BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA. Consumer Complaint No 61 of 2017 Date of Institution 17.3.2017 Date of Decision 15.1.2018 Kavita Goyal, aged 48 years W/o Sh. Vinod Kumar Goyal, R/o H.No.144/122, Uccha Parwanoo, Sector-1, Parwanoo, Tehsil Kasauli, Distt. Solan (H.P). ….Complainant Versus 1. Sahara India Commercial Corpn. Ltd. Commercial Office, Sahara India Bhawan, Kapporthala Complex, Lucknow 226024, through its Managing Director. 2. Sahara India City Homes Marketing & Sales, SCO No.1110-1111, 3rd Floor, Sector-22-B, Chandigarh through its Regional Manager. 3. Sahara India Parivar, Branch Office upon Axis Bank, Car Centre Building, Rambag Road, Kalka, Tehsil Kalka, Distt. Panchkula 133302 through its Branch Manager. ….Opposite Parties COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986. Before: Mr. Dharam Pal, President. Mrs.Anita Kapoor, Member. Present: Mr. Sheetal Bindal, Advocate for complainant. Mr. Subhash Chand, Advocate for the OPs. ORDER (ANITA KAP0OR, MEMBER) 1. The brief facts are that the complainant approached the OP No.3 for purchase of a flat at Chandigarh of 2BR TYPE-B measuring 86.15 square meter vide application No.124020421054 dated 31.12.2004 and he was allotted control No.24009200174. The total price of the flat was Rs.17,15,000/-. The complainant deposited the earnest money amounting to Rs. 85,750/- vide demand draft No.340027 dated 6.1.2005 of the Punjab National Bank, Parawanoo with OP No.3, at Kalka who issued a receipt bearing No.10142426121 on behalf of OPs No.1 and 2 and assured the complainant to give the possession of flat as the project is under consideration. Thereafter, the complainant visited the office of OPs No.2 and 3 for allotment of flat, but they always assured the complainant that they would give the possession very soon as they were going to start the project very soon, but after passing a very long time, the OP No.2 informed the complainant that the company had some dispute with the Punjab Government regarding the circle rate as the Punjab Government had increased the circle rate. Thereafter, the OP No.2 assured the complainant that whenever the dispute with the Punjab Government would settle, the possession of the flat would be delivered to the complainant after receiving the balance amount from the complainant. In the month of May, 2015, the complainant came to know that OPs had no intention to start the above said project, therefore, the complainant requested the OP No.2 for refund of the deposited amount i.e. Rs. 85,750/- with interest or to give the flat at some other place in Panchkula or Mohali. The complainant requested many times to the office of OPs No.2 and 3 for refund of amount his deposited amount, but they refused for the same. Thereafter, complainant issued a legal notice dated 30.4.2016 and a reminder dated 25.7.2016 to the OPs, but to no avail. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint. 2. Upon notice, OPs have appeared to contested the complaint by filing the written statement that the complainant has not approached this Forum with clean hands; the Forum has no jurisdiction to entertain the present complaint; the complaint is hopelessly barred by limitation as the last payment was made by the complainant on 31.12.2004 and the complaint has been filed only in the year 2017. The complainant had signed the form only reading the terms and conditions of the Form of the Sahara City Homes scheme. The terms of the said form clearly mentioned that the allotment of any unit shall be subject to force majeure clause. At the time of booking the complainant the complainant was fully made aware of the terms and conditions of the booking and more specifically informed the complainant that the said booking was subject to the force majure clause. It is submitted that as per clause 18 of the terms and conditions of the complaint form pertaining to SCH, Chandigarh, the development of the project was agreed to be subject to ‘Force Majeure’ clause, wherein the OPs company could not have been held liable for the delay in handing over the possession due to reasons beyond the control of the OPs. The OPs had acquired over 200 acres of agricultural land for SCH, Chandigarh and had obtained the Change of Land Use Certificate (CLU) for 147 acres of land on 27th September, 2005. The Competent Authority issued a Letter of Intent (LOI) dated 16th November, 2006 wherein instead of charging Rs. 2.5 lac per acre, the Competent Authority raised its demand to Rs. 15.9 lac per acre towards the ‘External Development Charges’ against which the OPs filed a writ petition before Hon’ble Punjab & Haryana High Court, which was dismissed by the Ld. Single Judge vide order dated 26.2.2009. Aggrieved by the said order, the OPs filed a Letters Patent Appeal and the Hon’ble Division Bench vide its order dated 18.5.2011 allowed the said appeal, thereby restoring the Writ petition to its original number. The Ld. Single Judge vide order dated 25.11.2014 dismissed the writ petition as withdrawn with the liberty to OPs to avail the statutory right of Appeal. Accordingly, the appeal was filed by the OPs before the Financial Commissioner, Punjab and the same is pending adjudication. It is submitted that the competent authority arbitrarily raised the charges towards external development, the OPs was left with no other alternative than to contest the same as per the procedure of law. However, the OPs never given any assurance to the complainant. Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of complaint. 3. The counsel for the complainant has tendered into the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-6 and closed the evidence. On the other hand, OPs have tendered into evidence by way of affidavit Annexure RA along with document Annexure R1 and closed the evidence. 4. We have heard the counsel for the complainant as well as counsel for the OPs and considered the written arguments filed by the OPs and have also perused the record. 5. It was argued, at the very outset, on behalf of the OPs that there being nothing in the contractual documentation that the availability of flats was a time bound affair, the complainant cannot have any grievance about the delay in the delivery of the flats. 6. The plea is too specious to be accepted. Ideally, a contractual documentation of identical character ought to have a time frame within which the builder has to hand over the possession of the purchased flat. However, if a documentation does not make a mention of time wrap, the flat applicant cannot be left without a remedy. In that eventuality, a grievance on point of deficiency in service can be validly made after lapse of a reasonable period. It would require notice in the context that having waited for the allotment of a flat for quite sometime, the complainant got two notices served upon the OPs. However, the OPs did not respond to those notices. The want of a response would validate a feeling in the mind of an identically placed complainant that the OPs are not inclined to honour the contractual obligation and are thereby open to the charge of deficiency in service. We, on that reasoning, negate the plea on behalf of the OPs. 7. It was, then, argued on behalf of the OPs that no liability can be fastened upon them as it was a case of force majure because the external development charges claimed by the concerned authorities were pagget at Rs.15.9 lacs per acre, instead of the normal rate of Rs.2.5 lac per acre. 8. The plea was resisted on behalf of the complainant by arguing that the OPs could, at best, make a demand for enhanced payment but there is no way the delivery of possession could be delayed. The deficiency of service on the part of the OPs, it was argued in continuity, becomes compounded because the OPs not only did not respond to the two notices but also have not taken steps to get the disposal of the appeal before the Financial Commissioner, Punjab. The OPs could prove their bonafides in the relevant behalf only if they had placed on record any material to prove that the appeal is not getting disposed of inspite of motion therefor having in made by them. That the OPs have not placed any such material on record was indicated on behalf of the OPs at the time of hearing. 9. We do not buy the arguments on behalf of the OPs. In fact, we are of the view that force majure cannot be pleaded and invoked just because the charges demanded by the competent authority are not in accord with the expected rate. The connotation of force majure is entirely different and it cannot validly raised on the above premise with any justification. 10. It requires pertinent to notice that the OPs have filed two affidavits of record one of the affidavits dated 19th June, 2017 purports to have been sworn by Rishi Deo Upadhyay to the effect that the written statement has been drafted under instructions. The other affidavit filed on behalf of the OPs is that of Rakesh Singh, an authorized representative of the OPs. The averments in the written statement are supported by the affidavit of one individual; while the evidence by way of affidavit is that of another individual. The why of filing of affidavits by different individuals has not been explained and there is no averment that either of the two deponents had dealt with the file pertaining to the contractual obligations entered into by the OPs with the complainant. 11. We are, thus of the considered view that the complainant has been able to prove that there is deficiency in service on the part of the OPs in honouring the contractual commitment made by the latter to the former. We would, while allowing the complaint, order that: (a) The OPs shall refund the amount (Rs.85,750/-) received from the complainant, with interest 9% per annum w.e.f. the date of receipt of that payment and upto the date of repayment thereof.; (b) The OPs shall pay a sum of Rs.50,000/- to the complainant as the compensation for the deficiency in service and also the mental agony and harassment caused thereby ; (c) The OPs shall pay a sum of Rs.5,000/- as the cost of litigation to the complainant. 12. The OPs shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to the record room after due compliance. Announced 15.1.2018 ANITA KAPOOR DHARAM PAL MEMBER PRESIDENT Note: Each and every page of this order has been duly signed by me. ANITA KAPOOR MEMBER