State Consumer Disputes Redressal Commission
Payal vs Acme Builders Private Limited on 16 May, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 733 of 2016 Date of Institution : 25.10.2016 Date of Decision : 16.05.2017 Smt.Monica Hira wife of Sh.Manjit Singh, resident of House No.417, Phase-2, Mohali, Punjab. ...... Complainant V e r s u s M/s ACME Builders Pvt. Ltd., through its Chairman/Managing Director, 1st Floor, SCO 2449-50, Sector 22-C, Chandigarh. 2nd Address:- M/s ACME Builders Pvt. Ltd., through its Chairman/Managing Director, GH # 10 JLPL, Sector 90-91, SAS Nagar, Mohali, Punjab. Diwan Housing Finance Corporation Limited (DHFL), Sector 26, Chandigarh, through its Branch Manager. .... Opposite parties Argued by:- Sh.Aseem Gupta, Advocate for the complainant. Sh.S.K. Monga, Advocate for opposite party no.1. Er.Sandeep Suri, Advocate for opposite party no.2. ===================================================== Complaint case No. : 777 of 2016 Date of Institution : 08.11.2016 Date of Decision : 16.05.2017 Nitin Sharma son of Sh.Subhash Kumar. Vaishali Sharma wife of Nitin Sharma. Both residents of #837, Lane-4, Prem Nagar, Yamunanagar, Haryana. ...... Complainants V e r s u s ACME Builders Pvt. Ltd., presently at GH # 10, Sector 90-91 (JLPL), SAS Nagar, Mohali and earlier SCO No.2449-2450, First Floor, Sector 22-C, Chandigarh, through its Director/Authorized Signatory. .... Opposite party Argued by:- Sh.Sanjeev Sharma, Advocate for the complainants. Sh.S.K. Monga, Advocate for the opposite party. =================================================== Complaint case No. : 778 of 2016 Date of Institution : 08.11.2016 Date of Decision : 16.05.2017 Pankaj Saini son of Sh.Naveen Kumar Saini. Naveen Kumar Saini son of Sh.Mukandi Lal. Both residents of #615 B, Type 2, Rail Coach Factory, Kapurthala, Punjab. ...... Complainants V e r s u s ACME Builders Pvt. Ltd., presently at GH # 10, Sector 90-91 (JLPL), SAS Nagar, Mohali and (Earlier SCO No.2449-2450, First Floor, Sector 22-C, Chandigarh), through its Director/Authorized Signatory. .... Opposite party Argued by:- Sh.Sanjeev Sharma, Advocate for the complainants. Sh.S.K. Monga, Advocate for the opposite party. ==================================================== Complaint case No. : 970 of 2016 Date of Institution : 28.12.2016 Date of Decision : 16.05.2017 Payal wife of Sh.Usman Raza Butt, resident of AWHO 4613, Sector 68, Darshan Vihar, Mohali. ...... Complainant V e r s u s ACME Builders Pvt. Ltd., SCO 2449-50, First Floor, Sector 22-C, Chandigarh, through its Managing Director/Authorized Signatory. Argued by:- Sh.Savinder Singh Gill, Advocate for the complainant. Sh.S.K. Monga, Advocate for the opposite party. Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT By this order, we propose to dispose of aforesaid four consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In all the complaints, the complainants are original allottees and have sought refund of the amount deposited towards price of the units, respectively, purchased by them, in the respective projects of the opposite parties. At the time of arguments, on 26.04.2017 it was agreed by Counsel for the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, all the four complaints can be disposed of, by passing a consolidated order.
To dictate order, facts are being taken from consumer complaint bearing no.733 of 2016, titled as Smt.Monica Hira Vs. M/s ACME Builders Pvt. Ltd. and another. The complainant purchased a residential flat, for her personal use, in a project, launched by opposite party no.1, named "ACME Floors", Sector 110, TDI City, SAS Nagar, Mohali, on 02.11.2012. At the time, when project was launched, very rosy picture qua its salient features was given. It was promised that the project will be equipped with housing facilities, club facilities and other facilities required for quality public living. When application Annexure C-1 was moved on 02.11.2012, the complainant paid an amount of Rs.5,40,000/-, as booking amount. Receipt Annexure C-5 qua payment of the said amount was issued by opposite party no.1 on 28.12.2012. Vide letter at page 16 of the file, she was provisionally allotted unit no.1988, 1st floor, measuring 1050 square feet, in the said project. Clause 3 of Annexure-A, attached with the said letter reads thus:-
"The offer of allotment shall be made within 12 months from date of application. At the receipt of the offer of allotment, the applicant shall accept the offer within 15 days of receipt of offer of allotment by written communication. If the communication is not received within 15 days it shall be deemed to be accepted by the company. Thereafter the allotment/allocation of a Floor shall be made on payment of balance amount as per Annexure B."
It was undertaken by opposite party no.1 that final allotment shall be made within 12 months, from the date of application i.e. from 02.11.2012. It was mandatory for the applicant to accept allotment made, within 15 days, on receipt of communication and in case of failure to opt such, it was provided that it shall be deemed that the applicant had accepted the offer made. Total price of the unit was fixed at Rs.25,75,625/-, including external development charges and payment plan was offered as 'subvention'. 10% of the amount was to be paid at the time of booking; another 10% within 45 days of booking and rest of the amount i.e. 80% was to be disbursed by the bank against loan raised, as per stages of construction. At the time of booking, promise was made to hand over possession of the unit, within 24 months, from the date of making payment. Buyer's Agreement was not offered for signing despite many requests made by the complainant. It is necessary to mention here that an amount of Rs.1,44,884/- was paid by the complainant to opposite party no.1 on 08.08.2013, towards EDC and Service Tax.
It is specific case of the complainant that the unit was changed from 1988, 1st Floor to flat no.2025, 1st Floor, in the said project. Buyer's Agreement was got signed on 22.01.2014 i.e. after a gap of more than one year, from the date of making application to book the flat i.e. from 02.11.2012. Thereafter, opposite party no.1 issued letter dated 20.02.2014 for execution of loan documents. Provisional allotment was issued in favour of the complainant on 28.02.2014, in respect of the relocated unit. Documents were sent to opposite party no.1, as a result whereof, loan amount to the extent of Rs.19.60 lacs, was sanctioned by opposite party no.2, on 25.02.2014, vide letter Annexure C-16, in the name of the complainant and her husband Sh. Manjit Singh. Tripartite Agreement was signed between the complainant, opposite parties no.1 and 2 on 31.03.2014. Loan was agreed to be disbursed, as per stages of construction.
It is case of the complainant that without affirming the stage of construction, opposite party no.2 disbursed the entire amount of loan, to opposite party no.1. As per terms and conditions of the tripartite agreement, EMIs were to be paid by opposite party no.1, till offer of possession. However, without giving possession of unit, opposite party no.2 started charging EMI @Rs.16,603/-, from the complainant and upto 31.08.2016, the complainant had paid an amount of Rs.83,015/-, for the said purpose. It is on record that as per terms and conditions of the Agreement, opposite party no.1 committed to deliver possession of the unit, within a period of 24 months, with extended period of six months. End date to hand over possession was fixed as 21.07.2016, Relevant Clause 16 of the agreement reads thus:-
"That the offer of possession of the said premises is likely to be delivered by the Company/Promoter to the Allottee within a period of 24 months with grace period of 6 months from the date of this agreement subject to force majeure circumstances & on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of offer of possession according to the payment plan applicable to him. The Company/promoter on completion of the construction shall issue final call notice to the Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company/Promoter. The Allottee would be liable to pay holding charge @Rs.10/- per sq.ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession."
It is necessary to mention here that for delay caused, in handing over possession of the unit, there was no penalty provision, to be discharged by opposite party no.1, in the said Agreement.
It was specifically stated that at the time of launch of the said project, permissions were not available with opposite party no.1. It was also stated that in not offering buyer's agreement for signing within a reasonable time, opposite party no.1 has indulged into unfair trade practice. It was specifically alleged that till the date of filing of this complaint, possession of the unit, was not offered to the complainant, by opposite party no.1. By stating as above, following prayer was made by the complainant:-
"The Opposite Party No.1 be directed to refund a sum of Rs.5,40,000/- paid as booking amount alongwith Rs.1,44,884/- paid towards EDC and Service Tax, received by them towards the booking of one unit/Flat no. 2025, 1st Floor, in "Acme Floors" at TDI City, Sector 110-111, SAS Nagar, Mohali.
The opposite Party No.1 be directed to pay the interest @18% p.a. from the date of receipt of the payments, till the date of filling of the present complaint and future interest @ 18% p.a. till the date of final actual payment by the Opposite party.
The Opposite Party No. 1 be directed to refund the amount of Rs. 19,60,000/- so received by them from the O.P No. 2 directly to the O.P. No.2 (1).
The Opposite Party No. 2 be directed to refund the amount received by them as pre EMI from the complainant to the tune of Rs. 83,015/- until 31.08.2016 and future amount so received by them, until the disposal of the present complaint.
The Opposite Party No. 1 be directed to pay a sum of Rs. 1,00,000/- towards the mental harassment and agony caused to the complainant as well as for not developing the flat in time as promised by them and further loss caused to the complainant in terms of visiting the office of the Opposite party several times and for committing unfair trade practice, deficiency in service.
The Opposite Party No. 1 be directed to pay the litigation charges to the tune of Rs.25,000/- towards the unwarranted and uncalled for litigation."
Upon notice, separate replies were filed by the opposite parties.
Opposite party no.1, in its written reply, did not controvert, the factual matrix of the case qua moving application by the complainant, to purchase a flat on 02.11.2012. It was stated that flat no.1988 was earlier allotted to Smt.Savita Pandey and Sh.Damodhar Mishra, original allottees. However, the same was transferred in favour of the complainant thereafter. Signing of the Builder Buyer Agreement on 22.01.2014, is also admitted. It was admitted that provisional allotment of the relocated unit was made on 28.02.2014. It was stated that the complainant was relocated to another unit aforesaid, on a request made by her vide letter Annexure R-1. Buyer's agreement was signed for flat no.2025, First Floor, in the said project. It was stated that 20% of the amount was paid by the complainant and rest (80%) was paid, by raising loan. It was averred that possession of the unit was agreed to be delivered within 24 months plus grace period of six months, from the date of signing the said Agreement. Interest amount towards loan raised was agreed to be paid by opposite party no.1, till such time, offer of possession was made to the complainant. Qua construction at the spot, it was specifically stated in para no.4 of the preliminary objections that "In the present case the work of the unit is in full swing and the opposite party will handover the offer of possession shortly". It was stated that upto Feb. 2017, opposite party no.1 has paid an amount of Rs.4,75,000/- towards interest to opposite party no.2, against the loan account of the complainant. In para no.4 of the reply on merits, it is again reiterated that construction of the unit is in full swing and possession is likely to be delivered shortly. Payment of amount paid towards EDC and service tax, as mentioned in the complaint, by the complainant, has not been controverted. It was stated in para no.8 of the reply on merits that the project was launched after obtaining all necessary approvals/clearances from the Govt. Departments. It was further stated that delay in handing over possession has occurred on account of force majeure circumstances. In para no.8 of reply on merits, it was again asserted that work is in full swing and possession of the unit is almost ready to move and offer thereof is likely to be made shortly.
Reply was signed on 14.02.2017. Thereafter, by moving an application, few documents such as occupation certificate, offer of possession dated 29.03.2017 etc., were sought to be placed on record. Arguments in the application for placing on record the said documents were heard on 26.04.2017. Since, the said documents were very essential for the just decision of this complaint, the same were ordered to be placed on record, vide separate order. Documents, through the said application were placed on record, to show that permission was granted by the Competent Authority to occupy/use the ground floor/first floor/second floor on 19.07.2016 (Annexure R-9) in the said project and thereafter, possession letter on 29.03.2017. Annexure R-10, was sent offering unit, in question, to the complainant. Photographs were placed on record to show that construction at the spot was complete. Jurisdiction of this Commission to entertain and decide this complaint is not disputed.
Opposite party no.2 in its reply stated since the loan was raised by the complainant, as such, she cannot wash of her hands to repay the same. It was averred that the amount of loan was disbursed, as per the stages of construction and instructions given by the complainant herself. It was stated that, in case, this Commission comes to the conclusion that the complainant is entitled for refund of the amount paid, opposite party no.2 shall have the first lien, on the amount due to be paid to it.
In the rejoinder filed, the complainant reiterated the averments contained in the complaint and repudiated those contained in written version of opposite party no.1.
The parties led evidence in support of their cases.
We have heard the contesting parties and have gone through the evidence and record of all the cases, very carefully.
At the time of arguments, it was virtually admitted by Counsel for opposite party no.1 that offer of possession is delayed by few months. He vehemently contended that for the delay caused, opposite party no.1 is ready to pay reasonable compensation to the complainant. He has further contended that the complainant was only an investor. She cannot be termed as potential user of opposite party no.1. In a way, it was stated that investment was made for future gains, as the prices of property are not good at present, the complainant is withdrawing from the concluded contract. It was further stated that in that event, the earnest money can be forfeited. To say so, reliance was placed on the ratio of judgment passed by the Hon'ble Supreme Court of India, in H.U.D.A. and another Vs. Kewal Krishan Goel and Ors., 1996 SCC (4) 249. It was stated that averments to the extent that construction was not complete at the spot were wrong. Reference was made to the photographs placed on record, by moving an application, referred to above. It was also stated that large number of consumers have got possession of the units and people are living in the project launched by opposite party no.1.
On the other hand, Counsel for the complainant has vehemently contended that opposite party no.1 has breached material terms and conditions of the Agreement, by not offering possession of the unit, in time and furthermore, by launching the project, without getting approvals and also by accepting booking amount, without offering Buyer's Agreement, for signing within reasonable time, it has indulged into unfair trade practice. It needs to be punished. It was further stated that the complainant has suffered material loss. She has purchased the unit for her residential purposes. On account of non delivery of possession of the unit, in time, great loss has been caused to her.
First of all, we have to see that as to whether, there is any fault on the part of opposite party no.1, as alleged by the complainant or not. It is proved on record that the project was launched in the year 2012. An amount of Rs.5,40,000/-, as booking amount, was accepted against an application filed by the complainant on 02.11.2012. Provisional receipt qua that amount was issued on 28.12.2012. Total price of the flat was fixed at Rs.25,75,625/-. The complainant opted for subvention scheme, on the basis of tripartite agreement dated 31.03.2014, referred to above.
It is an admitted fact that Buyer's Agreement in respect of the unit, in question, (no.2025) was signed on 22.01.2014. The very fact that Buyer's Agreement was not offered for signing after receipt of booking amount, within a reasonable time, say two to three months, would amount to adopting unfair trade practice. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-
"The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer's Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer's Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer's Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected".
As such, by not offering Agreement, for signing in a reasonable time, but after a long delay of about more than one year of accepting booking amount, opposite party no.1 committed unfair trade practice and is also deficient in providing service.
Further, it was specifically alleged by the complainant in para no.8 of her complaint that the project was launched, at the time, when permissions/approvals were not available with opposite party no.1. The said averment has been denied by opposite party no.1, stating that approvals were available with it, at the time, when the project, in question, was launched. However, no evidence has been placed on record, in the shape of copy of certificate for grant of change of land use; permission to construct the units; approvals of building layout plans etc., by opposite party no.1, if obtained from the Competent Authorities. Similar issue came up for consideration in respect of the same builder i.e. opposite party no.1, before District Forum-I, U.T., Chandigarh, in large number of cases, and in the case of Baljit Grover and another Vs. ACME Builders Pvt. Ltd., Consumer Complaint No.537 of 2015, decided on 20.04.2016, a specific finding was returned by the said Forum that when project was launched (in that case, booking was made on 21.10.2012), no permissions/approvals/ clearances were available with opposite party no.1. As such, the complaint was allowed by the Forum, ordering refund of amount paid with interest, compensation and litigation expenses. No appeal was filed against the said order, passed by the Forum.
By launching the project, in question, without any necessary permissions/approvals, opposite party no.1, adopted unfair trade practice, on this count too.
Not only as above, in the booking application Annexure C-1, in Annexure-A attached with it, it is specifically mentioned that offer of allotment shall be made within 12 months from the date of application. However, as is evident from the facts of the case, what to talk of making offer of allotment, even Buyer's Agreement was not got executed within a reasonable time, as held above.
It has also come on record that possession of the unit was committed to be offered within a period of 24 months, with extended period of 6 months, from the date of signing the Buyer's Agreement dated 22.01.2014 i.e. on or before 21.07.2016 but even that was not done by opposite party no.1.
Contention of Counsel for the complainant that by the end date, the unit, in question, was not ready for possession, appears to be correct. To say so, reference has been made to the photographs placed on record as Annexure C-7, in consumer complaint no.777 of 2016, titled as Nitin Sharma and another Vs. ACME Builders Pvt. Ltd. Perusal thereof indicates that at the time, when this complaint was filed, development and construction at the spot was not complete. Contention of Counsel for opposite party no.1 that certificate of occupation was issued by the Authorities concerned on 19.07.2016 (R-9) appears to be a made-up story. The said document and the document dated 29.03.2017 (R-10) offering possession of the unit were placed on record, by moving an application bearing no.401 of 2017, in the month of March 2017. Reply in this case was filed in the month of February 2017. As has been held in earlier part of this order, at every stage, in the written reply, it was stated that construction at the spot is going on and it is likely to be completed in near future and thereafter possession will be offered. Furthermore, if the unit was complete in all respects, in the month of July 2016 and occupation certificate was issued as alleged, it is very strange that in none of the cases, possession was offered, immediately on getting occupation certificate. It appears that issuance of occupation certificate is a made-up story. Construction was not complete by the end date and there is delay of offer of possession in these cases. As such, the offer so made vide letter dated 29.03.2017, and that too during pendency of the complaint, is nothing but a paper possession and is not sustainable in the eyes of law.
Contention of Counsel for opposite party no.1 that for the delay caused, opposite party no.1 is ready to compensate the complainant is of no use. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
"I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest."
Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No. 59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.
Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
Under these circumstances, the complainant is held entitled to get refund of amount deposited by her, and cannot be forced to accept possession of the unit, in question, which otherwise has been held to be a paper possession, by this Commission. Furthermore, for taking shelter under the force majeure circumstances, opposite party no.1 was required to place on record, cogent and convincing material, but it failed to do so.
In view of above facts of the case, opposite party no.1 is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.
Further contention of Counsel for opposite party no.1 that the complainant is withdrawing from the concluded contract, as such, earnest money paid by her, can be forfeited, is also liable to be rejected. As has been held in earlier part of this order, the material breach of terms and conditions has been committed by opposite party no.1. The project was sold, when requisite permissions were not available. Buyer's Agreement was not sent for signing, within a reasonable time. Allotment was not made, as committed and further possession was also not delivered within the committed period. On the other hand, possession so offered vide letter dated 29.03.2017, has been held to be a paper possession, because still opposite party no.1 is saying that construction and development work is going at the site, on full swing and possession of the unit will be delivered in near future. Under above circumstances, it is opposite party no.1 to be blamed and not the complainant.
Reliance placed by Counsel for opposite party no.1, upon H.U.D.A. and anr`s case (supra) is of no help to opposite party no.1. That was a case, where the complainant of his own, after making the initial payment, showed his inability to make further payment and made a request to the HUDA Authorities to refund the amount paid by him. Under those circumstances, taking note of the terms and conditions of the allotment letter, it was said that the HUDA was justified in forfeiting the earnest money. However, in the present case, position is altogether different.
Contention of Counsel for opposite party no.1 that the complainant cannot be termed as potential user/consumer, is also liable to be rejected. It is specifically alleged by the complainant that the unit was purchased for her personal use. She made the payment of an amount of Rs.5,40,000/- and subsequent thereto also, some more amount was paid. She was hopeful to get possession of the unit, in time; however, it was not done by opposite party no.1. At the same time, there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by opposite party no.1, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite party no.1, in its written reply, therefore, being devoid of merit, is rejected.
Further contention was raised by Counsel for opposite party no.1 that the equity is not on the side of the complainant, as she had paid very less amount and rest of the amount was raised through loan tripartite agreement and EMIs were paid by opposite party no.1, as such, balance of convenience lies in favour of opposite party no.1 and not of the complainant. It is on record that to the intended purchasers, subvention scheme was offered by opposite party no.1. In the tripartite agreement, it was admitted that till offer of possession of the unit, EMIs will be paid by opposite party no.1 to opposite party no.2. The arrangement appears to be beneficial to opposite party no.1. It had got assured payment at its hands. Despite entire payments available in its hands, opposite party no.1 has failed to raise the construction, in time. The subvention scheme was accepted by the complainant, on an assurance, given by the builder on the ground that opposite party no.1 would be remitting the interest component on the loan amount raised by her, from opposite party no.2. However, later on, the complainant was forced to make payment of installments towards the said loan.
In consumer complaint no.970 of 2016 titled as Payal Vs. ACME Builders Pvt. Ltd., the unit was booked by the complainant by moving an application on 26.09.2012 Annexure C-1. She paid an amount of Rs.2,50,000/- as booking amount on the said date. Total price of the flat was fixed at Rs.25,75,625/-. Provisional allotment of the unit therein, was made to her on 07.08.2013. She failed to avail subvention scheme, though she opted for the same. However, when she failed to sign the requisite documents, subvention scheme was turned into construction linked payment plan, vide letter 17.04.2014 Annexure C-10. It is her case that it was agreed to between the parties that fresh Buyer's Agreement will be executed and to execute the same, the original Agreement was given to opposite party no.1, on 08.08.2014.
The plea raised by the complainant appears to be correct, when we look into the contents of email dated 07.08.2014 Annexure C-6, written by her to representative of opposite party no.1, which reads thus:-
"Hi, Nidhi got your email, thank you.
Now when Virendra Singh from Canara Bank will give you the cheque of the balance amount to cover the 30% of the agreed purchase price of Rs.26,50,000/- please give him the receipt of the same that you have received the 30% amount.
Also give the receipt that you have got the old contract separately.
And accordingly let me know how will you give me the new contract.
Also please clarify the contract will be on old date of February 2014.
Please note my current address in UK:
Payal- Flat 2, 69, Shaw Street, Liverpool, L6 1HL, U.K. If you are posting anything before end of this month send it at this address.
(I will probably shift from this address in early September.
Regards Payal 0091 7466648729"
However, despite making commitment, fresh Agreement was not got signed. The complainant sent email dated 28.05.2016 before offer of possession, for refund of amount however, it was not done. Opposite party/builder was, thus, deficient in providing service and adopted unfair trade practice, on this count too.
It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. It is not in dispute that substantial amount was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by opposite party no.1, for its own benefit. Paper possession of the unit, in question, has been pushed, during pendency of the complaint, only with a view to defeat the genuine claim of the complainant(s). There is no dispute that for making delayed payments, the opposite party no.1/builder was charging heavy rate of interest @21% p.a. as per Clause 11 of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants, in all the complaints are certainly entitled to get refund of the amount deposited by them, alongwith interest, from the respective dates of deposits, till realization.
No other point, was urged, by Counsel for the contesting parties, in all the complaints.
For the reasons recorded above, all the complaints are partly accepted, with costs, in the following manner:-
In consumer complaint bearing no.733 of 2016, titled as Smt.Monica Hira Vs. M/s ACME Builders Pvt. Ltd. and another, opposite party no.1/builder is directed as under:-
To refund the entire amount actually paid by the complainant from her own sources/pocket, at the time of booking and thereafter also, if any, towards price of unit, alongwith interest @10% p.a., from the respective dates of deposits onwards.
To refund the entire amount paid by the complainant to opposite party no.2, towards equal monthly installments, on the loan amount raised vide tripartite agreement/loan agreement, referred to above.
To repay the entire loan amount to opposite party no.2, released by it, in favour of opposite party no.1, in respect of the unit, in question, under tripartite agreement alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time the entire loan amount is not repaid to opposite party no.2, opposite party no.1 shall be bound to pay the equal monthly installments to opposite party no.2.
To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i), (ii), (iv) and (v) shall be made by opposite party no.1 to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @11% p.a., instead of @10%, from the respective dates of deposits onwards, and interest @10 % p.a., on the amounts mentioned at sr.nos. (ii), (iv) and (v), from the date of filing of the complaint, till realization, besides compliance of other directions given.
Complaint against opposite party no.2 is dismissed with no order as to costs.
In consumer complaint bearing no. 777 of 2016 of 2016, titled as Nitin Sharma and another Vs. ACME Builders Pvt. Ltd., the opposite party is directed as under:-
To refund the entire amount actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, if any, towards price of unit, alongwith interest @10% p.a., from the respective dates of deposits onwards.
To refund the entire amount paid, if any, by the complainants, to the loan sanctioning Bank/ Financial Institution, towards equal monthly installments, on the loan amount raised vide tripartite agreement/loan agreement, referred to above.
To repay the entire loan amount to the loan sanctioning Bank/Financial Institution, released by it, in favour of opposite party, in respect of the unit, in question, under tripartite agreement alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time the entire loan amount is not repaid to the loan sanctioning Bank/ Financial Institution, the opposite party shall be bound to pay the pre-EMI Interest to the loan sanctioning Bank/Financial Institution, till the entire loan amount is repaid to it.
To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i), (ii), (iv) and (v) shall be made by the opposite party to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @11% p.a., instead of @10%, from the respective dates of deposits onwards, and interest @10 % p.a., on the amounts mentioned at sr.nos. (ii), (iv) and (v), from the date of filing of the complaint, till realization, besides compliance of other directions given.
In consumer complaint bearing no. 778 of 2016, titled as Pankaj Saini and another Vs ACME Builders Pvt. Ltd., the opposite party is directed as under:-
To refund the entire amount actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, if any, towards price of unit, alongwith interest @10% p.a., from the respective dates of deposits onwards.
To refund the entire amount paid, if any, by the complainants, to the loan sanctioning Bank/ Financial Institution, towards equal monthly installments, on the loan amount raised vide tripartite agreement/loan agreement, referred to above.
To repay the entire loan amount to the loan sanctioning Bank/Financial Institution, released by it, in favour of opposite party, in respect of the unit, in question, under tripartite agreement alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time the entire loan amount is not repaid to the loan sanctioning Bank/ Financial Institution, the opposite party shall be bound to pay the pre-EMI Interest to the loan sanctioning Bank/Financial Institution, till the entire loan amount is repaid to it.
To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices..
To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i), (ii), (iv) and (v) shall be made by the opposite party to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @11% p.a., instead of @10%, from the respective dates of deposits onwards, and interest @10 % p.a., on the amounts mentioned at sr.nos. (ii), (iv) and (v), from the date of filing of the complaint, till realization, besides compliance of other directions given.
In consumer complaint bearing no. 970 of 2016, titled as Payal Vs. ACME Builders Pvt. Ltd., the opposite party is directed as under:-
To refund the amount of Rs.7,95,000/-, to the complainant, alongwith interest @10% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @11% p.a. instead of 10%, from the respective dates of deposits onwards, and interest @10 % p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
However, it is made clear that, if the complainant has availed loan facility from any other banking or financial institution, for making above said payment towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant).
Certified copy of this order, be placed on connected complaint filed, referred to above.
Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
16.05.2017 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. :
970 of 2016 Date of Institution :
28.12.2016 Date of Decision :
16.05.2017 Payal wife of Sh.Usman Raza Butt, resident of AWHO 4613, Sector 68, Darshan Vihar, Mohali.
...... Complainant V e r s u s ACME Builders Pvt. Ltd., SCO 2449-50, First Floor, Sector 22-C, Chandigarh, through its Managing Director/Authorized Signatory.
.... Opposite party Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER. MRS. PADMA PANDEY, MEMBER. Argued by:- Sh.Savinder Singh Gill, Advocate for the complainant. Sh.S.K. Monga, Advocate for the opposite party. PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.733 of 2016, titled as Smt.Monica Hira Vs. M/s ACME Builders Pvt. Ltd. and another, this complaint has been partly accepted with costs.
Certified copy of the order passed in consumer complaint bearing No. 733 of 2016 , shall also be placed on this file.
Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 733 of 2016, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Sd/- Sd/- Sd/- (DEV RAJ) MEMBER (JUSTICE JASBIR SINGH (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Rg.