annum from the date of respective payment(s), till realization.

(ii)  To pay Rs.15,000/- as compensation to the complainant for the deficiency in service, unfair trade practice and harassment caused to him.

(iii) To also pay a sum of Rs.11,000/- to the complainant as litigation expenses. 

13.      The above said order shall be complied with by the Opposite Parties within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.20,000/-, apart from the above awarded amount.
14.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 25/07/2022
	Sd/- (S.K.SARDANA) PRESIDING MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER