Chandigarh

StateCommission

CC/210/2017

Sunny Mittal - Complainant(s)

Versus

BCL Homes Limited - Opp.Party(s)

Ravinder Pal Singh,Adv.

23 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	210 of 2017
Date of Institution	:	14.03.2017
Date of Decision	:	23.05.2017

 

Sunny Mittal son of Sh.Sushil Kumar Mittal, resident of House No.1022, Sector 21-C, Faridabad, Haryana

…Complainant

V e r s u s

1. BCL Homes Ltd., Regd. Office: Shop No.140, Railway Station Road, Village Dariya, U.T., Chandigarh, through its Managing Director/Director.

Now at H.No.253, Sector 7, Panchkula, Haryana (Director, Sh.Baldev Chand Bansal)

2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Project Manager/Authorized Representative.

…..Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Ravinder Pal Singh, Advocate for the complainant.

Opposite parties no. 1 and 2 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                It is case of the complainant that the opposite parties, through media, advertised their upcoming project, namely “Chinar Homes”, Chinar City, Kishanpura, Rajpura Road, Zirakpur, Mohali. Attracted by tall claims made qua salient features of the said project, the complainant for his residential purposes, opted to purchase a flat having 3 BHK, measuring 2170 square feet (approx.), at a price of Rs.45 lacs. When booking above said flat, it was told to the complainant that layout plan qua the project, in question, stood approved and further all necessary permissions stood granted by the Competent Authorities. Flat was booked under the scheme named as ‘Plan 12500’. As per the said plan, the complainant was to make payment of Rs.5 lacs, at the time of booking. Further Rs.10 lacs, was to be paid at the time of offer of possession of the unit, after complete construction of the unit, and thereafter, balance amount was to be paid in 240 equal monthly installments of Rs.12,500/-. The payment was to start from the date of offer of possession of the unit. To support above said facts, copy of letter dated 09.10.2012 showing booking of the unit, in the manner, referred to above, has been placed on record as Annexure C-1. In response to above booking, the complainant deposited an amount of Rs.1.50 lacs, on 09.11.2012 and further amount of Rs.4 lacs through RTGS (bank transfer) on the said date. It is his case that receipt was issued only for an amount of Rs.5 lacs. Qua rest of amount of Rs.50,000/- despite request made, receipt was not issued.  Copies of the receipts showing payment of Rs.5 lacs, having been paid to the opposite parties, have been placed on record as Annexure C-2 colly. It is specific case of the complainant that till the date of filing of this complaint, the opposite parties has not offered Buyer’s Agreement for signing. At the time of booking, the complainant was assured that possession of the unit, complete in all respects, shall be handed over within a period of 18 to 24 months, with further grace period of three months, from the date of receipt of booking amount. The said period came to an end in the month of February 2015. When agreement was not executed and the complainant was also in need of money, he made request for refund of the amount paid, on 25.11.2013. Original payment receipts were also handed over to the opposite parties. The opposite parties continued lingering on the matter and failed to refund the amount paid by the complainant. Instead of refunding the amount paid, the opposite parties again issued fresh receipt of Rs.5 lacs, on 22.04.2015 Annexure C-4. The complainant continued to wait further, however, no action was taken on his demand to refund the amount paid.  The complainant alongwith his father, visited the site office of the opposite parties to know, as to why construction has not been started. He came to know that the said project had never commenced. No permission was available to launch the project and the amount was collected from the poor consumers by giving wrong facts. Again, he sent letter dated 09.05.2015, seeking refund of amount paid. It is further stated that, thereafter, the complainant made an attempt to contact Officials of the opposite parties, however, they refused to answer the telephonic calls. One SMS was also sent on 01.08.2016, reiterating his request for refund of amount paid, and also to ask as to why, his calls were not being attended but to no avail. 

2.         By stating as above, it is prayed that directions be issued to the opposite parties to refund the amount of Rs.5.50 lacs, alongwith interest; compensation to the tune of Rs.3 lacs, for mental agony & physical harassment alongwith litigation expenses of Rs.35,000/-.
3.         Notice of the complaint was sent to the opposite parties on 16.03.2017, for 05.04.2017. Qua opposite party no.1, report was received with the remarks “it has left premises at the address given”.  Qua opposite party no.2, no report was received and for awaiting service, the matter was adjourned to 19.04.2017. Counsel for the complainant was directed to furnish fresh address of opposite party no.1, so that notice can be issued to it. Accordingly, on furnishing fresh address, notice was issued to opposite party no.1 on 10.04.2017. On the other hand, despite deemed service, none put in appearance, on behalf of opposite party no.2 on 19.04.2017, as a result whereof, it was proceeded against exparte. Qua opposite party no.1, to await service, matter was adjourned to 19.05.2017. However, on the said date, despite deemed service, even opposite party no.1 did not put in appearance, as a result whereof, it was also proceeded against exparte.
4.         The complainant led evidence, in support of his case.
5.         We have heard Counsel for the complainant and have gone through record of the case, very minutely, and are of the considered opinion, that this complaint is maintainable before this Commission. Further, this Commission also has pecuniary and territorial jurisdiction to entertain and decide this complaint.
6.          The averments made by the complainant, had gone unrebutted. It is proved on record that in a project, named as   “Chinar Homes”, Chinar City, Kishanpura, Rajpura Road, Zirakpur, Mohali, as per promises made by the opposite parties, the complainant booked a flat having 3 BHK, measuring 2170 square feet (approx.), at a price of Rs.45 lacs. He allegedly paid an amount of Rs.5.50 lacs (no receipt has been placed qua Rs.50,000/-). It was stated that the said amount of Rs.50,000/- was paid, in cash, however, no receipt was issued qua it, by the opposite parties, despite making request in that regard. It is further apparent on reading letter dated 09.10.2012 Annexure C-1 that the unit, in question, was purchased under a scheme, under which, an amount Rs.5 lacs was to be paid at the time of booking of the unit. Another amount of Rs.10 lacs, was to be paid, at the time of offer of possession of the unit and balance amount was to be paid in 240 equal monthly installments of Rs.12,500/- per month, staring from the date of offer of possession. It is case of the complainant that at the time of booking of the unit, in question, it was promised by the opposite parties that its possession will be handed over within a period of 18 to 24 months, with grace period of 3 months i.e. in all within 27 months. Allotment of the unit was confirmed vide letter dated 09.10.2012. As per the complainant, possession of the unit was to be handed latest by January/February 2015. It is further stated that his visit to the project site revealed that construction had not even commenced. On further enquiry, he came to know that when the project was launched, no requisite permissions were available with the opposite parties. Without getting the project sanctioned and obtaining necessary permissions, flats/units in the project were sold to the poor consumers, unauthorizedly, by collecting huge amount of money, knowing fully well that their project was not approved. By stating as above, prayer to issue directions to the opposite parties for refund of amount paid has been made by the complainant.
7.         We are of the considered opinion that the prayer made is justified. Earlier also, a case titled as Chand Berry and another Vs. BCL Homes Limited and others, consumer complaint no.292 of 2015, decided by this Commission on 19.02.2016, a complaint was filed by Chand Berry and Mrs. Deepti Berry, against the opposite parties (BCL Homes), in respect of the same project. Under similar circumstances, when deciding that complaint filed by the complainants stating that for non-delivery of possession, directions be issued to refund amount with interest, this Commission has observed as under:-

“It is a case of failed promise and virtually deceit has been committed by opposite parties no.1 to 3, with the complainants. It was never disclosed to the complainants, by opposite parties no.1 to 3,  that the entire project land and construction to be raised thereon, stood mortgaged with opposite party no.5. Virtually after making more than 95% of the price of unit, delivery of possession thereof is not expected even in near future. Above fact clearly amounted to deficiency in providing service on the part of opposite parties no.1 to 3, which entitles the complainants  to get refund of amount paid by them, towards the unit.”

 

8.         If that is so, in the present case also, one cannot visualize handing over possession of the unit, in near future. It is on record that despite requests made by the complainant, through various letters and phone calls/SMS, even reply was not given by the opposite parties.      Hard-earned money, deposited by the complainant, towards price of the unit, in question, was utilized by the opposite parties, for a number of years. Opposite parties, by neither executing buyer’s Agreement, nor delivering physical possession of the unit, in question, complete in all respects, by the stipulated date or even till date, nor refunding the deposited amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to get the refund of Rs.5 lacs, alongwith interest @12% p.a., from the respective dates of deposits.

                In view of above act and conduct of the opposite parties, they are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

9.          As far as the remaining amount of Rs.50,000/- claimed by the complainant is concerned, it may be stated here that in the absence of any receipt/document in that regard, this Commission is not inclined to order refund thereof. However, the complainant is at liberty to recover the said amount, through other legal remedy, if any, available to him.
10.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.5 lacs to  the complainant,  alongwith simple interest @12% per annum, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.50,000/-for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.20,000/- to the complainant.
4. The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid within a period of two months, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) shall carry penal interest @15% per annum instead of 12% per annum, from the respective dates of deposits, till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @15% per annum, from the date of filing of this complaint, till realization.

11.         However, it is made clear that, if the complainant has availed loan facility from any Bank or financial institution for making payment towards price of the said flat, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
12.         Certified Copies of this order be sent to the parties, free of charge.
13.         The files be consigned to Record Room, after completion.

Pronounced.

23.05.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.