BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH ======== Consumer Complaint No | : | 697 of 2010 | Date of Institution | : | 25.10.2010 | Date of Decision | : | 20.05.2011 |
Chanchal Narang, 1165, Sector 4, Panchkula. ….…Complainant V E R S U S 1. M/s Taneja Developers & Infrastructures Limited, SCO 1098-99, Ist Floor, Sector 22-B, Chandigarh. 2. M/s Taneja Developers & Infrastructures Limited, 9 , Kasturba Gandhi Marg, New Delhi 110001 ..…Opposite Parties CORAM: SH.LAKSHMAN SHARMA PRESIDENT SH.ASHOK RAJ BHANDARI MEMBER MRS.MADHU MUTNEJA MEMBER PRESENT: Complainant in person. Sh.S.K.Monga, Adv. for the OPs. PER ASHOK RAJ BHANDARI, MEMBER 1] The brief facts of the case are as under:- That the complainant booked a plot with the OPs measuring 102 sq. yards in their MCP-II Project in Sector 110-111, Mohali by depositing a sum of Rs.12.00 lacs on 20.9.2008 vide registration letter dated 15.9.2008 (Ann.I). Per Clause (a) of the registration letter, the offer of allotment of the plot was to be made to the complainant within 12 months but nothing of that sort was done by the OPs even after expiry of one complete year nor they gave any satisfactory reply regarding their development work as well as allotment of plot. Ultimately, the complainant had to approach GMADA Office to know the actual status of the project, wherefrom he came to know that the OPs had accepted the advance amount without obtaining statutory clearances in contravention of clear stipulations of the government. It is averred that as per the letters of Chief Town Planner, Punjab (Ann.II to IV), the developer can start any development work, give advertisement or begin any activity for the sale of plots, only after the issuance of exemption notification under Section 44 of PAPR Act. Further, the said authority also informed her that the required approval/exemption was not granted till 19.8.2009 (Ann.V). Aggrieved by the unfair trade practice & inaction of the OPs, the complainant sought refund of her advance money vide letter dated 24.7.2010 (Ann.VII) but the OP instead sent demand letter dated 9th Sept., 2010 for depositing Rs.16,94,350/- (Ann.-VIII). The complainant again requested the OP to refund her advance amount of Rs.12.00 lacs but all in vain (Ann.IX). Hence this complaint. 2] In written statement/reply, the OPs admitted that the complainant registered herself with the OP company through application dated 15.9.2008 and also deposited the initial booking amount of Rs.12.00 lacs on 20.9.2008, being matter of record. It is submitted that the Mega Housing Project is being developed by the OP Company in accordance with the Punjab Industrial Policy, 2003, by paying External Development Charges as per Rules and Regulations of the Govt. of Punjab. It is also stated that the OP Company obtained C.L.U. (Change of Land Use) on 13.2.2009 from the Chief Town Planner, Punjab, Chandigarh for 115.79 acres of land in the first instance and it also subsequently obtained CLU on 12.8.2009 for another chunk of 16.117 acres of land for the aforesaid Mega Housing Project. They got approval for the layout plan from the competent authority on 4.6.2009 and thereafter submitted a revised layout plan of 130.65 acres of land which was finally approved on 6.8.2010. It is submitted that no advertisement was ever given by the OP Company in order to launch any booking of the plots in its project at Mohali. It is also submitted that the complainant through application dated 20.9.2008 deposited a sum of Rs.12 lacs with the OP and got herself registered for allotment of a commercial plot in its future project for which offer of allotment was sent to her on 7.3.2010 and also later on 9.9.2010 but she refused to accept the offer and did not pay the remaining installments as per payment schedule. Pleading no deficiency in service and denying rest of the allegations, OP has prayed for dismissal of the complaint. 3] Parties led evidence in support of their contentions. 4] We have heard the Learned Counsel for the parties and have also perused the record including the written arguments. 5] The detailed basic facts of the case have already been incorporated in the foregoing paragraphs. 6] The main case of the complainant is that she booked a plot with the Ops measuring 102 sq. yards in their MCP_II Project in Sector 110-111, Mohali by depositing a sum of Rs.12.00 lacs on 20.09.2008 vide Registration Letter dated 15.9.2008 at the office of OP-1 at Chandigarh. Accordingly, the OPs issued her a letter through which she was registered for allotment of the said plot (Ann.I). In the said letter the OPs categorically stated that offer of allotment for the commercial plot in question in their future schemes shall be made to her within 12 months of her registration application made therein, which clearly means that the OPs were required to offer the allotment of the said commercial plot to her latest by 14.9.2009. The OPs had also issued a money receipt No.MCP-2/20184, dated 25.9.2008 acknowledging the receipt of Rs.12.00 lacs on 20.9.2008 vide cheque/pay order No.635254 drawn on ICICI Bank Ltd., Chandigarh. Since the allotment was not made to the complainant within a period of 12 months, as promised in the original letter of offer, she made some inquiries with the OPs and when she could not get any satisfactory reply regarding the on going development work being done at the site of the plot, she asked for the refund of the amount of Rs.12.00 lacs on 9.7.2010 (Ann.C-IX). The OPs did not refund the said sum and had instead earlier asked her through a letter on 7.7.2010 (Ann.R-2) to pay a sum of Rs.7,91,600/- towards 30% Basic sale price + 25% EDC (Tentative) + 50% PLC if any. This letter was followed by another demand letter dated 9.9.2010 (Ann.R-3) in which the complainant was asked to pay more than double the previous amount i.e. Rs.16,94,350/- by way of 40% Basic sale Price + 50% EDC (Tentative) + 50% PLC (if any). The complainant did not pay this amount to the OPs and at the same time the OPs did not refund the amount of Rs.12.00 lacs. All this led to a consumer dispute between the parties and hence, the present complaint. 7] The OPs in their written statement/reply while admitting the core facts of the case, also acknowledging various important dates relating to certain events as quoted by the complainant, have stated that no doubt that the complainant paid a sum of Rs.12.00 lacs to them on 20.9.2008 after registering herself on 15.9.2008 for the allotment of a commercial plot of 102 sq.yards in their MCP-II in Sector 110-111, Mohali. The stand of the OPs is that they had taken all necessary steps to complete the essential requirements and formalities of the various government authorities, including Chief Town Planner, Punjab and others and had developed the site of the plot fully. After completing all formalities, they made an offer of allotment to the complainant on 7.7.2010 and called her to their office for accepting the allotment of plot and remitting a sum of Rs.7,91,600/-. Another letter was sent to her on 9.9.2010 asking her to pay a sum of Rs.16,94,350/- as per the rules of payment schedule. Instead of accepting the allotment as offered in September, 2010, the complainant had asked for the refund of the amount still earlier i.e. on 09.07.2010 and refused to pay the remaining installments. Based on these averments and pleadings, the OPs have prayed that the present complaint be dismissed with costs. 8] After going through the entire case in details and also perusing all the documents on record, it is quite clear that the complainant had booked a commercial plot with the OPs by registering herself on 15.9.2008 and also paid the registration/booking amount of Rs.12.00 lacs on 20.9.2008. The OPs had clearly made a firm commitment with the complainant to offer the allotment of the plot to her within 12 months of her registration application made therein, which means they were required to offer the fully developed plot to her latest by 14.9.2009, which has not been done by the OPs. As a matter of act the first offer of allotment was made by the OPs to the complainant on 7.7.2010 i.e. after about 2 years of the date of her registration on 15.9.2008. 9] The OPs have also taken some preliminary objections in the written statement on the basis of which they have prayed for the dismissal of the complaint. We take up these objections first. One of these objections is that the complainant is working as Asstt. Professor in Panjab University, Chandigarh and that she is earning her livelihood out of the said employment. She had got herself registered with the OP Company for allotment of a commercial plot in their future projects only with a view to earn business profit as a commercial activity and not for earning her livelihood and therefore, she is not a consumer under Consumer Protection Act, 1986. . The fact of the matter is that as per the complainant, she had booked one and only one such plot and no other and that she is neither a property dealer nor in the business of sale & purchase of plots. The plot in question was booked only with an intention to start a private institution for self-employment in future. Therefore, the present complaint is fully covered by Section 2(d) of the Consumer Protection Act, 1986. The OPs have not been able to rebut the argument made by the complainant by showing that the complainant was in regular property Sale & Purchase business or that she had in her name more than one commercial plot. We are inclined to accept the arguments of the complainant and in our view, the complainant is definitely and surely a consumer under the Consumer Protection Act, 1986. 10] Another objection taken by the OPs is that the price of the plot in question is more than Rs.20.00 lacs i.e. Rs.70,33,100/- and this amount is more than Rs.20.00 lacs, which is the upper pecuniary limit of the District Forum to deal with such complaints. The fact of the matter is that as per Section 11 of the Consumer Protection Act under the heading “Jurisdiction of District Forum”, it is clearly stated that where the value of the goods or services and the compensation, if any, claimed, does not exceed Rs.20.00 lacs the case is covered under the District Forum. In the present case, the relief claimed is only Rs.14.00 lacs plus some interest, the total of which is obviously within Rs.20.00 lacs limits and hence the complaint is fully covered within the pecuniary jurisdiction of this Forum. 11] The third objection taken by the complainant is that the District Consumer Forum at Chandigarh has no territorial jurisdiction to deal with the present complaint as the commercial plot booked by the complainant is located at Mohali and therefore, the present complaint cannot be maintained before the Chandigarh District Forum. The real fact of the matter is that the complainant had categorically stated that she made payment of Rs.12.00 lacs at the Chandigarh Office of the OPs (OP-2). The receipt issued by the OPs cleverly and smartly omits the name of place of its issue which in itself is an unfair trade practice on the part of OPs, but the complainant has made payment through a local cheque of ICICI Bank Limited, Chandigarh, which further shows that the payment was made at Chandigarh only. Further, there is a letter enclosed by the complainant at Ann.III, which has been addressed by the Chief Town Planner, Punjab, Chandigarh to the Chandigarh Office of the OPs i.e. OP-2 stating that till such time an exemption is not granted to the company, no development work or release of advertisement or sale of plots should be done by the OPs. Therefore, a part of the cause of action has definitely and surely taken place at Chandigarh. Keeping in view the above, in our considered opinion, this Forum at Chandigarh has got the territorial jurisdiction to deal with the present complaint. 12] There is another annexure enclosed by the OPs (ann.R-5) stating that the OP Company has some time back passed a resolution that if the amount paid by the applicant is to be refunded, the same shall be done only after deducting 12% of the total price of the plot and that if at all the refund of the amount paid by the complainant has to be made, it will be subject to the said deduction under the given resolution of the OPs. On close perusal of the document on record, it is found that the impugned resolution is neither a part of the terms & conditions of the letter of Offer nor any other agreement signed by the parties. More so such a clause/resolution was neither brought to the notice of the complainant nor formally ever accepted by her at any stage. It is only at the time of filing reply/written statement after the complainant had filed the present complaint that such a document has come on record. There are no signatures of the complainant on any such terms & conditions of refund. Hence, there is no relevance or validity of such a clause as it is neither in the notice/knowledge of the complainant nor signed by her in token of having accepted any such terms. The document in question is only an internal paper belonging to the office records of OPs for their sole consumption. 13] The OPs in support of their case have cited the following case law:- i) H.U.D.A. and Another Vs. Kewal Krishan Goel and Others With H.U.D.A. and Anr. Vs. Ravinder Nath Sharma and State of Haryana & Ors. Vs. Shamsher Singh, AIR 1996 Supreme Court 1981. ii) P.U.D.A. Vs. Krishan Pal Chander, 2010(I) CPC 440 (NC). On close examination of these case law/authorities, we find that the Ratio of these cases is squarely not applicable to the present complaint, keeping in view the peculiar facts & circumstances of the complaint in question. Hence, the authorities neither support the case of the OPs nor help them in any way in establishing and proving their case against the complainant. 14] Now coming to the case on its merits. So far as the entire case on merits is concerned, the OPs have not been able to rebut any of the specific allegations made by the complainant against them. For example, the Govt. of Punjab, Department of Housing and Urban Department, issued the Change of Land Use (CLU) permission to the OPs only on 13.2.2009; the layout plan was finally approved by the competent authority on 4.6.2009 and finally the exemption notification was issued to the OPs as late as on 18.9.2009 whereas the OPs in their own wisdom, got the complainant registered for the allotment of the plot on 15.9.2008 and also accepted Rs.12.00 lacs as Initial Booking Advance on 20.9.2008, which means the OPs made all kinds of frivolous commitments including acceptance of registration amount on the date of registration and also promised to deliver the allotment letter for the plot within 12 months from the date of registration, which is at least one year in advance, whereas as per the Govt. of Punjab requirements, the OPs wee not allowed to either issue any advertisement or to make any promises or to accept any amounts or booking of plot or to start any type of development work at the plot site unless and until all essential formalities are fulfilled and all prior clearances are taken from the respective government departments. This specific procedure has certainly not been followed by the OPs and all what they did was solely in anticipation of obtaining all clearances at later dates. The allegations of the complainant have not been effectively rebutted by the OPs at all. The only thing the OPs has been stressing upon is on the technical and legal points of territorial and pecuniary jurisdiction of the District Forum as also saying that the complainant had booked a commercial plot solely for business activities and hence she was not a consumer. All these objections have been fully rebutted and successfully contested by the complainant. She has clearly proved and established that she is a consumer under Consumer Protection Act, 1986. All said and done, the OPs have no case at all on merit, whereas the complainant has been able to convincingly prove her case that the OPs illegally and wrongfully enticed her to make booking of commercial plot by accepting Rs.12.00 lacs and making a false promise of delivering the firm allotment within 12 months without getting even a single clearance from any authorities of the government at the time of booking and not even during the next one year or so. 15] In our considered view, the act of the OPs is a clear cut deficiency in service and indulgence in unfair trade practice on their part. Our view is further strengthened by the decision of Hon’ble National Commission, New Delhi in the case of Kamal Sood Vs. DLF Universal Ltd., First Appeal Nos.557 & 683 of 2003, decided on 20.4.2007, reported as III(2007) CPJ 7 (NC). The relevant extract of the headnote/judgment is quoted below:- i) “Consumer Protection Act, 1986 – Sections 2(1)(g), 2(1)(r) and 19 – Housing – Delivery of possession delayed – Unfair Trade Practice – Builder collecting money from prospective buyers without obtaining required permissions viz. zoning plan, layout plan, etc…” ii) “ORDER M.B. Shah, J. (President) 1. The main in questions which require consideration in the appeal are- (i). Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/consumer within the stipulated time, and, subsequently, on his failure, turnaround and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And, (ii). xxxxxxxxxx 2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings. 3. xxxxxxxxxxx” 16] Keeping in view the above detailed analysis of the entire case as also the authority of the Hon’ble National Commission, in our considered view there is definitely & surely not only deficiency of service on the part of the OPs but also that they have indulged in an unfair trade practice by making offers of booking of the plot without obtaining all essential and mandatory clearances from the concerned government authorities. The present complaint has a lot of merit, weight and substance and deserves acceptance. We therefore allow the complaint in favour of the complainant and against the OPs and pass the following order:- 17] The OPs shall jointly & severally make the following payments to the complainant:- i) The OPs shall refund the sum of Rs.12.00 lacs to the complainant along with interest at the rate of 10% per annum from the date of its deposit i.e. 20.9.2008 till the date of actual payment to her. ii) Rs.7000/- shall be paid towards cost of litigation to her. The aforesaid order be complied with by the OPs within a period of 30 days from the date of receipt of its certified copy, failing which the OPs shall refund the amount of Rs.12.00 lacs along with interest at the rate of 18% per annum from the date of the deposit of Initial Booking amount i.e. 20.9.2008 till the date of actual payment to her besides paying Rs.7000/- towards cost of litigation. 18] Certified copy of this order be communicated to the parties, free of charge. After compliance, the file be consigned to the record room. Announced 20.05.2011 (SH.LAKSHMAN SHARMA) PRESIDENT (ASHOK RAJ BHANDARI) MEMBER (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
