Chandigarh

StateCommission

CC/232/2017

Himanshu Shaokand - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Dhawal P.S. Ahluwalia

06 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	232 of 2017
Date of Institution	:	20.03.2017
Date of Decision	:	06.11.2017

 

1. Himanshu Shaokand S/o Hanspal Shaokand.
2. Devanshu Shaokand S/o Hanspal Shaokand.

Both residents Flat No. – 114, Chinar Height Peermuchalla, NAC Zirakpur, Mohali, Punjab.

…Complainants

V e r s u s

1. BCL Homes Ltd., Regd. Officer :  Shop No.140, Railway Road, Village Dariya, U.T., Chandigarh, through its Authorized Signatory.
2. BCL Homes Ltd., Village Kishanpura, NAC Zirakpur, District Mohali, Punjab, through its Project Incharge.
3. BCL Homes Ltd., through its Managing Director, Sh.Baldev Chand Bansal, 253, Sector-7, Panchkula, Haryana-134109.
4. Bombay Goyal, Flat No.101/1, Bollywood Heights, Peer Muchalla.

…..Opposite Parties

 

BEFORE:         SH. DEV RAJ, PRESIDING MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:-      

 

Sh. Dhawal P.S.Ahluwalia, Advocate for the complainants.

Sh. Savinder Singh Gill, Advocate for Opposite Party No.4.

Sh. Hitesh Verma, Advocate for Opposite Party No.3.

(Opposite Parties No.1 to 3 already exparte vide order dated 17.08.2017).

 

PER PADMA PANDEY, MEMBER

               

                The facts in brief are that, attracted by very rosy picture shown by the Opposite Parties, qua their project, namely “Chinar Homes”, Kishanpura, Zirakpur, Mohali, Punjab, the complainants opted to purchase a flat in the project of Opposite Parties No.1 to 3 by depositing total amount of Rs.10 lacs vide receipts dated 18.07.2014 & 24.07.2014 (Annexure C-1 colly.). It was further stated that it was agreed upon the complainants and Opposite Parties No.1 to 3 in the presence of Opposite Party No.4 that the balance payment of Rs.60 lacs would be given at the time of possession of the flat. Further, it was agreed that possession would be handed over on or before 24-27 months from the date of booking and in the present case, booking of the flat, in question, was done by the complainants on 24.07.2014 and, as such, possession was to be given by 24.10.2016, failing which, they shall be liable to pay to the allottees monthly rent of Rs.10,000/- for the period of delay beyond the aforesaid 27 months period. It was further stated that the complainants regularly visited the site but Opposite Parties No.1 to 3 only gave false assurances and there was no sign of development. On enquiry, the complainants were informed that the construction of the flat would be started very soon. After waiting for some time, the complainants time and again visited the project of the Opposite Parties in the year 2016 to know about the status of the development of the site but they were again shocked to see that none of the towers of the flat have been completed by Opposite Parties No.1 to 3. The complainants approached Opposite Parties No.1 to 3 but they neither handed over possession nor compensated the complainants for delay in handing over of possession, as promised. It was further stated that as per the information of the complainants, Opposite Parties No.1 to 3 have not applied to the competent authorities for getting sewers connection or electric connection for the project  and no internal roads have been constructed by them, as is proved from the photographs clicked by the complainants in the year 2016 (Annexure C-2 colly.). It was further stated that Opposite Parties No.1 to 3 failed to deliver possession of the unit, in question, to the complainants.  

2.         By alleging that there is deficiency in providing service and also unfair trade practice on the part of Opposite Parties No.1 to 3, this complaint was filed seeking following relief: -

 

“i)     To direct the opposite parties No.1 to 3 to refund the amount of Rs.10,00,000/- deposited by the complainant with OP No.1 to 3, with interest of 24% p.a. from the date of individual deposits.

ii)      To award Rs.5 lacs as compensation for mental agony and physical harassment.

iii)     To award interest @24 present (percent) on the amounts deposited by the complainant.

iv)     To direct OP No.1 to 3 to pay to the complainant a sum of Rs.50,000/- as litigation expenses.

v)      To impose special penalty on the opposite party under Section 26 of the Act for harassing the complainant and order deposit of the same to Legal Aid.

v)      any other relief, as the Hon’ble Court may deem fit.”

 

3.         In its written statement, Opposite Party No.4 admitted regarding booking of the unit and amount paid by the complainants through the replying Opposite Party. It was further admitted that in the presence of replying Opposite Party, Opposite Parties No.1 to 3 agreed that the balance amount of Rs.60,00,000/- would be given by the complainants at the time of possession. It was further stated that no relief has been claimed by the complainants against the replying Opposite Party, as such, prayed for dismissal of the complaint qua the replying Opposite Party.
4.         In this complaint, notice was issued to the Opposite Parties on 22.03.2017 for 19.04.2017, on which date, Sh.Savinder Singh Gill, Advocate, put in appearance on behalf of Opposite Party No.4, by placing on record his Vakalatnama and none appeared on behalf of Opposite Parties No.1 to 3. The matter was adjourned to 19.05.2017 to await service of Opposite Parties No.2 & 3 and direction was given to file fresh address of Opposite Party No.1. On 19.05.2017, none appeared on behalf of Opposite Parties No.2 & 3 and, as such, they were proceeded against exparte. However, fresh address of Opposite Party No.1 was not filed by the complainants. Therefore, prayer was made by Counsel for the complainants to get service affected upon Opposite Party No.1 through publication in the newspaper ‘Chandigarh Tribune’. On the next date of hearing i.e. 28.06.2017, Counsel for the complainants stated that charges for publication are very heavy and let notice be ordered to be published in ‘The Tribune’ and ‘Hindustan Times’ (Chandigarh Addition). It is apparent from zimini order dated 14.08.2017, notices were published in The Tribune, Chandigarh on 22.07.2017 and in Hindustan Times, Chandigarh on 18.07.2017.  On the next date of hearing i.e. 17.08.2017, Sh.Hitesh Verma, Advocate put in appearance on behalf of Opposite Parties No.1 to 3 in connected cases, and stated that he had no authority/instructions to put in appearance on behalf of Opposite Parties No.1 to 3. Therefore, Opposite Party No.1 was proceeded against exparte vide order dated 17.08.2017.
5.         It is pertinent to note that at the time of arguments on 10.10.2017, Sh.Hitesh Verma, Advocate has put in appearance on behalf of Opposite Party No.3 by filing his Vakalatnama and to argue the matter.
6.         The complainants and Opposite Party No.4 led evidence, in support of their case.
7.         We have heard Counsel for the complainants, Counsel for Opposite Party No.3, and have gone through the evidence and record of the case, carefully.
8.         During the course of arguments, an objection was raised by Counsel for Opposite Party No.3 that since no cause of action arose to the complainants at Chandigarh, the complaint is liable to be dismissed on this very score. It may be stated here that the complainants have stated in para No.1 of their complaint that they booked the apartment in question at Chandigarh by depositing an amount of Rs.5 lacs. It is pertinent to mention here that Opposite Parties No.1 to 3 neither filed their written statement nor specifically denied that the apartment, in question, was not booked at Chandigarh. Opposite Parties No.1 to 3 were proceeded against exparte. At the time of arguments, Sh.Hitesh Verma, Advocate appeared on behalf of Opposite Party No.3 and argued that receipts were not issued by the Company from Chandigarh office. The complainants impleaded registered office of BCL Homes Limited  at Village Dariya, UT, Chandigarh (Opposite Party No.1) and Sh.Hitesh Verma, Advocate appeared on its behalf and addressed the arguments. Moreover, a bare perusal of receipt of Rs.5 lacs (at page No.25 of the file) clearly reveals that the same was made by the complainants through Bombay Goyal, who is impleaded as Opposite Party No.4. Opposite Party No.4 filed its written statement and admitted that the complainants booked the unit at Chandigarh, after making payment of Rs.5 lacs. Therefore, in the absence of any specific denial by Opposite Party No.3, its objection in this regard stands rejected. 

9.             It is pertinent to note that the main dispute is against Opposite Parties No.1 to 3. However, Opposite Parties No.1 to 3 failed to discharge their liability and they were proceeded against exparte. The complainants alleged in the complaint that possession of the unit, in question, was to be delivered to them within a period of 27 months but they (complainants) failed to place on record any documents i.e. Buyer Agreement, allotment letter etc. in respect of the unit, in question, from which it could have been proved that possession of the unit was to be delivered to the complainants within the stipulated period. Even Opposite Parties No.1 to 3 neither appeared before this Commission nor filed any written statement. At the time of arguments, Sh.Hitesh Verma, Advocate appeared only on behalf of Opposite Party No.3 on 10.10.2017 to argue the matter. It is not the case that opportunity was not given to Opposite Parties No.1 to 3 to appear before this Commission and file reply. Notice was served upon Opposite Parties No.1 to 3. It is relevant to note that on 17.08.2017, Sh.Hitesh Verma, Advocate appeared before this Commission in connected cases and on that date, he said that he has no authority/instructions to put in appearance on behalf of Opposite Parties No.1 to 3. At the time of arguments, Counsel for Opposite Party No.3 has failed to rebut the contention of the complainants regarding possession. The complainants only placed on record receipts (Annexure C-1). From these documents, it is clearly proved that the complainants deposited an amount of Rs.10,00,000/- in respect of the unit, in question. Opposite Party No.4 has also admitted regarding receipt of the aforesaid amount of Rs.10 lacs. Opposite Party No.4 also admitted that Opposite Parties No.1 to 3 in its presence agreed that the balance amount of Rs.60 lacs would be given at the time of possession. The complainants have placed on record photographs of the unit (Annexure C-2) clicked by them in the year 2016. From these photographs, it is clearly proved that  the apartment is not complete, in all respects and a lot of work is pending. After receipt of the amount of Rs.10 lacs from the complainants, Opposite Parties No.1 to 3 kept mum and failed to deliver possession of the unit to them.  It has been seen in large number of cases that there is an attempt on the part of Opposite Parties No.1 to 3, to delay the proceedings, at the cost of poor consumers. According to the complainants, the flat was booked by them on 24.07.2014 and possession was to be delivered to them within 27 months i.e. by 24.10.2016. In the absence of any written statement, Buyer Agreement & allotment letter, it is presumed that possession of the unit was to be given by 24.10.2016. However, Opposite Parties No.1 to 3 failed to deliver possession of the unit to the complainants complete in all respects  within the aforesaid period and not even given at the time of filing of the complaint.  

                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.”

10.           If that is so, in the present case also, one cannot visualize handing over possession of the unit, in near future. Hard-earned money, deposited by the complainants, towards price of the unit, in question, was utilized by Opposite Parties No.1 to 3, for a number of years. Opposite Parties No.1 to 3, by neither 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 complainants, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants, are, thus, entitled to get refund of the amount deposited, alongwith interest @10% p.a., from the respective dates of deposits.

                In view of above act and conduct of Opposite Parties No.1 to 3, they are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

11.           For the reasons recorded above, this complaint is partly accepted, with costs. Opposite Parties No.1 to 3 are jointly and severally directed as under:-

1. To refund the amount of   Rs.10 lacs to  the complainants,  alongwith simple interest @10% per annum, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
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 @13% per annum instead of 10% per annum, from the respective dates of deposits, till realization and the amounts mentioned in clauses (ii) and (iii) shall carry interest @10% per annum, from the date of filing of this complaint, till realization.

12.           However, it is made clear that, if the complainants have 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 them (complainants).

13.           Complaint qua Opposite Party No.4 (Bombay Goyal) stands dismissed.

14.           Certified Copies of this order be sent to the parties, free of charge.

15.           The files be consigned to Record Room, after completion.

Pronounced.

06.11.2017

(DEV RAJ)

PRESIDING MEMBER

 

 

(PADMA PANDEY)

        MEMBER

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