State Consumer Disputes Redressal Commission
Premium Acres Infratech Pvt. Ltd, vs Jagir Singh Gill on 7 January, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 305 of 2015 Date of Institution : 13.11.2015 Date of Decision : 07.01.2016 Premium Acres Infratech Pvt. Ltd., Registered Office at B-4/39, Sector 8, Rohini, New Delhi-85, through its Director. New Address:- 17/6, Industrial Area (Near Gali No.10) Anand Prabat, New Rohtak Road, New Delhi. Parminder Singh, Director, Premium Acres Infratech Pvt. Ltd. #61-62, Sector 70, SAS Nagar, Mohali. M/s Premium Acres Infratech Pvt. Ltd. Villa No.205, TDI City. Premium Acres Court Yard, Sector 110-111, Mohali, through its Director. ......Appellants/Opposite Parties V e r s u s Jagir Singh Gill son of Sh.Gulzara Singh Gill, resident of H.No. 7025, 131 ST Surrey, BC V3W6M8, Canada, through his Special Power of Attorney Mr.Gurmukh Singh Panesar son of Sh. Thakar Singh, resident of H.No.78, Sector 70, Mohali. ....Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh.Parminder Singh, Advocate for the appellants.
Sh.Davinder Lubana, Advocate for the respondent.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 08.10.2015, 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, the complaint is allowed with the directions to the Opposite Parties as under:-
[a] To refund Rs. 12.00 lac deposited by complainant with interest @ 12% p.a. from respective dates of deposit.
[b] To make payment of Rs.1.00 lac to the complainant towards compensation for causing mental and physical harassment.
[c] To make payment of Rs.15,000/- to the complainant as litigation expenses.
The above said order be complied with by the Opposite Parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr. No.[a] shall be paid with interest @18% instead of 12% from the respective dates of deposit till realization & the amount at [b] shall be paid with interest @12% per annum from the date of filing of the present Complaint, till realization, besides payment of litigation costs."
The facts, in brief, are that the complainant, vide application dated 22.05.2010, booked a residential unit, in the project of the opposite parties, launched by them, under the name and style of "The Courtyard", TDI City, Sector 110, Mohali, SAS Nagar, Punjab. Basic sale price of the said unit was Rs.63,70,000/-. The complainant opted for construction linked plan. The complainant was provisionally allotted unit No.61, in the said project, vide Allotment Letter Annexure C-3 dated 16.07.2010. It was stated that, as per demand raised by the opposite parties, the complainant paid an amount of Rs.12,00,000/- towards part price of the said unit, to them (opposite parties). It was further stated that, thereafter, the opposite parties started making demand of further installments, towards the said unit, even in the absence of construction work. It was further stated that the complainant made various visits to the site, but was surprised to see that there was no construction. Even necessary approvals/ sanctions, in respect of the said project, had not been obtained by the opposite parties. It was further stated that when the complainant visited the office of the opposite parties to apprise him, with regard to start of construction work and delivery of possession of the unit, in question, he was told that construction has been put to halt, for want of necessary approvals/ sanctions, from the Competent Authorities, and it will start after obtaining the same (approvals/sanctions), whereafter, possession would be delivered to him. It was also assured to the complainant that demand in respect of the unit, in question, would be made, after obtaining the said sanctions/approvals. It was further stated that, thereafter, no action was taken by the opposite parties. Ultimately, the complainant served legal notice dated 13.05.2013, Annexure-C-7, upon the opposite parties, asking them to start the construction work, but to no avail. 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.12 lacs, alongwith interest @24% P.A., from the respective dates of deposits, till realization; compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and Rs.25,000/-, as cost of litigation.
The opposite parties, in their joint written version, while admitting the factual matrix of the case, pleaded that since the complainant is an NRI, as such, he did not fall, under the definition of a consumer, meaning thereby that he had purchased the said unit not for his personal use but for commercial purpose, i.e. for resale, as and when there was escalation in prices of the real estate, to earn huge profits. It was further pleaded that the District Forum had no territorial jurisdiction to entertain and decide the complaint. It was further pleaded that the complaint was bared by time. It was stated that out of the demand of Rs.12,74,000/- i.e. the registration amount @20% of the Basis Sale Price of Rs.63,70,000/-, made by the opposite parties, the complainant had paid only an amount of Rs.12.00 lacs, and that too in three installments. It was further stated that the complainant failed to pay the remaining amount of Rs.74,000/-, towards registration amount. It was further stated that despite that, allotment letter, in respect of the said unit, was issued, in favour of the complainant. It was further stated that the complainant had opted for construction linked plan, and, as such, timely payment was required to be made by him, as per construction of the unit, in question, but since he failed to do so, it could not be completed. It was denied that the complainant visited the site or office of the opposite parties. It was also denied that the opposite parties informed the complainant that he had to make the payment, only when construction work would start. It was also denied that the opposite parties showed their inability to start construction work of the unit, due to administrative reasons. It was further stated that since the complainant was defaulter, in making timely payment of installments, towards the said unit, as such, consumer complaint filed by him, was not maintainable. 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.
The parties led evidence, in support of their case.
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.
Feeling aggrieved, the instant appeal, has been filed by the appellants/opposite parties.
We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
At the time of arguments, the Counsel for the appellants reiterated the facts, referred to in earlier part of this order, and submitted that the District Forum was wrong, in allowing the complaint filed by the respondent, and as such, the order impugned deserves to be set aside.
On the other hand, the Counsel for the respondent, while reiterating the facts, referred to above, submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
It may be stated here that it is a specific case of the respondent, that since the appellants failed to start construction of the unit, in question, for want of necessary approvals/sanctions, from the Competent Authorities, and other reasons, despite the fact that he had already made payment of substantial amount of Rs.12 lacs, as such, he did not make any further payment, and, ultimately, after waiting for about five years of allotment, when possession thereof was not even offered to him, refund was sought by him, but they failed to do so. On the other hand, the appellants, in their joint written version, filed before the District Forum, as also during arguments, before this Commission, denied the fact of non-obtaining of necessary approvals/sanctions, in respect of the project, in question, from the Competent Authorities. At the same time, the appellants averred that the reason for non-delivery of possession of unit, in favour of the respondent, was non-payment of remaining amount on his part. Thus, in these circumstances, the first main question that falls for consideration, is, as to whether, construction of the unit, in question, was complete, in all respects and the appellants were ready to deliver possession of the same, to the respondent or not. It may be stated here that perusal of the District Forum record, reveals that there is nothing on record, to prove that possession of the unit, in question, was ever offered to the respondent, by the appellants, till the date of filing the complaint. Had complete development of the site, including construction of the unit, in question, been complete, then certainly the opposite parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that construction of the unit, in question, is in progress/complete and basic amenities had been provided in the project, in question. It is very strange that except copy of resolution dated 27.06.2014 Annexure R-1, copy of ledger account of the complainant Annexure R-2 and copy of application cum registration form Annexure R-3, nothing has been placed on record, by the appellants, before the District Forum, to rebut the contentions of the respondent, with regard to non-construction of the unit, in question, as also, non-obtaining of necessary sanctions/approvals from the Competent Authorities, in respect of the project, in question. Not only this, the fact of non-construction at the site was also brought to the notice of the appellants, by the respondent, through detailed legal notice dated 13.05.2013 Annexure C-7, sent through Registered Post (Annexures C-8 to C-10) but they did not even bother to reply the same. Had the construction of unit been in progress or complete and basic amenities been provided in the project, the appellants would have definitely sent letters followed by final notice/ cancellation letter to that effect, and, had in that event, the respondent failed to make remaining payment towards the same (unit), and had the appellants been able to prove this fact, before the District Forum or this Commission, the matter would have been different. In those circumstances, it would have definitely been held that the respondent was at fault, in not making remaining payment towards the said unit, despite the fact that possession of the unit, was ready to be delivered, but it is not so, in the present case. Since, not even a single documentary evidence, has been produced, on record, by the appellants, to support their averments, contained in the written version, filed before the District Forum, as also, the arguments made before this Commission, as such, we are of the considered opinion, that the same deserves to be rejected out- rightly.
The next question, that falls for consideration, is, as to whether, even in the absence of construction work of the unit, in question, the respondent was liable to make payment of further installment towards the same. Admittedly, the complainant opted for construction linked payment plan. Payment in respect of the unit, in question, was to be made, as per the stage of construction, being carried out by the appellants, which eventuality never happened, as has been held above. The appellants failed to prove any circumstance, beyond their control, due to which the construction could not be started. In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. As such, the payment of further installments was stopped by the complainants. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainants. It was further held that the builder cannot forfeit the money, paid by the complainants, on account of their own fault, in not carrying out the development work. Ultimately, the Hon'ble National Commission ordered the refund of amount with interest. The principle of law, laid down, in Prasad Homes Private Limited's case (supra), is fully applicable to the facts of the instant case. It is, therefore, held that the pleas, referred to above, taken up by the appellants, in their written reply, as also during arguments before this Commission, appear to be false. The said pleas were taken up by the appellants, just with a view to cover up their lapse, and to deny the refund of amount, claimed by the respondent. The pleas taken by the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same are rejected.
No doubt, it was also argued by the Counsel for the appellants that since the respondent had failed to pay the remaining amount of Rs.74,000/- towards registration, as such, as per condition no.3 of the allotment letter, the appellants were entitled to forfeit an amount equal to 20% of the basic sale price of the said unit. The argument raised by the Counsel for the appellants, in this regard, is meritless. It may be stated here that, instead of invoking the provisions of condition no.3 of the allotment letter, at the appropriate time, the appellants issued allotment letter, in respect of the same (unit), in favour of the respondent, and, as such, waived of their right to cancel the allotment of unit, in question. The fact of allotment of unit, by the appellants, in favour of the respondent, on payment of part amount of Rs.12 lacs, towards registration amount, while abandoning condition no.3 of the allotment letter, has been frankly admitted by the appellants, in their written version. Once, the appellant did not invoke the provisions of the said condition, at the relevant time, and proceeded further and issued allotment letter, now they could not take shelter under the same, to cover up their lapses of non-completion of construction of the unit, for a long period of about 5 years. Otherwise also, the appellants could not invoke the provisions of this Clause, until and unless, it had made progress in the construction of the unit, allotted to the respondent. As stated above, by the time, the complaint was filed or even till today, nothing has been brought on record, to prove that construction of the unit, in question, is complete, what to speak of delivery of possession thereof. In this view of the matter, the submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, also deserves rejection and is accordingly, rejected.
As far as the objections taken by the Counsel for the appellants, with regard to territorial jurisdiction of the Forum; limitation for filing the instant complaint; respondent not a consumer being an NRI; maintainability of the consumer complaint; grant of interest by the District Forum, on the amount to be refunded; award of compensation for mental agony and physical harassment to the respondent; it may be stated here that we have, very minutely, gone through the findings of the District Forum, given by it, in the order impugned, in this regard, and are of the considered view that the same (objections) have been dealt with by it, legally, in detail, and, as such, need no interference of this Commission. Accordingly, the objections taken by the Counsel for the appellants, in this regard, being devoid of merit, are rejected.
No other point, was urged, by the Counsel for the parties.
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.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
07.01.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg