State Consumer Disputes Redressal Commission
Munish Bajaj vs M/S Taneja Developers And ... on 1 June, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.33 of 2012 Date of Institution: 11.05.2012 Date of Decision : 01.06.2016 Munish Bajaj son of Sh. Harvinder Bajaj, aged 30 years, resident of House No.382, Sector 10, Panchkula. .....Complainant Versus 1. M/s Taneja Developers and Infrastructure Limited (TDI) through its Managing Director, SCO No.1098-99, Sector 22-B, Chandigarh and Reg., Office 9, Kasturba Gandhi Marg, Connaught Place, New Delhi 110 001. 2. Taneja Developers and Infrastructure Limited (TDI) through its Regional Manager/Local Area Head, SCO No.1098-99, First Floor, Sector 22-B, Chandigarh. ....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri J.S Gill, Member.
Present:-
For the complainant : Sh. Neeraj Sobti, Advocate For opposite parties : Sh. Manoj Vashishtha, Advocate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs. on the averments that OPs floated a scheme for allotment of built up flat in their integrated township TDI City in Sector 110-111 Mohali. The complainant booked an apartment situated at Ground Floor bearing no.GF-39 of size 250 sq. yards (built up area 1460 sq. ft approximately), as per advertisement given by the OP on 02.12.2009. The complainant paid amount of Rs.2,97,500/- vide cheque no.271956 dated 30.09.2009 drawn on Citibank Chandigarh, towards registration of flat/apartment of its booking. The complainant paid an amount of Rs.1,48,750/-, vide cheque no.271967 on 31.03.2010 and amount of Rs.3,44,375/-, vide cheque no.298105 on 14.09.2010, as demanded by OPs. The initial payment of 25% amount was made to the extent of Rs.8 lac approximately. The OPs had issued letter of allotment on 28.09.2010, in which general terms and conditions of allotment were duly mentioned. The OPs had never disclosed the details of installments to be paid and period up to which the total amount of flat was to be paid. The cost of the flat/apartment was Rs.29,75,000/- out of which the complainant has already paid an amount of Rs.7,90,625/- as per cheques and receipts. The OPs failed to provide the information regarding status of construction on site besides arranging any site visit to complainant. The complainant wrote email dated 11.05.2011 to OPs requesting them to intimate the stage of construction at site and to arrange site verification of construction done at the spot. The OPs kept on demanding further amount without any basis and too with further interest capitalized and calculated @ 21% which was never promised to be paid by complainant and which was never agreed nor written in allotment letter. After receiving letter dated 20.09.2011, the complainant again wrote letter dated 21.09.2011 regarding redressal of same grievances, which was raised earlier, vide email dated 11.05.2011, but to no effect. OPs continued demanding exorbitant interest, vide letter dated 07.11.2011 in which interest has been capitalized without any agreement or contract. The OPs without providing any basic amenities on the site, offered possession on 05.01.2012 demanding amount, which includes total amount along with interest capitalized @ 21%, which is legally not payable nor binding upon the complainant. The complainant has visited the site after receipt of letter of offer of possession in the month of January and found that building was not complete and OPs just did it to extort money from the complainant. The complainant had met the site in-charge at Mohali, pointing out various discrepancies and lack of basic amenities thereof providing wide road/electricity connection/full built up apartment with all facilities, as disclosed at the time of booking. The act of OPs of claiming interest i.e. @ 21% from the complainant and without completing the construction of the building is untenable. The OPs have utilized the hard-earned money of the complainant for other purposes rather than to invest the same in the construction of the commercial complex, which was proposed to be constructed in TDI city resulting into malpractices and unfair trade practices and deficiency in service. The complainant has purchased the residential built up unit, which is to be constructed at TDI City, Mohali. The complainant has, thus, filed the complaint directing OPs to handover the actual and physical possession of the plot along with other basic amenities after receipt of balance amount of Rs.21,84,375/-. It was further prayed that OPs be directed to pay interest @ 18% on an amount of Rs.7,90,625/- received from the complainant from the date of its actual payment till its realization, besides Rs.2 lac towards compensation for mental harassment and Rs.22,000/-towards counsel fee and Rs.10,000/- as costs of litigation.
2. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable. It was admitted that complainant deposited a sum of Rs.2,97,500/- through cheque no.271956 dated 30.09.2009 drawn on Citi Bank Chandigarh. The complainant was made available two options to make the payment and he opted for the construction-linked installment Plan-B. The complainant approached the OP/Company with an application dated 30.09.2009 requesting therein for provisional allotment of a residential built-up floor measuring 1460 sq. ft in TDI City Sector 110-111 Mohali. The OP/Company decided to make an offer of allotment of a built up floor in TDI City Sector 110-111 SAS Nagar Mohali. The complainant was intimated telephonically and was directed to make the payment of Rs.1,48,750/- on 31.03.2010. The construction work was commenced at the site in April 2010. The complainant was informed to make further payment as per the payment schedule depicted in application form itself. The construction work was raised up to DPC level uptil September 2010 and another installment fell due against the complainant. The complainant paid Rs.3,44,375/- against receipt after visiting the site on 14.09.2010. The complainant also assured the OP/Company those installments, which fell due up to the construction of DPC level would be paid within a short span of time. The complainant also made a choice for getting allotment of built up floor no.GF-39 in TDI City Sector 110-111, SAS Nagar Mohali. A specific note with regard to allotment of built up floor bearing no. GF 39 was given on the receipt dated 14.09.2010. The OP/Company had completed the construction work uptil roof slab of the first floor uptil March 2011. The complainant was found to be in arrears of Rs.10,67,015/- as he defaulted in the payment of earlier installments. A letter dated 02.03.2011 was issued to the complainant and he was requested to make the requisite payment within a period of 15 days. The OP/Company was pursuing the construction work vigorously. The OP/Company had completed the construction work up to the roof slab of IInd Floor uptil April 2011. The complainant was found to be in arrears of Rs.14,43,714/-, therefore, he was requested to make the payment with interest through letter dated 25.04.2012. The complainant was not having sufficient funds in his hands in order to purchase the built up floor in TDI City at Mohali. The complainant was investor, who wanted to earn premium over a meager sum of amount deposited by him uptil 14.09.2010. The development work at the site was at full swing. The OP/Company had completed the work of installing the doors and window frames in the floors constructed by it. The complainant was found in arrears of Rs.17,97,971/-. A demand letter dated 23.06.2011 was issued to him by OP/Company and he was requested to make the payment within 15 days. The OP/Company had completed the work of internal finishing of the built up floor uptil November 2011 and the complainant was found to be in arrears of Rs.26,05,536/-. A demand letter dated 07.11.2011 was issued to him and he was requested to make the requisite payment. By end of December 2011, the built up floor allotted to the complainant became ready for possession. A letter dated 05.01.2012 was issued to complainant and he was requested to take the possession within 30 days but he had not come forward to take the possession within the said stipulated period. The OP/Company was left with no other option but to cancel the allotment made in favour of the complainant. The complainant was informed about the cancellation of allotment, vide letter dated 18.04.2012. The complaint was contested on above-referred grounds by OPs even on merits. Other averments of the complainant have been denied by OPs and they prayed for dismissal of the complaint.
3. The complainant tendered in evidence affidavit of complainant Ex.C-A along with copies of documents Ex.C-1 to Ex.C-15. As against it; OPs tendered in evidence affidavit of Sh. Sanyam Dudeja authorized signatory of OPs Ex. OP-A along with copies of documents Ex.OP-1 to Ex.OP-8 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case.
5. The pleadings of the parties have been examined by us with the able assistance of counsel for the parties. We have also examined the evidence adduced on the record by both the sides. The affidavit of Munish Bajaj complainant is Ex.C-A in support of his averments. He has testified that he booked an apartment with OPs situated at Ground Floor bearing no.GF-39 of sixe 250 sq. yards (built-up area 1460 sq. ft approximately) He paid amount of Rs.2,97,500/- bearing cheque no.271956 dated 30.09.2009, vide Annexure C-1 on the record. After receipt of advance, he paid an amount of Rs.1,48,750/-, vide cheuqe no.271967 and on 14.10.2010 an amount of Rs.3,44,375/-, vide cheque no.298105 as demanded by OPs. He proved copy of cheques and receipts issued by OPs vide Annexures C-2 and C-3 on the record. After the initial payment of 25%, amount was paid to the extent of Rs.8 lac approximately, OPs had issued letter of allotment on 28.09.2010, copy of which is Annexure C-4. The Buyer's-Builder Agreement was instructed to be executed, which was sent to the address of the deponent by OPs, as per the allotment letter. Tentative cost of flat/apartment was Rs.29,75,000/- out of which, he paid an amount of Rs.7,90,625/-, vide cheques and receipts. The OPs failed to provide information regarding status of construction on site besides arranging any site visit to deponent. The OPs started making demand of payments and that too with exorbitant interest @ 21%, which is not prevalent in the market. The copies of various demand notices issued by OPs, vide letter dated 02.03.2011 and 25.04.2011 are on the record. He wrote email dated 11.05.2011 to OPs to intimate the stage of construction at site and to arrange site verification on the spot, vide Annexure C-7. The OPs kept on demanding further amounts without any basis with 21% interest, vide letters dated 23.06.2011 and 20.09.2011 Annexure C-8 and C-9. He again sent letter to OPs, vide e mail dated 11.05.2012 Annexure C-10. The OPs continued demanding exorbitant amounts with interest, vide letter dated 07.11.2011 Annexure C-11. After receipt of letter of offer of possession, the complainant has visited the site and found that building was not complete and OPs issued letter of offer of possession just to extort money from the complainant. The OPs demanded the amount with exorbitant interest @ 21% without completing the construction of building thereat. The OPs have not replied the email of the complainant. Similarly, we have examined other documents on the record filed by the complainant.
6. The OPs took the plea that complainant opted for the Construction Linked Installment Plan-B. The complainant was made available two options out of which, he opted for Construction Linked Installment Plan B, vide Ex. OP-1. The complainant was requested to make the payment of Rs.1,48,750/- and he made the said payment on 31.03.2010. The OPs submitted in their written reply that the construction work commenced in April 2010. The complainant was informed telephonically to make further payment, as per the payment schedule depicted in application form itself. He did not come forward to make the above said payment. Uptil September 2010, the construction was raised up to DPC level and another installment fell due from the complainant. The complainant visited the site on 14.09.2010 and he made payment of Rs.3,44,375/- to OPs, vide Annexure C-3. The complainant made payment of Rs.3,44,375/- to OPs, vide Annexure C-3. The complainant made a choice for getting allotment of built-up floor no.GF 39 in TDI City Sector 110-111, SAS Nagar Mohali. A specific note with regard to allotment of built up floor bearing no.GF 39 was given on the receipt dated 14.09.2010 Annexure C-3. The OP/Company had completed the construction work uptil roof slab of the first floor. The complainant was found to be in arrears of Rs.10,67,015/- as he defaulted in the payment earlier installments. A letter dated 02.3.2011 was issued to the complainant and he was requested to make the requisite payment to OPs within a period of 15 days. But he did not come forward to make the payments. The OPs/Company had completed the construction work up to the roof slab of 2nd Floor. The complainant was found to be in arrears of Rs.14,43,714/-. The OPs/Company had completed the work of installing the doors and window frames in the floors constructed by it. At that time, the complainant was found in arrears of Rs.17,97,971/-. The flooring work was started in the floors allotted to various applicants including the complainant in September 2011. The complainant was in arrears of Rs.22,24,766/- and demand letter dated 20.09.2011 was issued to the complainant and he was requested to make the requisite payment within 15 days. The OPs/Company completed the work of internal finishing of the built up floor in November 2011 and complainant was in arrears of Rs.26,05,536/-, vide Annexure C-6. The built up floor allotted to the complainant became ready for possession to the complainant by the end of December 2011. A letter dated 05.01.2012 was written to complainant and he was requested to take the possession within 30 days, but he did not come forward to take the possession within the stipulated period. The complainant has not made the payment demanded through various letters and OPs/Company were left with no other option but to cancel the allotment made in favour of the complainant, Annexures R-7 and R-8 to be referred to in this regard. The letter of allotment of residential built up at TDI City is Ex.C-4 on the record. The OPs raised various demands letters from the complainant from time to time. We have to examine this point, whether the construction was completed by the OPs and it was the fault of the complainant in this regard or not? The payment plan is part of Ex.OP-1 registration form in this case between the parties. It is Construction Linked Installment Plan B, which has been opted by the complainant in this case. The complainant is bound to make the payment at the construction-linked installment. Now, we have to examine, whether OPs completed construction, as per 'Linked Installment Plan-B' in this case or not. Undoubtedly, OPs have issued demand letters to the complainant raising demands from time to time. The complainant's case is that Ops have not completed the construction and simply demanded exorbitant amount with exorbitant rate of interest from the complainant. The complainant applied to Public Information Officer Greater Mohali Area Development Authority Mohali, vide Ex.C-14 for getting the completion certificate. Requisite information was furnished, vide Ex.C-15 by the Administrative Officer Licensing GAMADA that promoter has not yet applied for completion certificate. It is, thus, evident that uptil 01.10.2014 no completion certificate was applied by the OPs in this case. The OPs have been demanding payments without any completion certificate uptil 01.10.2014. The OPs cancelled the allotment of the complainant for non-payment of the installments. It was payment of Construction Linked Plan, which is applicable between the parties. The possession was not delivered by the OPs in complete form and no completion certificate was obtained from the authorities by the OPs.
7. So in the circumstances of the case, since possession in complete form was not delivered and as held by Hon'ble National Commission in "Prasad Homes Private Limited versus E. Mahender Reddy and ors", reported in 1 (2009) CPJ 136 (NC) that applicant stopped the payments because builder cannot be allowed to take shelter under agreement clause to usurp money deposited by complainant. The OPs cancelled the allotment without obtaining any completion certificate from the concerned authority, which is arbitrary and unjustifiable. The OPs cannot be allowed to swallow hard earned money of the complainant, since the OPs have not demanded the amounts according to the stage of construction nor it is so proved on the record by the OPs. The OPs cannot derive any benefit from the law laid down by National Commission in Shri Rishabh Enterprises versus Neetu Dutta, reported in III(2012) CPJ 146 (NC) as OPs have not got completion certificate and demanded money despite this deficiency on their part. The OPs have not yet applied for completion certification, hence, the complainant is entitled to refund of the amount of Rs.21,84,375/-, along with interest @ 9% per annum from the OPs from the date of its deposit till actual payment. The OPs shall also pay Rs.1,00,000/- as compensation for mental harassment to complainant and Rs.10,000/- as costs of litigation. The complaint is accepted in this way.
8. Arguments in this complaint were heard on 26.05.2016 and the order was reserved. Now the order be communicated to the parties.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER June 1, 2016 (ravi)