Chandigarh

DF-I

CC/853/2017

Shyam Sunder - Complainant(s)

Versus

M/s Shalimar Estates Pvt. Ltd. - Opp.Party(s)

Rajesh Verma

07 Aug 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No	:	CC/853/2017
Date  of  Institution	:	06/12/2017
Date   of   Decision	:	07/08/2019

 

 

 

 

 

 

Shyam Sunder son of Sh. Faquir Chand, Resident of Village Kot, District Panchkula, Haryana.

 

….Complainant

Vs.

 

 

1.   M/s Shalimar Estates Pvt. Ltd., through its Managing Director Sh. Ram Kumar Aggarwal, Resident of House No. 1084, Sector 8-C, Chandigarh – 160 008.

 

2.   M/s Shalimar Estates Pvt. Ltd., through its Managing Director Smt. Kamlesh Aggarwal, Resident of House No. 1084, Sector 8-C, Chandigarh – 160 008.

 

3.   M/s Shalimar Estates Pvt. Ltd., through its Managing Director Smt. Kamlesh Aggarwal, Resident of House No. 1084, Sector 8-C, Chandigarh – 160 008.

 

…… Opposite Parties

 

 

BEFORE:   SH. RATTAN SINGH THAKUR      PRESIDENT

MRS.SURJEET KAUR             MEMBER

          SH. SURESH KUMAR SARDANA     MEMBER

 

 

For Complainant	:	Sh. Rajesh Verma, Advocate.
For Opposite Parties	:	Sh. Varun Bhardwaj, Advocate. (OP No.3 already-exparte).

 

 

PER SURJEET KAUR, MEMBER

 

 

 

In brief, the Complainant applied for a residential plot of 8 marla measuring 10 x 20 (200 sq. yards) in Phase-I of village Alipur and Naggal, Hadbast No.237 & 238, Tehsil and District Panchkula, Haryana, with the Opposite Parties vide application no. 4803 by paying Rs.17,820/- as earnest money vide receipt/ acknowledgement slip dated 23.12.2001 (Annexure C-1). The Complainant was successful in the draw of plots held on 16.01.2002 by the Opposite Parties and was allotted Plot No.32 vide letter dated 19.02.2002. After the allotment of the plot, the Complainant deposited the 15% amount of Rs.31,185/- vide receipt dated 19.02.2002 and thereafter, Agreement to Sell was executed between the parties on 21.03.2002 and as per the Agreement to Sell, the total consideration price of the said Plot had been fixed at Rs.1,96,020/-, earlier which was Rs.1,78,200/-. As per the Agreement, the Complainant was to further pay an amount of Rs.1,47,015/- on or before 21.05.2002 in lump sum without any interest or in six annual equal installments with 15% interest. The last installment was fixed to be paid by 18.01.2008 and the last date for registration was fixed for 19.01.2008 and the possession of the plot was to be handed over in 5 years from the date of allotment. The Complainant paid an amount of Rs.1,00,000/- vide receipt dated 22.05.2002 and Rs.70,000/- vide receipt dated 09.05.2006 to the Opposite Parties as part of the remaining consideration price. The Complainant paid further amount of Rs.6,726/- as balance from the remaining consideration amount to the Opposite Parties vide receipt dated 21.04.2008. The Complainant has already paid Rs.2,25,731/- to the ops as the full and final payment (Receipts Annexure C-6 to C-8). It has been averred that the Complainant paid his last installment on 21.04.2008 and after making the full and final payment, approached the Opposite Parties number of times for possession, but the Opposite Parties always kept on delaying the matter on one pretext or another. The Complainant eventually, approached the Opposite Parties in the month of March, 2015 and requested to either hand over the possession of the plot or to refund the amount along with interest, but to no success. Therefore, as a measure of last resort, alleging the aforesaid acts of the Opposite Parties as deficiency in service and unfair trade practice, the Complainant has filed the instant Complaint u/s 12 of the Consumer Protection Act, 1986, seeking various reliefs.

 

2.      Notice of the complaint was sent to Opposite Party, seeking its version of the case. However, nobody appeared on behalf of Opposite Party No.3 despite service, therefore, it was proceeded ex-parte.

 

3.      In the written statement filed by the Opposite Parties No.1 to 3 (Opposite Party No.3 already ex-parte) it has been admitted that on the basis of the application submitted by the complainant, plot in question was allotted to him. Payment of sale consideration has also been admitted. The case of the Opposite Parties is that the State of Haryana wrongly proceeded against it for developing Shalimar Estates.  The said proceedings were challenged by the opposite party before the Hon’ble Punjab and Haryana High Court in CWP No.2437 of 2003 in case titled Shalimar Estates Pvt. Ltd. Vs. State of Haryana and Ors in which, on 13.2.2003, a Division Bench of the Hon’ble High Court consisting of Hon’ble Mr. Justice J. S. Khehar and Hon’ble Mr. Justice Satish Kumar Mittal stayed the demolition and dispossession done by the Haryana Government. Thereafter, the matter was put up before Hon’ble Mr. Justice N.K. Sud and Hon’ble Mr. Justice Hemant Gupta who admitted the writ petition and ordered stay to continue. The said Civil Writ Petition remained admitted till 2016 and ultimately, allowed in favour of the Opposite Parties on 05.10.2016 and orders passed by Town and Country Planning Department & Tribunal were set-aside by the Hon'ble High Court of Punjab and Haryana, Chandigarh. Thereafter, the State of Haryana filed SLP bearing No. 23096 of 2017 in the Hon'ble Supreme Court of India against the order dated 05.10.2016 passed by the Hon'ble Punjab and Haryana High Court, Chandigarh and the said petition is pending in the Hon'ble Supreme Court and the same has not been finally decided, till today. It has been thus pleaded that when the matter is pending before the higher competent courts, which are not within the control of the ops, the Complainant cannot hold the Opposite Parties liable for the delay in possession and also cannot claim any compensation. Denying all other allegations and stating that there is no deficiency in service on its part, opposite party has prayed for dismissal of the complaint.

 

4.      Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the rejoinder.

 

5.      Parties were permitted to place their respective evidence on record in support of their contentions.

 

6.      We have heard the learned Counsel for the parties and have perused the record. 

 

7.      As per the case of the Complainant, he deposited an amount of Rs.2,25,731/- to the Opposite Parties for residential plot of 8 Marlas (200 sq. yards). The Complainant paid the last installment on 21.04.2008.

 

8.      It is the case of the Complainant that he repeatedly approached the Opposite Parties for possession of the plot, but when they lingered on the matter, in the month of March, 2015 eventually he requested them to either hand over the possession of the plot or to refund the amount along with interest, but to no avail. 

 

9.      In the written statement filed by the Opposite Parties, it has been admitted that the complainant entered into an agreement to sell with the Opposite Parties for allotment of the plot at proposed Shalimar Estates, Naggal Alipur, Tehsil and District Panchkula and the possession of the plot was to be given within 5 years from the date of agreement. 

 

10.      It is the case of the Opposite Parties that the State of Haryana wrongly launched the proceedings against them for developing Shalimar Estates.  The said proceedings were challenged by the Opposite Parties before the Hon’ble Punjab and Haryana High Court in CWP No.2437 of 2003 in case titled Shalimar Estates Pvt. Ltd. Vs. State of Haryana and Others in which, on 13.2.2003, a Division Bench of the Hon’ble High Court consisting of Hon’ble Mr. Justice J. S. Khehar and Hon’ble Mr. Justice Satish Kumar Mittal passed the following order :-

 

“Notice of motion for 24.02.2003.      

On our asking, Mr. Girish Agnihotri, Additional Advocate General, Haryana, accepts notice.

Dispossession and demolition stayed in the meantime.”

Thereafter, the matter was put up before Hon’ble Mr. Justice N.K. Sud and Hon’ble Mr. Justice Hemant Gupta who admitted the writ petition and ordered “stay to continue”.   It has been submitted by the Opposite Parties that they had also given a public notice dated 17.1.2007 in “The Tribune” wherein, it was brought to the notice of the customers to get back their deposited amount in case they were not interested to wait for the decision of the Hon’ble High Court in Punjab and Haryana, as the matter was sub-judice. The allottee despite the publication dated 17.1.2007 failed to approach the Opposite Parties with regard to refund of the deposited amount.  The aforesaid writ petition was allowed in favour of the Opposite Parties on 05.10.2016 and the orders passed by the Town and Country Planning Department and Tribunal were set aside by the Hon'ble High Court and thereafter the State of Haryana filed the SLP No.23096 of 2017 before the Hon’ble Supreme Court of India challenging the order dated 05.10.2016 passed by the Hon'ble High Court, which is pending adjudication.  Under these circumstances, the Opposite Parties were/are not in a position to deliver the possession within the tentative period as mentioned in the brochure. In these circumstances, according to the Opposite Parties, there is no deficiency in service on their part and the complaint deserves dismissal.

 

11.      After scrutinizing the entire record, it has come to our notice that the assertions made in the present complaint, supported by duly sworn affidavit of the complainant and the reply submitted by the Opposite Parties clearly establishes that till date, the Opposite Parties miserably failed to deliver the possession of the plot in question, in fully developed conditions, as agreed. It is gathered from the record that after hectic litigation between the parties, the OPs agreed to give the possession of the plot to the complainant but the factum to the extent is clear that the area where the plot is to be given, has not been developed and it is not in habitable condition. We are of the considered opinion that the grouse of the complainant is genuine one.  Admittedly, the Opposite Parties have failed to deliver the possession of the plot in dispute after developing the area where it is situated, as agreed.  It is apt to mention here that earlier also lot many consumer complaints against the OP-Company-M/s Shalimar Estates (P) Ltd. were decided by this Forum. In their written reply, the Opposite Parties have submitted that with regard to the proposed project, involved in the present litigation, the matter is pending before the Hon'ble Supreme Court of India as the Writ Petition allowed in favour of the Opposite Parties on 05.10.2016 by the Hon'ble Punjab & Haryana High Court has been challenged by the State of Haryana vide SLP No.23096/2017. The perusal of the record reveals that no stay has been granted by the Hon'ble Supreme Court in the SLP filed by the State of Haryana. 

           

 

12.      Undoubtedly, the Opposite Parties have utilized the money of the Complainant for a considerably long period and the act of the Opposite Parties for delaying the possession and thereafter non-paying heed to the genuine requests of the Complainant for the refund of the deposited amount, to our mind constitutes deficiency in service and indulgence in unfair trade practice, and certainly caused immense mental and physical harassment to the Complainant. 

 

13.      In view of the reasons recorded in the aforesaid paragraphs, a long drawn battle is being fought interse the Opposite Parties and the Government of Haryana since 2003 before the Hon'ble Punjab & Haryana High Court and now in the Hon'ble Supreme Court. Even prior to that, the matter was also agitated before the Tribunal. The stand of the Opposite Parties was vindicated per order passed by the Hon'ble Punjab & Haryana High Court. Now, the matter is sub-judice before the Hon'ble Supreme Court. In view of this reason, it would not be just and proper to award compensation in favour of the Complainant. However, in such like situation, the Opposite Parties ought to have returned the deposited amount, as delay of around two decades is likely to end within one or two years. The Opposite Parties had invested the amount and the interest of justice would be met in case the interest on the deposited amount is awarded in favour of the Complainant. It amounts to deficiency in service as the amount was not refunded on time. Issuance of notice will not justify the stand of the Opposite Parties to withhold the deposited amount as this Complaint was filed on 06.12.2017 vide which the relief of refund was prayed for. Even then, the Opposite Parties had not returned the deposited amount. These are the acts of deficiency in service. 

 

14.      For the reasons recorded above, the complaint is allowed. The Opposite Parties are, jointly and severally, directed, as under:-

i]   To refund the amount of Rs.2,25,731/- to the Complainant, alongwith interest @ 9% per annum from the dates of respective deposits.

ii]  To pay to the Complainant Rs.10,000/- as costs of litigation.

          The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in sub-para [i] above from the date of receipt, till it is paid, apart from cost of litigation of Rs.10,000/-.  

15.      The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

07^th August, 2019                                          Sd/-

                          (RATTAN SINGH THAKUR)

PRESIDENT

       

 

Sd/-

 (SURJEET KAUR)

PRESIDING MEMBER

 

                                           

Sd/-

(SURESH KUMAR SARDANA)

MEMBER

 

 “Dutt”