Chandigarh

DF-II

CC/626/2020

Ravinder Patial - Complainant(s)

Versus

Primary Estates & Developers Pvt. Ltd. - Opp.Party(s)

Savinder Singh Gill

14 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	626/2020
Date of Institution	:	17.11.2020
Date of Decision	:	14.05.2024

 

                                 

                    

 

 

Ravinder Patial s/o Sh.Kartar Singh Patial r/o Village Chokhana, P.O.Danger, Tehsil Ghumarwin, Distt. Bilaspur, HP-174023

        ...  Complainant.

Versus

1.     Primary Estates & Developers Pvt. Ltd., having its Regd. Office at H.No.38, Sector 10A, Chandigarh through its Directors Sh.Jashneet Singh, Sh.Vijay Singh, Sh.Gulshan Wadhawan, Sh.Samar Mohan Ranga and Sh.Ashish Sachdeva.

2.     M/s Bajwa Developers Ltd., Regd. Office at Sunny Enclave, Desu Majra, Tehsil-Kharar, District Mohali, Punjab through its Director Sh.Jarnail Singh Bajwa.

…. Opposite Parties.

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Savinder Singh Gill, Counsel for complainant Sh.D.S.Soundh, Counsel for OP No.1(through VC) along with Sh.Ishneet Bhatia, Advocate. None for OP No.2 (Defence already struck off).

       

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

1.        The complainant has filed the present complaint under Section 34 of the Consumer Protection Act, 2019, as amended up-to-date alleging therein that he booked an independent floor in the project being developed by the OPs under the name and style “Arcadia Country Homes” situated at Sector 123, SAS Nagar, Mohali on 26.05.2016. Vide allotment letter dated 25.08.2016 (Annexure C-1), the complainant was allotted Floor No.1280/GF in the said project for total price of Rs.30.30 lakhs. The complainant paid a sum of Rs.19,58,188/- to the OPs in different installments vide Annexures C-2 (Colly) by availing the loan from the Bank. The Independent Floor Buyer’s Agreement was executed between the complainant and OP No.1 on 25.08.2016 (Annexure C-3),  and as per Clause 10(a) of the said agreement, the possession was to be given within 18 months from the signing the agreement or from the date of commencement of the construction of the said flat i.e. 24.02.2018.  The complainant also availed loan of Rs.27.00 from HDFC Bank.  The possession of the unit has not been offered till date because the OPs did not have the requisite occupation and completion certificate from the competent authorities.   It has further been sated that OP No.1 was not the original promoter of the project and they purchased the land under the project from OP No.2. As per the District Town Planner, GMADA, Mohali, OP No.2 was declared a defaulter and no completion certificate was issued in respect of the project in question till date.  The project site lacks the basic amenities what to talk of the promises by OP No.1. Moreover, OP No.1 was registered as a promoter by GMADA on 13.02.2014, which was valid upto 30.11.2018. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint seeking directions to the OPs to refund Rs.19,58,188/- along with interest, compensation for mental agony and harassment and litigation expenses.
2.         In its written statement, OP No.1 took preliminary objections inter alia that the complainant is not consumer as defined under the Consumer Protection Act, 2019; that this Commission has got no territorial jurisdiction and the complaint is based on mis-representations, wrong facts and concealment of true facts. It has further been stated that the basic sale price of the unit was Rs.30.30 lakhs excluding service, EDC and other misc. charges and the complainant is a habitual defaulter in making the payments. It has further been stated that the project is completed  with all amenities and about 15 families are already residing and it is the complainant who did not adhere to the terms and conditions of the agreement and defaulted in making payments as per the stipulated payment schedule.  The unit No.128 GF was allotted to the complainant on 25.08.2016 and thereafter he approached the OPs for allotment of the corner flat and he kept adamant not to release the payment till the corner flat is not allotted to him.  Thereafter, the OP No.1 tried to contact the complainant to come and deposit the remaining amount so that the flat could not be handed over to him but he did not turn up and filed the instant complaint.  In the last, it has been stated that the project is complete and ready for possession and the complainant may take the possession of the same after paying the remaining payment and get the registry in his favour. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, OP No.1 prayed for dismissal of the complaint.
3.        The complainant filed replication to the written reply of OP No.1 and controverted their stand and reiterating his own.
4.         Defence of OP No.2 was struck off vide order dated 22.07.2022.
5.         The parties led evidence by way of affidavit and documents.
6.         We have heard the learned Counsel for the contesting parties and gone through the record, including written submissions.  
7.         From the documentary evidence on record and submissions of the parties, it is observed that the complainant has deposited a sum of Rs.19,58,188/- out of the basic sale price of Rs.30.30 lakhs excluding service tax and EDC. As per Clause 10(a) of the agreement in question, the possession of the flat/apartment was agreed to be delivered within 18 months from the date of the buyer’s agreement i.e. on or before 24.02.2018. The complainant got the loan sanctioned to the tune of Rs.27.00 lakhs from the HDFC and tripartite agreement was also executed between the bank and the parties. However, the OPs have failed to deliver the possession of the aforesaid unit to the complainant within stipulated period of the agreement.
8.         It is further observed that the act of collecting the huge amount from the complainant towards the flat in question without any approvals/sanctions/permissions and occupancy certificate from the concerned authority not only amounts to deficiency in service but also unfair trade practice on the part of the OPs.  

                Reliance here is placed upon the judgment of the Hon’ble National Commission, New Delhi passed 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 as under:-

    “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. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

                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 handling 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.”

          Hence, the act of the Opposite Parties to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the unit in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

9. 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 that 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.
10. Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to deliver the possession of the flat complete in all respects have no right to retain the hard earned money of the complainant. The OPs are, thus, proved deficient in rendering the services to the complainant.
11.         For the reasons recorded above, the present complaint is partly allowed qua the OPs. The OPs are directed to refund Rs.19,58,188/- towards the unit in question to the complainant along with interest @ 10% p.a. from the respective dates of its deposit till the date of its actual realization. 
12. This order be complied with by the OPs, within 90 days from the date of receipt of its certified copy, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this Commission.
13.         The pending application(s) if any, stands disposed of accordingly.
14.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced in open Commission 14.05.2024
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER