Chandigarh

DF-II

CC/78/2022

Col. Inder Singh Thind - Complainant(s)

Versus

Sushma Buildtech Ltd. - Opp.Party(s)

Brijindra Singh Bajwa, Bhupinder Singh Gill, Adv

09 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	78 of 2022
Date of Institution	:	24.01.2022
Date of Decision	:	09.02.2024

 

                   

           

 

Col.Inder Singh Thind, Age 67 years. Aadhar Card No 4163 9762 9887, s/o Sh. Prem Singh, R/o, H.No.38-39, Green Park Colony, Zirakpur

 

…Complainant

VERSUS

1] Sushma Buildtech Ltd., Unit B-107, Business Complex, 1 Floor, Industrial Area Chandigarh-160009, through its Director Authorized Representative

 

2] Sushma Buildtech, Regd. Office:- SCO No. 183-184, through its Director/Authorized Representative.

…. Opposite Parties

 

BEFORE:	SHRI AMRINDER SINGH SIDHU,        PRESIDENT SHRI B.M.SHARMA                   MEMBER
PRESENT:-
	Sh.Bhupinder Singh Gill, Counsel for complainant along with complainant Sh.Vishal Singal, Counsel for OPs.

   

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

        The complainant has filed the present complaint alleging therein that he was contacted by the representatives of the OPs for the proposal of Homework office/ SOHO units which were ready to be handed over and moved in. Being allured  by the false representations, the complainant made initial payment of Rs.50,000/- vide cheque dated 23.08.2018 towards the Unit No.21, 3rd FLOOR, TOWER-A, in the project  of the OPs known as “HOMEWORK” at Village Singpura, Chandigarh Ambala Highway, Zirakpur as the same was required for his own livelihood/personal use. The total cost of unit was Rs.24,72,888/-. In good faith, the complainant further deposited Rs.2,38,797/- and Rs.5,00,000/- through cheques dated 08.10.2018 and 07.12.2018 respectively with the OPs towards the unit. Despite his several requests, the OPs failed to provide any receipt for the aforesaid cheques, documents in respect to the project and the sale purchase agreement. In total, the complainant paid Rs.7,88,797/- to the OPs towards the unit.  The complainant made several written requests and sent reminders to the OPs for providing necessary documents but they did not bother to reply.  It has further been averred that the OPs are bounden duty to keep the complainant informed of the developments of the project and the status of the project time to time and further provide all the basic/ necessary documents to the complainant. Finally, the complainant served a legal notice dated 07.07.2019 (Annexure C-3) through his legal counsel upon the OPs but to no effect. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund the deposited amounts along with interest, compensation for mental agony and physical harassment as well as litigation expenses.

 

2]      After service of notice, the OPs appeared before this Commission and filed their written version taking preliminary objections regarding the maintainability of the complaint by the complainant and that the complainant is not a consumer as defined under the provisions of the Consumer Protection Act.  The OPs have admitted the booking of the unit in question and receipt of Rs.7,88,797/- out of entire consideration of Rs.24,72,888/. Stated further that the complainant after having only made an application for booking, kept on lingering the matter on one pretext or another, and did not make the balance payments and also did not execute any Buyer's Agreement failing which the application for allotment was canceled and the amount forfeited as per the terms of the application. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.

 

3]      The complainant filed replication to the written version of the OPs controverting their stand.

 

4]      Parties filed their respective affidavits and documents in support of their case.

 

5]      We have heard the Counsel for the contesting parties and have gone through the documents on record.

6]      From the perusal of the record especially Account Statement (Ann.C-1), it is proved that the amount of Rs.7,88,797/- qua the unit in question was deposited by the complainant through his bank account and as such the complaint filed by the complainant is maintainable though the unit in question was booked by him along with his wife Smt.Shavinder Kaur.

 

7]      It is also observed from the documents on record that no buyer’s agreement or sale agreement in respect of the unit in question was ever executed between the parties nor the possession of the unit in question has been offered by the OPs. Under these circumstances, the forfeiture of the deposited amount by the OPs in respect of the unit without there being any legal & valid agreement between the parties, amounts not only to deficiency in service but also adoption of unfair trade practice on the part of the OPs. 

 

8]      The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

         Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:- 

“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”.

 

 

9]      In view of the above discussion & findings, the present complaint deserves to be partly allowed and the same is accordingly partly allowed. The OPs are directed to refund the deposited amount of Rs.7,88,797/- to the complainant along with interest @9% per annum from the respective dates of its deposit till its actual payment to the complainant. The OPs are also directed to pay compensation of Rs.20,000/- to the complainant towards the physical harassment & mental agony and Rs.10,000/- towards litigation expenses.

         This order be complied with by the OPs jointly and severally, within 90 days from the date of receipt of its certified copy.

10]     The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.       

Announced

09.02.2024                                                           Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

(B.M.SHARMA)

MEMBER