BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complaint  Case No  : 1338 of 2009

Date    of  Institution :    22.09.2009

Date   of   Decision   :    18.01.2010

Anoop Bhargava s/o Late Sh.Ashok Bhargava, r/o # 35-B, Prithviraj Road, New Delhi 11001

….…Complainant

V E R S U S

Suncity Projects Pvt. Ltd., SCO No.173-174, Sector 17-C, Chandigarh

.…..Opposite Party

CORAM:    SH.JAGROOP SINGH MAHAL      PRESIDENT

                DR.(MRS) MADHU BEHL              MEMBER

Argued by:       Sh.R.K.Aggarwal, Auth. Representative of complainant.

                        Sh.Rajbir Singh Guron, Adv. for OP

PER SH.JAGROOP SINGH MAHAL, PRESIDENT

                The complainant, in response to a housing scheme floated by the OP Company under the name of “Parikarma Housing Project, Panchkula”, booked one AC Apartment Flat with OP in the said scheme on 28.2.2007 measuring 2150 sft. consisting of 3 bedrooms, one servant & store room and paid a sum of Rs.11,61,000/- vide Ann.C-1.  Thereafter, he paid first installment of Rs.7,74,000/- to OP and as such paid a total sum of Rs.19,35,000/- towards the allotment of the flat.  However, the OP, as averred, failed to keep their promise i.e. to complete the project within 2-3 years and give possession of the same thereafter; to execute an agreement with the buyer/complainant containing all terms & conditions of allotment and in case the agreement was not signed within reasonable period, the amount was to be returned with interest.  It is also averred that the OP Company even failed to allot the number of apartment to the complainant and also failed to inform about the status of the construction except giving false assurances of completing the project very soon.  However, the complainant, on feeling doubtful about the fulfillment of promises so made by OP Company with regard to timely competition of their project; handing over the apartment booked with them; providing facilities like Leisure Pool, Children Pool, Shoping Plaza, Lawns, Parking, Basketball Court, Lawn Tennis Court, Skating Rink, Badminton Court, Jogging Track, Primary School, Club etc. (Ann.5) as well as their failure to execute an agreement confirming the provisions of infrastructure facilities, ultimately sought refund of his amount with interest vide letter dated 19.5.2009 but the same has not been refunded.  Therefore, the present complaint has been filed alleging the above act of OP as gross deficiency in service and unfair trade practice, due to which the complainant had to suffer great mental tension, physical harassment and huge financial loss.  

2]             OP filed reply and took objection to the effect that the complainant is not a consumer qua OP and the complaint is barred by territorial jurisdiction.  The factual matrix of the case with regard to floating of said scheme by the OP; allotment of an Air Conditioner Apartment to the complainant and receipt of Rs.19,35,000/- towards the allotment of apartment from the complainant, have been admitted.  However, it is denied that the OP ever promised that the project would be completed within 2 or 3 years and possession would be given soon thereafter. It is stated that all the contractual terms and conditions between the complainant and OP with regard to allotment of an air-conditioned apartment including, the mode of payment of premium, interest etc. were to be stated in the Buyer’s Agreement but the complainant himself never came forward to execute the said agreement and instead sought refund of the amount through this complaint.  It is also stated that the amount paid by the complainant was not a deposit but was in a way of part-payment towards price of the apartment; agreed to be purchased by him from the OP company but since complainant himself did not come forward to execute the Buyer’s Agreement, so he cannot be allowed to take benefit of his own wrong.  The agreement was ready but complainant refused to execute the same.  Denying all other allegations, it is prayed that the complaint be dismissed with heavy costs. 

3]             Parties led evidence in support of their contentions.

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

5]                          The contention of the complainant is that the OP had promised to complete the project within 2 to 3 years and give possession of the same thereafter.  The complainant however could not produce any document to suggest as to when and where the said promise was made.  The complainant himself had attached Annexure-6, the copy of the letter informing the complainant that construction was in full swing and company would complete the project by the ending of 2010.  Annexure-7 is the communication from the OP that within one or one and a half month, company would allot flat number and location.  This undertaking was repeated in Annexure-8 also.  It is not the case of the complainant, if he accepted this proposal of the OP.  Needless to mention that a legal binding contract would come into being only after the proposal given by one party is accepted by the other.  In the present case there was no written contract between the parties.  The proposal given by the OP vide Annexure-6 has not been accepted by the complainant and therefore the result is that no time has been fixed for completing construction and to give possession of the premises to the complainant.  In the mean time, the OP issued another letter Annexure C-10 to complete project by the ending of 2011 but that proposal also has not been accepted by the complainant.  There is therefore no agreement between the parties of fixing the date by which the construction could be started or completed. In cases, where no time is fixed, the OP cannot be held deficient in rendering service.  We therefore cannot say if the OP was to complete construction within 2 to 3 years or to give possession thereafter. 

6]             The complainant had paid a sum of Rs.19,35,000/- to the OP without fixing the date for completion of construction or delivery of possession.  If the parties do not fix the date, the Consumer Fora would not be justified in fixing any such date for delivery of possession, especially when a proposal has been given by the OP to complete construction first in the end of 2010 and thereafter in the end of 2011 but the complainant has not accepted the same. It therefore cannot be said if there was any deficiency in service on the part of the OP in completing the construction or delivery of the possession.

7]             The complainant has prayed for refund of the said amount.  The mere fact that the OP failed to refund the amount would not constitute deficiency in service.  If the complainant seeks refund of the amount, it does not constitute a consumer dispute and therefore, this request is not cognizable by the Consumer Fora.

8]             In view of the above discussion, we are of the opinion that there is no merit in this complaint.  The same is accordingly dismissed.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.