State Consumer Disputes Redressal Commission
1. M/S Chandigarh Royale City Promoters ... vs Lt. Col. (Retd.) Piyush Bahuguna on 8 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 480 of 2013 Date of Institution : 06.11.2013 Date of Decision : 08/11/2013 1. M/s Chandigarh Royale City Promoters Pvt. Ltd. SCO No.489-490, Level-II, Sector 35-C, Chandigarh-160035 and Corporate Office: SCO No.44, Sector 20-C, Chandigarh-160020, through its Managing Director. 2. Mr. Pardeep Kumar, Director, M/s Chandigarh Royale City Promoters Pvt. Ltd., SCO No.489-490, Level-II, Sector 35-C, Chandigarh-160035 and Corporate Office: SCO No.44, Sector 20-C, Chandigarh 160020. 3. Mr. Neeraj Kansal, Director, M/s Chandigarh Royale City Promoters Pvt. Ltd., SCO No.489-490, Level-II, Sector 35-C, Chandigarh-160035 and Corporate Office: SCO No.44, Sector 20-C, Chandigarh 160020. Appellants/Opposite Parties V e r s u s Lt. Col. (Retd.) Piyush Bahuguna, Son of Vidya Dutt Bahuguna, Resident of House No.2113, First Floor, Sector 38-C, Chandigarh. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Anish Garg, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 30.09.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
For the reasons recorded above, we find merit in the complaint and the same is allowed. OPs are directed :-
i To make payment of an amount of Rs.6,00,000/- deposited by the complainant along with interest @12% p.a. from the date of deposit till actual payment.
ii To make payment of an amount of Rs.1,00,000/- as compensation to the complainant on account of mental tension, agony, harassment and escalation in the construction cost.
iii To make payment of an amount of Rs.11,000/- as litigation expenses.
This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the above said awarded amount to the complainant along with interest @ 15% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that after considering the proposal of the Opposite Parties, received through Mr. Anil Kumar, in May, 2011, the complainant evinced his interest for a residential plot, measuring 200 sq. yards, in their project, at the proposed rate of Rs.11,000/- per sq. yard. The Opposite Parties did not handover any papers allocating/allotting any particular plot number or showing location of the same (plot). The complainant filled up the Advance Registration Form Annexure C-1 dated 28.05.2011 for the registration of plot, aforesaid. The complainant paid a sum of Rs.2,00,000/-, in cash, to the Opposite Parties, vide receipt dated 29.05.2011. Other amounts of Rs.2,25,000/- and Rs.1,75,000/-, vide cheques of the even dated, were also paid by the complainant, to the Opposite Parties, towards the booking/price of the plot. The copies of receipts are Annexures C-2 and C-3. In this manner, a total amount of Rs.6,00,000/-, being 25% of the sale price of plot, was paid by the complainant, to the Opposite Parties.
3. At the time of filling up the Advance Registration Form, the Opposite Parties assured the complainant that they had already acquired the land, measuring about 200 acres, and the project shall be launched within six months, on receipt of the licence, as promoters. The complainant was also assured that he shall be allotted a plot, within a period of eight months. It was stated that there was a specific condition, in the Advance Registration Form, that the Opposite Parties would refund the booking amount, to the customer, alongwith interest @ 12% p.a., on his request, if the Company did not get licence aforesaid, within a period of 12 months, from the date of such booking. It was further stated that the Advance Registration Form, was filled up by the complainant, on 28.05.2011, and the Opposite Parties got the licence on 31.12.2012. Thereafter, the complainant received the first letter dated 05.02.2013 Annexure C-6, wherein, he was intimated that the project, in the name of Chandigarh Royale City, had been approved by the Greater Mohali Area Development Authority (GMADA) vide Licence No.LDC-10/2012 dated 31.12.2012 for the development of residential colony at Zirakpur-Patiala National Highway, and that the layout plan for the same, had also been approved. The complainant was asked to execute Buyers Agreement/Allotment Letter, and to pay a sum of Rs.12,70,000/-, as 85% of the balance 75% basic price, and Rs.1,60,000/- as 50% of the tentative external development charges @Rs.1600/- per sq. yard, making it a total of Rs.14,30,000/-. The complainant was asked to pay the balance amount, within 15 days, to avoid any interest/penalty on late payment.
4. It was further stated that the Opposite Parties never intimated the complainant, that the external development charges, shall be included, in the price quoted by them, or it shall be over and above the sale price. It was further stated that the payment of external development charges was mentioned without any basis or any supporting documents, from GMADA. It was further stated that since the Opposite Parties, had neither allocated any plot number, nor intimated the location of the proposed plot, to be allotted to the complainant, he did not pay the amount of Rs.14,30,000/- demanded by the Opposite Parties. The complainant sought clarification vide Registered A.D. letter dated 05.03.2013 Annexure C-7, wherein, he mentioned about the discussion, held with Opposite Party No.3, on 20.02.2013, and subsequent meeting with Opposite Parties No.2 and 3. The Opposite Parties assured that the refund would be given by 15.04.2013. It was further stated despite that the Opposite Parties, did not refund the booking/paid up amount with interest. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.6,00,000/-, deposited by him, referred to above, alongwith interest @12% P.A., from 28.05.2011, till realization; pay compensation, to the tune of Rs.4 lacs, for mental agony, physical harassment, deficiency, in rendering service, adopting unfair trade practice and escalation, in the cost of construction; and cost of litigation, to the tune of Rs.22,000/-.
5. The Opposite Parties, in their joint written version, pleaded that the Consumer Complainant was not maintainable. It was further pleaded that since, the complainant and his wife, earlier booked a plot measuring 200 sq. yards, with the Opposite Parties vide file No.624, and, later on, they cancelled the same, and sought refund of the advance amount, paid towards the same (plot), vide discharge certificates Annexure R-2 and R-3, he (complainant) did not fall within the definition of a consumer. It was further pleaded that the complainant had concealed the material fact, that his wife Mrs. Sangeeta Bahuguna was co-applicant, in the Advance Registration Form dated 28.05.2011, and no authorization had been given by her, to him (complainant), for filing the complaint. It was stated that, under these circumstances, the complainant and his wife, were involved, in the business of sale and purchase of the real estate, and, as such, they did not fall within the definition of consumers. It was further stated that, in the Advance Registration Form, the complainant himself agreed that the expression of interest did not bind the Company, for any obligation, in future. It was further stated that the complainant requested for the refund of amount invested with the Opposite Parties, after receipt of letter dated 05.02.2013, when they (Opposite Parties) raised a demand of Rs.14,30,000/-. It was further stated that external development charges were levied by the Government Agencies, for the external development of the residential colony. It was further stated that the Opposite Parties got permission for change of land use, from the Government of Punjab, on 28.11.2011, vide letter Annexure R-6. It was further stated that the project was under way and the Opposite Parties were willing to allot the plot, to the complainant, on payment of the entire outstanding amount. 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 Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the appellants/Opposite Parties, at the preliminary stage, and have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants/Opposite Parties, submitted that since the complainant and his wife-Mrs.Sangeeta Bahuguna, earlier booked a plot measuring 200 sq. yards, with the Opposite Parties, vide file No.624, and, later on, they sought refund of the advance amount, paid towards the same (plot), vide discharge certificates Annexures R-2 and R-3, it was clearly proved that they had done so, for the purpose of investment, so as to earn huge profits, and, as such, the complainant did not fall within the definition of consumer as defined under Section 2(1)(d)(ii) of the Act. The submission of the Counsel for the appellants/Opposite Parties, in this regard, does not appear to be correct. It may be stated here, that the perusal of the discharge certificates Annexure R-2 and R-3, clearly goes to show that the applicant/co-applicant, in file No.624, in respect of the plot, was not the wife of the complainant, but one Smt.Swapna Anand, wife of his friend. On the other hand, in the copy of Advance Registration Form dated 28.05.2011, the name of the wife of the complainant is clearly mentioned as Mrs.Sangeeta Bahuguna. It is also evident, from the discharge certificates Annexure R-2 and R-3, that the plot booked by the applicants, vide file no.624, was got cancelled, and, thereafter, the Opposite Parties were at liberty to offer allotment of the same, to any other buyer. It was clearly mentioned, in the said discharge certificates, that after cancellation of the said plot, the applicants shall have no claim, against the Opposite Parties, its Directors/Brokers, Officials and staff, relating to the Advance Registration Form of customer file no.624. It is, therefore, held that the Opposite Parties miserably failed to prove that Smt. Sangeeta Bahuguna, wife of the complainant was applicant or co-applicant, in respect of the plot, booked vide file no.624, which, however, was, later on, got cancelled, whereafter, all rights in respect of the same were relinquished, in favour of the Opposite Parties. The complainant booked the plot, in question, as is evident, from his affidavit, for raising construction thereon, for his residence. Under these circumstances the District Forum was right in coming to the conclusion that the complainant fell within the definition of a consumer, as defined in Section 2(1)(d)(ii) of the Act. The findings of the District Forum, in this regard, being correct, are affirmed. The submission of the Counsel for the appellants/Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
11. It was next submitted by the Counsel for the appellants/Opposite Parties, that since the wife of the complainant, Mrs. Sangeeta Bahuguna was co-applicant, in the Advance Registration Form dated 28.05.2011, in respect of the plot, in question, and no authorization had been given by her, to him (complainant), for filing the Consumer Complaint, and, as such, the instant complaint was not maintainable. The submission of the Counsel for the appellants/Opposite Parties, in this regard, is not correct. Annexure C-1, is a copy of the printed performa of the Advance Registration Form, supplied to the complainant, by the Opposite Parties. In Annexure C-1, Advance Registration Form, Sh. Piyush Bahuguna is shown as the first applicant, whereas, his wife Mrs. Sangeeta Bahuguna, is shown as the second applicant. From Annexures C-2 and C-3, copies of receipts, it was proved that it was Mr. Piyush Bahuguna and his wife, Mrs. Sangeeta Bahuguna, who paid the total amount of Rs.6,00,000/- to the Opposite Parties. Both the complainant and his wife applied for one plot of 200 square yards, at the proposed rate of Rs.11,000/- per sq. yard. It may be stated here, that if the wife of the complainant is a co-applicant, in the Advance Registration Form dated 28.05.2011, that did not, in any manner, legally debar the complainant, from filing the Consumer Complaint. The complainant hired the services of the Opposite Parties, for consideration, in respect of the plot, in question, as is evident from receipt dated 17.06.2011, in the sum of Rs.4 lacs, issued by them (Opposite Parties). The District Forum was also right, in holding that the complainant alone was competent to file the complaint. The submission of the Counsel for the appellants/Opposite Parties, in this regard, therefore, being devoid of merit, is rejected.
12. From C-1, Advance Registration Form, filled up by the complainant, it is evident that a condition was stipulated therein, that, in case, the Opposite Parties failed to get licence, within 12 months, from 28.05.2011, they shall be liable to refund the amount of Rs.6,00,000/-, paid by him, alongwith interest @12% P.A. Admittedly, by 28.05.2012, the Opposite Parties had not been able to obtain licence from GMADA. However, from Annexure C-6 Demand Letter dated 05.02.2013, sent to the complainant, it is evident that the project, in the name of Chandigarh Royale City, had been approved by GMADA, vide licence No.LDC-10/2012 dated 31.12.2012. The Opposite Parties were unable to get approval/licence within 12 months, from 28.05.2011. No doubt, the case of the Opposite Parties, was that they got the change of land use, from the Government of Punjab, on 28.11.2011, yet that did not mean that they got the approval/licence from GMADA on that date. In fact, the licence was received by the Opposite Parties, on 31.12.2012, after a period of more than 12 months, of filling up the Advance Registration Form on 28.05.2011. Since the Opposite Parties, failed to comply with the condition, referred to above, stipulated in the Advance Registration Form, it was their bounden duty to refund the amount, paid by the complainant, alongwith interest @12% p.a. Instead of refunding the amount, alongwith interest, as stated above, the Opposite Parties, raised a demand, on 05.02.2013, in the sum of Rs.12,70,000/- as 85% of the balance 75% basic price, and external development charges of Rs.1,60,000/-, within 15 days . The Opposite Parties started booking the residential plots and duping the innocent customers of their hard earned money, much earlier to the grant of approval to their project by GMADA through licence dated 31.12.2012. According to law, they could not start booking of the residential plots, and obtain money from the innocent consumers, before actually the licence and all the permissions and sanctions had been granted to them by the Competent Authorities. In case Kamal Sood Vs. DLF Universal Ltd., reported as III(2007) CPJ-7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/building. The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licences and without getting the necessary approvals, the same amounted to indulgence into unfair trade practice, on the part of the builder. The District Forum was, thus, right in holding that the Opposite Parties indulged into unfair trade practice. The complainant was, thus, entitled to the refund of amount, deposited by him alongwith interest, @12% p.a. from the respective dates of deposits.
13. It was further submitted by the Counsel for the appellants, that in the Advance Registration Form, it was, in clear-cut terms, mentioned that the expression of interest did not bind the Company, for any obligation, in future, and, as such, the Opposite Parties were not bound to refund the amount of Rs.6,00,000/- alongwith interest @12% p.a. It may be stated here, that Advance Registration Form is required to be read as a whole, and not in piecemeal. If the same is read, in its proper perspective, then only one and one conclusion, which can be arrived at, is that the Opposite Parties undertook to refund the amount, deposited by the complainant, alongwith interest @12% p.a., in case, they failed to obtain licence from GMADA within one year, from the date of submission of the Advance Registration Form. As stated above, the Advance Registration Form was submitted by the complainant, on 28.05.2011, whereas the licence from GMADA, was received by the Opposite Parties, on 31.12.2012 i.e. much after the expiry of 12 months, as stipulated in the terms and conditions of the same. If, in the Advance Registration Form, it was mentioned that the Opposite Parties were not bound by any obligation, in future, that did not mean that they could usurp the amount, deposited by the innocent consumers, as booking amount, for the residential plots. The submission of the Counsel for the appellants/Opposite Parties, in this regard, being devoid of merit, is rejected.
14. It was next submitted by the Counsel for the appellants/Opposite Parties, that external development charges were demanded from the complainant, as and when, the same were levied by the Government. In the letter which was sent to the complainant, demanding external development charges, no criteria for levying the same (external development charges) was mentioned. It was also not mentioned, in the said letter that GMADA had levied external development charges, in the respect of the plot. The complainant sent letter dated 05.03.2013 Annexure C-7, to the Opposite Parties, in which he gave reference of the meeting, with the Opposite Parties. Vide the said letter, the complainant also informed the Opposite Parties, that he was not interested in the plot and requested for refund of the amount deposited by him, alongwith @12% p.a., as per the condition contained in the Advance Registration Form. However, no reply was given by the Opposite Parties, to the above mentioned letter, nor the refund was made. By raising demand of external development charges, without any criteria, and without any reference to the letter of the Government of Punjab, by the Opposite Parties, and by not refunding the amount, deposited by the complainant, with interest, the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.
15. It was next submitted by the Counsel for the appellants/Opposite Parties that the complainant slept over the matter, for a long time, and for the first time raised the issue, with regard to the refund of amount alongwith interest, vide letter dated 05.03.2013, when letter dated 05.02.2013 was sent to him, demanding the amount of Rs.12,70,000/- towards 85% of the remaining 75% basic price of the unit, and a sum of Rs.1,60,000/- towards external development charges. It could not be said that the complainant slept over the matter. The licence had not been obtained by Opposite Parties, within 12 months, from the date of filling up the Advance Registration Form, and the same was granted on 31.12.2012. Since the Opposite Parties failed to fulfill the promise, made by them, as per the terms and conditions of the Advance Registration Form, to the complainant, he was left with no alternative, than to ask for the refund of amount, deposited by him. The mere fact that the letter dated 05.02.2013 was issued by the Opposite Parties, did not mean that the right of the complainant, for refund of the amount, with interest stood extinguished. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, is rejected.
16. The District Forum, also awarded compensation, in the sum of Rs.1,00,000/-, for mental agony, physical harassment, suffered by the complainant, at the hands of the Opposite Parties. It may be stated here that Advance Registration Form, was filled up by the complainant on 28.05.2011. The licence was not obtained by the Opposite Parties, within 1 year from the date of submission of the Advance Registration Form, but on the other hand, it was granted on 31.12.2012, to the Opposite Parties. The complainant had deposited the booking amount, in hope that the plot will be allotted to him, and he will construct house thereon, to reside therein, but his hopes were dashed, to the ground, when there was no progress, and even without the necessary permissions/sanctions from the Competent Authority, the bookings were made by the Opposite Parties, and booking amount was received from him (complainant), and other innocent consumers. One can very well visualize the mental and physical condition of a person in such like circumstances. The complainant, thus, suffered a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. It is a settled principle of law, that the compensation must be commensurate with the facts and circumstances of the case, and injustice caused to the complainant. Compensation, in the sum of Rs.1,00,000/- awarded by the District Forum, could not be said to be excessive, unfair or unreasonable. The findings of the District Forum, in awarding compensation, in the sum of Rs.1,00,000/- being correct are affirmed.
17. No other point, was urged, by the Counsel for appellants/Opposite Parties.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. The same is liable to be upheld.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced.
November 8, 2013 Sd/- [JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/- (DEV RAJ) MEMBER Rg