State Consumer Disputes Redressal Commission
Mahesh Gulati vs Preet Land Promoters & Developers Pvt. ... on 22 February, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.152 of 2017 Date of Institution : 17.03.2017 Order Reserved on : 20.02.2018 Date of Decision : 22.02.2018 1. Mahesh Gulati son of Darshan Singh, 2. Darshan Singh son of Harnam Singh, Both resident of House No. HM 65, Phase IV, SAS Nagar, Mohali. ....Complainants Versus Preet Land Promoters & Developers Private Ltd, Site Office Sector 86, Adjacent to Sector 79, SAS Nagar, Mohali through its Managing Director. ...Opposite party 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.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. Munish Bhardwaj, Advocate For the opposite party : Sh. K.S Lang, Advocate
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that one plot measuring 10 marlas (250 sq. Yards) was booked by one Sarita Gupta in the year 2006 in a Mega Residential Housing Project launched by A.B Apartments Pvt. Ltd in Sector 86 SAS Nagar Mohali, vide registration no. AB-R-243 for total consideration of Rs. 30 lac. Sarita Gupta paid amount of Rs. 5 lac on 10.07.2006 and she paid another amount of Rs. 8,12,500/- on 16.09.2008 to OP. Housing Company A.B Apartment was merged with Preet Land Promoters and Developers Private Ltd and information was given by OP to Sarita Gupta, vide letter dated 20.10.2009. She further deposited an amount of Rs. 4,75,000/- on 23.06.2010 to OP, vide receipt dated 23.06.2010. The complainants have purchased all the rights in the aforesaid plot in the year 2010 from Sarita Gupta and paid her Rs. 17,87,500/- , the amount already paid by Mrs. Sarita Gupta to the Company. The plot was transferred in the name of the complainants by OP, vide registration no. R0466 (PLP) and allotted plot no. 1119 measuring 10 marlas in Sector 86 SAS Nagar Mohali, vide allotment letter dated 22.12.2010. New receipts were issued to complainants by the Company. In the allotment letter, it was provided that possession of the plot would be handed over to the allottees within 2-3 years from the date of allotment. The complainants were directed to pay the balance amount of Rs.13,12,500/- on account of land cost in three equal half yearly installments. The complainants paid an amount of Rs.2,00,000/- on 12.07.2011 to OPs. They applied for housing loan of Rs. 10 lac to HDFC Bank, which was duly sanctioned by the bank. The bank withheld the payment and directed them to submit approved layout plan of the project. OP failed to provide the approved layout plan to complainants, despite their letters written to OP dated 18.02.2012 and 12.11.2013. The bank did not disburse the loan amount without approved layout plan of the project. OP had written letter to complainants on 09.12.2013 to make the payment of Rs.805000/- (90% of land cost) by 31.12.2013. The complainants made representation dated 15.02.2014 to OP, pursuant to letter dated 09.12.2013, whereby it was again requested to supply approved layout plan of the project. OP intimated the complainants, vide letter dated 18.02.2014 that delay in giving the possession of plot is due to technical issues and it directed them to clear the dues. OP again wrote letter dated 13.03.2014 to them to make the payment of Rs. 8,05,000/- till 03.04.2014. The complainant paid due amount of Rs. 8,05,000/-, vide receipt dated 29.03.2014 by making arrangement from alternative sources. OP changed plot number and re-allotted plot no. 693 instead of plot no. 1119 to complainants, vide allotment letter dated 18.10.2014 and further directed them to pay another amount of Rs.45,000/-. Possession of the plot was not handed over to complainants by OP nor conveyance deed was executed in their favour. They requested OP to hand over the possession, vide representations dated 07.07.2014 and 23.04.2015 at the earliest. The complainants visited the spot and found that OP had not developed the site and there was no development of the project at the site. OP also not provided lay out plan to complainants. The complainants have prayed for below noted direction to OPs :-
i) To hand over possession of the plot immediately to complainants booked by them or refund their amount along with interest @ 18% per annum from the date of actual receipt till the date of payment.
ii) to pay compensation of Rs. 10 lac on account of delay in handing over possession of the plot.
iii) to pay Rs. 3 lac for mental harassed suffered by complainants. iv) to refund the transfer ffee of Rs. 50,000/- v) to pay process fee of Rs. 5515/- paid by complainants to the Bank. vi) to pay Rs.50,000/- as cost of litigation.
2. Upon notice, OP appeared and filed written reply by raising preliminary objections that complaint is not maintainable. The complainant has concealed the material facts from this Commission and no cause of action arose to complainants to file the present complaint. The complainants have no locus standi to file the complaint. On merits, it was averred that as per clause no. 3 of the allotment letter dated 22.12.2010, the balance amount of development charges of plot can either be paid in lump sum without any interest or in three equal half yearly installment (with first installment falling due after six months from the issue of allotment letter). As per Clause 5 of the allotment letter, it was mentioned that no separate notice would be sent for the payment of half yearly installments. Payments shall be made in accordance with the schedule mentioned in the allotment letter dated 22.12.2010. The complainants failed to pay the remaining land cost of his plot in time. It was further averred that the allottees, who had already paid all installments towards their plot, as per the terms and conditions of the allotment letter without any delay, have got the possession of their plots. The complainants have not purchased the property for their personal use, but purchased the same for commercial purposes only. The allotment letter dated 18.10.2014 was signed by the complainants, so it was clear that the terms and conditions in the allotment letter were accepted by them. Rest of the averments of the complainants were denied by OP and it prayed for dismissal of the complaint.
3. The complainant no.2 tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-22 and closed the evidence. As against its; OP tendered in evidence affidavit of Charan Saini Director of OP/Company Ex.OP-1/A along with copies of documents Ex.OP-1 to Ex.OP-6 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case. Pleadings and evidence of the parties have been carefully considered by us with the able assistance of counsel for the parties. Sarita Gupta predecessor of the complainants paid amount to OP/A.B Apartments Pvt. Ltd. Ex.C-1, Ex.C-2 and Ex.C-4 and Ex.C-6 to Ex.C-7 are receipts of payments on the record. These receipts have been issued by A.B Apartments Pvt.Ltd, whose identity has been merged with OP in this case. OP took over the project from A.B Apartments Pvt. Ltd and some receipts have already been issued by OP in this case, vide Ex.C-6, Ex.C-6(a) to Ex.C-7. Ex.C-3 is reminder dated 20.10.2009 to complainants for payment of outstanding amount. Allotment letter dated 22.12.2010 was issued to complainants by OP, vide Ex.C-5 on the record. Clause 6 of allotment letter stipulates that delivery of possession would be given within 2-3 years to allottee. The complainants asked OP in writing to provide approved lay out plan and documents enabling him to get loan, vide Ex.C-9 on the record followed by Ex.C-10. There is nothing on the record that approved lay out plan was provided by OP to complainants. OP wrote letter Ex.C-11 to complainants for clearing the balance amounts. OP admitted this fact in Ex.C-13 that delay in giving the possession of the plot is not deliberate, delay took place due to technical reason. No technical reasons have been explained by OP on the record in delay in delivery of possession , which was beyond their control in this case. Only vague excuse has been taken with no solid reasons to support it. Ex.C-14 is reminder issued by OP to complainants for payment of remaining amount of Rs.8,05,000/-. The complainants have paid the remaining amount of Rs. 50,000/- to OP and this fact is established on record, vide Ex.C-15 dated 29.03.2014 issued by OP to complainant. OP issued provisional allotment letter Ex.C-16 dated 18.10.2014 unilaterally. There is nothing on the record, as on what basis, the earlier letter of allotment was changed without any written consent of the complainants. Unilateral change of allotment letter without consent of complainants by OP is also unfair trade practice on its behalf. The terms and conditions of the previous allotment letter can be varied with the express consent or approval of the allottee only. The complainants wrote letter Ex.C-18 dated 07.07.2014 to OP that he has paid the entire amount including Rs.8,05,000/- as demanded, but no conveyance deed has been executed in their favour nor possession of the plot has been delivered to them. The complainants also wrote another reminder Ex.C-19 to OP in this regard. OP gave reply, vide Ex.C-20 dated 17.10.2016 to complainants to the effect that the provisionally allotted plot is fully clear in all respects due to unavoidable technical reasons and they would complete all formalities/sanctions/approvals from the government authorities. No technical reason or circumstances, which necessitated the delay perforce on the part of the OP has been explained in this case. Affidavit of Charan Singh Saini Director of M/s Preet Land Promoters & Developer Pvt. Ltd Ex.OP-1/A has been duly examined by us coupled with change of land use Ex.OP-1. Ex.OP-2 is notification dated 13.10.2009. Ex.OP-3 NOC for sewerage connection. Ex.OP-4 is letter dated 22.08.2014 addressed by GMADA to the effect that it has not laid water supply network in the area and complainants should arrange for it. Revised NOC dated 23.09.2016 is Ex.OP-5 and approval of revised zoning plan is Ex.OP-6 on the record.
5. We have to come to this conclusion after examining the entire facts and circumstances of the case in the shape of evidence on the record that OP has not provided approved lay out plan to complainants, despite their repeated requests for it. The complainants remained deprived of the benefit of loan from HDFC Bank in this regard due to non-providing of approved layout plan by OP. The complainants without any written consent of complainants unilaterally changed the previous allotment letter in this case, which is unreasonable on their part. The complainants have already issued allotment letter Ex.C-5 by OPs and no circumstances have been established on the record necessitating the change of allotment letter beyond the control of OP on the file in this case. The complainants purchased membership from Sarita Gupta and this has been duly accounted for in the accounts of OP. The complainant stood transposed in the name of Sarita Gupta, as per allotment letter, which subsists between the parties in this case, as contained in Ex.C-5. The possession was agreed to be delivered in 2-3 years period to complainants. This allotment letter dated 22.12.2010 and possession was required to be delivered till 22.12.2013 at the most. The complainants seeks delivery of possession or refund of the deposited amounts with interest thereupon. We find that OP has not delivered the possession of the plot to complainants within agreed time and has not provided approved lay out plan to them as well. Consequently complainants remained deprived of taking his loan from the Bank. Delivery of possession beyond the agreed period of time is unfair and deficiency in service on the part of OP in this case. Consequently, complaint of the complainants is accepted and below noted directed issued to OP by this Commission:-
i) OP is directed to deliver the possession of the allotted plot to complainant within a period of two months complete in all receipts with agreed facilities from the date of receipt of certified copy of order, in case OP is unable to deliver the possession beyond its control within above referred period, then in that eventuality the OP shall refund the entire deposited amounts of complainants with interest @ 12% thereupon from the date of their respective deposits till actual payment.
ii) The complainants are also awarded compensation of Rs. 1 lac (Rupees one lac only) for mental harassment and Rs. 20,000/- as costs of litigation. The payment of interest would sufficiently compensate the complainants and there is no reason to pass the separate order with regard to other counts of compensation, as prayed for by the complainants.
6. Arguments in this complaint were heard on 20.02.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
7. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER February 22, 2018 (ravi)