State Consumer Disputes Redressal Commission
Ashish Jain vs Ats Estates Pvt. Ltd. on 12 March, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.283 of 2017 Date of Institution : 26.04.2017 Order Reserved on : 09.03.2018 Date of Decision : 12.03.2018 Ashish Jain s/o Dharam Pal Jain, r/o Flat No. 711, Tower No. 7, ATS Gold Meadows Prelude, Barwala Road, Derabassi, Punjab 140507 ....Complainant Versus M/s ATS Estates Pvt. Ltd ATS Golf Meadows, Chandigarh Ambala Highway, opposite Sadashiv Complex, near Derabassi-Barwala Chowk, Derabassi District SAS Nagar Punjab-140507 . Opposite party Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh.Harsha Goyal, Advocate For opposite party : Sh. Sukhandeep Singh & Sh.Updip Singh Advocates
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that originally complaint was filed before District Forum, wherefrom it was returned on account of lack of pecuniary jurisdiction, thereafter this complaint was filed before this Commission being competent forum of jurisdiction. Brief facts of the case are that complainant was taken in by the brochure of OP representing that complex launched by OP would cater to all professional and business needs of residents. Five star hotel with banquet halls, hospital, shopping mall, retail, park, school, golf facilities, sports club and clubhouse was promised. ATS Golf Meadows life style Derabassi is an integral part of ATS Golf Meadows Township. The complainant applied with OP/ATS Golf Meadows for purchase of flat in their project in the name and style of ATS Gold Meadows Lifestyle Derabassi, as per brochure. He was allotted flat no. 7063, Type C on 6th floor in tower no. 07 of 1900 st. ft along with one basement car parking space. The buyers agreement dated 15.03.2013 was executed between the parties. As per clause 14 of the buyers agreement, the possession of the unit was required to be delivered to complainant within a period of 36 months with further grace period of six months from the date of actual start of the construction of a particular tower i.e. January 2013 and schedule date of delivery of possession on or before June 2016. The complainant booked the flat under construction linked plan in October 2012 and OP verbally promised to give possession of flat till November 2015 within three years of the booking. He paid an amount of Rs.10,18,350/- in November 2012 immediately after booking of the flat, but agreement was prepared on 15.03.2015 mentioning the date of possession of flat within three years plus six months grace period. The complainant has paid total amount of Rs. 3745026/- being 75% of the cost of the flat to OP. OP/builder stopped the construction of the flat after taking 12th slab installment. OP completed only 12th slab in raw condition and complainant was under extreme financial pressure, as he was paying pre EMI interest amount of Rs.20,500/- per month to HDFC Ltd and amount of Rs.12000/- p.m on account of rent against the residential accommodation taken by him. He resolved to proceed for cancellation of the flat instead of waiting for June 2016. OP agreed to refund the money with interest to him and cancelled the flat. The partial amount of Rs.3606261/- was refunded to him after eight months after deducting Rs.1,38,765/-. No interest was paid to him by OP, as promised on the refund amount. OP changed the sanctioned plan without any consent of the complainant. As per buyer's agreement, the approval of the building and site plan with reference no. 267 dated 27.09.2011 has been obtained, vide reference no. 3267 dated 16.12.2011 from Municipal Council Derabassi. The layout plan has been changed recently by OP without his consent, from that as agreed upon in the buyers agreement. The changed lay out plan is in violation of Section 11 of Punjab Apartment and Property Regulation Act 1995. OP indulged in unfair trade practice and deficiency in service. OP unilaterally deducted the amount out of refunded amount of the complainant without paying any interest. The complainant has prayed for following reliefs:-
i) OP be directed to refund the deposited amount with interest @ 18% p.a as OP only refunded the partial amount of Rs.3606221 instead of Rs.3745026/- after deducting Rs.138765/-.
ii) As per clause 15 of buyers agreement, OP be directed to pay Rs.5 /- per sq. ft per month amounting to Rs.9500/- per month which comes to Rs.114000/- and other reliefs mentioned in prayer clause of the complaint.
2. Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is based on false and frivolous grounds. On merits, it was denied that complainant is allottee of flat/apartment no. 7063 on 6th floor in Tower 7 ATS Meadows lifestyle Derabassi SAS Nagar Mohali, as the allotment of the said flat was cancelled, as per his request letter dated 01.07.2015. The complainant has received refund, as per terms mutually agreed upon between the parties. On merits, it was averred that complainant has agreed for cancellation of allotment, as per terms of buyer's agreement dated 15.03.2013 and 15% earnest money was to be forfeited at the time of cancellation. This fact was denied that possession was delayed for eight months. The refund was made to complainant on his request due to unavoidable circumstances. The construction has been going on in full swing in all towers. OP denied other averments of the complainant and it prayed for dismissal of the complaint.
3. The complainant has tendered in evidence his affidavit Ex.CW-1/A along with copies of documents Ex.C-1, buyers agreement as Ex.C-2 and Ex.C-3(a) to Ex.C-8(d) and closed the evidence. As against it; OP tendered in evidence affidavit of Sh. Shubham Gaur Authorized Representative as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-8 and closed the evidence.
4. We have heard learned counsel for the parties and also examined the record of the case. The pleadings of the parties have been carefully evaluated by us. The evidence brought on record by both sides needs to be adverted to for proper resolution of this dispute. Ex.C-1 is brochure. Ex.C-2 is buyers agreement dated 15.03.2013 entered into between the parties in this case. Clause 14 of buyers agreement stipulates the date of delivery of possession would be within a period of 36 months with further grace period of six months from the date of actual start of the constructions of a particular tower building in which the registration for allotment is made, subject to timely payment of all charges including the basic sale price, stamp duty, registration fee and other charges, as stipulated therein by OP. This clause in the buyer's agreement lays down that the possession was scheduled to be given to complainant within 36 months from the date of actual start of construction with extended with grace period of six months. Clause 9 of buyers agreement is the most material clause governing the relationship between the parties. This clause permits the allottee to withdraw from the scheme by means of cancellation of the allotment and OP will refund the earnest money after forfeiting some amount thereof. This clause give authority to complainant to withdraw and seek refund of the deposited amount after suffering forfeiture. Ex.C-3-A is ledger account statement on the record proving this fact that complainant paid the amount of Rs. 37,75,555/- to OP and closing balance was only of Rs.21,32,774/- . Ex.C-4-A is the certificate for interest of home loan. Detailed statement is Ex.C-5 on the record. The complainant applied for refund of the amount before delivery of possession to OP by withdrawing from this allotment and this fact is amply proved on record by document Ex.OP-5 dated 01.07.2015. Ex.OP-5 dated 01.07.2015 is most vital document proving this fact that complainant sought cancellation of the allotted flat no. 7063 due to unavoidable circumstances and wanted to refund of the money at the earliest. The complainant suppressed this document, which has been brought on record by OP in this case. The complainant wrote reminders to OP seeking removal of deduction made by OP. OP wrote letter drawing attention of complainant to Clause 7 and 9 of the agreement permitting forfeiture of the deposited amount, where allottee withdrew the scheme of the allotment.
5. The submission of complainant before us is that OP has not completed the project and not delivered the possession within the scheduled time to complainant. There was no occupancy certificate with OP of this unit. OP also changed layout plan violating Section 11 of Punjab Apartment and Property Regulation Act 1995 without consent of the complainant in this case. The complainant relied upon information obtained from Municipal Council Derabassi, vide Ex.C-7(a) to Ex.C-7(f) on the record. Photographs are Ex.C-8(a) to Ex.C-8(d) on the record. The forceful submission of counsel for complainant is that OP has neither completed the construction work nor obtained occupancy certificate from the authorities for delivery of possession and it changed layout plan without consent of the complainant as well. We find merit in this submissions of complainant. Annexure OP-5 is vital document on the record proving this fact that the scheduled date of delivery of possession was in the year 2016 and complainant withdrew from this scheme in the year 2015 and sought refund of the amount. How the complainant can question incomplete construction thereafter, when he is out after taking refund from OP in this case. Annexure OP-1 is the booking application form. Annexure OP-2 is buyers agreement dated 15.03.2013. As per buyer's agreement, the possession of the flat was proposed to be delivered by OP to the allottee within a period of 36 months with grace period of six months period is stipulated date for delivery of possession therefrom, which came in the year 2016. Annexure OP-3 is letter of allotment dated 15.03.2013 and Annexure OP-4 is email from complainant to OP seeking cancellation of the said flat due to unavoidable circumstances and it is dated 01.07.2015. Annexures OP-4 and Annexure OP-5 documents have proved this fact that complainant withdrew the scheme launched by OP and sought refund of the amount. Detail of refunded amount to complainant by OP is Annexure OP-8 of Rs.36,06,262/- and amount of Rs.1,38,765/- has been deducted as forfeiture thereof.
6. The forceful submission of counsel for complainant is that OP has not completed the project and not delivered the possession within stipulated period by not applying the occupancy certificate to the competent authorities, holds no ground after withdrawal of the complainant from this scheme of allotment. The complainant is no longer consumer of OP after seeking refund of the amount deposited by him from OP, as permitted by mutual agreement between them. The attention drawn by counsel for complainant is to Clause 3.12 of Municipal Building byelaws and it holds no water in this case on account of withdrawal of complainant from this scheme. There is forfeiture clause justifying OP to deduct the amount and complainant cannot complain against the same. The counsel for complainant referred to law laid down by National Commission in "DLF Limited versus Abdul Azim" reported in 2015(2) CPJ 344 to the effect that cancellation of allotment -forfeiture of amount allowed by directing to OP to make deduction towards earnest money only and refund rest of the amount, as allotment had been cancelled. This authority is applicable in this case, as OP is entitled to make deduction towards earnest money only and refund rest of the money, as allotment had been cancelled. The next reliance is on law laid down by National Commission in "Satish Kumar Pandey versus M/s Unitech Ltd," reported in 2015(3) CPJ , this authority would have been material had it been case of the complainant that he seeks possession or refund by not withdrawing from the scheme of allotment. Andhra Pradesh State Commission has held in "Rentachintala Chandrasekhar and others versus Aliens Developers Private Limited and others", reported in 2014(2) CLT 573 that mutual agreement for cancellation of agreement of sale - complainants claiming refund of money paid by them. The complainants are not asking for any declaration or specific performance of contract. The complaint is for refund of the money, as complainants have parted with amount- the complaint is maintainable.
7. On hearing submissions of counsel for OP, we find that the deduction made by OP towards forfeiture of the amount is justified only towards earnest money and to refund rest of the amount, as allotment had been cancelled. While applying law laid down by National Commission in "DLF Limited versus Abdul Azim" (supra), it is held that OP to make deduction towards earnest money only and refund rest of the amount, as allotment had been cancelled.
8. As a result of our discussion, we partly accept the complaint of the complainant by directing OP to make deduction towards earnest money only and refund rest of the entire amount, as allotment had been cancelled. No order of any compensation or cost of litigation to complainant in view of peculiar facts and circumstances of the case.
9. Arguments in this complaint were heard on 09.03.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 12, 2018 (ravi)