DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.:1209 of 2009 Date of Inst:25.08.2009 Date of Decision:26.03.2010 1. Smt.Anshu Singhal w/o Sh.Amit Singhal 2. Amit Singhal s/o Sh.V.K.Singhal Both residents of S-193, 2nd Floor, Uppal South End, Sohana Road, Gurgaon (Haryana). ---Complainants V E R S U S1. SMV Agencies Pvt. Ltd., SCO No.64 & 65, Ground Floor, Sector 34-A, Chandigarh through its Managing Director. 2. SMV Agencies Pvt. Ltd., H.O.8-C, Hansalaya, 15 Barakhamba Road, Connaught Place, New Delhi-01 through its Managing Director. ---Opposite PartiesQUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER PRESENT: Sh.J.K.Babbar, Advocate for complainants Sh.B.S.Mangat, Adv. for OPs. --- PER LAKSHMAN SHARMA, PRESIDENT Smt.Neelam and Sh.Ajay Kumar have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed to :- i) To refund a sum of Rs.5,45,260/- (Rs.2 lacs as booking amount and Rs.3,45,260/- as first installment) with interest @ 18% p.a. from the date of deposits. ii) To pay a sum of Rs.7000/- as processing fee charged by UTI Bank Ltd. on account of loan. iii) To pay interest on the amount paid by the complainant on the loan amount. iv) To pay a sum of Rs.3 lacs compensation on account of escalation in cost of construction material, price rise of land, mental agony and harassment. v) To pay a sum of Rs.11,000/- as litigation expenses. 2. In brief, the case of the complainants is that on 01.01.2007 they booked a two bed rooms flat in Jaipuria Sunrise Greens, Zirakpur. The total cost of the flat was Rs.25,69,560/- The said flats were to be constructed at Patiala Road, Zirakpur. According to the complainants, they paid a sum of Rs.2 lacs towards booking of the said flat vide receipt No.248 dated 01.01.2007 (Annexure C-2). As per the allotment letter dated 05.01.2007 (Annexure C-3) the physical possession of the said flat after complete construction was to be handed over on 31.10.2008 in down payment and after 3 months of completion of the period of installment plan subject to receipt of the basic price, extra charge and registration charges etc. According to the complainants, no construction activity was going on the site. Therefore, they approached OPs who assured them that the construction of the flats would be completed in all respect upto the due date i.e. 31.01.2008. It has further been averred that OPs entered into a tripartite agreement dated 08.02.2007 with the complainants and UTI Bank for payment of installments subject to completion of the construction work in stages. The complainants paid the first installment of Rs.3,45,260/- due on 31.01.2007 on 12.03.2007 after the start of the work by OPs and OPs also waived off the interest @ 18% on account of their default and failure to start the construction. It has further been pleaded that the construction has not been completed so far. Therefore, the complainants requested OPs for refund of the amount deposited by them. They also served a legal notice dated 04.06.2009 (Annexure C-7) upon the OPs but to no effect. According to the complainants, non-delivery of the possession of the flat within the stipulated period and non-refund of the deposited amount despite repeated requests and visits amounts to deficiency in service and unfair trade practice on the part of OPs. In these circumstances, the present complaint was filed seeking the reliefs mentioned above. 3. In the reply filed by OPs, it has been admitted that the complainants had booked a two bed rooms flat in Jaipuria Sunrise Greens, Zirakpur with OPs at the total cost of Rs.25,69,560/-. It has further been admitted that the complainants paid Rs.5,45,260/- towards the cost of the flat. It has been pleaded that the construction of the flat has been delayed due to some unavoidable circumstances. According to OPs, the delay in construction of the flat was due to the long processing time taken by various Government Departments for giving approvals as required for development of the project. It has further been pleaded that as per clause 30 of the terms and conditions of the allotment letter, the possession period agreed upon is only indicative and the possession could be given before the said date or after the said date and in case of failure due to force majeure, OPs would be liable to pay to the allottee compensation of Rs.5/- per sq feet of Super Area per month for the period of delay. It has further been pleaded that as per clause 3 of the terms and conditions of the allotment letter, OPs are entitled to forfeit 10% of the basic price of the unit in case of cancellation of the allotment. In these circumstances, according to OPs, 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 gone through the entire record including documents, Annexures, affidavits etc. 5. Admittedly, the complainants have paid Rs.5,45,260/- out of the total cost of the flat i.e. Rs.25,69,560/- and the remaining amount was to be deposited in installments at various stages of construction to be completed by OPs. . As per the allotment letter the possession of the flat was to be handed over to the complainants on 31.10.2008 in down payment plan and after 3 months of completion of the period of the installment plan, subject to receipt of the entire basic price. OPs have failed to complete the construction and deliver the possession of the flat to the complainants within the period agreed upon. 6. According to the learned counsel for the complainants, they have paid the amount of the flat after raising loan from UTI Bank and are paying interest on the said amount. In these circumstances, the complainants can not be forced to wait for an unlimited period for taking physical possession of the flat. Therefore, they applied for the refund of the amount along with interest but the OPs have failed to do so, which amounts to deficiency in service. 7. Admittedly, the construction of the flat has not been completed and possession of the flat has not been delivered to the complainants so far. Complainants have raised loan for making the payment of the flat to OPs. The complainants cannot be forced to wait for the delivery of possession for an unlimited period. So failure to deliver possession within the period agreed upon and failure to refund the money in such circumstances amounts to deficiency in service and unfair trade practice. 8. Faced with situation, the learned counsel for the OPs pleaded that the construction of the flats could not completed due to the long processing time taken by various Government Department for giving approvals as required for development of the project. In our view, inviting applications without getting the necessary approvals from the Government amounts to deficiency in service as well as unfair trade practice as has been held in the case of Kamal Sood Vs. DLF Universal Ltd., III(2007) CPJ-7 (NC). So in all eventualities, non-delivery of possession of the completely constructed flat within the stipulated period, amounts to deficiency in service on the part of OPs. 8. The Learned counsel for the OPs further stated that as per clause 3 of the terms and conditions of the allotment letter, OPs are entitled to forfeit the 10% of the basic price of the unit in case of cancellation of the allotment. But this argument of the learned counsel for the OPs has no force because in the present case, the default, if any, is on the part of the OPs who have failed to raise the construction of the flats within the stipulated period. 9. In view of the above findings, this complaint is allowed with a direction to OPs to refund to the complainants a sum of Rs.5,45,260/- with interest @ 18% p.a. from the respective dates of its deposits till its realization. The OPs are also directed to pay Rs.5,000/- to the complainants as costs of litigation. 10. This order be complied with by OPs within 45 days from the date of receipt of its certified copy. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 26.03.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (ASHOK RAJ BHANDARI) MEMBER
| | , | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
