Chandigarh

DF-II

CC/655/2020

Tejinder Kaur - Complainant(s)

Versus

Parkwood Developers Pvt. Ltd. - Opp.Party(s)

In Person

03 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	655 of 2020
Date  of  Institution	:	01.12.2020
Date   of   Decision	:	03.12.2024

 

 

 

 

Tejinder Kaur wife of Sh.Nitin Saini, aged 46 years, Flat No.703, Tower No.J1, The Views, Emaar, Sector 105, Mohali, Punjab-140306.

             … … … Complainant

 

Versus

 

1.  Parkwood Developers Private Limited, 1001, 10^th Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi-110019.

    2^nd address: Parkwood Developers Private Limited, Parkwood Glade, Sante Majra, Kharar Landran Road, SAS Nagar, Mohali, Punjab.

2.  Sh.Harpreet Singh, Director of Parkwood Developers Private Limited, 1001, 10^th Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi- 110019.

3.  Sh.Dakshdeep Singh, Director of Parkwood Developers Private Limited, Parkwood Glade, Sante Majra, Kharar Landran Road, SAS Nagar, Mohali, Punjab.

   … … … Opposite Parties No.1 to 3

4.  HDFC Bank, 1^st Floor, Bank House, Plot No.28, Industrial Area, Phase 1, Chandigarh through its Authorized Signatory.

   … … … Proforma Opposite Party

 

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.BRIJ MOHAN SHARMA,     MEMBER

                               

Argued by:    Sh.Parminder Singh, Counsel for Complainant.

None for OP No.1 to 3.

Sh.Bhawandeep Jindal, Adv. Proxy for Sh.H.S.Kathpal, Counsel for OP No.4 (through VC).

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

1]       Brief facts, as averred in the complaint, are to the effect that the complainant was in dire need of the residential house. OP No.1 to 3 floated one housing project called “Parkwood Glade” located at Kharar Landran Road, SAS Nagar, Mohali, Punjab. It was promised that the project will be equipped with lavish amenities such as clubs, green parks, modern lightings, swimming pools etc. Allured by the advertisement and brochure, the complainant booked a flat with the OP No.1 to 3 on 28.04.2012 and deposited the booking amount of Rs.6,13,301/-. The complainant was allotted Unit No.D603, 3 Bedrooms + 3 Bathrooms measuring 1725 sq.ft. @ Rs.2299/- per sq.ft. for basic sale price of Rs.39,65,775/- and after adding the car parking charges of Rs.1,50,000/- and club membership charges of Rs.60,000/-, the total price of the flat was fixed at Rs.41,75,775/- vide allotment letter dated 02.05.2012. Thereafter Flat Buyer’s Agreement dated 05.05.2012 was entered into between the parties in respect of the unit/flat in question and as per clause 19(a) thereof the possession of the unit/flat was proposed to be delivered by the OP No.1 to 3 by 31.10.2014 subject to force majeure circumstances; failing which they were liable to pay compensation for the period of delay in delivery of possession at the rate of Rs.5/- per sq. ft. per month, as per Clause 20(b) of the said Agreement. The complainant availed home loan from OP No.4 to the tune of Rs.17 lakh. The complainant deposited substantial amount of Rs.41,09,379/-, more than 98% of the total sale consideration of Rs.41,75,775/-.

 

    It is further averred that the complainant running from pillar to post and requested the OP No.1 to 3 a number of times to deliver the possession of the unit/flat allotted to him, which was to be delivered by 31.10.2014 as per the terms and conditions of the Flat Buyer’s Agreement but they failed to deliver the possession of the unit/flat, complete in all respects, to the complainant, in-spite of receipt of more than 98% of the total sale consideration. The complainant visited the project site but shocked to see that the construction work has been put to halt. There were no signs of development activities and basic amenities such as sewerage, water, electricity etc. were found missing at the site.   Alleging the aforesaid act of OP No.1 to 3 deficiency in service and unfair trade practice on their part, the present complaint has been filed by complainant with a prayer to refund the amount of Rs.41,09,379/- along with interest @ 18% p.a. from the respective dates of deposits, compensation for mental agony & harassment and cost of litigation. 

 

2]       Upon notice, the OP No.1 to 3 appeared and filed joint written version raising preliminary objections of territorial jurisdiction, non-joinder/mis-joinder of parties, concealment of facts, limitation. It is stated that the project of the OP company has been duly registered under the provisions of Real Estate Regulatory Authority (RERA) on 10.10.2017, only after satisfying that all the clearances had been obtained by them from the competent authorities i.e. Environment Deptt., Pollution Control Board etc. The project is also duly approved by the Municipal Council, Kharar on 11.12.2006 to develop multi-storied Group Housing residential complex on the land situated in Pocket-C, Sante Majra, Kharar-Landran Road, Mohali. The Chief Town Planner, Local Government Punjab, Chandigarh, vide CTP(LG)-SDE-2006/1839 dated 11.12.2006 gave approval of revised site plans, which were further communicated by Municipal Council, Kharar to OP No.1, vide letter No.6369 dated 20.12.2006. M/s Parkwood Developers Private Limited has been duly registered as a Promoter, vide Registration Certificate No.2006/103. OP Company got all the relevant sanctions pertaining to the project from Central Ground Water Authorities, Punjab Pollution Control Board, State Level Environment Impact Assessment Authority, Punjab, Ministry of Environment & Forests, Government of India, which were extended from time to time. The ‘Completion Certificate’ is issued by the competent authority to the projects, which have got all the requisite approvals from different authorities as per provisions of the Act and Rules applicable in this regard. In multi towers projects, Partial Completion Certificates are issued from time to time as per completion of respective Towers.

 

    It is stated that the delay in delivery of possession is due to force majeure circumstances, beyond the control of the OP No.1 to 3, as there was ban imposed on building material i.e. sand and granule in the State of Punjab for a considerable period, as a result of which all the building activities in the State of Punjab as well as other parts of the country came to stand still. However, it is not a case where OP Company has raised no construction. In fact, the OP Company delivered possession of the flats in 4 Towers in the year 2012 and construction of remaining Towers was delayed due to ban on mines, which was beyond the control of the OP Company. Further, due to demonetization in November, 2016, there was shortfall of liquid money in the market and thereafter, GST was imposed by Government of India, due to which all the development activities of the project had to suffer a great setback. The project was approved for 12 Towers by Municipal Council, Kharar, vide Sanction Letter dated 21.03.2007. The OP Company has already completed 4 Towers i.e. Tower-L, M, N & P in the year 2012, comprising of 96 flats and possession has also been delivered to the allottees. The allottees have already occupied their units and about 70-75 families are residing therein. Possession in 3 Towers i.e. H, K & J has already been offered to the allottees in 2017. Tower-D was also near completion and the possession of the flat was offered to the complainant and the compensation as per the terms and conditions of the Agreement was also being paid, however, the complainant refused to take possession of the flat and filed the present complaint. Claim for interest at the rate of 18% is also not admissible as compared to FDR rates given by public sector banks. No case for refund has been made out. On merits, the allotment of the flat in question in the manner stated in the complaint has been admitted. Para No.13 of the complaint in which details of various payments have been given has also been admitted being a matter of record. Similar pleas, as raised in preliminary objections, were raised. Denying any deficiency in service or adoption of unfair trade practice on their part, a prayer for dismissal of the complaint was made.    

3]       OP No.4 filed its separate written version raising preliminary objections that the complainant has availed the loan facility for the purchase of the property in question and she is liable to pay the requisite loan amount along with the interest to OP No.4. No relief has been claimed against the OP No.4 and there is no privity of contract between the complainant and OP No.4. On merits, the contents of most of the paragraphs of the complaint have been denied for want of knowledge. A prayer for dismissal of the complaint has been made.

4]       Replication has also been filed by the complainant controverting the assertions of OP No.1 to 3 as made in their written version.

 

         Complainant chose not to file replication to the written version of OP No.4.

 

5]       Parties led evidence in support of their contention.

6]       We have heard the learned counsels for the complainant & OP No.4 and have gone through entire documents on record.

7]       The complainant was allotted unit No.D603 (3 bedroom + 3 bathroom), measuring 1725 sq. ft., vide allotment letter dated 02.05.2012, Annexure C-2. Basic Sale price of the unit was fixed as Rs.2299/- per sq.ft. plus additional charges i.e. Club Membership of Rs.60,000/- and Covered Car Parking of Rs.1,50,000/-. Flat Buyer’s Agreement, Annexure C-4, was also executed between the parties on 05.05.2012 regarding allotment of said unit/flat. Basic price of the said unit/flat is mentioned therein as Rs.39,65,775/-. As per Clause 19(a) of the agreement, the possession of the said unit/flat was proposed to be delivered by the developer to the purchaser by 31.10.2014, subject to receipt of all payments, as per terms of the agreement. As per Clause 20(b) of the agreement, in the event of delay in delivery of possession beyond above said stipulated period, the Developer was liable to pay compensation to the complainant @ Rs.5/- per sq.ft. per month, after passing of 90 days grace period from the above stipulated period. Admittedly, the possession of the said unit/flat has not been delivered to the complainant within the stipulated period. The OP No.1 to 3 kept on raising demand of installments; which have been duly paid by the complainant and she deposited a total sum of Rs.41,09,379/-, as is evident from receipts Annexure C-13(colly). However, possession of that unit/flat was not delivered by the OP No.1 to 3 within the above said period. It has been admitted by the OP No.1 to 3 in their written version that construction of Tower, in which the unit/flat of the complainant is situated, has not yet been completed and the same is at finishing stage. No doubt, the OP No.1 to 3 have produced on record documents pertaining to delivery of possession to many other allottees, but the same pertain to other Towers and not to Tower, in which the unit/flat, in question, is situated. No document has been produced by them on record to prove that Tower, in which the unit/flat, in question, is situated, has been completed, so as to deliver possession of the unit/flat, in question, to the complainant. The OP No.1 to 3 also failed to produce any evidence to prove that the alleged force majeure circumstances actually delayed the completion of the project. The plea of OP No.1 to 3 that the project of the OP Company has been got registered under the RERA is also of no help to them, specifically when they failed to complete the developments in the project and to deliver possession of the unit/flat to the complainant within the stipulated period.

8]       The complainant made payment of substantial amount to the OP No.1 to 3 with the hope to get the possession of the unit/flat in a reasonable period. The circumstances clearly show that the OP No.1 to 3 made false statement of facts of delivery of possession in a stipulated period. The act and conduct of the OP No.1 to 3 is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the unit/flat booked. OP No.1 to 3 have not only failed to deliver the possession of the unit/flat in question to the complainant despite receipt of the substantial amount but also failed to refund the deposited amount to the complainant despite her request which itself amounts to deficiency in service as also unfair trade practice on the part of OP No.1 to 3.

9]       It is settled law by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007, wherein it has been observed:

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers” 

 

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed:-

“The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5.        In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

“Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered”

 

10]      Under above mentioned facts, the deficiency in service as well as unfair trade practice resorted to by OP No.1 to 3, is clearly established, which not only caused huge financial loss to the complainant but also caused her immense harassment & mental agony.

 

11]      Resultantly, the present consumer complaint is partly allowed. The OP No.1 to 3 are directed to refund the deposited amount of Rs.41,09,379/- to the complainant alongwith interest @ 10% per annum from the respective dates of deposits till the date of its actual realization alongwith lump sum compensation of Rs.30,000/- on account of mental agony & harassment including litigation expenses to the complainant within 45 days from the date of receipt of certified copy of this order.

 

12]     The complaint qua OP No.4 stands dismissed.

13]      The pending application(s) if any, stands disposed of accordingly.

 

        The Office is directed to send certified copy of this order to the parties, free of cost, as per Rules under The Consumer Protection Rules, 2020. After compliance file be consigned to record room.

Announced

03.12.2024                                                               

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (BRIJ MOHAN SHARMA)

MEMBER

as