DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:723 of 2010] Date of Institution : 03.11.2010 Date of Decision : 08.06.2011 ---------------------------------------------- 1. Smt. Santosh Kapur wife of Sh. J. P. Singh Kapur; 2. Sh. J. P. Singh Kapur son of Late Sh. Gurdial Singh Kapur; Both residents of House No.741, Sector 8-B, Chandigarh. ---Complainants. V E R S U SSilver City Housing & Infrastructure Ltd., H.No.89, Sector 8-A, Chandigarh through its Managing Director Sh. Rajat Kakkar. ---Opposite Party.BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER Argued By:Sh. Vishal Aggarwal, Advocate for the complainants. Sh. Surender Gera, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT Smt. Santosh Kapur and his husband Sh. J. P. Singh Kapur have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) refund Rs.14,32,500/- along with interest 24% per annum from the date of deposit till actual payment. ii) pay a sum of Rs.50,000/- as compensation for mental agony and harassment. iii) pay a sum of Rs.30,000/- as punitive damages for deficiency in service and unfair trade practice. iv) pay a sum of Rs.10,000/- as litigation expenses. 2. The case of complainants is that they agreed to purchase an apartment bearing No.204B, IInd Floor, Cat.A-2, Block-A-V measuring 1641.54 Sq. Ft. approximately including car parking measuring 112 Sq. Ft. in Silver City Themes for a consideration of Rs.18,50,000/- as cost of apartment plus Rs.50,000/- as cost of car parking from the OP. According to the complainants, an agreement was executed to this effect on 24.01.2006 (Annexure C-1). The sale price was to be paid in five installments. The last installment was to be paid on 31.07.2007. According to the complainants, they paid a sum of Rs.14,32,500/- as per the payment schedule. It has further been pleaded that as per the agreement, the possession was to be delivered soon after payment of the last installment on 31.07.2007. However, when they visited the site, they found that the construction work was not in progress and there was no sign of completion of the project in near future. So, the complainants approached OP who assured that the project would be completed with a slight delay. However, it was assured that the balance payment would be asked for only on completion of the project. Believing the above assurances given by the OP according to the complainants, they waited for sufficient time. However, recently when they visited the site, they found that there were no signs of completion of the project in near future. Therefore, according to the complainants, they requested the OP to refund the amount but OP has refused to do so. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the reply filed by OP, it has been admitted that the complainants had agreed to purchase an apartment bearing No.204B, IInd Floor, Cat.A-2, Block-A-V from the OP including car parking in “Silver City Themes” and an agreement to this effect was executed between the parties on 24.01.2006. According to the OP, the construction work could not be completed in time because of the stay order passed by the Hon’ble High Court on 30.1.2007 in Civil Writ Petition No.18632 of 2005 titled ‘Dharam Chand and another Vs. State of Punjab and others’. The said stay order dated 30.1.2007 was later on vacated by the Hon’ble high court vide order dated 1.5.2008, and only thereafter, the Punjab Pollution Control Board vide letter No.MHL/NOC/2008/F-83 dated 19.09.2008 issued ‘No Objection Certificate’. Thereafter, the construction work has been started and the said work is in full swing. Delay, according to the OP, is due to the reasons beyond the control of OP as the construction work could not be continued because of the stay order passed by the Hon’ble High Court. It has further been pleaded that in view of Clause 23 of the agreement, the OP is not liable to pay any compensation for the delay which occurred for the reasons beyond the control of OP. So, it is not liable to pay any compensation or refund the amount. It has been pleaded that the possession shall be delivered to the complainants as per the terms and conditions of the agreement, on completion of the construction work. The factum of payment of installments as per schedule has been denied. Though it has been admitted that the complainants have already paid a sum of Rs.14,77,500/-. A number of preliminary objections have also been taken by the OP such as the complainants have not come to the Forum with clean hands; the complainants are not consumers and have no locus-standi to file the present complaint; the complaint is barred by limitation and does not disclose any cause of action. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have perused the record. 5. The main argument advanced by the learned counsel for the OP is that in view of Clause 23 of the agreement, OP is not liable to pay any compensation for the delay in handing over of possession nor is it liable to refund the amount. Clause 23 of the agreement reads as under: - “23. The allottees agree that sale of Apartment/dwelling unit is subject of force majure clause which interalia include delays on account of non availability of steel and/or other building materials, or water supply or electric power or slow down strike or due to a dispute with construction agency employed by the company/promoter shall be entitled to a reasonable corresponding extension of the time of the delivery of possession of the said Apartment/dwelling unit on account of force majure circumstances. The company/promoter as a result of such contingency arising reserves the right to alter or vary the term and conditions of allotment or if the circumstances beyond the control of the company/promoter so warrant the company/promoter may suspend the scheme for such period as it may consider expedient and no compensation of any nature whatever can be claimed by the allottee for the period of delay/suspension of scheme. In consequence of the company/promoter abandoning the scheme the company/promoter liability shall be limited to the refund of the amount paid by the allottee without any interest or compensation whatsoever.” 6. It was argued vehemently that because of the stay order passed by the Hon’ble High Court, the Punjab Pollution Control Board did not issue the ‘No Objection Certificate’ and therefore, the construction work had to be stopped. Thus, according to the learned counsel for the OP, the reasons for stopping the construction work and delay in delivery of possession is for the reasons beyond the control of OP and in view of Clause 23, reproduced above, the OP is not liable to pay any compensation or refund the amount. So, the complaint deserves dismissal. 7. To our mind, this argument advanced by the learned counsel for the OP has no force. In case titled ‘Kamal Sood Vs. DLF Universal Ltd.’ reported in III(2007) CPJ-7 (NC), it has been held by the Hon’ble National Commission that a builder should not collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/building. The relevant portion of the judgment reads as under: - “The main questions which require consideration in the appeal are— (i) Can a builder give alluring advertisement promising delivery of possession of the constructed building/flat to the purchaser/consumer within the stipulated time, and, subsequently, on his failure, turn around and contend that as governmental permissions, such as, approval of zoning plan, layout plan and schematic building plan, were not given, the delay in construction should not be the ground for grant of compensation to the consumer? And, (ii) xxxxx 2. In our view, it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings. 3 to 21. xxxxx 22. Normally, delay in construction of building may arise because of various reasons. But, in our country, it is known fact that delay occurs in obtaining various permissions from different governmental authorities, and this fact is well-known to the builder. The time normally taken in getting such permissions could have been contemplated by the builder before issuing the brochure. 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. 23. xxxxxx 24. Hence, in our view, it was the duty of the DLF to plan in advance, obtain necessary permission and thereafter promise to deliver the possession of the flat/apartment within the stipulated time. As stated above, if that is not done, delay in obtaining permission would hardly be a ground for directing the consumer to suffer.” 8. The ratio of the judgment cited above is squarely applicable to the facts and circumstances of this case. In the present case also, it was the duty of the OP to obtain the required permission from different departments before receiving the consideration money from the purchaser of the apartment. The Hon’ble National commission has categorically held that if a builder chooses to receive money for the proposed building without seeking approvals from the concerned departments, it is the fault of the builder and the buyer cannot be made to suffer for it. 9. It is pertinent to mention here that the Punjab Pollution Control Board refused to issue ‘No Objection Certificate’ to the OP on 02.04.2007 (Annexure R-8). Thus, at the time, when OP accepted the sale consideration and executed the agreement, it was not having the required ‘No Objection Certificate’ for raising construction on the land in dispute from the concerned Board. The said ‘No Objection Certificate’ was granted vide letter dated 19.09.2008 as is evident from Annexure R-11. As discussed above, OP was required to seek the permission/approval of various departments before accepting the sale consideration from various buyers. Failure to do so amounts to unfair trade practice. Had the OP accepted sale consideration after getting requisite permissions/approvals of various departments, this situation would not have arisen. Thus, the delay in completion of the project is not for the reasons beyond the control of OP as argued by the counsel for the OP, rather it is because of indulgence of OP in unfair trade practice. So, Clause 23 of the agreement is of no help to the OP. 10. It was argued by the learned counsel for the OP that as the apartment was being purchased for further sale, the transaction is commercial and therefore, this Forum has no jurisdiction to entertain this complaint. There is nothing on record to prove that the complainant was purchasing the said apartment for resale. Though the complainants have mentioned that the OP had approached and assured that purchasing apartment in “Silver City Themes” will be good investment yet there is nothing on record to prove that in fact the apartment was purchased for the purposes of resale. In these circumstances, from the evidence on record, it is not proved that it is a commercial transaction and this Forum has no jurisdiction to entertain the complaint. 11. As regards the argument raised by learned counsel for the OP that the complainants are not entitled to any interest or compensation as per Clause 35 of the agreement, it is made clear that there is nothing on record any order, legislation, rule or regulation prohibiting the OP to deliver the possession of the apartment to the complainant. Thus, Clause 35 of the agreement is not applicable to the facts and circumstances of this case. 12. The complaint is also not time barred as the possession has not been delivered by the OP to the complainant so far. Thus, this objection raised by the OP has also no force. 13. Admittedly, as per Clause 12 of the agreement, the possession was to be delivered soon after the payment of the last installment i.e. on 31.07.2007. The OP has failed to deliver the possession till today. The complainants cannot be made to wait for an unlimited period for the completion of the construction work. In these circumstances, refusal to refund the amount paid by the complainants amounts to deficiency in service and unfair trade practice. 14. In view of the above findings, this complaint is allowed with the following direction to the OP: - (i) to refund an amount of Rs.14,32,500/- to the complainants along with interest 9% per annum from the date of respective deposits till actual payment. (ii) to pay a sum of Rs.7,000/- to the complainants as costs of litigation. 15. This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.14,32,500/- to the complainants along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation. 16. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 8th June, 2011Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Ad/-
C.C.No.723 of 2010 Present: None. --- The case was reserved on 27.05.2011. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 08.06.2011 President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
