BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 15 of 2015

Date of Institution: 02.01.2015

Date of Decision: 01.08.2016 

Jaskiran Kaur aged about 42 years wife of Sh.Narinderpal Singh, resident of 52-A, Rani Ka Bagh, Amritsar.

Complainant

Versus

1. M/s. Digvijay Real Estate Developer Private Limited, Suite No.4, GM 6 Plaza, Jasola District Centre, Jasola, New Delhi 110025 having corporate office at C-30, Sector 63, Noida through its Director Sh. Sanjiv Vohra (Promotor)
2. M/s. New World Buildcon Private Limited, 401, Vipps Centre, Masjid Morh, Greater Kailash II, New Delhi 110048 also having its local office at 56, Railway Link Road, Amritsar through its Director Sh.Amit Arora (Owner)
3. M/s. Golden Green Towers Private Limited, 39, Mall Road, Amritsar through its Director/MD/Manager/Incharge

Opposite Parties

Complaint under section 11 & 12  of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant     : Sh.Prashant Kumar, Advocate.

              For the Opposite Parties  No.1 to 3 : Sh.S.M.Vermani,Advocate

Coram:

Sh.S.S.Panessar President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member     

Order dictated by:

Sh.S.S.Panessar,President.

1. Jaskiran Kaur complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that  opposite party No.2 being an absolute owner  and in physical possession of land measuring 7.37 acres i.e. 35671 square yards situated in the area of Tungpai Suburban, Near Suncity Amusement Park, Batala Road, Tehsil and District  Amritsar on 19.8.2010 entered into a written development agreement with the opposite party No.1 thereby having agreed to provide the said land to the opposite party No.1 with an exclusive right to develop and sell the same at their cost and expenses on such terms and conditions as envisaged in the said development agreement. Copy of the said development agreement is enclosed. As per terms and conditions of the said development agreement, it was the obligation of opposite party No.1 to develop, promote, support infrastructure  like portable water, sewage, power, power backup, communication/ entertainment support lines/cables, passage or other support services and development of internal infrastructure , construction and marketing, selling of commercial/dwelling units/flats/apartments alongwith car parking space, utilities, common services etc. against a consideration of sharing of sale proceeds with opposite party No.2 as per their mutual arrangement . Besides other usual terms and conditions, it was further specifically agreed upon between opposite parties No.1 & 2  that the construction work of project shall be commenced within 30 days from the date of receipt of sanctioned building plans or handing over vacant peaceful and undisputed possession to opposite party No.1 whichever event is later and the construction shall be accomplished within 30 months therefrom. However a grace period of 6 further months  could not granted in view of force majeure causes and circumstances beyond the control of the opposite party No.1 such as strike, fire, civil war and any act of GOD. In furtherance of aforesaid development agreement, opposite parties No.1 & 2 after necessary documentations and formalities, applied for issuance of license in its name  for development and construction over the said piece of land. Accordingly, on 10.2.2011  opposite party No.1 succeeded in getting a license from Amritsar Development Authority whereby it was authorized to construct and develop 380 flats over and above the said piece of land under the name and style of  Golden Greens. It is also necessary to state here that on 14.10.2011, Municipal Town Planner, Municipal Corporation, Amritsar issued No Objection Certificate for water supply and sewerage connection. In the meantime, opposite party No.1 opened its site office on the spot of construction  and through advertisements, sign boards and other modes of publicity such as FM Radio, Cable TV and Newspapers, opposite party No.1 offered for sale of One Bedroom Set, Two Bedroom Set and Three Bedroom Sets and assured that the delivery of the flats shall be handed over to the intended buyer within a period of 30 months from the date of bookings. It was also promised that the entire project shall be associated with a reputed bank so that finance facilities could  also be provided to the intended buyers for buying such flats through loan facilities on easy monthly installments. Copy of brochure is enclosed. The complainant having influenced by the attractive offers and assurance of providing bank finance facilities, got booked a three bedroom flat bearing No. 101 in Tower No. 15-C by making payment of Rs. 1,00,000/- on 5.10.2011 against a receipt  having been issued by opposite party No.1. Opposite parties defaulted  on the promises based upon which they had taken the booking amount:

1. The opposite parties No.1 & 2 never started the construction of Tower No.15-C meant for 3 BHK flats although more than 30 months have elapsed.
2. The opposite parties never entered an agreement with any bank or financial institution through which the complainant can avail the loan facility as was promised before booking.
3. That opposite parties No.1 & 2 have not done any subsequent act in furtherance of booking, however when complainant repeatedly requested to opposite parties No.1 & 2, they assured the same would be done after the commencement of construction.
4. The opposite parties No.1 & 2 sold off the entire project to opposite party No.3 without prior written consent of complainant or other buyers.
5. The opposite party No.3 stalled the construction work of all other towers indefinitely.
6. The site office has also been closed by opposite party No.3 and no one is there at the site to give any information about the project.
7. The website of the project is also withdrawn.

The complainant has made payment of the booking amount to opposite party No.1 as consideration towards the purchase of flat No. 101 in Tower No. 15-C and accordingly the complainant is a consume r of opposite parties qua the said facility is well covered under the definition of “Consumer” as contained in the Consumer Protection Act, 1986. The  opposite parties No.1 & 2 rendered negligent, deficient and unfair services to the complainant with utmost carelessness. Opposite parties No.1 & 2 took undue advantage of their monopolistic character and have rendered unfair trade practice towards the complainant  qua the said services. The abovesaid acts/omission on the part of opposite parties No.1 & 2 amount  to deficiency in service, negligence and carelessness due to which complainant has suffered a great pain, agony, inconvenience  and harassment  for which she is entitled to the interest @ 18% p.a from the date of payment  of booking amount, compensation of Rs. 1,00,000/-  against opposite parties No.1 & 2 besides  the costs of the present proceedings. Hence, this complaint.

2. Opposite parties No.1 to 3 duly served but none put in appearance on behalf of opposite parties No.1 to 3, as such they were ordered to be proceeded against ex-parte. However, during the course of arguments  Sh.S.M.Vermani, Adv. put in appearance on behalf of the opposite parties.
3. In his bid  to prove the case, complainant tendered into evidence  duly sworn affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copy of development agreement Ex.C1, copy of brochure Ex.C2, copy of receipt dated 5.10.2011 Ex.C3, copy of e-mail Ex.C4 and closed his evidence.
4. We have heard the ld.counsel for both the parties and have carefully gone through the evidence as well as brief written synopsis of arguments on behalf of the parties.
5. Sole question to be determined in this case as to whether  the complainant Jaskiran Kaur is ‘consumer’ of Opposite Parties or not. In the case in hand, the complainant has just deposited the booking fee of Rs.1 lac with Opposite Parties  for allotment of 3 Bed Room Set  flat. But however, it is the admitted fact that no allotment order has been issued in favour of the complainant. The complainant has relied upon case titled as Karnail Kaur Vs. Punjab Urban Planning and Development Authority and another 2005(1) CLT 571 to emphasis that a person who had applied for allotment of house is covered under the definition of ‘consumer’. But however, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in its latest ruling in Revision Petition No. 3649 of 2014 decided on 29.1.2015  titled as Delhi Development Authority through its Director Vs. Shri Parveen Kumar and another has categorically held  that till the allotment of the flat, the respondent has not become the consumer. Similar view has been taken by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  in so many other cases i.e. Delhi Development Authority Vs. Krishan Lal, First Appeal No. 486 of 2006 decided on 27.9.2011.  Hon’ble National Commission has  relied upon the law laid down by Hon’ble Supreme Court of India in case Morgan Stanley Mutual Fund Vs. Kartick Dass 1994(4) SCC 225  wherein it has been held that it is after allotment, rights may arise as per the contract, but certainly not before allotment and at that stage, he is only a prospective investor as there is no purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. So, it is clear that no prospective investor could fall under the definition of Consumer Protection Act. Similar view has been taken by Hon’ble Supreme Court of India in case Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited & others 2013(6) Scale 571.
6. From the aforesaid discussion, it becomes apparent that at the most, the complainant Jaskiran Kaur can be treated to be a prospective buyer and she is not the allottee of 3 Bed Room Set because she has no allotment of flat in her favour. The complainant as such does not fall within the definition of ‘consumer’ under the Act (ibid). So, the present complaint filed by the complainant is not maintainable. Therefore, the complaint is ordered to be dismissed accordingly. However, the complainant is at liberty to approach the appropriate Court/ Forum for getting the redressal of her grievance in accordance with law. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 00-00-2016.                                (S.S.Panesar)                                                                                           President

                                           (Anoop Sharma)     (Kulwant Kaur Bajwa)   

              Member                         Member

hrg