Order dictated by:

Sh.S.S. Panesar, President.

1.       The complainants have brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that Opposite Party No.2 being an absolute owner and in physical possession of the land measuring 7.37 acres i.e. 35671 square yards situated in the area of Tungpai Suburban, Near Suncity Amusement Park, Batala Road, Tehsil & District Amritsar on 19.8.2010 entered into a written development agreement with Opposite Party No.1 thereby having agreed to provide the said land to 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 attached. As per the 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 as referred to herein above. Besides other usual terms and conditions, it was further specifically agreed upon between Opposite Parties No.1 and 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 be granted in view of  force majeure causes and circumstances beyond the control of 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 and 2 after fulfillment of all requisite 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  a No Objection Certificate (NOC) 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, the 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 days 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 buyer for buying such flats through loan facilities on easy  monthly installments. Copy of brochure is attached. The complainants having influenced by the attractive offers and assurance of providing bank finance facilities, got booked a two bedroom flat bearing No. 102 in Tower No.2-A, consisting of super area of 1140 square feet on first floor in Golden Greens situated at Batala Road, Amritsar against a total sale consideration of Rs.24,02,800/- and out of the said total sale consideration a sum of Rs.2,16,600/- was paid on 17.8.2011 towards booking amount, through cheque No. 055167 drawn on State Bank of India, against  a duly receipt having been issued by Opposite Party No.1. Upon the payment of the aforesaid booking amount, allotment letter dated 11.9.2011 was issued by Opposite Party No.1, copy of said allotment letter is attached. On requisition, further part payment of Rs.2,36,000/- was paid on 10.10.2011 and another sum of Rs.2,26,000/- was paid on 16.12.2011 and further a sum of Rs.2,30,000/-  was paid on 18.6.2012 through cheques against receipts issued by Opposite Party No.1 and accordingly, a total payment of Rs.9,08,600/-  was paid to Opposite Party No.1 towards the sale consideration of  the aforesaid flat. The Opposite Parties  defaulted on all the promises based upon which they had taken the booking amount. The Opposite Parties No.1 and 2 could not complete the construction of tower No.2A although more than 30 months have elapsed.  The development/ construction of the major part of the project including Green Park and club never started. No internal or external development works started although Rs.68,400/- were charged from the complainants in the total sale consideration of the flat. The Opposite Parties No.1 and 2 never entered an agreement with any bank or financial institution through which their consumers could avail loan facilities as promised in the advertisements and at the time of booking. The Opposite Parties No.1 and 2 sold off the entire project to Opposite Party No.3 without intimating the consumers. Opposite Party No.3 stalled all the construction work indefinitely.  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 and the website of the project has also been withdrawn.  In this way, the Opposite Parties No.1 and 2 rendered negligent deficient and unfair services to the complainants with utmost carelessness. Vide instant complaint, the complainants have sought the following reliefs:-

a)       The act/ omission of Opposite Parties No.1 and 2 may kindly be adjudged to be illegal, unjust, malafide, negligent, deficient and unfair.

b)      Opposite Parties No.1 and 2 may kindly be directed to refund booking amount of Rs.9.08,600/- to the complainants.

c)       Opposite Parties No.1 and 2 may also be directed to pay interest at the rate of 18% per annum on the said Rs.9,08,600/- from the dates of payments received by Opposite Parties No.1 and 2 till full and final realization of said amount. 

d)      Further, Opposite Parties  their agents, privies, assignees, successors, officials, executors, or representatives from selling, alienating, mortgaging, transferring in any manner and / or  creating any charge or lien whatsoever of  any kind or nature over the immovable properties and/ or any portion forming part of Golden Greens Tower No.2-A, situated near Suncity Amusement Park in the area of Revenue Estate of Tung Suburban, Batala Road, Amritsar.

e)       A compensation to the tune of Rs.10 lacs may also be awarded to the complainants on account of mental pain, agony, inconvenience and harassment caused to him on account of the aforesaid acts/ omission on the part of Opposite Parties No.1 and 2.

f)       Costs of present proceedings may also be awarded to the complainants against Opposite Parties No.1 and 2.

Hence, this complaint.        

2.       Upon notice, Opposite Parties  served, but none appeared on their behalf, so Opposite Parties  were proceeded against exparte vide order dated 17.9.2015 of this Forum. But however, at the stage of evidence, Sh.S.M.Vermani, Advocate appeared by filing power of attorney on behalf of opposite party Nos. 1 to 3, who was allowed to join the proceedings at that stage,

3.       In their bid  to prove the case, complainants tendered into evidence affidavit of Sachin Malhotra Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1 to Ex.C9 and closed their evidence.

4.       On the other hand, to rebut the evidence of the complainants, the Opposite Parties  tendered into evidence the affidavit of Sh.Jagmohan Singh, Ex.OP1,2,3/1 alongwith copies of documents Ex.OP1,2,3/2 to Ex.OP1,2,3/ 7 and closed the evidence on behalf of Opposite Parties.

5.       We have heard the ld.counsel for the parties and have also gone through the written synopsis of arguments submitted on behalf of both the parties and also carefully gone through the evidence on record.

6.       Ld.counsel for the complainant vehemently contended that it is an admitted fact that the complainants entered into Written Development Agreement  dated 17.8.2011 with Opposite Parties No.1 and 2 on payment of Rs.2,16,600/- towards booking amount, through cheque No. 055167 drawn on State Bank of India, and copy of the receipt is Ex.C4 on record.  Thereafter, the  complainants also made part payment of Rs.2,36,000/- on 10.10.2011,  another sum of Rs.2,26,000/- was paid on 16.12.2011  and further a sum of Rs.2,30,000/-  was paid on 18.6.2012 through different cheques against receipts issued by Opposite Party No.1 and accordingly, a total payment of Rs.9,08,600/-  was paid to Opposite Party No.1 for allotment of flat No. 102 in Tower No.2-A in Golden Greens situated at Batala Road, Amritsar. Copies of the receipts are Ex.C6, Ex.C7 and Ex.C8 on record. The Opposite Parties  defaulted on all the promises based upon which they had taken the booking amount from the complainants, which are as under:-

a)       Opposite Parties No.1 and 2 could not complete the construction of tower No.2-A although more than 30 months have elapsed.

b)      The development/ construction of the major part of the project i.e. 3BHK and one BHK flats, Green park and club never even started.

c)       No internal or external development works started although Rs.68,400/- were included in the total costs of the flat.

d)      Opposite Parties No.1 and 2 never entered an agreement which any bank or financial institution through which the complainants could avail the loan facility as was promised before booking.

e)       Opposite Parties No.1 and 2 sold off the entire project to Opposite Party No.3 without intimating the consumers and Opposite Party No.3 stalled all the construction work indefinitely. Even 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. The website of the project is also withdrawn.

7.       In order to prove the version stated in the complaint, the complainants tendered into evidence duly sworn affidavit of complainant No.1 as Ex.CW1/A alongwith documents i.e. copy of Written Development Agreement between Opposite Parties No.1 and 2 Ex.C1, brochure Ex.C2, costs structure chart Ex.C3, booking amount receipt of Rs.2,16,600/- as Ex.C4, allotment letter Ex.C5, additional subsequent payment receipts Ex.C6 to Ex.C8, copy of e-mail sent on 7.2.2012 Ex.C9. All the Opposite Parties  were proceeded against exparte, but one Jagmohan Singh son of Baldev Singh alleging himself to be the Director of Opposite Party No.3 filed his affidavit for the purpose of evidence, which affidavit is against the spirit of law and legal dictums. Once the party has been proceeded against exparte, in the eyes of law, such party cannot legally be allowed to adduce any evidence to the prejudice of the other party. Even no documentary evidence in support of alleged version has been put forth by said Jagmohan Singh. Without prejudice to the rights of the complainants on merits, in para No.1 of the said affidavit, it is stated that Opposite Party No.3 is now developing the project, but nothing has been done so far. The work has not been started on the spot. Even no status has been revealed by the alleged director of Opposite Party No.3. The promoters used to accept any amount as booking amount because their intentions were to collect  money only on the pretext of offering a product which will never come into existence. In second para of the affidavit receipt of Rs.2,16,600/- towards the ‘booking amount’ from the complainants is an admitted fact.  No intimations/reminders were issued for seeking the balance amount. No demand notice was ever issued to the complainants. No letter was written to remind the complainants for balance amount, since the project has not even started. No letter was written to inform the complainants that they are not entitled for the allotment of flat for want of further payments. Flat against  which the money was received was shown against the complainants name even after 3 years of receiving money as  shown in Ex.C9. Opposite Parties No.1 and 2 cannot take advantage of their own wrongs. Opposite Parties  cannot arbitrarily jeopardize the legitimate claim of the complainants, without any prior written notice or intimation. If the complainants defaulted on their part then why, out of other allottees, not a single allottee has been given possession so far. Even Opposite Party No.3 has failed to start construction of most of the towers for which money has been received from the customers. Their real motive in purchasing the project was the high value of  land only. As such, it is contended that Opposite Parties No.1 and 2 are deficient in services, negligence and carelessness due to which the complainants have suffered a great pain, agony, inconvenience and harassment for which they are entitled  to the interest @ 18% per annum from the date of payment of booking amount, compensation of Rs.10 lacs against Opposite Parties No.1 and 2 besides the costs of the present proceedings.

8.       But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainants have defaulted in making the payment of the sale consideration which was estimated to the tune of Rs.24,02,800/-. The complainants have made only the following payment(s):-

Thereafter, the complainants have not made any  further payment  of the installments as agreed to vide Written Development Agreement Ex.C1. Since the complainants themselves are defaulters, they can not approach the court for  redressal of  grievance as governed by the contract agreement entered into between the parties. As per clause 7 of the contract agreement, earnest money amount was to be forfeited in case of breach of terms and conditions of the allotment and the balance amount paid, if any, will be refunded to the intending allottee(s), without any interest, the relevant clause  7 is reproduced as under:-

“The earnest money shall be liable to be forfeited in the event of withdrawal of allotment by the intending allottee(s) and/ or cancellation of allotment on account of default/ breach of terms and conditions of allotment/  transfer stipulated including non –payment of basic sale price/ other charges herein provided or as set out in the Apartment Buyer’s Agreement. In the eventuality of withdrawal/ cancellation, the earnest money deposited wills stand forfeited and the balance amount paid, if any, will be refunded to the intending  allottee(s), without any interest and such refund shall be made only once the apartment is re-allotted/ sold to any other person(s) and out of the consideration received therefrom.”

9.       The case of the complainants that no notice regarding non payment of further installments has been given to the complainants stand falsified from the documents i.e.  copy of letter dated 2.1.2013 Ex.OP1,2,3/3, copy of letter dated 16.12.2012 Ex.OP1,2,3/5, copy  of letter dated 11.9.2011 Ex.OP1,2,3/6, which go to show that many reminders were issued  by Opposite Parties No.1 and 2 to the complainants to make the remaining payment, but  to no affect. Since the complainants  alongwith other prospective buyers committed default in payment of installments as such, tower in dispute could not be constructed. Hence the complainants themselves are responsible for non construction of the tower in dispute. Therefore, their relief claimed vide instant complaint , for the refund of the entire amount with costs & compensation is not available to them and they are not entitled to the refund of Rs.2,16,600/- which is the earnest money,  because that amount stands already forfeited. However, the remaining amount of Rs.7,02,000/- (i.e.Rs.2,36,000/- paid on 10.10.2011, Rs.2,36,000/- paid on 11.12.2011 and Rs.2,30,000/- paid on 18.6.2012) shall be refunded  by Opposite Parties No.1 and 2 without any interest to the complainants once the apartment is reallocated/sold to any other person(s) and out of the consideration received therefrom.  The complaint stands disposed of accordingly.  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: 14.09.2016.