Chandigarh

DF-I

CC/764/2021

Joginder Lal - Complainant(s)

Versus

The Punjab State Federation of Cooperative House Building Society Ltd., (Housefed) - Opp.Party(s)

Harsharn Singh

12 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/764/2021
Date of Institution	:	3/11/2021
Date of Decision	:	12/2/2024

 

Joginder Lal, Age 53years, S/o Saran Dass, R/o H.No. 83, Sector 57, Mohali, Punjab.

 

...Complainant

Versus

 

The Managing Director Principal Executive Office (PEO) The Punjab State Federation of Cooperative House Building Society Ltd., Housefed, Punjab. SCO No. 150-151-152. Sector-34A, Chandigarh.

.....Opposite party

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Harsharn Singh, Advocate for complainant
	:	Smt. Vertika H. Singh, Advocate for OP.

Per surjeet kaur, Member

     Briefly stated the complainant  in response to the advertisement of OP, applied for the allotment of flat (category-II), vide application no 3941 with OP. Vide allotment letter dated 23.06.2009, he was allotted Category-Il flat in the Group Housing Society for a total sale consideration of 14.92 lakhs. Out of this amount, the complainant already paid Rs.8,98,000/- to OP. The complainant received the letter regarding intimation of possession dated 17.10.2014 issued by OP, allotting him flat no.2506, second floor, Category-Il in the above scheme and he was asked to make the balance outstanding payment of 15,76,119/- though earlier the same was ₹5,97,000/-. Thus, the OP fixed the final price of the flat at 24.46 lacs. This increase is 9.54 lacs from the tentative price of ₹ 14.92 lacs. The complainant was unable to appreciate the arbitrary, inflated and totally unsubstantiated demand raised by OP. Any detail of inordinate increase of amount of 9.54 lacs was not mentioned in the letter dated 17.10.2014. The complainant showed his inability to pay the inflated price and requested for refund of the amount to the OPs but to no avail.  The complainant sought refund of deposited amount, vide Application dated 06.12.2020  But The OP refused to refund the same, vide letter dated 22.02.2021. It is alleged that the OP has neither refunded the deposited amount nor cancelled the allotted flat as per the terms and conditions of the brochure and the allotment letter and has also not delivered the possession of the flat within the reasonable period of 2-3 years from the date of allotment letter, and latest by 2011-12. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Party in its reply while  admitting the factual matrix of the case stated the complaint is barred by time. The complainant had been intimated regarding allotment and offered possession of the said flat vide letter dated 17.10.2014). The complainant was requested to make the balance amount of payment i.e. Rs. 15,76,119/- and it was requested that the complainant should take the possession of the said flat by 15.02.2015. However the complainant failed to take the possession of the same till date and did not make the payment of balance amount despite given several opportunities. It was clearly intimated vide letter dated 18.11.2015 that the said date of taking possession was extended on the request of the allottee on several occasions and if the complainant will not take the possession till 15.12.2015 then the allotment of the said flat shall be cancelled as per the terms and conditions of brochure as well as allotment letter and the payment already made against the said flat shall stand forfeited. The complainant had deliberately not taken the possession as he did not have adequate funds for making the balance payment. Even the request for the refund of the deposited amount was made by the complainant only on 6.12.2020 that too after 5 years when the OP had already offered the possession. Before that the complainant never raised any kind of grievance pertaining to the said flat before the OP. It is averred that the complainant is himself a defaulter. The complainant was well aware of the terms and conditions that the cost of the flat in question is tentative and final price of the flat shall be determined at the time of handing over possession of the flat and accordingly the same was fixed/worked out as Rs.24,46,000/- and the complainant was requested vide several letters to make the payment but he failed to do so. It is averred due to force majeure conditions the offer of possession was delayed. Denying any deficiency on its part all other allegations made in the complaint has been denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. It is evident from Annexure C-1  that the complainant paid an amount of Rs.9438/- for the allotment of the flat in question at housing complex  in Banur  and thereafter paid Rs.8,98,000/- . It is admitted fact that the payment was made upto  2011  and possession  of the flat in question was offered to the complainant  on 17.10.2014 as is evident from Annexure C-5 wherein the date of possession is mentioned as 15.2.2015. Notably the cost of the flat in question  was initially Rs.14.92 lakh  out of this amount the complainant already paid an amount of Rs.900500/- which comes  to be 60% of the total sale consideration till 9.9.2011. The  intimation of possession was give on 17.10.2014, vide Annexure C-5 asking the complainant to make payment of balance amount of Rs.15,76,119/-  which originally was quoted as Rs.5,97,000/- meaning thereby the final cost of the flat in question  was inordinately increased upto 61% of the tentative cost and the OP accordingly fixed the final cost of the flat as Rs.24.46 lakh  which was increased to the tune of Rs.9.54 lakh more than the tentative price of Rs.14.92 lakh fixed earlier.
7. As per the case of the complainant he showed his inability to pay the increased amount  and thereafter requested to the OP for refund  but the OPs neither refunded the amount nor cancelled the allotment or handed over the possession of the flat in question rather forfeited the deposited amount of the complainant as per their unilateral terms and conditions.
8. We have observed after careful perusal of the reply of the OP that they collected the money from the gullible consumers including the complainant prior to obtain necessary permissions from the concerned authorities. As per the OP, electric layout  was submitted to the Punjab State Power Cooperative Ltd.  on 15.7.2009 but NOC was not issued. Finally the matter was taken up by the Hon’ble Punjab State Regulatory Commission  and on 29.4.2014 only Punjab State Power Cooperative   was directed to release connection. Finally after the proceedings before Punjab State Electricity Regulatory Commission NOC was issued on 29.4.2014. In our opinion such like delay on the part of the OP for seeking/obtaining necessary permissions and collecting money from its consumer prior to obtain necessary permissions from competent authorities, itself amounts to deficiency in service.  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…..”

 

9.      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 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…………”

10.   As per Section 6(1) of PAPRA Act before accepting 25% of the sale price, the builder/developer shall enter into a written agreement/plot buyer agreement, containing all the relevant terms and conditions for sale of property with the buyer and date of delivery. The relevant section of the same clause is reproduced as under:-

"6(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five percent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908). Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots."

11.  OP had received the deposited amount which was more than 25% amount of the tentative price ( 14.92 lacs) as per the Brochure and the allotment letter, but did not execute any flat buyers agreement with the allotee/complainant yet. The said amount would have been spent by the OP on the construction of the alotted flat but it arbitrarily delayed the construction of the alloteed flat and sent the letter regarding intimation of offer of possession on 17.10.2014 vide (Annexure C-5) i.e. after more than 5 years from the said allotment letter that too with inflated price without seeking consent for the same from its buyers including the complainant. OP despite being deficient in providing proper service to the complainant illegally forfeited the deposited amount of the complainant.  Therefore, the forfeiture of the entire deposited amount of the complainant/allotee is legally untenable. Accordingly, the complainant is entitled to the refund of entire deposited amount.
12. The Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in the Consumer Complaint no. 690 of 2019, decided on 17.01.2022, titled, "Manjit Kaur vs Housefed, Punjab" (para 9), held as under:-

"Perusal of above re-produced Section 6 (1) of PAPRA shows that before accepting 25% of the sale price, the builder/developer shall enter into a Written Agreement/Plot Buyer's Agreement, containing all the relevant terms and conditions for sale of property with the buyer and date of delivery. It is relevant to mention that no specific date for delivery of possession was mentioned in the allotment letter, brochure as well as in any other document to this effect which amount to 'deficiency in service'. Accordingly, the complainant is entitled to refund of deposited amount."

     The complainant is entitled to the refund of deposited amount along with interest which may be restitutionary and also compensatory from the date of deposit till actual payment as the OP had unilaterally changed the terms & conditions in the offer of arbitrarily delayed possession which made the contract one sided, unfair, unreasonable and oppressive, constituting unfair trade practice.

13. The OP arbitrarily delayed the completion of the construction of the allotted flat which delayed the possession offer to more than 5 years from the allotment letter and the incorrect assessment i.e. false allurement of the flat price by the OP resulted in to inordinately increased final price up to 61% of the tentative cost and thereafter the OP one-sidedly changed the term and conditions of above said mode of payment which was mentioned in the allotment letter earlier.
14. Furthermore, the OP not only unilaterally changed the above mentioned terms & conditions for which the fine was imposed in 2015 but also one-sidedly reduced the time period for taking possession after depositing the balance payment alongwith interest and watch and ward charges i.e. 16.06.2015 which was given in the letter of offer of possession 17.10.2014 vide (Annexure C-5) as compared to the date i.e. 16.05.2015 in the demand notice dated 18.11.2015 vide (Annexure OP-1) It, further, clearly reflects the malafide intentions of the OP to extract more money in less time from the present complainant/allotee as well as from other allotees.
15. From the forgoing it is proved that, the act of the Ops in collecting money from the complainant prior to obtain necessary permissions from the competent authorities and  thereafter forfeiting the hard earned money of the complainant, amounts to deficiency in service and unfair trade practice.
16. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to refund  Rs.9,00,500/- with interest @9% P.A.from the date of deposit till onwards. However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject flat shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay Rs.30,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

17.      This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
18. Pending miscellaneous application(s), if any, also stands disposed off.
19.      Certified copies of this order be sent to the parties free of charge. The file be consigned.
20.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			[Pawanjit Singh]
			President
			[Surjeet Kaur] Member
12/2/2024			[Suresh Kumar Sardana]
mp			Member