DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Complaint Case No.: 510 OF 2010

Date  of  Institution  :   13.08.2009

Date   of   Decision  :   27.07.2011

Jashandeep Sidhu aged 48 years W/o Sh.Parminder Pal Singh Sidhu, R/o village Rampura, P.O.Fazilka, Tehsil & Distt. Fazilka.

                                                                                    ---Complainant.

V E R S U S

1]          Sahara India Parivar, Command Office, Sahara India Bhawan, 1, Kapoorthala Complex, Lucknow.

2]          Sahara India, SCO No.1110-1111 (Second Floor), Sector 22-B, Chandigarh.

---Opposite Parties

BEFORE:            SHRI LAKSHMAN SHARMA                    PRESIDENT

                        SMT. MADHU MUTNEJA                   MEMBER

Argued By:            Sh. R.K.Dogra, Adv. for the complainant.

Sh.N.S.Sidhu, Adv. for the OPs.

PER MADHU MUTNEJA, MEMBER

1]             The complaint in question relates to allegations of deficiency in service and unfair trade practice by the OPs due to non-delivery of possession of housing units booked with them by the complainant.

                The complainant has stated that being allured by the advertisement issued by OPs, through media, the complainant had booked two housing units comprising 3 Bed Room Type C with Area of 135.95 sq. mt.  in Sahara Swarn Yojna of OP.  The complainant had deposited Rs.2,35,350/-  in all with the OPs. The project was to be completed in 2007. The complainant thereafter contacted the OPs a number of times for getting allotment and possession of the housing units but the OPs have not made  allotment. He has thus filed this complaint with the prayer that the OPs be directed to allot the housing units as per agreed terms and conditions and also pay compensation for the harassment caused.

                The complainant has placed on record the receipts of payments made by him to the OPs to tune of Rs.2,35,350/-. 

2]             After admission of complaint, notices were sent to the OPs.

                The OPs in their reply took the preliminary objection that the present complaint is not maintainable as the complainant is not a consumer as no allotment was ever made to him.  Further, the OPs have contended that the complainant has no locus standi to file the present complaint as he is a resident of Fazilaka (Punjab) and all payments were made by him at Sri Ganganagar.  The OPs have stated that the delay caused in Sahara City Homes, Chandigarh was due to the reasons beyond their control.  A writ petition had been filed before Hon’ble Punjab & Haryana High Court against them vide CWP No.460/2007 and later on a LPA No.112/09 was filed. As the matter was sub-judice, the OPs, relying on the clause of delay due to Force Majure, has expressed inability to allot the housing units to the complainant. They have stated that they are ready to refund the amount deposited by the complainant towards the booking of housing units at Sahara City Homes, Chandigarh as per terms & conditions.  

3]             Parties led evidence in support of their contentions.

4]             We have heard the ld.Counsel for the parties and have also perused the record.

5]             The complainant is genuinely aggrieved that the OPs have not provided him the housing units booked by him against which he has paid Rs.2,35,350/- as advance/booking amount.

6]             The ld.Counsel for the OPs stated that the complainant is not a consumer as no allotment was made to him.  This contention of the OPs is not sustainable in the view of the latest judgment of Hon’ble Supreme Court of India in Chandigarh Housing Board Vs. Avtar Singh and others, JT 2010 (10) SC 360, Civil Appeal No.8203 of 2010 [Arising out of SLP(C) No.21740 of 2007] with C.A. No.8204 of 2010 to C.A. No.8227 of 2010, wherein the Hon’ble Supreme Court referred to the question whether Consumer Foras can entertain a complaint in the matter of allotment of plot or construction of a flat by any authority.  Also in case there is deficiency, then the provisions of the act can be invoked.  It has been categorically held that:-

“…A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression `service of any description'.

7]             The ld.Counsel for the OPs, at the time of arguments, pointed out that this Forum has no jurisdiction to try this case as the complainant is a resident of Fazilka and has made all payments at Sri Ganganagar and no cause of action has arisen at Chandigarh. The complaint, according to them, does not lie.

                Refuting the arguments of the OPs, we are of the opinion that as the property booked by the complainant is situated at Chandigarh, the complaint is definitely maintainable before this Forum.  However, it can been seen from the detailed reply and evidence of the OPs that due to condition of Force Majure and pending litigation, they have not been able to develop the project and hand over the housing units to the complainant.  The OPs are not even able to give a time frame when the housing units would be made available to the complainant for possession. 

8]             The deficiency in service and harassment caused to the complainant by the OPs in not providing the booked housing units is clearly made out. But Ops are not in a position to give allotment due to the reasons given above.

                The complainant in his prayer has asked for possession of the housing unit along with compensation.  He has also made a further prayer that ‘any other order or direction, as deemed fit by this Forum, keeping in view the facts and circumstances of the case, be made.’

9]             Keeping in view the above facts & circumstances as well as interest of the consumer/complainant, we allow this complaint and direct the OPs to jointly & severally refund the total amount paid by the complainant i.e. Rs.2,35,350/- along with interest @9% per annum from the dates of their respective deposits till the date of actual payment to him. OPs shall also pay Rs.25,000/- towards compensation for the harassment caused to the complainant, as they should not have advertised the housing units when they were not clear about their own title as well as their right to develop the land.  The OPs shall also pay Rs.7000/- as cost of litigation.

                The order be complied with by the OPs jointly & severally within a period of 30 days from the date of receipt of copy of this order, failing which OPs shall jointly & severally be liable to refund the amount of Rs.2,35,350/- along with interest @18% per annum from the dates of their respective deposits as well as Rs.25,000/- as compensation with interest @18% p.a. from today till the date of actual payment, besides paying litigation cost of Rs.7000/-.

                Certified copies of this order be sent to the parties free of cost. After compliance, The file be consigned to the Record Room.

Announced

27.07.2011

                                                           (LAKSHMAN SHARMA)

PRESIDENT

(MADHU MUTNEJA)

MEMBER 

Om/-