STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH.
Complaint
Case No. 58 of 2011
Date of institution: 5.08.2011
Date of decision : 16.01.2012
Sumit Kumar S/o Sh.Bishamber Das, R/o
H.No.286, Anand Vihar, Baltana, Zirakpur.
…Complainant
Versus
1.
M/s Silver City
Housing and Infrastructure Ltd. Regd. Office, # 89, Sector 8-A, Chandigarh through its
Managing Marketing.
2.
M/s Silver City Housing and Infrastructure Ltd., NAC, Zirakpur, Chandigarh-Ambala Highway (N.H.22)
District Mohali, Punjab.
… Opposite Parties.
Complaint
U/s 17 of Consumer Protection Act,1986.
Present:
Sh.Arun K. Kaundal, Advocate, for the complainant.
Sh.Surinder
Gera, Advocate for the opposite parties.
CORAM: Justice Sham Sunder,
President
Mrs. Neena Sandhu, Member
Sh. Jagroop Singh Mahal, Member
Per
Justice Sham Sunder , President
The facts, in brief, are that the opposite parties advertised the
launch of residential apartments project, in the name of “Silver City Themes”
at Village Bhankarpur, M.C.Derra Bassi,
as an exquisitely designed luxurious township endowed with leisure,
bliss, amusement and satisfaction, on the outskirts of Chandigarh, away from the noise of the city,
and as a value living for its residents.
The complainant applied for the
residential apartment, in the said project of the opposite parties, and
submitted an application form for the same on 10.1.06, vide receipt No.06999
after making payment of Rs.1,45,000/- in cash.
The booking of the complainant was confirmed, by the opposite parties,
vide letter dated 8.2.2006. The
complainant was allotted flat No.149-A, Ist floor, Block-V, Category B-2, measuring
1145.04 sq. feet of super covered area, with car parking of 112 sq. feet at a
total price of Rs.14.50 lacs, after
giving a special discount of Rs.50,000/- in ‘Silver City Themes’. The payment
of Rs.1,45,000/- was duly acknowledged, by the opposite parties, in the said
confirmation letter dated 8.2.2006 annexure C3.
An agreement dated 8.2.2006, was
entered into between the parties. The
possession was to be delivered, as per the terms and conditions of the
agreement dated 8.2.2006, on or before 31.7.2007. The complainant deposited a total sum of Rs.13,55,000/-
i.e. to the extent of 95% of the amount of price, but the opposite parties, did
not deliver the possession. In the letter
dated 4.10.2008, the opposite parties assured that possession of the flat shall
be handed over, to the complainant on 30.11.2009. Another letter dated
15.5.2009, was sent by the opposite
parties, whereby it was assured that
possession of the flat shall be handed over in 12 to 15 months. It was stated that the opposite parties,
however, did not adhere to the commitment, made by them, as per the terms and
conditions of the agreement and the letters, referred to above. It was further stated that the complainant
had to take accommodation, on rent, for which he was paying Rs.8,000/- per month.
The complainant sent a number of letters, and reminders, to the opposite
parties, for delivery of possession, but
to no avail. It was further stated that
non-delivery of possession on 31.07.2007, as per the commitment, made in the
agreement dated 08.02.2006, by the opposite parties, amounted to unfair trade
practice, as also deficiency, in rendering service. When the grievance of the complainant, was
not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection
Act,1986(hereinafter to be called as the Act only), for
directing the opposite parties to hand over the possession, to the
complainant, of the flat; to pay interest @ 12% on the amount of Rs.13,55,000/-
, till the delivery of possession;, to
pay rent @ Rs.8,000/- per month from 31..7.2007, being paid by him (complainant)
to his landlord; to pay compensation in the sum of Rs.5 lacs, to pay damages in
the sum of Rs.5 lacs; and to pay litigation costs to the tune of
Rs.35,000/-.
2.
In the written reply, filed by the opposite parties, it was pleaded that
the complainant did not fall within the definition of a consumer, as the
property sought to be purchased, was for commercial purpose. It was further
pleaded that the complainant had no locus standi, to file the complaint. It was
admitted that the complainant booked a flat. It was also admitted that he
deposited a total sum of Rs.13,55,000/- being 95% of the amount of the price of
the flat. The execution of the agreement,
and allotment of flat, were also
admitted. It was stated that the construction could not be completed on account
of the stay of operation of Annexure R7 dated 17.1.2006, containing the guidelines
for setting up of residential colonies by the promoters, in the State of
Punjab, granted by the Hon’ble High Court of Punjab and Haryana in C.W.P
No.18632 of 2005 Dharam Chand & another Vs the State of Punjab & Ors.
It was further stated that the stay was vacated on 1.5.2008. It was, thereafter, that the Punjab Pollution
Control Board vide letter dated 19.9.2008
issued ‘No Objection Certificate’.
It was further stated that, thereafter, the construction of the project
was re-started. It was further stated
that, thus, the delay in construction, was beyond the control of the opposite
parties and, as such, they were entitled to extension of time according to
clause 23 of the agreement dated 8.2.2006.
It was further stated that since the complainant did not make payment of
the last and final instalment of 5%, he was not entitled to possession of the
flat and interest on the amount deposited
It was denied that the opposite parties indulged into unfair trade
practice and were deficient, in rendering service. The remaining averments,
were denied, being wrong.
3. The parties led evidence, in support of their case.
4. We have heard the Counsel for the
parties, and have gone through the evidence and record of the case,
carefully.
5.
An objection was taken by the opposite parties, in the written reply,
that the flat was booked and sought to be purchased, by the complainant for
commercial purpose, and, as such, he did not fall within the definition of
‘consumer’. The said objection appears
to be misconceived. In the complaint,
the complainant, in clear-cut terms, stated that the opposite parties,
advertised the launch of residential
apartments project. It was, in pursuance of this advertisement, that the
complainant applied for the allotment of a residential apartment, vide annexure
C2. No evidence was produced, on record,
by the Opposite Parties, that the apartment agreed to be purchased, by the
complainant, was for running any commercial activity, with a view to generate
profit. Once a residential apartment was booked, by the complainant and he paid
95% of the price thereof, the only presumption that could be drawn, was that it was for residence and
not for running any commercial activity. Under these circumstances, the
objection referred to above, at outset of this para, being devoid of merit,
must fail, and the same stands rejected.
6. The last instalment of 5%, was to be paid, by the complainant on or
before 31.7.2007, as per the agreement annexure C4, when the possession of the
flat was to be delivered. Admittedly,
the possession was not delivered to the complainant on 31.7.2007, the date
committed by the opposite parties. By that time, no progress in construction
had taken place. It is evident from annexure C12, letter dated 4.10.2008, that
after the vacation of stay, and grant of ‘no objection certificate’ on 19.9.2008 by the Punjab Pollution Control Board, the opposite parties had allegedly
restarted the construction of their project.
It was, intimated vide this letter that the last instalment of 5% instalment be
deposited. There is another letter C13, dated 15.5.2009, whereby the complainant was intimated,
by the opposite parties, that their endeavour was to hand over the possession
in 12 to 15 months. The opposite parties neither adhered to the original date
of delivery of possession i.e. 31.7.2007, nor to the time schedule mentioned in
letters C12 & C13. The opposite
parties, collected money from the prospective vendees, including the
complainant, knowing fully well that, at
the time of booking of the flat, they
did not have got requisite permissions/approvals
for raising construction. By making false promise to the complainant to hand
over possession by 31.7.2007, or even by
the extended time, intimated vide letters C12 & C13, the opposite parties,
fleeced him of his hard earned money.
The opposite parties have not delivered possession of the flat till
date. The complainant is, thus, entitled possession of the flat. The opposite
parties were, thus, not only deficient,
in rendering service, but also indulged into unfair trade practice.
7. It was submitted by the Counsel for
the opposite parties, that the last instalment of 5%, towards the price of flat,
which was due to the opposite parties, from the complainant on 31.07.2007, was
not paid by him and, as such, he committed default. He further submitted that he was, thus, not entitled to possession. The submission of
the Counsel for the opposite parties, in this regard, does not appear to be
correct. As stated above, till the filing of the complaint , and even till date,
possession of the flat, has not been
delivered to the complainant. When there
was no progress in construction of the
project, nor there was any hope of delivery of possession of the flat to the
complainant, by the opposite parties, the former could stop making payment of
the last instalment. He, therefore, could not be said to have committed any default.
In Prasad Homes Pvt. Ltd. Vs
E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC), no development work had been carried out, at the site. Thus, the payment of further installments, was stopped, by the
complainant. It was, in these circumstances,
held by the Hon’ble National Commission, that the builder could not be allowed to take shelter, under any
clause of the agreement, to usurp money, deposited by the complainant. The principle
of law, laid down, in the aforesaid case, is fully applicable to the facts of
the instant case. The submission of the Counsel for the opposite parties, in
this regard, being without merit, must fail, and the same stands rejected.
8. It was next
submitted by the Counsel for the opposite parties, that the construction
could not be undertaken, due the circumstances, beyond the control of the
opposite parties. He took shelter under Clause 23 of the agreement C-4, in support of his contention, which reads as under:-
“The
allottees agree that sale of Apartment/dwelling unit is subject of force
majeure clause which interalia include delays on account of non availability of
steel and/or other building materials, or water supply or electric power or
slow down strike or due to a dispute with construction agency employed by the
company/promoter civil commotion, militant action or by reasons beyond the
control of the company/promoter and in any of the aforesaid events the
company/promoter shall be entitled to a reasonable corresponding extension of
the time of the delivery of possession of the said Apartment/dwelling unit on
account of force majeure circumstances. The company/promoter as a result of
such contingency arising reserves the right to alter or vary the term and
conditions of allotment or if the circumstances beyond the control of the
company/promoter so warrant the company/promoter may suspend the scheme for
such period as it may consider expedient and no compensation of any nature
whatever can be claimed by the allottee for the period of delay/suspension of
scheme. Inconsequence of the company/promoter abandoning the scheme the
company/promoter liability shall be limited to the refund of the amount paid by
the allottee without any interest or compensation whatsoever.”
9.
The High Court of Punjab & Haryana in Civil Writ Petition No.18632
of 2005 titled as ‘Dharam Chand and another Vs. State of Punjab and
others’, vide order dated 30.01.2007,
stayed the operation of letter dated 17.01.2006
(Annexure R-7), vide which the Punjab Pollution Control Board laid down
the guidelines for setting up, colonies by the Promoters. Vide order dated
01.05.2008 Annexure R-11, the order dated 30.01.2007, was vacated. There is
nothing, on record, that from 8.02.2006, when C-4 agreement, was executed,
between the parties, upto 29.01.2007( stay having been granted on 301.2007), no
objection was obtained from the Punjab Pollution Control Board and the
construction activity, was undertaken, by the opposite parties, though there
was no stay, during this period. The stay, as stated above, was vacated on
01.05.2008. There is also, no document, on record, to establish that from
02.05.2008, until the filing of the complaint, any construction was carried
out, by the opposite parties, at the site. Even if, the period of stay
aforesaid, is excluded, the opposite parties, were required to undertake the
construction of the project, before the stay was granted and after the same was
vacated. When there was no progress, in
construction, even after the vacation of stay, left with no alternative, the
complainant had to file the instant complainant, seeking possession, interest
on the amount deposited, rent paid by him and compensation. Even according to clause 11 of annexure R-5,
dated 03.01.2006, vide which permission for raising construction, was granted
to the opposite parties, by Nagar Council Dera Bassi, Patiala, it was made
clear that construction could be started
only after obtaining ‘No Objection Certificate’ from the Ministry of Environments
& Forests. There is nothing on record, that this condition was fulfilled by
the opposite parties. Vide annexure R9 ‘No Objection Certificate’ from
pollution angle, was refused by the Punjab Pollution Control Board. It was, vide letter annexure R12 dated 19.9.2008 that ‘No Objection Certificate’ was granted to the opposite parties. This proves that, at the time of execution of
agreement C4 ‘No Objection Certificate’,
from the Punjab Pollution Control Board had
not been obtained by the opposite parties. In the absence of ‘No Objection Certificate’
from the Punjab Pollution Control Board, no construction could be raised. In Kamal Sood Vs. DLF Universal Ltd.,
III(2007) CPJ-7 (NC), it was held that a builder should not collect
money, from the prospective buyers, without obtaining the required permissions,
such as zoning plan, layout plan, and schematic building plan. It is the duty
of the builder, to obtain the requisite permissions or sanctions, such as
sanction for construction etc., in the first instance, and, thereafter, recover
the consideration money, from the purchasers of the flats/building. The ratio
of law, laid down, in the aforesaid case, is squarely applicable to the facts
and circumstances of the instant case. As stated above, from 8.2.2006, when the
agreement annexure C-4, was executed, between the parties, upto 29.01.2007, and
from 02.05.2008 onwards, there was no legal hitch, in the way of the opposite
parties, to raise construction, but they did not do so. Under these
circumstances, the opposite parties could not
take shelter under the force majeure Clause 23 of the agreement C-4. It
could not be said, that the construction activity, could not be undertaken,
wholly on account of the circumstances, beyond the control of the opposite
parties .These acts also amounted to deficiency in rendering service and indulgence
into unfair trade practice on the part of the opposite parties.
10. The next question, that
arises for consideration, is, as to whether, the complainant is entitled to
interest, if so, at what rate and from which date. The hard earned money to the tune of
Rs.13,55,000/- being 95% (towards the price of the flat, deposited by the
complainant) was illegally and improperly withheld by the opposite parties
atleast from 1.8.2007 onwards(excluding the period from 30.1.2007 to 1.5.2008, when
there was stay granted by the Hon’ble High Court). Had this amount been invested, by the
complainant, in some business or deposited, in the bank, he would have
certainly earned handsome returns thereon. He was, thus, caused financial loss.
The complainant, is, therefore, entitled to interest @ 12% p.a. on
Rs.13,55,000/- from 1.8.2007 till possession of the flat is delivered (excluding
the period from 30.1.2007 to 1.5.2008).
11. The next question, that arises for
consideration, is, as to whether, the complainant is entitled to rent claimed
by him. In the complaint, no doubt, the
complainant stated that he took, on rent, some property and started paying rent
@ Rs.8000/- per month. He, however, did not produce the receipts of rent
showing payment thereof alongwith the complaint, or during the course of
evidence, adduced by him. However,
alongwith the replication he submitted the photocopies of receipts allegedly
issued by Sh.P.C.Goel. Photocopies of some receipts show payment of rent @ Rs.6000/- per month and the photocopies of other receipts showing the
payment of rent @ Rs.8000/-. The number and location of the premises for which
the rent was allegedly paid, are not written in the receipts. In case, these
receipts were available with the complainant, at the time of filing the
complaint, he should have produced the same at that time. No sanctity is
attached to these rent receipts, especially when the affidavit of the person, who allegedly issued
the same was not produced, nor signatures, on the same, were identified by the
complainant. The complainant is, thus, not entitled to rent claimed by
him.
12. The next question, that arises for
consideration, is, as to whether, the complainant is entitled to compensation,
if so, to what extent. The possession of
the flat was to be delivered to the complainant on or before 31.7.2007. As
stated above, he has already made payment of a sum of Rs.13,55,000/- towards the
price of flat which comes to 95% , on the assurance of the opposite parties, that he would be delivered possession of the
flat within the stipulated time, but the
same has not been delivered till date.
For all these years, the complainant, underwent tremendous physical
harassment and mental agony. In these
circumstances, it would be just and fair, if the complainant, is awarded
compensation of Rs.one lac. It is, therefore, held that the complainant is
entitled to compensation of Rs.one lac.
13. For the reasons, recorded above, the
complaint is partly accepted with
costs, in the following manner ;
(i)
The opposite parties are directed to hand
over possession of the allotted flat to the complainant, within 6 months, from the date of receipt of a copy of the
order, on payment of the remaining amount of price by him (complainant). .
(ii)
The opposite parties are further directed to
pay interest @ 12% p.a. on the amount of Rs.13,55,000/- from 1.8.2007, till the
delivery of possession of the flat by them to the complainant (excluding the
period from 30.01.2007 to 01.05.2008)..
(iii)
The opposite parties are further directed to
pay compensation to the complainant in the sum of Rs.one lac.
(iv)
The opposite parties shall also pay cost of
litigation to the tune of Rs.10,000/- to the complainant.
(v)
The amount of compensation, shall be paid
within 30 days, from the date of receipt of a copy of the order, failing which,
the opposite parties shall be liable to pay interest @12% p.a. on this amount
from today, till realization, besides costs.
14. Certified Copies of this order be sent
to the parties, free of charge.
15. The file be consigned to the Record
Room.
Sd/-
Announced
(JUSTICE SHAM SUNDER)
January 16,
2012
President
Sd/-
(NEENA SANDHU)
Member
Sd/-
( JAGROOP SINGH MAHAL)
js Member
