State Consumer Disputes Redressal Commission
Vipul Gandhi vs M/S Country Colonisers Pvt. Ltd. on 26 April, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.833 of 2017
Date of Institution: 22.09.2017
Order reserved on: 24.04.2018
Date of Decision : 26.04.2018
1. Vipul Gandhi son of Rakesh Kumar Gandhi,
2. Rita Gandhi wife of Sh. Rakesh Kumar Gandhi,
both presently residents of house no.791, Sector-4, Panchkula.
.....Complainants
Versus
1. M/s Country Colonisers Private Limited, having project by the
name of Wave Gardens, Site Office, Sector 85, Mohali, 160062
through its Project Manager.
2. M/s Country Colonisers Private Ltd., Registered Office- Post
office Rayon and Silk Mills adjoining Coca Cola Depot, GT
Road, Chheharta Amritsar, Punjab through its Managing
Director.
3. Sh. Harmandeep Singh Kandhari, Director, M/s Country
Colonisers Private Ltd., Registered Office- Post Office Rayon
and Silk Mills adjoining Coca Cola Depot, GT Road, Chheharta
Amritsar, Punjab.
4. HDFC Limited, Registered Office at Raman House, 169,
Backbay Reclamation, Mumbai-400 020, Branch Office : SCO
No.153-155, Sector 8-C, Chandigarh.
.....Opposite Parties
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 complainants : Sh. Munish Gupta, Advocate For opposite party nos.1-3 : Sh. Piyush Kant Jain, Advocate with Sh. Raj Shekhar, Advocate For opposite party no.4 : Ms. Anjali Modgill, Advocate .................................................................................. Consumer Complaint No.833 of 2017 2 J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the premise that OP nos.1-3 advertised their project namely Wave Estate, Sector 85 and 99 Mohali. The complainants were looking for residential accommodation for their personal residence, because complainant no.1 Vipul Gandhi got a job in HDFC Limited Sector 8 Chandigarh. A meeting was arranged by the representatives of OPs with one Gurkirat Singh, who had booked the apartment in question with OPs by paying initial payment of Rs.3,00,000/-. The complainants was to pay an additional amount of Rs.1,80,000/- to said Gurkirat Singh. They paid Rs.1,80,000/- to Gurkirat Singh in cash, as premium and paid Rs.3,49,467/- to OPs through cheque and entered into an agreement to sell dated 22.03.2013 with said Gurkirat Singh. Requisite documents for transfer of rights were submitted to OPs from said Gurkirat Singh. In February 2015, OP nos.1-3 issued allotment letter alongwith payment plan to complainants. The complainants arranged financial assistance from OP no.4 HDFC Bank Limited and adhering to the requests, payments were duly made from time to time, as under:-
S.No. Date of Deposit Amount Paid (Rs.)
1. 05.02.2013 3,00,000/-
2. 22.03.2013 1,80,000/-
3. 22.03.2013 3,49,467/-
4. 27.03.2015 10,24,355/-
Consumer Complaint No.833 of 2017 3
5. 31.03.2015 2,35,645/-
6. 27.03.2015 38,934/-
7. 14.05.2015 10,42,758/-
8. 20.05.2015 2,17,242/-
9. 30.05.2015 38,934/-
10. 26.05.2017 6,58,350/-
Total 40,85,685/-
As per clause 5.1 of the allotment agreement dated 24.02.2015, possession of the unit, complete in all respects after development, was required to be handed over to the complainants within 24 months or an extended period of six months from the date of start of construction, meaning thereby that the complainants were to be handed over possession on or before 24.08.2017. The complainants and OPs entered into tripartite agreement dated 26.02.2015. OP nos.1-3 changed the non-PLC unit after booking to PLC unit without any consent of complainants and even the location number of the unit was changed unilaterally by OPs. Vide letter dated 23.06.2015, OPs reduced the PLC charges to Rs.1,05,000/- against original demand of Rs.2,10,000/- which was accepted by complainants, as OPs promised that possession would be delivered on time to them.
The unit was booked in the year 2013 and buyers agreement was executed after two years in the year 2015 and they expected the delivery of possession of the allotted unit in August 2017 at the most from OPs. The complainants came to know that there was no development at the site and emails were written by complainants, Consumer Complaint No.833 of 2017 4 wherein OPs replied that unit would be handed over on 26.12.2017. The complainants have been paying the rental for the rented accommodation and suffering this hardship due to the deficient act of OPs in non-delivery of possession of the allotted unit. The complainants visited the project on 16.07.2017 and found that the flat would not be completed in two years. Neither the basic facilities were available nor there was any approach road and neither any work was on in the project launched by OPs. The OPs failed in delivering the possession by 24.08.2017, the agreed date for delivery of possession, to complainants. OP nos.1-3 have not applied for requisite permissions from concerned department like completion certificate, permanent electricity connection and so on. The complainants have, thus, prayed for below noted reliefs;
(a) OP nos.1-3 be directed to refund the entire deposited amounts alongwith interest 18% compounded quarterly from the date of deposits.
(b) to first clear the outstanding amount as on date of payment of OP no.3 at the first instance and then pay the balance amount to them.
(c) to pay the payment of rent alongwith interest @18%.
(d) to pay Rs.6,00,000/- as compensation for mental harassment.
(e) to pay Rs.3,00,000/- as litigation expenses.
2. Upon notice, OP nos.1-3 appeared and filed written reply by raising preliminary objections that the complaint is totally Consumer Complaint No.833 of 2017 5 misconceived, false and vexatious. No violation of buyers agreement as entered into between the parties has arisen in this case by OPs. The complainant is no consumer, as defined under Section 2(1)(d) of C.P. Act. The complainants sought to buy the apartment unit no.38GF in Wave Floor 99, Mohali for commercial purposes. The complainants have not expressed any grievance before filing the complaint nor pointed out any default of OPs regarding violation of any condition of agreement dated 24.02.2015. The OPs adhered to the terms and conditions of the buyers agreement and complied them. Clause 13 of buyers agreement contains arbitration clause for resolution of any dispute, if any arose between the parties. On merits, OP nos.1-3 admitted this fact that complainants at their own accord entered into agreement vide allottee arrangement dated 24.02.2015 with OP nos.1-3. It is denied that any assurance or allurement of any kind was given to them by OPs. The complainants admitted this fact that they are permanent residents of Faridkot. This fact was denied that OPs arranged a meeting with above Gurkirat Singh. The parties are bound by the terms and conditions of buyers agreement dated 24.02.2015 and complainants were under obligation to fulfill their part of performance of the agreement as well. The project under the name and style of Wave Garden was being developed by answering OPs with approved and sanctioned layout plan by the competent authority. The answering OPs were duly registered under the Real Estate Regulation Development Act, 2016 (RERA) and sanction was granted for completion of the project till Consumer Complaint No.833 of 2017 6 2021. The answering OPs denied this fact that they forced the complainant to change from non-PLC to PLC unit from 73 GF in Wave Floors-99 to 38 GF in Wave Floors-99. Clause 5 of buyers agreement stipulating the time for delivery of possession and eventualities including rights and obligations arising out of the same and they were duly contemplated therein. The building plan of group housing was duly sanctioned by the competent authority, vide letter dated 18.05.2012. It was denied that complainants visited the project on 16.07.2017 and found that there was stoppage of any development of the project, as pleaded in the complaint. The complainants served legal notice dated 25.07.2017 to OPs, whereas as per clause 5 of buyers agreement dated 24.02.2015, the delay entails the imposition of penalty clause only. Any deficiency in service or unfair trade practice by OPs were denied in this case on their part. The answering OPs prayed for dismissal of the complaint.
3. OP no.4 filed its separate written reply by raising preliminary submissions that complaint is directed only against OP nos.1-3, who have allegedly failed to deliver its commitments in terms of allottee(s) arrangement. There is no allegation of deficiency in service with regard to answering OP no.4. It is further averred that OP no.4 bank advanced loan to the complainants for purchase of above apartment. In case of cancellation of the unit or in the contingency of termination of the apartment allottee(s) arrangement, the HDFC Limited has the first charge/right to seek apportionment of its dues. OP no.4 prayed for dismissal of the complaint. Consumer Complaint No.833 of 2017 7
4. The complainants tendered in evidence affidavit of Vipul Gandhi Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-24 and closed the evidence. As against it, OP nos.1-3 tendered in evidence affidavit of Amarjit Singh authorized signatory Ex.OPW-1/A alongwith authority letter Ex.OP-1 and documents, Ex.OP-2 to Ex.OP-4 and closed the evidence. OP no.4 tendered in evidence affidavit of Nandan Singh Rawat, Assistant Manager Ex.OP4/A alongwith copies of documents Ex.OP4/1 to Ex.OP4/4 and closed the evidence.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The counsel for the complainants submitted that OPs have not developed the project and failed to deliver the possession of the flat to the complainants within the scheduled time, as per clause 5.1 of the buyers agreement dated 24.02.2015 Ex.C-1. Vipul Gandhi also tendered in evidence his affidavit Ex.C-A on the record pointing out deficiency in service of OP nos.1-3 in not delivering the possession of the allotted flat within scheduled time by developing the project. He has stated in para no.9 of his affidavit that complainants have paid the amount of Rs.40,85,685/- to OP nos.1-3 so far, vide receipts Ex.C-2 to Ex.C-10 on the record. This witness further deposed that the complainants took loan for payment of remaining amounts of flat to OP nos.1-3 from HDFC Limited OP no.4 and entered into tripartite agreement dated 26.02.2015 alongwith OP nos.1-3 with above banker, vide agreement Ex.C-11. He further stated that OP nos.1-3 changed the Consumer Complaint No.833 of 2017 8 booking unit from non-PLC to PLC unit without their consent and even the location number of the unit booked was changed unilaterally by the OPs and relied upon letter dated 23.06.2015 Ex.C-12. He further stated that there was no development at the site and development work was standing still thereat. The OPs failed to deliver the possession of the allotted flat to complainant within agreed time under clause 5.1 of the buyers agreement. He proved copy of emails Ex.C-13 and reply Ex.C-14 thereto with regard to no development in the project. He further stated that complainants have been paying the rent vide Ex.C-15 and C-16 on the record on account of deficient act of OP nos.1-3. It has appeared in his testimony that he served legal notice Ex.C-17 and postal receipt thereof is Ex.C-18 upon OP nos.1-3 pointing out their deficiency in service in not delivering the possession to them in the scheduled time. This witness also relied upon the photographs Ex.C-19 to C-24 on the record in this regard.
6. To refute this evidence of complainants, OP nos.1-3 tendered in evidence affidavit of Amarjit Singh, authorized signatory Ex.OPW-1/A, who stated that the complainants could exercise their remedy under the apart buyers agreement recording the comprehensive terms. He further stated that complainants are residents of Faridkot and they have no purpose to purchase this flat for residential purposes, as alleged by them. He further stated that the project is approved/sanctioned by the competent authority vide letter 21.12.2011 Ex.OP-2. The building plan of group housing is Consumer Complaint No.833 of 2017 9 duly sanctioned and approved by the authority, vide letter dated 18.05.2012 vide Ex.OP-3. He further stated that OP company is registered under RERA Act, 2016, vide Ex.OP-4. He further stated that entire set of eventualities including the rights and obligations arising out of the same were also categorically stipulated in buyers agreement. He denied the entitlement of complainants to any refund in this case. The OPs have been and are still ready to perform their obligation arising from agreement dated 24.02.2015. He denied any failure of OP nos.1-3 to deliver the possession in breach of terms and conditions of agreement. Ex.OP-1 is the authority letter in favour of this witness. Ex.OP-2 is the approval of revised layout plan dated 21.12.2011 granted by Chief Town Planner Punjab to OPs. Ex.OP-3 is the approval for building plan granted by Estate Officer GMADA to OPs for this project on 18.05.2012. Ex.OP-4 is the registration of OP nos.1-3 under RERA Act by the Chairman, as application of OPs has been accepted on 11.10.2017 in this case. OP no.4 also tendered in evidence affidavit of Nandan Singh Rawat, Manager Ex.OP-4/A. This witness has denied any deficiency in service on its part and stated that there is no allegation against it, as the dispute is between complainants and OP nos.1-3 only. This witness further deposed that OP no.4 made disbursement of the loan amount after satisfaction of complainants as regards status of the project on behalf of complainant to OPs. It disbursed the loan amount of Rs.31,78,350/- out of sanctioned loan amount of Rs.33,60,000/-. Consumer Complaint No.833 of 2017 10 This witness proved the statement of account Ex.R-4/4 on the record.
7. From hearing the respective submissions of counsel for parties, we find that complainants have paid the amount of Rs.40,85,685/- to OP nos.1-3, vide receipts Ex.C-2 to C-10. The relationship between the parties is governed by the buyers agreement dated 24.02.2015 Ex.C-1. Clause 5.1 of this buyers agreement is material clause, which is reproduced as under:
5.1 Subject to clause 5.2 and further subject to all the allottee(s) of the said 'Independent Residential Floor" in the "said project" making timely payment(s), the developer shall endeavour to complete the development of the said project in general and the said "Independent Residential floor" in particular as far as possible within 24 months alongwith an extended period of six months from the date of execution of this independent residential floor allottee(s) arrangement and/or from the date of start of construction of independent residential floor, whichever is later."
It is, thus, evident from perusal of this clause that OP nos.1-3 were bound to deliver the possession of the apartment within 24 months and extended period of six months from the date of execution of this agreement or from the date of start of construction of independent residential floor, whichever is later. Even if, we take the commencement from 24.02.2015, when this buyers agreement was executed between the parties even then the period of two years and Consumer Complaint No.833 of 2017 11 six months would come to an end on 24.08.2017. The complainants further pleaded that OPs have not developed the project as such they seek refund of their money. On this point, there is mere affidavit of complainant no.1, which has been countered by the evidence of OP nos.1-3 by filing the affidavit of authorized agent on the record to this effect. There are mere photographs relied upon by complainants to prove the non-development of project by OP nos.1-3, we find that no date is recorded on the photographs, when they were clicked. It cannot be said to which period of time these photographs related. There is no affidavit of the photographer on the record as to on which date he clicked them. Even in the photographs construction has been standing in the project. In the absence of specific date of their clicking, it cannot be said that the project of OP nos.1-3 was incomplete even uptil the alleged date of delivery of possession. On the other hand, counsel for OP nos.1-3 assertively argued that OP nos.1-3 have completed the project and they are ready to hand over the possession thereof to the complainants. The contention of counsel for OPs is that the project has been completed and OP nos.1-3 are ready to deliver the possession to complainants and they have filed this complaint prematurely. He has pointed out towards the legal notice served by complainants upon OP nos.1-3 to prove that complainants backed out from their contractual obligation for some reasons best known to them. The legal notice Ex.C-17 is dated 25.07.2017 sent to OPs by complainants to the effect that they seek the recovery of the deposited amounts, as they are no more Consumer Complaint No.833 of 2017 12 interested in their indefinite delayed project, as OPs failed to deliver the possession on 24.08.2017. Counsel for the complainants argued that this notice has proved that OP nos.1-3 have not developed the project. We find that the date of delivery of possession, as agreed upon between the parties was 24.08.2017. The complainants served legal notice even prior to the scheduled date of delivery of possession by OP. The complainants seeks refund in this legal notice by changing their mind. The complainants could be justified in backing out of this contractual obligation only in case no development at all was carried out by OPs in the project. There is nothing on the record to establish so. Consequently, we find that complainants served legal notice even before the actual date of delivery of possession by OPs seeking refund of the money by changing their mind. In the presence of assertive assertion of counsel for OP nos.1-3 that project is ready for delivery of possession complete in all respects, we find that complainants are not entitled to refund of the money in this case at the first instance, when they have failed to establish it on the record that OP nos.1-3 have not carried out any development activity in the project at all. The counsel for complainants referred to law laid down by this Commission in "Dr.Inderpal Singh Sahni & another Vs. Country Colonisers Pvt. Ltd." in C.C. No.643 of 2017, decided on 18.01.2018. We find that the facts of the case do not establish any deficiency in service or unfair trade practice on the part of OP nos.1- 3 in this case and hence complainants cannot get any assistance Consumer Complaint No.833 of 2017 13 from this law. On the other hand, the Apex Court has held in "Secretary, Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra" 2009(4) Supreme Court Cases-684 that the parties are bound by the terms and conditions of the agreement.
8. As a result of our above discussion, we hold that instead of seeking refund of the entire deposited amounts in the first instance, the complainants are entitled to the possession of the allotted flat complete in all respects with occupancy certificate from OP nos.1-3 and we pass the below noted directions to OP nos.1-3 in this case:
(i) the complainants are directed to deposit the balance amount, if any due, within a period of one months from the date of receipt of certified copy this order, whereupon OP nos.1-3 shall deliver the complete possession with occupancy certificate to complainants within period of one month from the date of payment of balance amount, if any due, by complainant, by executing the conveyance deed of the allotted property in favour of the complainants, subject to payment of registration expenses and stamps by the complainants. It is made clear that in case, OP nos.1-3 are unable to deliver the possession with occupancy certificate under Section 14 of PAPRA Act, 1995, to complainants within above referred period, then in that eventuality, the complainants shall be entitled to receive the refund of the entire deposited amounts from OP nos.1-3 alongwith interest @12% per annum from date of their deposits till actual payment.
Since, OP no.4 is the financer, therefore in the eventuality of refund Consumer Complaint No.833 of 2017 14 of any amounts by OP nos.1-3, they will first deposit the amount with OP no.4 directly, as it has the first charge over this amount, being the financer and OP no.4 shall remit the balance amount, if any, to complainants thereafter. No order as to compensation and cost of litigation is passed in view of the facts and circumstances of the case.
9. Arguments in this complaint were heard on 24.04.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per 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 April 26, 2018.
(MM)