Punjab

SAS Nagar Mohali

CC/688/2014

Sunita Gupta - Complainant(s)

Versus

The Pinnacle Co-operative - Opp.Party(s)

Deep Singh

26 Aug 2015

ORDER

1

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

                  SAHIBZADA AJIT SINGH NAGR (MOHALI)

 

                                                          Consumer Complaint NO.  688 of 2014

                                                          Date of institution:                       09.12.2014

                                                          Date of Decision:              26.08.2015

 

Sunita Gupta W/o Sh. Kulbhushan Gupta, aged 51 years R/o H.NO.649, Sector-4, Panchkula, Haryana.

 

                                                                                      …….Complainant

                                                   Versus    

The Pinnacle Co-Operative Self Supporting Welfare House Building Society Ltd. Regd. Office D-178, IFP, Phase-8, Mohali through its Secretary.

 

Second Address

 

The Pinnacle Co-Operative Self Supporting Welfare House Building Society Ltd., Group Housing No.3, Pearl City, Sector-104, SAS Nagar Mohali.

 

                                                                                      ……..Opposite Party    

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

ARGUMENTS HEARD AND DECIDED BY

                   Ms. Madhu P. Singh, President

                   Shri Amrinder Singh Sidhu, Member

                   Mrs. R.K. Aulakh, Member.

 

Present:       Shri J.S. Ahluwalia, cl for the complainant.

                   Shri Amandeep Bindra, cl for the OP.

Ms. Madhu.P. Singh, President)

Order

                   _{The complainant has filed the consumer complaint under the Consumer Protection Act, (in short the “Act’) against the opposite party (for short ‘the OP’)  ) i.e The Pinnacle Co-Operative Self Supporting Welfare House Building Society Ltd. The complainant became the member of the Society on 17.08.2011 vide membership no.34 and the OP has issued the membership card/share certificate. The OP has issued a brochure vide which the OP has invited the application for sale and allotment of 3 BHK flat with a tentative super area of 1700 Sq. ft per unit with a tentative price of Rs. 33,90,000/- and tentative completion time of the construction of the flat was 30 months. The complainant applied for purchase of 3 BHK flat and as per the brochure and out of the agreed tentative rice of 33,90,000/- paid a total sum of Rs. 9,25,000/- from 17.08.2011 to 18.05.2012 in three installment i.e. Rs.3,25,000/- on 17.08.2011, 3,00,000/- on 24.09.2011 and 3.00,000/- on 18.05.2012. The OP has accepted the said payment and issued the receipt of payments made by the complainant. As per the promise made in the brochure, since the OP has not raised any construction and handed over the possession of the flat to the complainant within the tentative period of 30 months of completion, therefore, after visiting the site and finding no construction/development thereupon the complainant has approached the OP seeking refund of the deposited amount alongwith interest. The complainant has issued notices and reminders, the last reminder being  registered letter dated 12.11.2014, still  the OP has failed to refund the deposited amount and thus the complainant has alleged deficiency in service and unfair trade practice on the part OP as the OP was not having proper sanctions and approvals to develop the colony from the concerned quarters and without those approvals in hand they have collected the money from the complainant. Hence the complainant has filed the present complainant with  the direction to the OP to pay Rs.9,25,000/- to the complainant with interest @ 18% till the final payment is made along with Rs. 50,000/- as compensation for deficiency in service, mental harassment and unfair trade practice and Rs. 10,000/- as litigation expenses .}

 

_{2.       After service of notice upon OP,  the OP appeared through counsel and filed reply to the complaint taking preliminary objections that i) in the application, the tentative cost and tentative completion time of the project was mentioned and the said term was duly accepted by the complainant, ii) the amount of Rs. 3,25,000/- deposited with the application form was on account of application, share and registration money and therefore the notice was issued to the complainant to deposit another sum of Rs. 3 lacs on or before 15.09.2011. Since the complainant failed to deposit the said amount a reminder was issued and the complainant complied with the demand and deposited Rs. 3 lacs on 24.09.2011 against due receipt No.145, iii) further all the necessary approvals have been obtained after following the due process of law from the concerned quarter and the last approval being from Punjab Pollution Control Board on 14.08.2014. Thus there is no deficiency on the part of the OP as the construction of the flat is to start after taking the appropriate approvals from the concerned quarter and there is no certain time frame committed in completion of the project and handing over the project as alleged by the complainant i.e. 30 months from the date of registration, iv) further the complainant is not a consumer as defined under the provisions of the Consumer Protection Act. So far as refund request of the complainant is concerned the OP in para Nos. 7 and 8 to the reply on merits has stated that the amount deposited by the complainant cannot be refunded as the same has been utilized for the land purchased by the society towards the part of total sale consideration paid to the vendors of the land. Therefore, refund has not been made to the complainant. The OP has denied deficiency in service and unfair trade practice on its part and prayed for dismissal of the complaint being without merit.}

_{3.       The Complainant placed on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-20.}

_{4.       OP No.1 placed on record affidavit of Nikhil Saraf its Secretary Exb. OP-1/1 and tendered in evidence documents Exb. OP-1 to OP_1/12.}

_{5.       We have heard ld. counsel for the parties and gone through the written arguments filed by them.}

_{6.       Before coming to the merits of} the complaint, the OP has taken some preliminary/legal objections which are required to be discussed before taking the complaint on merits.

7.       A plea has been taken by the OP that the complainant is not a consumer as defined under Section 2(1) (d) of the Consumer Protection Act, 1986 and, therefore, the complaint is non maintainable. In this regard, counsel for the complainant has relied upon the judgment of the Supreme Court of India rendered in Virender Jain vs. Alakhanda Cooperative Group Housing Society Limited and others, (2013) 2 SCR, 1058 wherein  it has been held that members of the Society are consumers within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986. Admittedly, the complainant is a member of the OP Society and the Society has issued the membership certificate as well as accepted payment of Rs. 9 lacs from the complainant as part payment of the agreed tentative cost of Rs. 33,90,000/- for 3 BHK flat. Once the complainant deposited the aforesaid amount, for the allotment of flat, after hiring the service of the OP, he fell within the definition of the consumer as provided in Section 2 (1) (d) (ii) of the Act which reads as under:-

“Consumer means any person who-

 

hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who ‘hires or avails of the services of consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”

 

                    Therefore, the complaint being a member of the Cooperative Society has become the consumer of the OP. Hence, the objections raised by the OP is ill founded and the complainant being a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 has a right to file the present complaint and her complaint is maintainable.

 

8.       The other preliminary objection raised by the OP are also covered in their reply to the merit , hence are discussed while deciding the complaint on merit.

 

9.       Now coming to the merit of the complaint, the main controversy raised in the complaint is regarding non refund of the deposited amount of Rs. 9,25,000/- as on 18.05.2012 which the OP has accepted from the complainant as part consideration for sale of 3 BHK flat without having proper and necessary sanctions/approvals in his favour at the time of accepting the said amount from the complainant.

10.     It has been alleged in the complaint that complainant being a member of the Cooperative Society has applied for one 3 BHK flat measuring 1700 Sq, ft with a tentative price of Rs. 33,90,000/- as per the brochure /application form  Ex.C-3. The tentative completion mentioned in the brochure/application form was 30 months from the first installment payment of the dwelling unit. The complainant has paid the first installment of Rs. 3,25,000/- on 17.08.2011 which is duly acknowledged by the OP and further the complainant has paid two more installments one for Rs. 3 lacs on 24.09.2011 and another of Rs. 3 lacs on 18.05.2012. The same having been again duly received and acknowledged by the OP vide receipts Ex C-4 to Ex. C-8. In  all the complainant has paid Rs. 9,25,000/- from 17.08.2011 to 18.05.2012. The payment schedule as agreed between the parties was as per construction linked plan and the society share holders will be duly informed accordingly. The tentative completion time of the housing project will be two and half years (30months) from the first installment payment of the dwelling unit. As per the complainant the OP was to complete the construction of the housing project two  and half years i.e. 30 months from the payment of first installment i.e. from 17.08.2011 to 18.05.2012 and the OP has failed to raise the construction by the said tentative period and informed the status of the construction to the complainant being a share holder. Since the OP has not fulfilled her promise, therefore, disbelieving the intent of the OP as per ground inspections conducted by the complainant regarding the status of the construction, the complainant desired the OP to refund her deposited money along with interest and in this regard the complainant has send the request letter by registered post Ex C-9 and Ex-C-10 along with copies to the Registrar Cooperative Society and other authorities for intervention. The complainant has received the reply from the OP where the OP has admitted having acknowledged the receipt of the payment made by the complainant but is silent about its stand on the request of refund of the deposited amount. Further in the said reply the OP has admitted that necessary approvals and sanctions from the concerned quarters to develop the project have not been obtained and efforts are made to get the respective clearances from various Govt. Departments at the earliest. Since no construction activities can  be started without approvals and sanctions in place, therefore, the word tentative has been mentioned in the application/brochure regarding completing time of the housing project. Still not satisfied with the said reply, the complainant submitted the reminder by registered post for refund of the amount along with surrendering the membership certificate and payment receipts vide C-13 and Ex C-14 followed by another reminder dated 23.08.2014 by registered post Ex C-17 and Ex C-18 and final reminder dated 12.11.2014 by registered post by Ex C-20 and Ex C-21, the said reminders remained unanswered in the hands of the OP. Therefore, as per the complainant the OP has indulged into unfair trade practice as they have collected the money from the complainant without having proper and necessary sanctions and approvals in his favour and further has failed to render proper and effective services as they failed to refund the deposited amount with interest despite various reminders sent by the registered post to the OP.

11.                 Counsel for the complainant also argued that there was unfair trade practice on the part of the OP as the OP has invited the application for the project, which was not cleared by the competent authorities. The complainant has been introduced as a member of the society vide membership no. 34 dated 17.08.2011 vide ex C-1 and subsequently on the basis of the brochure/application has paid a total sum of Rs. 9,25,000/- from 17.08.2011 to 18.08.2012 being the part consideration for purchase of 3 BHK flat with tentative super area of 1700 Sq.ft. At the time of application and till payment of the part consideration, the OP was not having proper sanctions from the competent authorities. The evidence  produced by the OP regarding the sanctions and approvals in their favour i.e. Ex OP/7 the issuance of NOC for construction of Group Housing Project i.e. Pinnacle Houses at Sector 104, Mohali, Punjab by the Pinnacle Cooperative Welfare House  Building Society Ltd has been conveyed to the Op by Govt. of India, Ministry of Defence vide their letter dated 09.09.2013 Ex OP/7. As per Ex Op/10 the complainant has been claimed to have been informed by the OP regarding clearance of building plan from GMADA but no evidence to show the delivery of such communication to the complainant has been placed on record and neither the alleged approved building plan, a copy thereof has not been placed on record by the OP. Thus no reliance, regarding the assertion made by the OP in this regard  i.e. approval of  building plan by the GMADA can be made. Further Environmental Clearance from the Pb. Pollution Control Board, Nabha, Patiala on 27.03.2015 Ex OP/12 has been shown by the OP. The co-joint reading of both the documents Ex OP/7 and Ex OP/12 clearly shows that the sanctions have been obtained much later in  time after  receiving the membership and first installment from the complainant on 17.08.2011.

12.              The OP has continued in his efforts to mislead the complainant during the course of proceedings when he has once offered to compromise the matter and  later on taken a U-Turn and not refunded and deposited amount even during the course of proceedings.

13.              Counsel for the complainant has relied upon the order rendered by Hon’ble National Commission in Kamal Sood Vs. DLF Universal Ltd, 2007 (2)CLT 440 that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are identical  as per the judgment relied upon by the Hon’ble National Commission in  Kamla Sood vs. DLF Universal Ltd, 2007 (2)CLT 440 by the complainant. As per our discussion above, the complainant has made the first payment on 17.08.2011 after obtaining the membership and at the time of receipt of such payment the OP was not having any necessary sanctions and approvals in his favour to develop the housing project as some of the sanctions have been obtained by the OP on 09.09.2013 Ex OP/7 and 27.03.2015 Ex OP/12 which clearly shows that the OP cannot even float any advisement by way of issuance of brochure/inviting applications for sale of fully built up flats without having proper approvals/sanctions in his favour. Thus the complainant has clearly established the act of the OP having issued the brochure, inviting the applications and accepted the application and part payment out of the agreed sale consideration of 3 BHK flat from the complainant on 17.08.2011 without having proper sanctions/approvals in his favour on the day, have indulged into  unfair trade practice.

14.              Further the sale of flat in question and acceptance of part consideration from the complainant, without having proper sanctions and approvals in his favour and further  retention of the deposited money without any legal mandate amounts to deficiency in service on the part of the OP.

15.              In view of the above discussion, we accept the complaint with the direction to the OP as under:-

a) to pay a sum of Rs. 9,25,000/-( Rs. nine laces twenty five thousand only) along with interest @ 12 P.A. from the date of receipt of respective sums till the date of payment.

b) to pay a sum of Rs. 50,000/-( Rs. fifty thousand only) on account of harassment and unfair trade activities committed on the part of the OP.

c) to pay Rs. 10,000/- ( Rs. ten thousand only) as litigation expenses.

                   The OP is directed to comply with the above directions within  45 days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Announced

August 26, 2015