Chandigarh

DF-II

CC/256/2022

Saket Behl - Complainant(s)

Versus

Altus Space Builders Pvt. Ltd. - Opp.Party(s)

Adv. Karan Singla

18 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	256 of 2022
Date  of  Institution	:	15.03.2022
Date   of   Decision	:	18.09.2023

 

 

 

 

Saket Behl s/o Sh.Balbir Behl, resident of H.No.1181, Progressive Enclave, Sector 50, Chandigarh

             …..Complainant

 

Versus

 

1]  Altus Space Builders Private Limited, registered office at SC-22, 1^st Floor, Phase-10, S.A.S.Nagar, Mohali, through Sh.Harpreet Singh, its Director & Authorized signatory

2]  Sh.Harpreet Singh, Director, Altus Space Builders Private Limited, registered office at SC-22, 1^st Floor, Phase-10, S.A.S.Nagar, Mohali

3]  Sh.Jaswinder Singh, Director, Altus Space Builders Private Limited, registered office at SC-22, 1^st Floor, Phase-10, S.A.S.Nagar, Mohali

4]  The Greater Punjab Officer’s Co-operative House Building Society, c/o Altus Space Builders Private Limited, Sector 3C & 4C, Mullanpur, S.A.S.Nagar, Mohali, through its President/Authorised Representative

5]  M/s Altus Space Builders Private Limited, SCO 846, Sector 22-A, Chandigarh through Sh.Jatinder Pal Singh s/o Sh.Ajeet Singh, Channel Partner/authorized signatory of M/s Altus Space Builders Private Limited, CEO of M/s Ajeet Associates, R/o 2741, Sector 69, SAS Nagar, Mohali, through Sh.Jatinder Pal Singh, its CEO

     ….. Opposite Parties 

BEFORE:  MR.AMRINDER SINGH SIDHU, PRESIDENT

         MR.B.M.SHARMA                 MEMBER

   

Present:-  Sh.Sandeep Bhardwaj, Counsel for the complainant

           Sh.N.P.Chandel, Counsel for Ops No.1 to 3

OPs No.4 & 5 exparte.

 

 

PER B.M.SHARMA, MEMBER

 

         The case of the complainant precisely is that believing the assurance and allurement of OPs, he and his father Sh.Balbir Kumar Behl (since deceased) entered into an Agreement to Sell dated 12.10.2010 (Ann.C-8) with OP No.5 (who was having an agreement from OPs No.1 & 4 to sell the plots) with a promise that the possession of the plot would be given within 24+5 months of the agreement and accordingly, a plot measuring 350 sq. yards in the project of OPs i.e. Altus Muriwood, New Chandigarh was booked @Rs.8500/- per sq. yard excluding EDC & IDC and Rs.500/- per sq. yards was also to pay by complainants towards CLU charges.  It is averred that at the time of said agreement, Rs.3.50 lacs was paid in cash apart from payment of Rs.10.50 lacs.  It is submitted that till date the complainant and his father Sh.Balbir Kumar Behl (since deceased) had paid a total sum of Rs.45,26,350/- including cash payment of Rs.7,78,00/- to the OPs (Ann.C-9 to C-14). 

         It is submitted that after receipt of Rs.14.00 lacs from the complainant and his father in the year 2010-11, the OPs remained silent regarding the development of the site and possession of the plot except raising demand for further payments. It is also submitted that in the year 2010 till 6.8.2014, the OPs were specifically restrained by the competent authorities from advertising, selling their project and receiving money from general public till the layout plan was approved and exemption from the provisions of the PAPR Act is granted, still the OPs launched the project, collected money from complainant and his father to the tune of Rs.31,05,998/- till 6.8.2014 and entered into agreement to sell plot, which is gross deficiency as well as unfair trade practice on their part.

         It is pleaded that finally Plot Buyers Agreement dated 4.10.2014, singed & submitted on 29.5.2015 (Ann.C-23) was executed between the complainant, his deceased father Sh.Balbir Kumar Behla and OPs, mentioning about the sale of plot measuring 333.50 sq. yards @Rs.6165/- per sq. yd. towards Basic Sales Price (BSP) and Rs.5100/- per sq. yd. towards EDC, CLU, License Fee, Social Infrastructure Fund, Urban Development Fund, Cess on PR-7, IDC etc. plus Rs.75000/- towards Club Membership Registration.  Thereafter, Provisional Plot Allotment Letter dated 21.3.2015 (Ann.C-24) was issued to the complainant mention the Plot No.D-334, Muirwoods Eco City, New Chandigarh, but the size and other domination have not been mentioned.  It is also pleaded that in the Plot Buyers Agreement the OPs acknowledge only Rs.26,34,000/- as against the payment of Rs.34,12,000/- paid till then and thereby did not acknowledged the cash receipt/payment of Rs.7,78,000/-.  The OPs also reduced the BSP of Rs.8500/- per sq. yd. to Rs.6165/- per sq. yd. in Buyers Agreement dated 4.10.2014 with illegal and malafide intentions.  Further, the OPs have received excess amount from the complainant i.e. against the total price of the plot size of 333.50 sq. yds. which comes to Rs.38,31,878/- including club charges, they received Rs.45,26,352/- i.e. excess of Rs.6,94,474/-.  It is stated that in the Buyers Agreement dated 4.10.2014, no specific date for delivering the possession of the plot has been mentioned except open ended period.  Thereafter, the OPs offered papers possession of Plot No.D-334 vide “Offer of Possession” dated 28.2.2018 (Ann.C-25).  It is submitted that the demand of club charges and Interest Free Maintenance Security demanded by OPs vide letter dated 28.2.2018 is illegal.

         It is pleaded that after the death of Sh.Balbir Kumar Behl, father of complainant, on 24.3.2019, his share was transferred in favour of the complainant and consequently, fresh Provisional letter dated 4.5.2019 (Ann.C-26) was issued.  It is also pleaded that the complainant earlier filed Consumer Complaint No.166/2019 seeking refund of amount with interest etc. and in the written version by the OPs in said complaint, they stated that development work of the project is at final stages and they are ready to handover possession of the plot to the complainant, as such complainant filed MA No.617/2021 seeking possession of the plot No.D-334 (333.5 sq.yd) along with interest, which was disposed by vide order dated 21.12.2021 on the statement of ld.Counsel for OPs that the plot in question is not in deliverable condition because the State of Punjab failed to complete the external development (Ann.C-28). Thereafter, the complainant filed MA No.977/2021 depicting the factual position that not only possession has been delivered in the area but construction is also going on in nearby flats.  Then the Hon’ble Commission vide order dated 24.2.2022 granted liberty to the complainant to withdraw the complaint to file afresh with better particular (Ann.C-29) and the present complaint has been preferred.  It is submitted that while the OPs contesting the possession of the plot No.D-334 on the ground of no external development, they have been handing over the possession of other plots bearing No.D-288,   D-138, D-136, D-19 and D-482.

         It is asserted that as per Buyers Agreement dated 04.10.2014, the complainant has paid Rs.6165/- per sq. yd. towards the basic sale price for 333.50 sq. yd. of plot allotted to him and Rs.5100/- per sq. yd. was charged towards EDC, CLU, License fee, social infrastructure fund, urban development fund cess on PR 7, IDC etc., hence the total amount of charges paid comes out to be Rs.17,00,850/- and the EDC, License Fee, Urban Development Fund, Social Infrastructure Fund and Cess on PR-7 per GMADA instructions, sought under RTI (Ann.C-30 & 31), comes to Rs.4840 sq. yds. per acre and in this way the Ops charges the complainant in excess of Rs.13,56,345/- towards govt. chares.   Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs. 

 

2]       The OPs No.1 to 3 have filed joint written version and while admitting the factual matrix of the case, stated that Sh.Jatinder Pal Singh mentioned as CEO of M/s Ajeet Associates is a separate entity with whom the complainant executed Agreement to Sell dated 12.10.2010 (Ann.C-8). It is stated that the delay in external development of the project is on the part of the Government authorities only and in such circumstances, it is submitted that per Clause 5.3(c) of the Plot Buyers Agreement dated 04.10.2014 (Ann.C-23), if for any reason the developer is not in a position to offer the plot, the developer may offer the purchaser an alternative property or refund the amount in full with interest @9% per annum without any further liability to pay damages or any other compensation.  It is submitted that the delay in construction of VR-5 road is on the part of Govt. Authorities only for which a Civil Writ Petition No.22109 of 2020 has already been filed before the Hon‘ble Punjab & Haryana High Court. It is submitted that that the project of the OP No.1 is a residential housing project approved by Govt. having CLU approved on 10.9.2012 for 127.58 acres of land; prior to that CLU for 229.77 acres of land was granted on 17.11.2012, CLU for 26.41 aces was granted on 14.5.2012 and CLU for 23.75 acre was granted on 25.6.2013 to the company for the first phase of its project.  The layout plan was approved on 8.5.2014 and subsequently the layout plan submitted on 7.2.2015 was cleared by Chief Town Planner, Punjab on 31.3.2015.  It is stated that there was delay on the part of government authorities in granting sanctions of layout/zoning plans, approval of Detailed Project Report (DPR), Service plans of roads, water supply, sewerage, storm water, drainage system etc. as well as delay in provision of peripheral services/sector grid roads/master plan roads and allied services by the State Govt./concerned authorities, which has been mentioned in the CWP, referred above.

         It is submitted that as per Clause 5.1(c) of the Plot Buyer Agreement dated 4.10.2014 (Ann.C-23) the OP No.1 is liable to pay charges @Rs.5/- per sq. yard per month of the area of the plot for the period of delay in offering the possession beyond the period indicated in Clause 5.1(a).  It is denied that the complainant has paid any excess amount.  It is also submitted that the complainant has executed Agreement to Sell dated 12.10.2010 with Jatinder Pal Singh, CEO of M/s Ajeet Associates, who has not arrayed as party to the complainant and in the said agreement the basic sale price was Rs.8500/- per sq. yds plus other charges such as IDC, EDC, CLU etc.  It is pleaded that the complainant stated that he had paid Rs.7,78,000/- and as per document, the said amount has been received by Sh.Jatinder Pal Singh, CEO of Ms/ Ajeet Associates.  It is also pleaded that Plot Buyers Agreement mentions the balance amount of payment paid by the complainant to the complainant and further the complainant signed the Plot Buyer Agreement on 11.10.2014 with his free will and consent with complete knowledge of the facts.  It is stated that the delay in external development works is on the part of Govt. Authorities i.e. connectivity of project with Master Road, Water Supply, Storm Water Disposal, Electricity HT Lines, Electrical Grid Sub Station etc. due to which OP No.1 is facing difficulty in handing over the possession of plot in question. That the payment of Rs.5100/- per sq. yds. inclusive of IDC is as per the terms & conditions of the Plot Buyer Agreement and terms & conditions of said agreement are binding on the parties. It is stated that the complainant miscalculated the IDC charges. Denying other allegations, the OPs No.1 to 3 have prayed for dismissal of complaint.

         The OPs No.4 & 5 did not turn up despite service of notice, hence they were proceeded exparte vide order dated 10.8.2022.

 

3]       Rejoinder has also been filed by the complainants controverting the assertions of OPs No.1 to 3 as made in their reply.

4]       Parties led evidence in support of their contention.

5]       We have heard the ld.Counsel for the parties and have gone through entire documents on record including written arguments.

6]       The perusal of the record reveals that the OP Builder/Altus Space Builders Pvt. Ltd. has already received the complete sale consideration for the plot in question but have still not provided the possession of the plot to the complainant since long.  It is clear that the OP Builder has failed to fulfill its contractual obligation by offering possession of the plot/unit to the complainant, having basic amenities, within the time stipulated in the agreement or within a reasonable time.

7]       It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as

“Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed: “It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

          Hence, the act of the Opposite Parties No.1 to 3 to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

8]       In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

9]       The Hon’ble National Commission in case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken by OPs about existence of Arbitration clause in the agreement, stands rejected.

10]      In our opinion, the complainant is not obliged to accept any other offer of OPs when they failed to deliver the allotted plot. The OPs have accepted the money, but failed to honour the commitment/promise made with complainant by delivering the possession of the plot despite receipt of entire amount. Therefore, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainants, but also caused them immense harassment & mental agony.    

11]      The house is always a dream project for any person or family for which people happily pay their hard earned money.  In the instant case, the buying of plot at huge price by complainant and not getting it till date has caused immense pain, insecurity and nervousness to buyer/complainant who appear to be a helpless victim of OPs unethical business tricks.    

12]      Taking into consideration the above discussion and findings, we are of the considered view that the Opposite Parties No.1 to 3 are found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 to 3. Accordingly, the complaint stands allowed against the OPs No.1 to 3. The Opposite parties No.1 to 3, jointly and severally, directed as under:-

a)  To deliver actual and physical possession of Plot No.D-334 measuring 333.50 sq.yards in Phase-1, "Muirwoods Eco-city", New Chandigarh complete in all respects, alongwith agreed facilities, proper demarcation alongwith completion and occupation certificate issued by the competent authorities and execute the Registered Sale/Conveyance Deed in favour of complainant.

b)  To pay compensation for delay in delivery of possession at the rate of Rs.5/- per sq. ft. per month of the area of the unit, in question, after the expiry of 30 months from the date of signing of Plot Buyers Agreement i.e. from 1.6.2018 till the delivery of possession of the Plot, as per clause 5.1(c) of the agreement Ex.C-23.

c)  To pay simple interest on the entire amount deposited by the complainant i.e. Rs.45,26,352/- at the rate of 6% per annum from 1.6.2018 till the delivery of the possession of the Plot in the manner as ordered above.

d)  To refund the excess amount of Rs.13,56,345/- alongwith interest @12% p.a. as compensation from the date of deposit/payment till realisation.

e)  To pay cost of litigation amounting to Rs.50,000/ -.

No TDS shall be deducted on the awarded amount.

         The above said order shall be complied with by the Opposite Parties jointly & severally within a period of 45 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.25,000/- apart from the above awarded amount.

13]      Pending application, if any, stands disposed of accordingly.    

        The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

18.09.2023                                                                                        Sd/-

 

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

(B.M.SHARMA)

MEMBER