Chandigarh

DF-II

CC/294/2013

Smt. Deepshikha Garg - Complainant(s)

Versus

Sahara India Pariwar Housing Unit - Opp.Party(s)

Mr. Sandeep Bhardwaj, Adv.

01 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	294 of 2013
Date  of  Institution	:	12.07.2013
Date   of   Decision	:	01.01.2016

 

 

 

 

 

Deepshika Garg W/o Naveen Garg, R/o House NO.57, Sector 69, SAS Nagar, Mohali.

 

             …..Complainant

Versus

 

1]  Sahara India Pariwar Housing Unit, Sahara India Tower, 7 Kapoorthala Complex, Lucknow, through its Managing Director.

 

2]  Sahara India Pariwar, SCO No.1110-1111, Branch Sector 22, Chandigarh, through its Regional Manager.

 

3]  Jatinder Goyal s/o Kewal Krishan, R/o House No.527, Ram Gang Mandi, Moga, Punjab (Agent)

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Sh.Sandeep Bhardwaj, Advocate

 

For Opposite Party(s)   :     Sh.D.K.Singal & Sh.Amish Goel, Adv.       for OPs No.1 & 2.

Opposite Party No.3 exparte.

 

PER JASWINDER SINGH SIDHU, MEMBER

 

 

          As per the case, the complainant in response to the advertisement of the Opposite Party thereby introducing Sahara City Homes Township at Chandigarh, booked a Unit with them on 24.1.2015 by paying an amount of Rs.85,750/- and also paid an amount of Rs.7146/- on 2.1.2006, through Opposite Party No.3 (Ann.C-1).  Thereafter, the complainant received letter dated 9.5.2011 (Ann.C-2) from the authorised signatory of Sahara Prime City Ltd., Chandigarh.  That the complainant was told that the land over 200 acre was purchased for setting up Sahara City Home at Chandigarh and CLU for 147 acre was also procured.  It was mentioned that the LOI dated 16.11.2006 was received by Sahara City Homes Chandigarh in which a demand of Rs.15.9 lac INR per acre for EDC was raised against Rs.2.5 lac INR per acre. The company challenged this demand before the Hon’ble Punjab & Haryana High Court by filing CWP No.460/07 and later through LPA No.112 of 2009, which is still pending. It is averred that the OPs No.1 & 2 are not constructing the units but wants to grab the money of the complainant as well as other applicants by filing the frivolous litigation again and again so that the complainant is forced to seek the refund under compelling circumstances. It is stated that now the prices of the land which was purchased by the OPs to raise the units and shown to the complainant as well as to other applicants, has increased multifold and the Opposite Parties before initiating the legal proceedings, had not obtained the consent/option from the applicants whether they are ready to pay their share of Rs.15.9 lacs INR per acre towards EDC as per the order of the competent authority.   That the OPs have filed petitions only to save their skin and not to save the interest of consumers.  It is also stated that even after seven years, the OPs are not giving a definite date on which they will complete the project and handover the possession nor denied for the same till date, though promised to deliver the possession in the year 2007 at the time of booking. The complainant also sent a legal notice (Ann.C-3) to the OPs, but to no avail.  Hence, this complaint has been filed  alleging deficiency in service and indulgence into unfair trade practice on the part of the OPs. 

 

2]       The OPs have filed jointly reply and took objections that the complainant is not a consumer and the complaint is time barred.  The factual matrix of the complaint with regard to booking of the unit and making part payment thereof are admitted.  It is stated that project could not be completed due to pendency of litigation before the Punjab & Haryana High Court, Chandigarh. It is stated that as soon as the litigation is finally decided, the person to person transfer of flats and fresh subscription can be considered on the price/rate which will be fixed at the time of launching.  It is pleaded that the completion of the project of township always depends on necessary approval of various Government Authorities.  However, OPs were already ready to refund of his provisional subscription amount, as per the terms and conditions but the complainant has denied for taking the same.  It is also pleaded that the OPs are still ready to refund the same along with simple interest @8% per annum thereon.  It is asserted that the present complaint is premature, as no allotment of unit was made in favour of the complainant and the complainant advanced an amount towards provisional membership only of the scheme which denotes that as and when the project of Sahara City Homes, would be operational, the complainant would be given preference in the allotment of the flat of desired category. Rest of the allegations have been denied with a prayer to dismiss the complaint.

3]       The Opposite Party No.3 though being duly served through registered post-dated 22.7.2013, failed to put in appearance on 24.7.2015, thus raising presumption under Sub-clause (2) of Regulation 10 of The Consumer Protection Regulations, 2005, was proceeded exparte vide order dated 29.8.2013.

 

4]       Parties led evidence in support of their contentions.

 

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

 

6]       It is the admitted case of the complainant that she made a payment of Rs.92,896/- as per Ann.C-1 to the OPs so as to avail a unit in the upcoming one of the projects of the OPs in Chandigarh. The amount of Rs.85,750/- was received by the OPs on 24.9.2005 and thereafter Rs.7146/- on 2.1.2006 with the promise that the project of the Opposite Parties namely Sahara City Homes, Chandigarh would be ready for possession by 2007.  Unfortunately, the Opposite Parties after receiving this amount, purchased nearly 200 acres of land in the vicinity of Chandigarh City, but preferred not to develop the same by their own choice. 

 

7]       The complainant is aggrieved that for the past 10 years, the Opposite Parties neither showed any interest in handing over the possession of the unit promised to her after completely developing the project nor paid any heed to her repeated requests on one pretext or the other and even going to the extent that the Opposite Parties were unable to do the needful because of the pending litigation before the Hon’ble Punjab & Haryana High Court. The Opposite Parties have even claimed that the State Government had arbitrarily enhanced the ‘Change of Land Use’ fee as well as External Development Charges, which were challenged by the Opposite Parties before the Hon’ble High Court, Chandigarh, thus delaying the project indefinitely. 

        

8]       We have minutely perused the documents placed on record by the parties and are of the opinion that the Opposite Parties No.1 & 2 have deliberately not preferred to develop the project namely Sahara City Homes, Chandigarh for the reasons best known to themselves and the bundle of excuses putforth by them are hollow, as the litigation before the Hon’ble Punjab & Haryana High Court, Chandigarh was on account of their own choice as they could have simply paid the CLU Fee and External Development Charges and collect the same proportionately from the parties, who were interested in the said project.  However, there is no such effort on the part of Opposite Parties No.1 & 2 from where we can believe their stand with regard to their bona-fides of being sincere in paying different fees and charges, as demanded by the State Govt. The entire episode smacks of greed on the part of the Opposite Parties No.1 & 2 for the reason that the litigation before the Hon’ble Punjab & Haryana High Court, Chandigarh was being used by them as screen only to hide their own follies.

 

9]       In a similarly placed situation, our own Hon’ble State Commission, UT., Chandigarh, in the case titled as “Ashok Gilhotra Vs. Sahara India Privar & Anr., Appeal No.206 of 2010, decided on 29.11.2010, has opined ‘The contentions of OPs that it was a force majure and they could not raise construction is fallacious. There is no such order passed by any Court or Authority restraining the Opposite Parties from raising the construction over the land allotted to them. Infact the Opposite Parties have become greedy and are not willing to pay the charges of Change of Land Use at the rate fixed by the government.  They challenged the same, but failed but even then they have filed LPA…………………………….The act of the State Government in raising the fee for Change of Land Use Certificate cannot be said to be a force majure so far as OPs are concerned.  If they agreed to pay the said fee, they can get the certificate immediately and can raised the construction, but it is their own choice not to pay the fee and therefore, no certificate can be issued to them by the State Government due to which the raising of construction has been withheld solely due to the wrong decision on the part of the Opposite Parties.’

 

10]      While giving such opinion, the Hon’ble State Commission, UT, Chandigarh, heavily relied upon the case titled as Ms. Sonia Chandra V. Delhi Development Authority & Anr. II(2000) CPJ 6 (MRTP)., wherein the Opposite Parties were ordered to refund the deposited amount along with interest @18% p.a. along with damages of Rs.50,000/-.  Therefore, as the OPs No.1 & 2, who were party before this Forum in the previous case namely ‘Ashok Gilhotra Vs. Sahara India Privar’, CC No.54 of 2009, decided on 30.3.2010, are well aware of these observations of the Hon’ble State Commission, UT, Chandigarh, but have preferred to rake in the same defence, which was out rightly rejected by the Hon’ble State Commission, UT, Chandigarh.   

   

11]      The OPs No.1 & 2, who had initially desired to show some inclination for settling the dispute with the complainant by way of compromise as is evident from order dated 23.12.2013 vide which the case was listed before Lok Adalat, but unfortunately because of non-flexible attitude of the Opposite Parties NO.1 & 2, the same was brought to the main stream on 4^th April, 2014.  This also shows that the  Opposite  Parties No.1 & 2, who are aware of the previous orders of this Forum as well as Hon’ble State Commission, UT, Chandigarh, gave no definite offer to the complainant about the settlement of the dispute.  For such reasons, we are not inclined to show any leniency towards OPs NO.1 & 2 and are of the view that the Opposite Parties No.1 & 2 be saddle with the penalty of interest at the rate of 24% p.a. on the deposited amount of the complainant, along with compensation of Rs.50,000/- for causing mental agony and harassment to the complainant on account of deficiency in service on their part, apart from litigation expenses.

 

12]      In the light of above observations, we are of the concerted view that the Opposite Parties No.1 & 2 are found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed against Opposite Parties No.1 & 2 and dismissed qua Opposite Party No.3. The Opposite parties No.1 & 2 are jointly & severally directed as under:-

[a] To refund Rs.92,896/- to the complainant along with interest @24% p.a. from the respective dates of deposit till payment;

 

[b] To pay an amount of Rs.50,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service;

 

[c] To pay litigation expenses to the tune of Rs.15,000/-

 

         The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 & 2; thereafter, they shall also be liable to pay an interest @24% per annum on the amount mentioned in sub-para [b], from the date of filing the complaint till it is paid, apart from complying with directions as at sub-para [a] & [c] above.

 

14]      The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

 

Announced

01.01.2016                                                         Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

Om                                                                                                                       

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.294 OF 2013

PRESENT:   None   Dated the 1st day of January, 2016

O R D E R                        Vide our detailed order of even date, recorded separately, the complaint has been allowed against OPs No.1 & 2 and dismissed qua Opposite Party No.3.                    After compliance, file be consigned to record room.

 

(Priti Malhotra)	(Rajan Dewan)	(Jaswinder Singh Sidhu)
Member	President	Member