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RESERVED

State Consumer Dispute Redressal Commission, Uttar Pradesh

Appeal  No.2341  of 2011

M/s Super Tech Ltd.                                                            …….Appellant

                                                                        Versus

Nitin Rastogi                                                                 ……Respondent.

Present:-

1. Hon’ble  Shri Raj Kamal Gupta, Presiding Member.
2. Hon’ble Shri Mahesh Chand, Member.

Sri Vikas Srivastav Bakshi, Advocate for the Appellant.

Sri Vikas Agarwal, Advocate for the  Respondent.

Date:     30-5-2017

Judgment

        Sri Mahesh Chand,Member This is an Appeal  Under Section 15 of  Consumer Protection Act 1986 filed by M/s Super Tech Ltd., B-28-29, Sector-58,Noida against the order & Judgement dated 27.5.2011, passed by the learned District Consumer Forum, Meerut in Complaint case No 286 of 2008 Nitin Rastogi S/o Sri Rajendra Kumar Rastogi, R/o 154, Khari Quan, Subhash Bazar,  Meerut Vs M/S Supertech Limited, through its Managing Director H.O. 331, Sector-4, Vaishali, Ghaziabad.  The impugned order is as follows:

‘’ परिवादी का परिवाद विरूद्ध विपक्षी स्‍वीकार किया जाता है। विपक्षी के निर्देशित किया जाता है कि वह परिवादी को उपर वर्णित आवासीय योजना में फ्लैट सं0-७१५ अथवा उसी श्रेणी का अन्‍य फ्लैट परिवादी की इच्‍छानुसार, पूर्व कीमत अंकन रू0 १५१७०००/- में उसकी अग्रिम जमा धनराशि अंकन रू0 १५१७००/- जमा करने की तिथि से फ्लैट आवंटित करने की तिथि तक १२ प्रतिशत वार्षिक ब्‍याज सहित समायोजित कर शेष धनराशि बिना किसी दण्‍ड ब्‍याज एवं अन्‍य धनराशि वसूल किये बिना अनुबन्‍ध के अनुसार प्राप्‍त करके ४५ दिन के अन्‍दर आवंटित करे। इसके अतिरिक्‍त परिवादी विपक्षी से बतौर मानसिक क्षतिपूर्ति रू0 १५०००/- एवं परिवाद व्‍यय रू0 ५०००/- पाने का अधिकारी है। विपक्षी उक्‍त धनराशि भी परिवादी को ४५ दिन में अदा करे अन्‍यथा परिवादी विपक्षी के विरूद्ध उपभोक्‍ता संरक्षण अधिनियम १९८६ की धारा २५/२७ के तहत कार्यवाही करने के लिये स्‍वतंत्र होगा। ‘’

In brief the respondent/complainant’s case is that on dated 12.4.2006  hebooked a flat no 715 at 6^th floor in the housing project namely “Supertech Palm Green Residency” being developed by the Appellant in Meerut. Its cost was stated to be Rs 15,17,000/-. The respondent/complainant deposited a sum of Rs 151,700/- , being 10% amount of the cost of the booked flat. This amount was deposited with the Appellants on 19.4.2006 vide cheque no 497251 dated 20.4.2006 drawn on HDFC Bank, Mangal Pandey Nagar Branch, University Road, Meerut. Receipt no 167 dated 19.4.2006 was issued by the Appellant.  The rest 90% amount was to be deposited in instalments at the time when  the Appellant furnishes to the allottee  or his banker,  the approval/sanctions of the Meerut Development Authority regarding the proposed/allotted flat. The respondent/complainant applied for getting loan from HDFC Bank as mentioned herein above for making payment of the balance amount to Appellant.The bank asked for furnishing the approval/sanction of the Development Authority regarding the construction of the allotted flat. The respondent/complainant contacted the concerned officers of the Appellant to provide the same as required by the bank. The concerned officers of the Appellant told that they have required approval of construction of the aforesaid project only up to 5^th floor. As soon as they get the approval of construction of the aforesaid project above  5^th floor, they will provide the required information to the allottee and his bank. But the allottee could not get the same despite his contacting the Appellant  time and again. On dated 3.11.2007, the officers of the Appellant proposed to allot another flat no 414 in   tower-1 of the aforesaid project for which the respondent-complainant gave his consent. But later on respondent-complainant was informed by the officers of the appellant that the said flat no 414 has been sold to some other person. The respondent-complainant was asked to give consent to allot some other available flat. The complainant sent his consent by email for allotment of flat no 212. But instead of allotting the flat no 212, the appellant issued a letter dated 19.2.2008, with the intention to forfeit the deposited amount of the complainant. The reply to the said letter was sent to the appellant through advocate Mr. Atul Kumar Agarwal on dated 7.3.2008. Despite all this the Appellant cancelled the allotment of the flat to the respondent–complainant vide letter dated 17.4.2008. The respondent–complainant contacted the Appellant time and again making prayer for providing all relevant papers and possession of the flat. The bank sanctioned the loan for the said flat but did not release it for want of the required approval of the concerned authorities regarding construction of the said flat. When the Appellant refused to deliver the possession of the said flat, the cause of action arose for filing the complaint against the builder hence filed the complaint before the District Consumer Forum, Meerut.

The appellant contested the complaint case before the District Forum. In their reply, they denied all allegations of the complaint and alleged that the complaint has been filed with ulterior motives and has cooked a false story. It was alleged in the reply that an ample opportunity was provided to the complainant to choose either originally allotted flat no 715or any other available flat but the complainant delayed and lingered on the matter withoutgiving any positive response. It was accepted by the appellant-opposite party in their reply that the concerned authorities initially denied the construction on 6^th floor and above. Thatis why the appellant offered to choose another flat in alternative. But meanwhile theauthorities allowed the extension of the 6^th floor and accordingly, the appellant-oppositeparty offered the complainant the original allotted flat. But the respondent-complainant didnot convey his acceptance and delayed the matter on false pretexts. The complainantdid not give any positive response in time. It has been  accepted by the appellant-opposite party in their replythat the concerned authorities initially denied the construction on 6th floor and above. Thatis why the appellant offered to choose another flat in alternative. But meanwhile theauthorities allowed the extension of the 6th floor and accordingly, the appellant-oppositeparty offered the complainant the original allotted flat. But the respondent-complainant did not convey his acceptance and delayed the matter on false pretexts. Since the complainant-opposite did not pay the balance amount, the aforesaid allotted flat was cancelled and thebooking amount was forfeited as per terms and conditions of the allotment. The appellant-opposite party denied all other averments of the complaint. After hearing the and perusingthe evidences of both the parties the complaint was allowed and above mentioned orderwas passed. Being aggrieved with the impugned order this appeal has been filed.

In the grounds of appeal it has been stated that the learned district forum has erred in ignoring the fact that the respondent-complainant himself asked for cancellation of his booking. The appellant admitted that  for amicable settlement of the issues the appellant offered to choose another flat in alternative but the respondent did not promptly respond to the offer, but the learned district forum ignore this fact also. Meanwhile the

authorities allowed the extension of the 6th floor and accordingly, the appellant-opposite

party offered the complainant the original allotted flat. But the respondent-complainant did not convey his acceptance and delayed the matter on false pretexts. It has also been stated in the grounds that despite offering the alternative flats to the respondent, he did not deposit the required cost of the flat. He delayed and lingered on in taking decision in giving consent for allotment of the alternative flat . He gave his consent for allotment of the flat on the lower floor 18 months after the date of offer and by that time the alternative flat too was sold to the other person . Meanwhile the Meerut Development Authority allowed to make constructions on the 6^th floor. The respondent was again offered to give consent for the originally allotted flat but he as usual again delayed in consenting the proposal. The respondent,  ultimately requested to cancel the booking on dated 17.4.2008. He further argued that  there is no flat available for allotment to the respondent in the same category. But the learned counsel agreed to refund the deposited amount. Learned counsel for appellant vehemently argued to set aside the impugned order and allow the appeal.

                The learned counsel for the respondent argued that the respondent-complainant never requested the appellant for cancellation of the allotted flat no.715. Rather he requested for swapping of the flat no 715 with flat no 212. His main contention is that the appellant allottee the flat no 715 for which he was  not granted permission for its construction by the concerned authorities like Meerut Development Authorities. The respondent was sanctioned the bank loan for the allotted flat but it could not be disbursed because the bank demanded the sanctioned/approved plan of development authority. He vehemently argued that the respondent approached the appellant to provide the required approvals of the concerned authorities so that they can furnish the same to the bank and get released the loan amount and deposit it with the appellant. Since the appellant did  not provide the required approvals of the Authorities regarding construction of the allotted flat no.715, the bank did not release the bank and the same could not be deposited with the appellant. The appellant did not swap the allotted flat with other flat of the same category like flat no 414 or flat no 212 though they initially agreed to it. All this act of the appellant is deficiency in service and illegal trade practice. Learned counsel for the respondent vociferously,  argued that it amounts to cheating the customers and for which the appellant deserves to be penalized for causing mental agony to the respondent. The learned counsel for respondent submitted for dismissing the appeal with heavy penalty.

                After hearing the arguments of the learned counsels of both the parties and perusing the documents on file we find that it is admitted that the flat no 715 which was allotted to the respondent-complainant was not approved by the concerned development authority at the time of allotment. In our view the booking for sale of a property (residential flat) to the customers for which the required mandatory approvals/sanctions have not been obtained from the concerned authorities certainly falls under the illegal trade practice. The allottee deposited the booking amount with the appellant in advance. He approached the appellants time and again but he could not get the required documents like approvals of authorities regarding construction of the flat in question. His all efforts for getting loan sanctioned went in vain. This definitely caused mental agony to the respondent. The appellant made offers to swap the allotted flat with other ones like flat no 414 or 212 but due to taking delayed decision on the part of respondent the same could not materialize. It is also true that the fund arrangement is the sole responsibility of the purchaser allottee. Its burden can’t be shifted to the appellant. But again we are of the opinion that the appellant was ab initio at fault in allotting the flat which was not approved by the authorities and  bookingof such unapproved flat in favour of the respondent, amounts to trapping the simple customers into their net and later on make them running from pillar to post for getting the possession of allotted property or refund of their hard earned money. The instant case is also of the same nature. We are of the view that the appellant made deficiency in service and their act falls under the category of illegal trade practice. The appellant have stated that it is not possible to implement the impugned order so far as the possession  of the flat no 715 is concerned as it has been sold to the other person and the other vacant flats of the same category are also not available, but they have agreed to refund the deposited amount. In these circumstances it would be appropriate that the appellant refund the whole deposited amount with interest@ 18% to the respondent and certain amount of penalty too for causing mental agony to the respondent. The impugned order deserves to be modified accordingly.

Order

       The appeal is partially allowed. The impugned order is modified. The appellant is directed to refund the whole deposited amount to the respondent with interest @18% per annum from the date of deposit to the date of actual payment with in a period of one month from the date of this order. Rest part of the impugned order regarding the  compensation for the amount of Rs 15000/- and legal expenses of Rs5000/- will remain the same. Parties will bear the cost of appeal themselves. Let the copies of this order be made available to the parties as per rules.

(Raj Kamal Gupta)                                                                    (Mahesh Chand)

Presiding Member                                                                              Member

S.k. st. ct-4