THE MANAGER , AM REALTY SOLUTIONS V/S SABA AZMI KHAN
SABA AZMI KHAN filed a consumer case on 03 Dec 2024 against THE MANAGER , AM REALTY SOLUTIONS in the DF-I Consumer Court. The case no is CC/302/2024 and the judgment uploaded on 05 Dec 2024.
Chandigarh
DF-I
CC/302/2024
SABA AZMI KHAN - Complainant(s)
Versus
THE MANAGER , AM REALTY SOLUTIONS - Opp.Party(s)
ABDUL SATTAR
03 Dec 2024
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,
U.T. CHANDIGARH
Consumer Complaint No.
:
CC/302/2024
Date of Institution
:
24/6/2024
Date of Decision
:
3/12/2024
Mrs Saba Azmi (Khan) D/o Murtaza Khan R/o-House no 1060 B, Sector 41,Chandigarh.
..Complainant
Versus
1. The Manager, AM Realty solutions having its Head Office at C- 56/22 Ground Floor Near Baba Balaknath Mandir Sector 52 Noida, Uttar Pradesh.
2. Mukesh Dubey Account Manager at AM Realty solutions having its Head Office at C-56/22 Ground Floor Near Baba Balaknath Mandir Sector 52 Noida, Uttar Pradesh.
3. Vikas Pandey Employee AM Realty solutions having its Head Office at C-56/22 Ground Floor Near Baba Balaknath Mandir Sector 52 Noida, Uttar Pradesh.
CORAM :
SHRI PAWANJIT SINGH
PRESIDENT
MRS. SURJEET KAUR
MEMBER
SHRI SURESH KUMAR SARDANA
MEMBER
ARGUED BY
:
Sh. Deepak Aggarwal, Advocate for complainant
:
Sh. Devinder Kumar, Advocate proxy for Sh. Mukul Sharma, Advocate for OPs.
Per Pawanjit Singh, President
The present consumer complaint has been filed by the complainant against the opposite parties (hereinafter referred to as the OPs). The brief facts of the case are as under :-
It transpires from the averments as projected in the consumer complaint that the OPs no 1 and 2 are indulged in the business of building, developing housing projects and further sale of plots and flats in many parts of India under the name and style of AM Realty Solutions. The Complainant was interested to make a home for her family in Jaipur and on the allurement OPs, the complainant agreed to purchase a plot measuring 111 sq yd in the project of the OPs for total consideration of Rs.3,69,663 and for that purpose the complainant booked the aforesaid plot on 05.01.2017 and paid amount of Rs.30,000 as registration amount vide Annexure C1-A and on the insistence of OPs the complainant further paid an amount of Rs. Rs 1,54,832/- as booking amount and accordingly plot no 132 was booked by the OPs . The complainant also paid Rs 50,000/- (Annexure C3) on dated 22.07.2017 and finally on 16.10.2022 complainant again paid Rs.1,00,000/- through Paytm in the Account of opposite party no 2 (Annexure C4). After the last payment from the complainant, the OPs stopped communication with complainant and on 09.3.2021 after about four years OPs informed complainant through email about change of the account manager. On 05.6.2021, OP revised the rates of plot from Rs 3,69,663 to Rs 4,21,039/- and also decrease the size of plot from 111.11 sq yd to 108.885. sq yd. and further changed the booked plot no 132 to plot no B-33, which was communicated to the complainant vide email Annexure C4. Thereafter the complainant approached the Ops office at Noida where she met OP No.2 who also introduced OP No.3 and promised that the rate, size of the plot and number of the plot will remain the same and on these assurances the complainant had made last payment of Rs.100,000/- on 16.10.2022. In this manner, the complainant has paid an amount of Rs.3,34,832/- to the OPs. The complainant approached the OPs on 18.10.2022 with the request to fulfill their promises but the OPs have though confirmed payment of Rs.1,00,000/- made by the complainant but not uttered even a single word about restoration of the original plot. Thereafter the complainant again sent various communications to the OPs but the OPs neither restored the original plot to the complainant nor refunded the paid amount rather had communicated vide email dated 2.4.2023 about the cancellation of the unit and forfeiture of the paid amount. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
OPs resisted the consumer complaint and taken objection of maintainability, cause of action. However it is stated that the complainant herself has not adhered to the terms and conditions of the provisional booking. However, it is admitted that the complainant booked a plot with the OPs but alleged that an amount of Rs.2,95,000/- was only paid by the complainant out of the total cost of Rs.4,21,309/-. It is further alleged that as the complainant herself made default of payment, there was no other option for the OPs to cancel the unit as per terms and conditions of the allotment. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied. The consumer complaint is sought to be contested.
In rejoinder, complainant reiterated the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
We have heard the learned counsel for the parties and also gone through the file carefully.
At the very outset, it may be observed that when it is an admitted case of the parties that the complainant initially booked plot No.132 measuring 111.11 sq yd for total sale consideration of Rs.3,69,663/- and later on the OPs arbitrarily changed the location of the plot and decreased the size of plot to 108.885. sq yd. and further changed the booked plot no 132 to plot no B-33, and also enhanced the cost of the plot to Rs.4,21,039/- , the case is reduced to a narrow compass as it is to be determined if the complainant has paid a total amount of Rs.3,34,832/- to the Ops and the OPs have wrongly and arbitrarily cancelled the booking of the plot and the complainant is entitled for refund of the amount as prayed for alongwith compensation or if the complainant has paid only Rs.2,95,000/- to the OPs, out of the total sale consideration of the plot and due to non payment of remaining amount, the OPs have rightly cancelled the booked plot and forfeited the paid amount and the complaint being not maintainable liable to be dismissed as is defence of the OPs.
Annexure C-1A is the registration form which clearly indicates that the complainant has paid Rs.30,000/- to the OPs. Annexure C-3 is the copy of receipt which clearly indicates that an amount of Rs.50,000/- was further paid by the complainant to the OPs on 22.7.2017. Annexure C-5 is the copy of email which further indicates that the complainant paid an amount of Rs.1,00,000/- to the OPs which was acknowledged by the OPs vide said email dated 7.11.2022. Further vide Annexure-3 the Ops acknowledged receipt of Rs.1,95,000/- from the complainant. Thus, one thing is clear on record that the complainant has paid an amount of Rs.3,25,000/- to the OPs i.e. Rs.30,000/- as registration fee, Rs.1,95,000/- which also included an amount of Rs.50,000/- paid by the complainant on 22.7.2017 and in addition to that Rs.1,00,000/- was also paid by complainant on 7.11.2022. On the other hand the defence of the OPs is that the complainant has paid an amount of Rs.2,95,000/- which stands falsified from the documentary evidence as discussed above from where it is clear that in fact the complainant has paid an amount of Rs.3,25,000/- to the OPs.
So far as the defence of the OPs that they have cancelled the booking of the plot due to non payment of the remaining payment by the complainant is concerned, the same is without merit especially when the OPs have failed to prove on record if they ever made offer of possession to the complainant or they have requisite permissions from the competent authority.
Not only this, OPs have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat. If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession. In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :-
“…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”
It has thus been proved on record that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-
“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.
It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”
The complainant has also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also inFortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined. The relevant headnote of the order is reproduced below for ready reference :-
“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”
In view of foregoing discussion, it is safe to hold that the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on its part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs. Hence, the instant consumer complaint deserves to be allowed.
In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under:-
to refund ₹3,25,000/- to the complainant(s) alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards
to pay ₹30,000/- to the complainant as compensation for causing mental agony and harassment;
to pay ₹10,000/- to the complainant as costs of litigation.
This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
Pending miscellaneous application(s), if any, also stands disposed off.
Certified copies of this order be sent to the parties free of charge. The file be consigned.
Announced
3/12/2024
[Pawanjit Singh]
President
mp
[Surjeet Kaur]
Member
[Suresh Kumar Sardana]
Member
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