BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.106 of 2015

                                 Date of institution:          10.03.2015

                                              Date of Decision:            15.07.2015

1.     Ajaib Singh Bawa @ Johal son of Late Gurbachan Singh Bawa and resident of House No.1171, Sector 110, TDI City, Mohali, old resident of H.No.189, Phase 11, Mohali, Punjab.

2.     Narinder Kaur wife of Ajaib Singh Bawa @ Johal, resident of House No.1171, Sector 110, TDI City, Mohali, old resident of H.No.189, Phase 11, Mohali, Punjab.

    ……..Complainants

                                        Versus

1.     RKM Housing  Limited, SCO No.1,2,3,4, Behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar, Mohali.

2.     Kanwaljit Singh Ahluwalia, Managing Director of RKM Housing  Limited, SCO No.1,2,3,4, Behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar, Mohali.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member

Mrs. R.K. Aulakh, Member.

Present:    Ms. Tajinder Kaur Johal, counsel for the complainants.

Ms. Nevadita, counsel for the OPs.

(AMRINDER SINGH, MEMBER)

ORDER

                The brief facts of the present complaint are that complainants booked a house/unit with the OPs in RKM City situated at Sector 112, Mohali by paying a sum of Rs.1.00 lac vide cheque No.646981 dated 27.08.2013 drawn on the HDFC Bank on believing the advertisement, brochure/prospectus promising World Class houses to be delivered to the buyers on the Eve of Diwali of 2014.  Further the complainants paid Rs.4,98,000/- vide cheque No.646982 dated 22.09.2013 drawn on the HDFC Bank. The OPs have allotted house/unit No.820 consisting 974 sq. ft. area at the price of Rs.29,90,000/- (EDC and service tax extra for the ground floor) which are to be constructed in future within  24 months from the date of agreement/payment. The complainants opted for payment in installment plan. Though OPs assured delivery of possession of house/unit on the Eve of Diwali 2014 yet the agreement clause lays down that possession will be provided within 24 months. The complainants were shocked, when they personally visited in January, 2015, to see that the OPs have not constructed even a single house/unit at site. Moreover, there was no boundary wall of the actual site. The complainants requested the OPs to start construction and complete the house/unit as per promise but the OPs neither started the construction nor gave any satisfactory reply to the complainants. Then in February, 2015 the complainants asked the OPs to refund their amount alongwith interest.  The OPs agreed to refund the amount through six months post dated cheque after deduction of 10% of the principle deposited amount.   The complainants alleged that the OPs have collected the amount by making false promise of physical possession of the house/unit to the complainant within 24 months from the date of payment but did not fulfill the promise which amounts to deficiency in service and unfair trade practice on the part of the OPs for which the complainants deserve to be compensated for their harassment and mental agony despite refund of principal deposit amount alongwith interest @ 18% per annum and they are also entitled to litigation expenses. Lastly the complainant prayed to this Forum for the following directions to the OPs:

(a)    to pay the complainants Principal Amount  of Rs.5,98,000/- alongwith interest  18% per annum  from the date 27.08.2013 till its realisation.

(b)    to pay them Rs.33,000/-  for costs  of litigation expenses.

(c)    to pay them compensation of Rs.50,000/- on account of mental tension, agony and physical harassment.

(d)    any other relief which this Forum may deem fit and proper in favour of the complainants.

2.             After the service of notice upon the OPs, the OPs appeared before this Forum and filed written reply taking preliminary objections that this complaint is not maintainable; the complainants have not approached this Forum with clean hands. Further on merits also, the OPs denied all the allegations made against them by the complainant and they sought dismissal of this complaint with costs on the ground of being pre mature complaint alongwith other directions.

3.             Evidence of the complainants consist of affidavit of complainant No.1 Ex.CW-1/1; copies of documents Ex.C-1 to C-10.

4.             Evidence of the OPs consists of affidavit of Kanwaljit Singh Ahluwalia, their MD Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-7.

5.             We have heard learned counsel for the parties and have also gone through the written arguments filed by them.

6.             The main issues involved in this complaint are following:

(i)     whether this complaint is pre mature or not?

(ii)  whether the OPs are entitled to receive the  payment from the complainant without having all the necessary approvals and sanctions from the various competent authorities or not?

7.             In the present complaint the OPs had to handover the possession of the house/unit within 24 months of the date of agreement. Further period of grace of 6 months more may be given to the OPs in case of some unavoidable circumstances.  The complainants have made first installment of payment on dated 27.08.2013 which is proved by Ex.C-8 and second installment of payment on 22.09.2013 which is proved by Ex.C-9. Hence the complainants are consumers as they sought services from the OPs for the construction of their house/unit.  Further the OPs have to deliver the possession of the house in August/September, 2015 to the complainant. The complainants alleged that the OPs have not completed even a single house/unit till the filing of this complaint.  The OPs in para No.7 of the affidavit of Kanwaljit Singh Ahluwalia, their MD which is Ex.OP-1/1 stated that the OPs will submit the CLU clearance amount with GMADA as early as possible. It means that the OPs have not completed the formalities to complete the construction of this project till the date of filing of the affidavit i.e. 01.06.2015. Therefore, it is amply clear that the OPs have not constructed any unit till 01.06.2015.  Further the OPs no where in their reply stated that they will complete the construction till the promised date. If the OPs have not completed all the formalities, which are essential for the construction of the project and till date not constructed a single house/unit then it is not believable that they will complete the construction of house/unit of the complainant within remaining one month.  Moreover, the OPs never in their reply undertake/promise to complete the construction of the house/unit of the complainant within promised time. As far as grace period of six months is concerned, the OPs are not entitled to get benefit of grace period because the OPs have failed to prove that there is any unavoidable circumstance that delayed the construction of the house/unit.

8.             In view of the above said discussion, it can safely be concluded that the OPs are not in a position to deliver the possession of the house/unit to the complainant in time and this complaint cannot be deemed to be filed pre mature in the facts and circumstances of the present complaint. If the OPs have not completed the required work within two years then it is not possible that they will complete the work within remaining one month. Though in letter this complaint may be termed as pre mature but in spirit it is deemed to be a mature complaint as the OPs have failed to complete the construction of the house/unit.  

9.             In order to arrive at the correct conclusion of issue No.(ii), the order of the Hon’ble National Commission in  Kamal Sood Vs. DLF Universal Limited, III (2007) is quite helpful. In it the Hon’ble National Commission has held that a builder cannot receive the amount unless he has all the necessary approval and sanctions from the various authorities. In the present complaint the OPs have received payments from the complainants without having all the necessary approvals and sanctions from the various competent authorities.  The OPs in Para No.7 of their affidavit which is Ex.OP-1/1 have admitted that the OPs will submit the CLU clearance amount with GMADA as early as possible,  meaning thereby that they have not sought CLU from the competent authority till the date of filing of the affidavit i.e. 01.06.2015.  Moreover, the OPs have failed to prove on file that they have all the necessary approval and sanctions from all the concerned authorities.  Therefore, the OPs are practicing unfair trade practice upon the complainants and hence liable for it. So on account of this unfair trade practice, this complaint is a mature complaint as the cause of action arose to the complainant when the OPs have received payment on 27.08.2013 for the construction of the house/unit without all the necessary approvals and sanctions from the various competent authorities.

10.           So it can safely be concluded that the present complaint is a mature complaint and we hold the OPs deficient in service and practicing unfair trade practice on account of receiving payment from the complainant without having all the necessary approvals and sanctions from the various competent authorities and thereby direct the OPs as under:

(a)    to refund to the complainants their deposited amount of Rs.5,98,000/-  (Rs. Five Lacs Ninety Eight thousand only) alongwith interest @ 9% per annum from the respective dates of deposit till its actual realization. 

(b)    to pay them compensation of Rs.40,000/- (Rs. Forty thousand only) on account of harassment and mental agony

(c)    to pay them Rs.10,000/- (Rs. Ten thousand only) for cost of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.     

July 15, 2015.                                             (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member