State Consumer Disputes Redressal Commission
Brij Mohan Jain vs M/S Shipra Estate Ltd. on 16 March, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 188 of 2014 Date of Institution : 18.12.2014 Date of Decision : 16.03.2015 Mr. Brij Mohan Jain S/o Sh. N. L. Jain, resident of SCF No.37, Sector 7C, Chandigarh. Versus M/s Shipra Estate Ltd.,SCO No.156-59, IInd Floor, Sector-9-C, Chandigarh. M/s Shipra Estate Ltd., SITE OFFICE: CAPITAL CITY CHANDIGARH, Chandigarh-Ambala Highway (NH-22), Zirakpur, Punjab. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by: Sh. Pankaj Chandgothia, Advocate for the complainant.
Sh. Munish Jolly, Advocate for the Opposite Parties.
PER DEV RAJ, PRESIDING MEMBER The facts, in brief, are that the Opposite Parties floated a scheme for allotment of plots, penta-houses and apartments in their project spread over 1170 acres titled Capital City Chandigarh and started promoting the scheme much before even the actual drawings were made and actual grant of licence to develop the land was granted. It was stated that the Opposite Parties projected that if the complainant applied at the time of "Pre Launch Offer", he would be able to get allotment at a much lower price. It was further stated that since the complainant was in urgent requirement of an apartment in a developed area, he gave a cheque of Rs.5 Lacs as booking amount vide receipt No.181 dated 07.05.2012 (Annexure C-1). It was further stated that the complainant received an allotment letter dated 07.05.2012 (Annexure C-2) from the Opposite Parties alongwith a welcome letter (Annexure C-3), demanding Rs.6,75,095/-, which he paid vide receipt No.193 dated 19.06.2012 (Annexure C-4). It was further stated that the complainant received reminder from the Opposite Parties on 4.7.2012 (Annexure C-5), vide which apart from raising demand, they also threatened to charge interest on delayed payment. It was further stated that the complainant paid the demanded amount vide receipt No.92 dated 09.08.2012 (Annexure C-6).
2. It was further stated that on visiting the site at Zirakpur, the complainant found that there was no development at the site. It was further stated that the complainant confronted the officials of the Opposite Parties, who informed that certain clearances were pending and the Company had yet to take over the concerned land. It was further stated that, in the meanwhile, the complainant received letter dated 30.07.2012 (Annexure C-7) from the Opposite Parties regarding shifting of their Regional Office to new Location. It was further stated that another letter dated 11.7.2012 was received by the complainant (Annexure C-8), informing him about various financial facilities arranged by them at Chandigarh. It was further stated that the Opposite Parties wrongly represented that they had all the approvals for the project. It was further stated that the Opposite Parties were not even the owners of the said land or in possession thereof as was clear from letter dated 20.09.2012 (Annexure C-9). It was further stated that in January 2013, the complainant sought refund of his amount from Opposite Party No.1 vide letter dated 10.01.2013 (Annexure C-10). It was further stated that the Opposite Parties wrongly usurped the hard earned money of the complainant. It was further stated that another letter through email was sent to the Opposite Parties (Annexure C-11). It was further stated that the Opposite Parties finally replied vide email (Annexure C-12) but they kept silent on the development at the project.
3. It was further stated that there was not even an iota of development at the site and the Opposite Parties collected huge amount of money from the general public without having any intention or authority to deliver possession of the promises residential units. It was further stated that as per their own terms (Annexure C-13), the Opposite Parties had promised to deliver the possession within 24 months i.e. by May 2014 and the grace period of 6 months was not available to them as they did not spell out any unforeseen circumstances. It was further stated that pre-launch offers and bookings do not stand the scrutiny of law, legal validity and any sanctity. It was further stated that the aforesaid acts of Opposite Parties, not only amounted to deficiency, in rendering service, but also indulgence into unfair trade practice.
4. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.21,44,634/- alongwith interest @18% per annum from the respective dates of deposits till the date of refund; pay Rs.10 Lacs for opportunity cost if the complainant bought the similar unit; Rs.5 Lacs as compensation for mental agony and physical harassment; Rs.5 Lacs as deterrent damages for adopting unfair trade practices; Rs.50,000/- as punitive damages to be released in favour of the State Legal Services Authority and Rs.22,000/- as costs of litigation.
5. The Opposite Parties, filed their written statement on 12.02.2015. In their written statement, the Opposite Parties stated that the complainant was fully aware that in CWP bearing No.8971 of 2012 and 3273 of 2014, the land owners challenged the acquisition for the road known as PR-7 as also of the status quo order passed by the Hon'ble High Court. It was further stated that the project of the Opposite Parties, was not feasible and the same had to be relocated if the Writ Petitions were decided against them. It was further stated that the above facts were already brought to the knowledge of the complainant. It was further stated that filing of the Writ Petitions rather acted as force majeure i.e. beyond the control of the Opposite Parties, which could not be avoided even by exercise of reasonable diligence. It was further stated that as per Clause of Force Majeure, the Opposite Parties could not be held responsible for any delays in the execution of the project. It was further stated that as per the application for booking signed by the complainant (Annexure R-5), in case the complainant sought refund then he was entitled to refund of the monies paid alongwith simple interest @6.5% per annum. It was further stated that the project was launched on the land fully owned by the Opposite Parties. It was further stated that the complainant had fully apprised himself about the project and he paid the amount. It was further stated that monies were asked as per the application form duly signed and payment plan opted by the complainant. It was further stated that the complainant visited the site at Zirakpur and he was made aware of the pendency of the writ petitions, as aforesaid. Letters (Annexure C-7, C-8, C-10, C-11, and C-12) were admitted by the Opposite Parties. It was further stated that the financial facilities provided by the Banks in the shape of loans could only be done if all the requisite permissions were thereon on record. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.
7. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents, were attached.
8. The Opposite Parties, in support of their case, submitted the affidavit of Sh. J. P. Sharma, their Senior Manager, by way of evidence, alongwith which, a number of documents were attached.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the complainant submitted that the complainant booked property in the project of the Opposite Parties, price whereof was Rs.87,50,684/- and the same was allotted to him vide letter dated 07.05.2012 (Annexure C-2). He further submitted that the complainant opted for construction linked payment plan and total sum of Rs.19,58,491/- which constituted 25% of the price was paid by the complainant vide receipts (Annexures C-1, C-4 and C-5). He further submitted that the Opposite Parties did not start the construction and did not deliver possession by the due date and, as such, the complainant sought refund of Rs.19,58,491/- vide letter (Annexures C-10 and C-11). He further submitted that the complainant was, therefore, entitled to refund of the deposited amount alongwith interest @18% p.a.
11. The Counsel for the Opposite Parties, submitted that now the Civil Writ Petition, which were pending in the Hon'ble Punjab and Haryana High Court and pendency of which acted as force majeure circumstances, have been decided. He further submitted that the Opposite Parties would now be in a position to start construction and complete the project. He further submitted that in the event of refund, the complainant was entitled to 6.5% interest, in accordance with the terms and conditions of the Application Form.
12. The factum of allotment of property No.R4-B35-GF on the Ground floor in the building on Plot No.B-35 in the "Capital Villa Floor" project situated at Zirakpur, Punjab for total consideration of Rs.87,50,684/- vide allotment letter dated 07.05.2012 (Annexure C-2) and payment of a sum of Rs.19,58,491/- by the complainant are admitted. The payment of various installments was to be regulated in accordance with Schedule of Payment Plan/Construction Linked, at Page 19(a) of the file annexed with the letter dated 07.05.2012 (Annexure C-2). The same is extracted hereunder:-
Schedule of Payment Plan Construction Linked Name Mr. Brij Mohan Jain % Basic S. Tax Ohers Total Unit No. R4-B35-GF On Booking 15 5,00,000 15,450 5,15,450 Area 2165 Sq.Ft Within 45 days of Booking 6,39,873 19,772 6,59,645 Luxury Within 90 days of Booking 10 7,59,915 23,481 7,83,396 Rate Total On commencement 10 7,59,915 23,481 7,83,396 BSP 3,250 70,36,250 On Completion of Basement 10 7,59,915 60,561 3,00,000 11,20,476 On Completion of Plinth level 10 7,59,915 60,561 3,00,000 11,20,476 Luxury cost 325 7,03,625 On casting of Ground Floor Roof 10 7,59,915 23,481 7,83,396 Actual BSP 3,575 77,39,875 On casting of First Floor 10 7,59,915 23,481 7,83,396 EDC 26 56,290 On casting of Second Floor 5 3,79,958 11,741 3,91,699 Parking
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On casting of Third Floor + EDC 5 3,79,958 11,741 56,290 4,47,989 PLC 5 3,86,994 On completion of brick work and internal Plastering + 50% of PLC (if any) 5 3,79,958 35,657 1,93,497 6,09,111 IFMS 50 1,08,250 On completion of Flooring (except final grinding and Ext. plaster) + 50% of PLC 5 3,79,958 35,657 1,93,497 6,09,111 Lawn Charges 6,00,000 On offer of possession (5% of BSP+IFMS+ CMC & Other Charges) 5 3,79,958 11,741 1,08,250 4,99,949 Special Discount 1,40,725
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Total Consideration 87,50,684 TOTAL 100 7599150 356805 1151534 9107489 T O T A L Stamp duty & Registration Charges, and other applicable charges like electric meter, water & sewer and club membership charges are separate and are payable at the time of intimation of possession.
13. It is evident from record that the complainant booked the unit on 07.05.2012 by paying the booking amount of Rs.5 Lacs. Subsequently, he made payments on 19.06.2012 and 09.08.2012 within 45 days and 90 days of booking. Thus, the complainant paid a total sum of Rs.19,58,491/-. Though the complainant in prayer clause of his complaint has sought refund of Rs.21,44,634/- which included interest etc. but from the receipts enclosed with the complaint, the amount deposited by him is in the sum of Rs.19,58,491/-. In email dated 16.11.2013 (Annexure C-11) addressed to the Opposite Parties, the refund sought was in the sum of Rs.19,58,491/- only, which means that the complainant has, in fact, deposited a sum of Rs.19,58,491/-. The remaining payments were to be made on commencement of construction, but since the construction did not start, the Opposite Parties did not raise any demand for payments of further installments.
14. When the complainant came to know that there was delay in dispatching Buyer's Agreement and also the project (Annexure C-9), he sought refund vide letter dated 10.01.2013 (Annexure C-10). Admittedly, there was no progress in the project for a period of two and half years. As per submission made by the Counsel for the Opposite Parties, the construction would now start in view of decisions in CWPs bearing Nos.8971 of 2012 and 3273 & 3291 of 2014. No doubt, the Opposite Parties have claimed delay on the ground of force majeure conditions but, in the instant case, there has been absolutely no progress for around two and half years and the request dated 10.01.2013 of the complainant (Annexure C-10) for refund of the amount, admittedly received by the Opposite Parties, has been pending with them (Opposite Parties) for more than two years. As averred by the complainant, even No Buyer's Agreement was sent to him till date. Clearly, there was uncertainty vis-à-vis time, which could be taken by the Opposite Parties in starting construction. In such circumstances, the Opposite Parties ought to have refunded the amount deposited by the complainant but they failed to do so.
15. No doubt in terms of Clause 21 of the Key Indicators from the terms and conditions of Floor Buyer's Agreement annexed with application form (Annexure R-5), in the event of refund, interest @6.5% per annum is permissible. In the instant case, the Opposite Parties were well aware about uncertainty of completion of project and still they did not consider the request of the complainant for refund of the deposited amount for more than two years. Had the Opposite parties refunded the amount, when request for the same was made by the complainant in January 2013, the position would have been different and then there would have been logic in refunding the amount alongwith 6.5% interest. Not only this, in the event of delay in payment of installments, the Opposite Parties levy interest @18% per annum. Therefore, in our considered opinion, allowing refund of the deposited amount of Rs.19,58,491/- alongwith interest @10% per annum shall be just and adequate to meet the ends of justice.
16. As regards compensation on account of deficiency, in rendering service; mental agony and physical harassment suffered by the complainant, no doubt the Opposite Parties have stated that the project could not take off, due to pendency of the Writ Petitions in which the land owners challenged the acquisition of road known as PR-7 and status quo order was passed by the Hon'ble High Court. Although the writ petitions have now been decided as submitted by the Counsel for the Opposite Parties and the work on the project shall start, yet already there has been delay of around two and half years. Even if the work starts now, it is likely to take considerable time. The Opposite Parties despite knowing that there was delay and uncertainty in starting construction on the project, did not accept the genuine request of the complainant for refund of deposited amount. The complainant has, thus, suffered physical harassment and mental agony, for which, he needs to be adequately compensated. In the facts and circumstances of the case, compensation in the sum of Rs.50,000/-, if granted, shall be just and adequate.
17. No other point, was urged, by the Counsel for the Parties.
18. For the reasons recorded above, the complaint is partly accepted, with costs and the Opposite Parties are directed in the following manner:-
Opposite Parties are directed to refund an amount of Rs.19,58,491/- to the complainant alongwith interest @10% per annum from the respective dates of deposits, within a period of two months, from the date of receipt of a certified copy of the order. Opposite Parties are further directed to pay an amount of Rs.50,000/- to the complainant, as compensation, for mental agony and physical harassment within a period of two months from the date of receipt of a certified copy of the order; Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.10,000/-, to the complainant. In case the payment of amounts, as mentioned in Clauses (i) and (ii) above, is not made, within the stipulated period, then Opposite Parties shall be liable to pay the amount mentioned in clause (i) with interest @12% per annum, instead of 10% per annum, from the date of default, till realization, and the amount of compensation as mentioned in Clause (ii) shall be payable with interest @12% per annum from the date of default, till actual realization, besides payment of cost, to the tune of Rs.10,000/-.
19. Certified Copies of this order be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion.
Pronounced.
March 16 , 2015.
Sd/-
[DEV RAJ] PRESIDING MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad