Chandigarh

DF-II

CC/303/2022

Kshma Aggarwal - Complainant(s)

Versus

RKM Housing Ltd. - Opp.Party(s)

Arun Kumar, Varun Bhardwaj, Adv

20 Mar 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	303 of 2022
Date  of  Institution	:	28.03.2022
Date   of   Decision	:	20.03.2024

 

 

 

 

Kshma Aggarwal, aged 43 years, D/o Ghansham Aggarwal, w/o Raj Kumar Garg, Resident of House No.3538, Sector 37-D, Chandigarh

.... Complainant

VERSUS

1]  RKM Housing Limited, Service through Superintendent of Model Jail Burial, Chandigarh, through Kanwaljit Singh, its managing Director.

2]  Kanwaljit Singh, Director, M/s RKM Housing Limited, through Superintendent of Model Jail, Burial, Chandigarh,

3]  Manpreet Kaur, Director, M/s RKM Housing Limited, SCO No.1-4, behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar, Mohali

.....Opposite Parties

 

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Varun Bhardwaj, Counsel for the complainant None for OPs

 

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

 

1]       By this common order, we propose to dispose off two connected consumer complaints i.e. present consumer complaint as well as another consumer complaint No.304 of 2022 – Uma Aggarwal vs. RKM Housing Limited & Ors.

2]       The facts are gathered from C.C.No.303/2022 – Kshma Aggarwal vs. RKM Housing Limited & Ors..

3]      The complainant has filed the present complaint pleading that she applied for a residential plot measuring 100 sq. yards with Mohali Tenant Welfare Co-operative House Building Society Limited and deposited Rs.6,45,110/- (Ann.C-1 to C-6).  Thereafter, the said project was taken over by OPs No.1 to 3/RKM Housing Limited and they issued receipt of the previous amount of Rs.6,40,000/- vide receipt No.477, dated 23.9.2010 (Ann.C-7). The complainant further deposited an amount of Rs.1,47,500/- with the OPs vide receipt dated 19.8.2010 (Ann.C-8).  A Memorandum of Understanding was executed between the complainant and OPs on 5.10.2010 in respect of the said plot, its payment schedule and completion of the project and it was mentioned that the possession of the developed plot will be delivered to the complainant within 18 months from the date of execution of MOU (Ann.C-9).  The complainant further deposited another amount of Rs.1,50,000/- with Ops vide receipt dated 18.4.2012 (Ann.C-10).  The OPs also issued clearance and possession certificate in favour of the complainant in respect of Plot No.635 measuring 106 sq. yd. on 09.08.2016 (Ann.C-11).

         It is pleaded that the OPs instead of handing over the actual physical possession of the plot in question, cleverly issued paper possession certificate dated 09.08.2016 to the complainant.  It is also pleaded that the complainant made numerous visits and requests to the OPs to handover the actual physical possession of the plot in question but they did not pay any heed and instead the complainant found that there is no development at the side nor the project has been completed.  It is submitted that the complainant also came to know that one of the allottee namely Mukesh Kumar sought information under RTI Act, 2005 from GMADA, Mohali about the project of the OPs and it was replied by GMADA to Mukesh Kumar vide Dispatch No. GMADA/DTP/A-2/2016/674 dated 19.02.2016 that the OP No.1 has not applied for Completion Certificate with regard to their Project till date nor issued any Revised Layout Plan to the OP No.1 for developing the colony ands that the OP No.1 can handover the possession of the Plot only after completion of the development work at the site (Ann.C-16 colly). Hence, this complaint has been filed by the complainant alleging the said act & conduct of the OPs as deficiency in service and indulgence into unfair trade practice with a prayer to direct the OPs to refund of the deposited amount along with interest, compensation for mental agony & harassment and litigation expenses.

 

4]       After service of notice, OPs No.1 to 3 have appeared before this Commission and filed written version stating therein that the complainant is defaulter in making payment.  It is stated that the plot which has been booked by the complainant, the payments of the same were to be made by her under installment linked payment plan which the complainant has not attached because final allotment/buyers agreement was not executed as she has not made the payment according to the payment schedule.  It is stated that the complainant has only made payment of Rs.9,42,610/- against the net sale price of Rs.25 lacs nor sent back the signed copy of provisional allotment letter dated 10.8.2016 which was sent to her.  It is stated that the plot was not provisionally allotted to the complainant.  It is submitted that even as per the alleged provisional allotment (Ann.C-19), it is mentioned that the company shall endeavour to give possession of the plot to the complainant within 36 months from the date the customer had deposited 90% of the net sale price of the subscribed plot/additional charges.  It is also submitted that the plot is ready for possession but the complainant has not opted for the possession as the possession was also offered to her on 09.08.2016 after making the balance payment of the next sale price. The remaining allegations have been denied, being false. Lastly, the OPs have prayed for dismissal of the complaint.

 

5]       Parties led evidence in support of their contentions.

6]       We have heard the ld.Counsel for the complainant and have gone through the documents on record including written submissions.

7]       From the documents on record as well as pleadings of the parties, it is observed that the OPs admitted to have received an amount of Rs.9,42,610/- from the complainant as well as issued Clearance and Possession Certificate (Ann.C-11) in respect of the residential Plot No.635, RKM Housing Ltd. at Sector 112, SAS Nagar, Mohali, Punjab. The Memorandum of Understanding, dated 05.10.2010 (Ann.C-9) was also executed between the complainant and OPs in respect of the plot in question. It is relevant to mention here that OPs have has not only failed to deliver the possession of the plot in question to the complainant despite receipt of the substantial amount from her but also failed to refund the deposited amount to the complainant despite repeated requests which itself amounts to deficiency in service and also unfair trade practice on the part of OPs.

8]       The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. 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. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

         Further, 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 as under:-

    “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.”

         The Hon’ble National 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 has 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”.

 

9]       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 OPs who failed to deliver the possession of the subject plot within the a reasonable period to the complainant has no right to retain the hard earned money of the complainant.  Thus, the complainant cannot be made to wait indefinitely for the possession of the unit allotted to her and the complainant is entitled to seek the refund of the amount paid along with interest.

 

10]      Similar facts have been pleaded in another connected complaint and similar evidence has been led in it.  Therefore, in both the consumer complaints, deficiency in service as well as unfair trade practice on the part of the OPs No.1 to 3 is proved.

 

11]      Resultantly, both the consumer complaints of the complainants stands partly allowed against OPs No.1 to 3. Accordingly, the OPs No.1 to 3 are jointly & severally directed to refund the deposited amount of Rs.9,42,610/- in CC No.303/2022 & Rs.24,75,110/ in CC No.304/2022 to the respective complainant(s) along with interest @10% from the respective dates of deposit till the date of its actual payment to the complaint.

         This order be complied with by the OPs No.1 to 3 jointly & severally within 90 days from the date of receipt of its certified copy.

 

12]      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 & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

20.03.2024                                                 

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER