State Consumer Disputes Redressal Commission
Smt.Nirmala Devi Chimnani vs Amisha In Sky Creations Through Partner ... on 14 July, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2015/37
Instituted on : 11.01.2016
Smt. Nirmala Devi Chimnani, Aged 58 years,
W/o Shri Laxmichand Chimnani,
R/o : B-23, Shailendra Nagar,
Opposite : Pankaj Vikram Parisar,
Raipur (C.G.). ... Complainant.
Vs.
1. Amisha In Sky Creations,
Through : Partner Padam Nagwani,
S/o Shri Kotumal Nagwani,
Golden Arch Hotel, M.G. Road,
Raipur (C.G.)
2. Amisha In Sky Creations,
Through : Partner Akhilesh Agrawal,
Avanti Vihar, Shriram Heights,
Raipur (C.G.) ... Opposite Parties
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER.
COUNSEL FOR THE PARTIES:
Shri Rajesh Pandey, for the complainant.
Shri Sudeep Tiwari, for the opposite parties.
ORDER
Dated : 14/07/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant filed this consumer complaint under Section 17 of the Consumer Protection Act, 1986 against the OPs, seeking following reliefs :-
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(a) To direct the OPs to obtain the remaining cost of the flat and provide 2 B.H.K. Flat in First Floor, Golden Tower to the complainant OR To refund a sum of Rs.12,05,000/- (Rs. Twelve Lakhs Five Thousand) to the complainant, which was deposited by the complainant with OPs for Block No.D-1-A, First Floor, Golden Tower, along with interest @ 18% p.a from the date of deposit till date of payment.
(b) To direct the OPs to pay a sum of Rs.5,00,000/- (Rupees Five Lakhs) to the complainant towards compensation for inconvenience suffered by her as well as financial loss.
(c) To direct the OPs to pay a sum ofRs.5,00,000/- (Rupees Five Lakhs) towards compensation for mental agony to the complainant.
(d) To direct the OPs to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards cost of litigation and advocate fees to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the OPs have jointly launched a residential project namely // 3 // "Golden Tower" at Amlidih, Raipur (C.G.) and advertised the same. Under the above scheme total 421 flats in 16 apartment were proposed to be constructed. The OPs published attractive brochure in which modern facilities to be provided to the customers is mentioned. The OPs to attract the costumers fixed payment schedule and kept prize scheme under which the winner has to be given Honda City Car, Maruti Zen Astilo Car, Two Wheelers, Jewellery, T.V. and air conditioner. The complainant influenced with the scheme of the OPs to provide a modern and having all facility flat at the cost of Rs.12,71,000/- and decided to join the scheme therefore, on 15/10/2008, the complainant deposited a sum of Rs.15,000/- as per payment schedule and booked Flat No.104 at Block No.D-1-A, First Floor, Golden Tower under which it was agreed by both the parties the complainant will regularly pay the installments and after payment of all the installments, she will obtain Flat No.104 at Block No.D-1-A, First Floor, Golden Tower for which the OPs provided token No.221 to the complainant. The receipts were issued in favour of the complainant by mentioning above token number. From 15.10.2008 to 04.04.2013, the complainant paid a sum of Rs.12,05,000/- to the OPs as per terms and conditions agreed. Thereafter the complainant requested the OPs to receive remaining amount of Rs.66,000/- and to register the flat in the name of the complainant. The OPs informed the complainant that before getting the flat registered in her name she // 4 // is required to pay a sum of Rs.2,32,800/-. On asking to the OPs, the complainant was informed that the actual cost of the flat is Rs.12,71,000/- + extra area charge Rs.1,16,800/-, for electricity connection Rs.30,000/- , for car parking Rs.20,000/- thus a sum of Rs.14,37,800/- out of which the complainant deposited a sum of Rs.12,05,000/- therefore the balance amount of Rs.2,32,800/- is required to be paid by her. On being objection raised by the complainant regarding recovery of the above the O.P.No.1 told that actually the operation of the project is done by the O.P.No.2 therefore, the complainant should discuss about the above objection to the O.P.No.2 The complainant informed the OPs that the recovery of a sum of Rs.1,16,800/- is not proper and is illegal. The OPs told the complainant that the above amount is being taken from all flat holders therefore, the complainant is also required to pay the above amount. The complainant requested the OPs to reconsider their decision, but the OPs did not receive any reply from the OPs for many months. The complainant again contacted the OPs personally and requested to receive the agreed amount and register the flat in her name but the OPs avoided her request. The OPs assured the complainant to provide flat at the earliest for about 1 ½ years, but the OPs did not give any reply and also did not take any action. All of a sudden in the month of September, 2014 came to know that the OPs issued allotment list of 48 flats. When the complainant perused the list then she found // 5 // that Flat No.104 Block No.D-1-A First Floor, Golden Tower was registered in the name of one Pankaj Soni. The complainant was aggrieved with the deficiency in service and unfair trade practice committed by the OPs, immediately contacted the OPs and obtained information regarding actual state of affairs. The OPs accepted that they have sold Flat No.104, Block No.D-1-A,First Floor, Golden Block to some other person and told that if the complainant wishes, a flat situated at 6th Floor can be given to her. The complainant was not agreed with the same and told that she paid the amount for the flat satiated at First Floor, it is not relevant to give flat at First Floor, situated at Sixth Floor. Therefore the OPs are required to provide flat situated at First Floor of Golden Tower Building or to refund the amount which was deposited by the complainant with the OPs , along with the interest. Thereafter the complainant requested the OPs several time in this regard but after lapse of 15 months, the OPs did not provide the suitable flat and also did not refund the amount deposited by her for flat, along with interest. Thus, the OPs committed deficiency in service and unfair trade practice. Hence the complainant filed consumer complaint seeking reliefs as mentioned in the complaint.
3. The OPs filed their written statement and averred that the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. The present // 6 // complaint is baseless and flagrant abuse of process of law to harass and blackmail the OPs. The complaint is nothing but an arm twisting tactic of the complainant to demoralize the OPs, who is a reputed builder. The complainant had booked the aforesaid flat with the OPs, but despite repeated requests and reminders, the complainant has failed to deposit the agreed consideration of Rs.14,37,800/- in the scheduled time framed for Flat No.104 booked in Golden Tower Block No.1A, First Floor, therefore, the OPs were compelled to cancel the booking of the flat and asked the complainant to collect 50% of their deposit amount without interest and / or appreciation, as per the norms of the aforesaid booking. However, the complainant did not turn up to collect the agreed sum. The complainant was not ready and willing to execute deed of sale by paying full and final consideration. Hence the aforesaid complaint is liable to be dismissed. There was no agreement executed between the complainant and the OPs. It was necessary and desired in the interest of business ethics that the cancelled flat be booked / allotted to the another interest prospective buyer / investor at the earliest possible time to complete the scheduled construction activity in scheduled time frame. The OPs, being reputed builders, have to complete the construction activity within the scheduled time framed for giving the possession to the buyers. The complainant has failed to fulfil his obligation for making timely payment of the agreed consideration and also failed to collect // 7 // the agreed remaining sum i.e. 50% of the deposit amount (without interest and appreciation) from the OPs as per the agreement. The complainant had right to sue against the OPs under the law of specific performance but the complainant did not do so which also shows that the complainant did not want to purchase the aforesaid flat. The complainant has filed the instant complaint only for the purpose of blackmailing, harassment and to extort the OPs. Hence the aforesaid complaint is liable to be dismissed. The OPs have not widely advertised and marketed a real estate project Golden Tower over 1,60,000 Sq. Ft. area and promising any such specific amenities for the prospective buyer by publishing attractive brochure. The complainant filed the brochure as Annexure A-1, which is false, fabricated and forged document. The OPs never ever printed and published the same. For encouraging and attracting the prospective buyers/investors, the OPs had not proposed certain payment schedule and prize / other schemes like Honda City Card, Maruti Car, Two Wheelers, Jewellery, T.V. and Air Conditioner. The Complainant filed document as Annexure A-2 which is false, fabricated and forged documents. The OPs neither printed / published the same nor started any prize scheme for the property. The actual price of the said flat was not only Rs.12,71,000/- and Rs.20,000/- (Car Parking) + Electricity Meter charges (As applicable) + Registration charges + extra area charges (f any) + sales / service tax (as applicable) shall be payable // 8 // separately by the complainant. The actual cost of the said flat is Rs.14,37,800/- and therefore, the complainant must deposit the agreed sum prior to getting the possession of the said flat. The complainant has not received token No.221 and Flat No.104 was not booked in Golden Tower Block No.1A, First Floor. The OPs have not issued payment receipts in favour of the complainant. The complainant has not paid Rs.12,05,000/- to the OPs as per the terms and conditions from 15th August, 2008 till 4th April 2013. The OPs did not issue the ledger account as filed by the complainant as Annexure A-3, A-4 and A-5. The aforesaid ledger account is a false and forged document. As per the agreement, the complainant was required to deposit the sum of Rs.1,16,800/- as extra area charge for the flat and the actual price of the booked flat was Rs.14,37,800/- and not Rs.12,71,000/- as stipulated by the complainant. The registry of the flat cannot be made until and unless the complainant deposits the full agreed consideration of the said flat and when the complainant failed to deposit the agreed consideration of the said flat and when the complainant failed to deposit the agreed consideration in installments, the OPs were compelled to cancel the booking and allotment the flat to another prospecting buyer to complete the construction activity in schedule time frame. The OPs had never assured the complainant of making the registry of the said flat in the complainant's name, without complete and timely payment. The complainant has failed to fulfil his // 9 // obligation of making timely payment of the agreed consideration. Despite repeated requests and reminders by the OPs, the complainant failed to deposit the agreed consideration of the flat. Therefore it was necessary and required in the interest of business and ethics that the cancelled flat be allotted to another prospective buyer. The OPs did not offer another flat to the complainant in New Golden Tower, 6th Floor. The fact of the matter is that the complainant failed to fulfil his obligation of making timely payment of the agreed consideration. The story of shifting of the flat is only an arm twisting tactic by the complainant. Inspite of repeated requests and reminders by the OPs, the complainant failed to deposit the agreed consideration of the flat in due time. Hence the said flat had to be allotted to another prospective buyer in the interest of business. The complainant had also failed to collect the agreed remaining sum (50% of the paid amount without interest and appreciation) from the OPs in stipulated time. The aforesaid flat has been sold and transferred to one Shri Pankaj Soni. The OPs have not committed any deficiency in service. The complaint may be dismissed with cost.
4. The complainant has filed documents. Annexure 1 is Brochure, Annexure 2 is Prize Scheme and Payment Schedule, Annexure 3 is Ledger Account Details from 01.04.2008 to 31.03.2010, Annexure 4 is Ledger Account Details from 01.04.2010 to 31.03.2011, Annexure 5 is Ledger Account Details from 01.04.2011 to 31.03.2012, Annexure 6 is // 10 // Ledger Account Details from 01.04.2012 to 31.07.2013, Annexure 7 is Allotment List, Annexure 8 are receipts issued by Amisha In Sky Creations on various dates in favour of the complainant, Annexure 9 is Real Estate (Regulation and Development) Bill 2013.
5. The OPs have not filed any documents.
6. Shri Rajesh Pandey, learned counsel appearing for the complainant has argued that the OPs have jointly launched a residential project namely "Golden Tower" at Amlidih, Raipur and advertisement was published and also published attractive brochures. After perusal of the brochure, the complainant was influenced with the scheme of the (OPs) and she booked Flat No.104 at Block D-1-A, First Floor, Golden Tower. The rate of the above flat was fixed at Rs.12,71,000/- and the complainant deposited a sum of Rs.12,05,000/- with the OPs as per terms and conditions agreed. The complainant requested the OPs to received the remaining amount of Rs.66,000/- and to execute sale deed in favour of the complainant, but the OPs illegally demanded extra amount to the tune of Rs.2,32,800/- from the complainant. The complainant raised objection in this regard, but the OPs did not settle the problem and OPs asked for payment of extra amount. The complainant requested the OPs to execute sale deed. The price of the flat was fixed by the OPs at Rs.12,71,000/- and the OPs assured the complainant to provide the flat within period of 1 ½ years, but the OPs sold the Flat No.104 at Block D-1-A, First Floor, Golden // 11 // Tower to one Pankaj Soni, and thus committed deficiency in service. The OPs compelled the complainant to purchase the flat situated in 6th Floor, Golden Tower, and OPs sold the flat to one Pankaj Soni, which was allotted to the complainant with malafide intention, therefore, the complainant does not wish to purchase flat situated at 6th floor and the complainant is entitled to get refund of the amount deposited by her from the OPs along with heavy interest. Shri Rajesh Pandey further argued that the flat No.104 was not allotted to the complainant and was sold to one Pankaj Soni, therefore, the complainant suffered mental agony and financial loss. The complainant is entitled to get compensation for mental agony as well as financial loss. Therefore, the complainant is entitled for refund of the amount deposited by her with the OPs along with interest @ 18% p.a. He placed reliance on Ganesh Krishnaji Apte & Anr. Vs. Goldfield Constructions Co. II (2016) CPJ 358 (NC).
7. Shri Sudeep Tiwari, learned counsel appearing for OPs has argued that the OPs are reputed builders. The price of the flat No.104, Block No.1A, First Floor, Golden Tower, was fixed at Rs.14,37,000/-, but the complainant only deposited a sum of Rs.12,05,000/-. The OPs repeated requested the complainant to deposited the balance amount to the tune of Rs.2,32,800/-, but the complainant did not deposit the balance amount, then the OPs intimated the complainant that if she will not deposit the balance // 12 // amount, then she can received 50% of the deposited amount without interest, but no response was given by the complainant, therefore, the OPs sold the above flat to one Pankaj Soni. The complainant had not deposited the balance, therefore, the OPs cancelled the allotment of the above and sold the said plot to Pankaj Soni. The OPs never assured the complainant for making the registry of the said flat in the complainant's name, without complete and timely payment of the consideration. The complainant has failed to fulfil his obligation of making timely payment of the agreed consideration. Therefore, the complainant is not entitled to get any relief from this Commission and the complaint is liable to be dismissed.
8. We have heard learned counsel appearing for both the parties and have also perused the documents filed by the complainant.
9. It is admitted that the complainant booked a flat with the OPs and Flat No.104 at Block No.1A, First Floor, Golden Tower was initially allotted to the complainant. It is also established that the complainant has already paid a sum of Rs.12,05,000/- to the OPs. The complainant has filed ledger account and also copy of deposit receipts issued by Amisha In Sky Creations. From bare perusal of the above documents, it appears that the complainant has already paid a sum of Rs.12,05,000/- to the OPs in respect of the above flat.
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10. According to the complainant, the price of the above flat was fixed at Rs.12,71,000/-. The OPs pleaded that the price of the above flat was fixed at Rs.14,37,800/-. The OPs pleaded in para 4 of preliminary objections of their written statement that the complainant had booked the aforesaid flat with the OPs, but despite repeated requests and reminders, the complainant has failed to deposit the agreed consideration of Rs.14,37,800 in the scheduled time framed for Flat No.104 booked in Golden Tower Block No.1A, but the OPs did not filed any document to show that price of above flat was fixed at Rs.14,37,800/-. In para 4 of parawise reply of written statement, the OPs pleaded that the actual cost of the said flat is Rs.14,37,800/-. In para 6 of parawise reply of written statement, it is further pleaded that as per the agreement, the complainant was required to deposit the sum of Rs.1,16,800/- as extra area charge for the flat and the actual price of the booked flat was Rs.14,37,800/-.
11. From bare perusal of the written statement of the OPs, it appers that the OPs demanded, Rs.14,37,800 and extra amount of Rs.1,16,800/- from the complainant. The OPs pleaded that the amount of the flat was fixed according to the agreement, but no agreement was filed by the OPs, therefore, merely pleading of the OPs is not sufficient to hold that the price of the above flat was fixed at Rs.14,37,800/- in stead of Rs.12,71,000/-. The OPs have admitted in para 10 of para wise reply of written statement that in spite of repeated // 14 // requests and reminders by the OPs, the complainant failed to deposit the agreed consideration of the flat in due time. Hence, the said flat had to be allotted to another prospective buyer in the interest of business. The aforesaid flat has been sold and transferred to one Pankaj Soni. It is admitted fact that the OPs transferred the above flat which was booked by the complainant to Pankaj Soni.
12. The OPs have not filed any document to show that the price of the above flat was fixed at Rs.14,37,800/-. Even before cancellation of the allotment of flat , the OPs have not sent any letter / notice to the complainant regarding cancellation of the flat.
13. The OPs simply pleaded that the complainant is entitled to get 50% of the deposited amount without interest. From bare perusal of the written statement of the OPs, it appears that the OPs deliberately and intentionally sold the above flat to Pankaj Soni without giving prior intimation to the complainant. Even OPs received the amount of Rs.12,05,000/- from the complaint in respect of the above flat and OPs cancelled the allotment without giving prior intimation to the complainant. The conduct of the Ops shows that the OPs only wanted to refund 50% of the deposited amount to the complainant without any interest, which comes in the category of deficiency in service.
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14. In Ganesh Krishnaji Apte & Anr. Vs. Goldfield Constructions Co., II (2016) CPJ 358 (NC), Hon'ble National Commission has observed thus :
"Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b) - Housing
- Booking of flat - Consideration of possession - Deficiency in service
- Refund of deposited amount sought. Before sale of flat to a third party, OP vide order sheet dated 26.4.2006 had refused to transfer flat in favour of the complainant. It shows the arrogance, high handedness and arbitrariness on part of OP. OP should have agreed to put complainant's possession of flat on 26.4.2006 before it was sold to third party. Customers are exasperated by senseless delay made by builder. OP is directed to pay to complainant Rs.16,75,000 with interest @ 18% p.a. "
15. In Sou. Shobha Vasantrao Timase & Anr. Vs. Dinbandhu Bhoomvikas Sanstha, 2016 (2) CPR 888 (NC), Hon'ble National Commission has observed that :-
"16. For all the afore-mentioned reasons, and also the Judgments of the Hon'ble Apex Court in Ghaziabad Development Authority vs. Balbir Singh, (2004) 5 SCC 65 : ]2004] 5 Supreme 51, wherein the Hon'ble Apex Court held that the grant of interest @ 18% was justifiable as the party suffered loss in as much as he had deposited the money in the hope of getting a flat /plot. He is being deprived of that flat / plot. He has been deprived of the benefit of escalation of the price of that flat / plot. Therefore, the compensation in such cases would necessarily have to be higher.
17. Recently, the Hon'ble Supreme Court K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, held that refund of the amounts to the // 16 // Complainants along with compensation in the form of simple interest @ 18% p.a. from the date of deposit till date of payment is justifiable for the mental agony and harassment undergone by the Complainants in cases where delivery of possession of plots has not been given."
16. In the instant case, the OPs have not been able to prove that the price of the above flat was fixed at Rs.14,37,800/-. The OPs have not filed any document to show that the allotment of the flat was cancelled after giving show cause / notice or demand notice to the complainant. It appears that the OPs have automatically cancelled the allotment of the flat without issuing any notice to the complainant. As the flat No.104 had already been sold by the OPs to one Pankaj Soni, therefore, it is not possible for the OPs to give possession of above flat to the complainant, therefore, the complainant is entitled for refund of the amount deposited by her with the OPs. The above flat was sold by the OPs to one Pankaj Soni, therefore, the complainant was deprived from the above flat and the OPs used the amount deposited by complainant, therefore, the complainant is entitled to get full deposited amount along with interest @ 18% p.a. from the OPs.
17. The complainant prayed for awarding a sum of Rs.5,00,000/- towards compensation for inconvenience and financial loss suffered by her and Rs.5,00,000/- towards compensation for mental agony. It appears that the OPs without giving any notice to the complainant, have automatically cancelled the allotment of the flat. As the complainant deposited heavy amount i.e. Rs.12,05,000/- with the OPs, // 17 // therefore, definitely the complainant would have suffered mentally agony. Hence, the complainant is entitled for getting compensation towards mental agony to the tune of Rs.1,00,000/-, which is sufficient, but the complainant is not entitled for getting any compensation for inconvenience and financial loss suffered by her. The complainant is also entitled for getting a sum of Rs.15,000/- towards cost of litigation.
18. Therefore, we allow the complaint of the complainant and it is directed that the OPs will pay a sum of Rs.12,05,000/- (Rupees Twelve Lakhs and Five Thousand) to the complainant within two months from the date of order. It is further directed that the OPs will pay interest @ 18% p.a. on Rs.12,05,000/- from 04.04.2013 which is date of last payment made by the complainant to the OPs till date of payment. The OPs will also pay a sum of Rs.1,00,000/- (Rupees One Lakh) towards compensation for mental agony and Rs.15,000/- (Rupees Fifteen Thousand) towards cost of litigation to the complainant. (Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 14 /07/2016 14 /07/2016 14 /07/2016 14 /07/2016