DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.343 of 2016
Date of institution: 07.06.2016
Date of decision : 15.04.2019
Satwant Kaur wife of Late Sh. Lachhman Singh, resident of House No.507, Phase-10, Mohali.
…….Complainant
Versus
Shivjot Developers and Builders Ltd., New Court Complex, Shivjot Enclave, Kharar, District Mohali through its Managing Director/ Authorised representative.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member
Present: Shri Sandeep Bhardwaj, counsel for complainant
Shri Aksh Chetal, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant for getting residential house for her daughter’s use, approached OP for purchase of a flat situate in Shivjot Enclave, Kharar, District Mohali. OP informed as if requisite permissions/approvals from competent authorities have already been obtained and possession will be handed over. Brochure containing salient features of the project also was handed over to complainant. Agreement dated 25.04.2011 was arrived at as per which two bedroom housing unit bearing No.220 on second floor having area of 580 sq. ft. was sold to complainant for consideration of Rs.11.00 lakhs. Complainant paid all the installments in time. When complainant visited site, she found construction going on at a very slow pace. Even complainant found as if sub standard material has been used in raising said construction, despite the fact that assurance was given for using material of quality. Assurances were given repeatedly to complainant during her visits on the site, but without handing over possession of the flat. Inspection of housing unit was not allowed to complainant on the ground that keys will be handed over after receipt of final payment only. Complainant paid Rs.1.00 lakh through two cheques of Rs.50,000/- each of 11.02.2016 and 21.02.2016. Possession was not handed over to complainant on the pretext that finishing work is in progress. When in April, 2016, complainant inspected the flat, then she found very foul smell inside the flat. Lot of seepage and leakage was also found in the flat. Final cheque dated 21.02.2016 was never presented and nor the OP called upon complainant to have possession of the housing unit. Complainant stopped payment of cheque of Rs.50,000/- bearing No.517022 dated 21.02.2016 through mandate dated 27.04.2016. Complainant requested OP to provide her completion and occupation certificates, but OP failed to provide the same and that is why possession not got by complainant. Request for refund was made, but amount of Rs.11.00 lakhs deposited with OP has not been refunded. Even requisite sanctions/approvals from Country Town Planner, Forest Department, Punjab Pollution Control Board, PSPCL and Highway authorities have not been obtained by OP and that is why this complaint for seeking refund of deposited amount of Rs.11.00 lakhs with interest @ 18% per annum from the dates of deposits till realisation. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation expenses of Rs.50,000/- more claimed.
2. In reply submitted on behalf of OP, it is pleaded inter alia as if the complaint has been presented on wrong and incorrect facts; complainant has not approached the Forum with clean hands; there is no deficiency in service on part of OP and as such complaint not maintainable. Besides, it is claimed that this Forum has no jurisdiction. Complainant herself failed to deposit remaining amount, due to which possession could not be delivered to the complainant. There is no question of non completion of work at the spot as in the same tower, out of 8 flats, 5 families are already residing for the last one year after completion of work. Complainant after deposit of balance outstanding amount can get possession from OP at any time regarding which intimation has been given to complainant repeatedly. There is no delay on part of OP. Question of use of sub standard material does not arise. OP doing construction work since for the last 20 years and the present complaint has been filed on false allegations. As prices of land have gone down and that is why this complaint filed for pressurizing OP to return the amount, despite the fact that there is no deficiency on part of OP. Produced photographs alleged to be not pertaining to the flat purchased by complainant. Suit property falls within the municipal limits of Kharar and all documents pertaining to the project were thoroughly inspected by complainant before entering into agreement. In view of this, it is claimed that in all OP not liable to refund deposited amount.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-11, Ex.C-13 and Ex.C-12/1 to Ex.C-12/18 and thereafter her counsel closed evidence. On the other hand counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Mr. Baljit Nain, Director of OP alongwith photographs Ex.OP-1 to Ex.OP-8 and thereafter closed evidence.
4. Written arguments submitted by both the parties. Oral arguments heard and record gone through.
5. Counsel for complainant suffered statement today for claiming that interest claimed is reduced from 18% to 12% and even the compensation claimed reduced from Rs.5.00 lakhs to Rs.1.00 lakh. If this statement of counsel for complainant taken into consideration, then certainly this Forum will be having pecuniary jurisdiction because the claimed amended relief in total, will be less than Rs.20.00 lakhs. Submission of counsel for OP has no force that by suffering said statement, claim cannot be brought within the jurisdiction of this Forum, particularly when sought original relief was for amount of more than Rs.20.00 lakhs. Provisions of Order 2 Rule 2 CPC provide that plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. On the same analogy, it has to be held that relinquishment of claim regarding compensation of amount of Rs.4.00 lakhs and of interest of 6% per annum has been done by complainant with intent to bring the complaint within the pecuniary jurisdiction of this Forum and as such submission of counsel for OP to the contrary has no force.
6. Though refund of Rs.11.00 lakhs sought, but during course of arguments counsel for complainant admitted as if refund of Rs.10.00 lakhs alone is sought because payment of that much amount alone is established. It is admitted in Para No.7 and 8 of the complaint itself that two cheques bearing No.517021 dated 11.02.2016 and No.517022 dated 21.02.2016 placed on record as Ex.C-10 and Ex.C-11 have not been encashed by OP. Rather payment of cheque Ex.C-11 was stopped by complainant as per contents of Para No.8 of the complaint itself. Even if contents of complaint may not be completely true regarding seeking of refund of paid amount of Rs.11.00 lakhs, but despite that so much of the relief to the complainant needs be allowed, for which her entitlement is there. It is so because technicalities cannot be allowed to stand in the way of administering justice to the consumer, who paid hefty amount of Rs.10.00 lakhs and remained unable to get possession of the apartment as per terms of agreement of sale Ex.C-2. Ex.C-1 is brochure showing designs and drawings of the apartments only.
7. After going through agreement of sale it is made out that amount of Rs.1.00 lakh was paid by complainant to OP on 25.04.2011. As per installment plan, Rs.1.00 lakh each was paid on 25.05.2011; 25.06.2011; 25.07.2011; 25.08.2011; 25.09.2011; 25.10.2011; 25.11.2011 and 25.12.2011. So payment of Rs.10.00 lakhs alone established by installment plan annexed with Ex.C-2. Besides receipts Ex.C-3 dated 29.05.2011; Ex.C-4 dated 23.06.2011; Ex.C-5 dated 26.07.2011; Ex.C-6 dated 22.09.2011; Ex.C-7 dated 10.12.2012 and Ex.C-8 dated 18.03.2013 shows as if amount of Rs.1.00 lakh paid on each of these occasion by complainant to OP. Rs.2.00 lakhs paid through receipt Ex.C-9 dated 15.12.2014. So these receipts show payment of Rs.8.00 lakhs by complainant to OP. While adding amount of Rs.1.00 lakh paid at the time of agreement of sale Ex.C-2, it is made out as if Rs.9.00 lakhs shown to be paid by complainant to OP. During course of arguments, it is not disputed that amount of Rs.10.00 lakhs has been received, but it is vehemently contended that as balance payment has not been made as per installment plan and as such complainant not entitled for refund of the amount, more so when she herself committed breach of terms and conditions of the agreement by paying installments regularly as per worked out schedule.
8. Complainant has produced on record photographs Ex.C-12/1 to Ex.C-12/18 of the paper clippings to show as if work of apartments has not been completed. These photographs do not at all show in any manner that these paper clippings pertain to the project in question or its condition and as such certainly these photographs produced for making the file voluminous only. OP has produced on record photographs Ex.OP-1 to Ex.OP-8 for arguing that the apartments are complete in all respects, but possession has not been delivered to complainant because of nonpayment of due amount by her as per payment schedule. Counsel for complainant, however, contends that apartment in question is constructed with sub standard material and smell from inside of flat is coming due to lot of seepage and leakage. No report of expert has been produced on record in proof of these allegations. Even if such proof not produced, despite that complainant able to establish by producing on record document Ex.C-13 for establishing that CLU by OP from none of the authorities obtained for developing the project in question. Even if the project in question may be situate within the municipal limits of Kharar, despite that for establishing residential project, a colonizer has to obtain license for change of user and even had to obtain permission from municipal authorities or PUDA for raising such construction. It is well settled that even for raising construction of residential apartments in area of Municipal Council, Kharar, site plan has to be got approved from Municipal Council, Kharar as per provisions of Punjab Municipal Act, 1976. However, before that permission of change of land use has to be obtained from PUDA, but such permission from PUDA has not been obtained as per contents of Ex.C-13 (information gathered under RTI Act) and as such certainly submission advanced by counsel for complainant has force that in view of non seeking of requisite permission for CLU from competent authority, project in question cannot be said to be constructed as per rules and regulations of construction. In such circumstances, it was not obligatory for complainant to pay balance amount for getting possession of the apartment constructed against rules and regulations. Being so, complainant entitled for refund of the entire paid amount with interest @ 12% per annum from the dates of deposits till payment. Even complainant entitled to compensation for mental harassment and agony.
9. As per law laid down in case titled as Loveleen Kaur vs. Emerging Valley (P) Ltd. bearing Consumer Complaint No.543 of 2017 decided on 11.01.2018 by Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh, onus to prove that construction of the unit is complete is on the builder. However, in this case before us, no report of completion of project as per rules and regulations of architect or of any other expert has been produced by OP and as such in such circumstances, it has to be held by keeping in view contents of Ex.C-13 that OP not in a position to handover possession.
10. As per Section 6 of PAPRA Act, 1995, a promoter/builder of apartment before accepting 25% of the sale price and entering into agreement, has to be obtain necessary permissions/approvals from the competent authorities. In case such permissions not shown to be obtained, but amounts accepted, then the same is unfair trade practice as per ratio of this cited case. Same thing has been done in this case because hefty amount of Rs.10.00 lakhs has been accepted without seeking requisite permission regarding CLU and as such in view of adoption of unfair trade practice by OP, complainant entitled for refund of paid amount with interest @ 12% per annum from the dates of deposits. Specific reference to provisions of Section 3, 6 and 12 of the PAPRA Act read with Rule 17 framed thereunder can be made in this respect. Besides, as per Section 5 (1) of the PAPRA Act, 1995, a promoter, who desires to develop land into a colony, must make an application in the prescribed form alongwith prescribed fee to competent authority for grant of permission for developing land into a colony. License for that purpose will be issued by competent authority for a period of three years, which will be renewable from year to year basis on payment of prescribed fee as per Section 5 (4) of PAPRA Act, 1995. So these rules lays that OP should have sought permission for seeking CLU, but such permission not obtained and as such even if some of the flats/apartments may have been occupied by few families (as contended by counsel for OP), despite that complainant not bound to follow the same action, as is adopted by others residing in the colony. In view of non production of any record regarding seeking of requisite permissions from competent authorities by OP, it has to be held that OP adopted unfair trade practice, as discussed in detail above and as such complaint deserves to be allowed accordingly.
11. As a sequel of above discussion, complaint allowed with direction to OP to refund the received amount of Rs.10.00 lakhs (Rs. Ten Lakhs only) with interest @ 12% per annum from the dates of deposits till payment. Compensation for mental harassment and agony of Rs.25,000/- (Rs. Twenty Five Thousand only) and litigation expenses of Rs.5,000/- (Rs. Five Thousand only) more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
April 15, 2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
