Chandigarh

StateCommission

CC/52/2017

Lt. Col. Harpreet Singh Sidhu - Complainant(s)

Versus

BCL Homes Ltd. - Opp.Party(s)

Narender Yadav, Vineet Yadav, Adv.

29 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	52 of 2017
Date of Institution	:	18.01.2017
Date of Decision	:	29.05.2017

 

Lt.Col. Harpreet Singh Sidhu son of Col. (Retd.) Joginder Singh Sidhu, R/o Flat No.601, Block E-9, GH-79, AWHO Colony, Sector 20, Panchkula.

…Complainant

V e r s u s

1. BCL Homes Ltd., Regd. Office 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 Manager.
3. BCL Homes Ltd., through its Managing Director, Sh.Baldev Chand Bansal, R/o H.No.253, Sector-7, Panchkula, Haryana-134109

…..Opposite Parties

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

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

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:-       Sh.Narender Yadav, Advocate for the complainant.

None for the opposite parties. (Defence closed vide order dated 22.05.2017).

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that, attracted by very rosy picture shown by the opposite parties, qua their project, namely “Chinar Homes”, Chinar City, Kishanpura, Rajpura Road, Zirakpur, Mohali, the complainant opted to purchase a flat therein, on 28.09.2011. Area of the flat was fixed at 2170 square feet approx. He was allotted flat bearing no.908 “A”, Tower T-4, 9^th Floor, in the said project. Total price of the unit was fixed at Rs.37.50 lacs First payment was made on 28.09.2011 and by the time this complaint was filed, the complainant had paid an amount of Rs.34,69,634/- in the following manner.

 

S.No.	Dated	Receipts No.	Amount
	28.09.2011	2428	586000.00
	28.09.2011	2429	164000.00
	28.09.2011	2430	19350.00
	31.10.2011	2981	375000.00
	31.12.2011	3497	375000.00
	27.03.2012	4207	375000.00
	27.03.2012	4209	19275.00
	27.03.2012	4208	9657.00
	01.06.2012	4612	375000.00
	01.06.2012	4611	11588.00
	07.09.2012	5231	340000.00
	07.09.2012	5232	35000.00
	07.09.2012	5230	11588.00
	02.12.2012	5611	11588.00
	01.12.2012	5610	375000.00
	04.03.2013	5938	130000.00
	04.03.2013	5939	145000.00
	04.03.2013	5940	100000.00
	05.03.2013	5942	11588.00
		Total	34,69,634.00

 

Copy of receipts have been placed on record as Annexure C-2 colly. Buyer’s Agreement/Allotment Letter was signed between the parties on 28.09.2011. It is case of the complainant that as per Clause 9 of the allotment letter, possession of the unit, in question, was to be delivered to him, by the opposite parties, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of allotment letter i.e. on or before 27.12.2013, after providing all the basic amenities. It was further stipulated in Clause 9 of the Agreement that, in case, the opposite parties, failed to deliver possession of the unit by the said date, they were liable to make payment of Rs.10,000/- per month, to the complainant, towards rent, for the period of delay, beyond 27 months aforesaid. Relevant part of Clause 9 of the said Agreement reads thus:-

“The possession of the said flat shall be delivered to the Allottee(s) in 18-24 months from the date of this Agreement/allotment, with a grace period of 03 months. However, in the event there is a delay in offering the possession/permissive possession of the Flat in the said period, for any reason not directly attributable to BCL Homes Ltd. shall be entitled to reasonable extension in time for delivery of possession/permissive possession. In the event of completion of the said Flat being delayed beyond 27 months from the date of this Agreement/allotment, for reasons directly attributable to BCL Homes Ltd. shall be liable to pay to the Allottee(s) monthly rent of Rs.10,000/- for the period of delay beyond the said 27 months period on the amount paid to BCL Homes Ltd. by the Allottee. The possession of the Flat shall be handed over on receipt of the all dues, documents, and on fulfillment of conditions as stipulated herein…………………..”

 

2.         It is stipulated in the Agreement that possession of the unit, complete in all respects, after making necessary development in the project, will be delivered to the complainant, within a period of 18 to 24 months, with a grace period of three months, from the date of issuance of allotment letter i.e. on or before 27.12.2013. If possession is not delivered within 27 months as committed, the opposite parties were liable to pay an amount of Rs.10,000/- per month, for the period of delay. However, in the present case, the said amount was also not paid by the opposite parties. By writing an email dated 09.12.2013 Annexure C-3, the said penalty amount towards delayed period was claimed by the complainant, however, nothing was done.
3.         It is case of the complainant that his visit to the project site, on different dates, revealed that none of the facilities were in existence. Construction of tower, in which the unit was allotted to the complainant, was not complete. As and when possession was sought, vague response was given without committing any firm date to do the same. Fed up with behaviour of the opposite parties, the complainant wrote letter dated 21.07.2015 Annexure C-4 seeking refund of amount paid. However, the said letter failed to yield any result. It is further stated that this since the main office of the opposite parties is situated within the territorial jurisdiction of this Commission, as such, this Commission has territorial jurisdiction to entertain and decide the complaint.  
4.         By alleging that there is deficiency in providing service and also unfair trade practice on the part of the opposite parties, this complaint was filed seeking following relief: -

 

“a)    Complaint Under Section 12 r/w 17 of The Consumer Protection Act, 1986 as amended upto date to directing the Opposite Party to refund the entire amount of Rs.34,69,634/- alongwith interest @18% P.A. from the respective dates of deposits till realization;

b)     Award compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance cause to the complainant due to the actions/omissions;

c)      Opposite parties may be directed to pay Rs.50,000/- as litigation expenses;

d)     Award compensation under section 14 (hb) of Consumer Protection Act on account of following unfair trade practice with large number of persons;

e)      Orders to dispense with the filing of the certified copies/true typed/fair copies of Annexures;

f)      Grant any other relief which this Hon’ble Commission may deem fit and proper under the facts and circumstances of the present case.”

 

5.         In this complaint, notice was issued to the opposite parties on 20.01.2017 for 03.02.2017, on which date, Ms.Neeru Sharma, Advocate, put in appearance on behalf of the opposite parties, by placing on record her memorandum of appearance. She undertook to file her power of attorney and also reply and evidence on behalf of the opposite parties, on the next date of hearing. The matter was adjourned to 28.02.2017 for the said purpose. On the said date, Sh.Puneet Tuli, Advocate, put in appearance and filed his vakalatnama, on behalf of the opposite parties. He sought time to file reply and evidence, which was granted and the matter was adjourned to 14.03.2017, on which date, Sh.Puneet Tuli, Advocate stated that despite giving intimation to the opposite parties, they have  failed to supply him requisite documents, so that reply and evidence could be filed. He was granted last opportunity to do the needful. Matter was adjourned to 27.03.2017. On the said date Ms.Neeru Sharma, Advocate, placed on record copy of notice, statingly signed by Sh.Puneet Tuli, Advocate, sent to the opposite parties, informing them that he is withdrawing his power of attorney, in this complaint. Since, reply and evidence was not filed on the said date, their defence could have been struck off, however, with a view to avoid further inconvenience to the complainant, it was not so done and the matter was adjourned to 24.04.2017. Even on the said date, position remained same. Taking note of above, defence of the opposite parties was closed.
6.         The complainant led evidence, in support of his case.
7.         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.

                Above facts clearly indicate that the opposite parties are not ready to discharge their liability. Buyer’s Agreement, in this case was signed between the parties on 28.09.2011. As stated above, as per Clause 9 of the Agreement, it was committed by the opposite parties  that possession of the unit, in question, will to be delivered to the complainant, within a period of 18 to 24 months, with a grace period of three months (total 27 months), from the date of issuance of allotment letter i.e. on or before 27.12.2013, after providing all the basic amenities, subject to force majeure circumstances. It was further committed vide the said agreement that, in case, the opposite parties, failed to deliver possession of the unit by the said date, they were liable to make payment of Rs.10,000/- per month, to the complainant, towards rent, for the period of delay, beyond 27 months aforesaid. What to talk of handing over possession of built-up unit, the emails/letters written by the opposite parties to hand over possession failed to get any response. Email sent on 09.12.2013, Annexure C-3, seeking payment of amount of rent, in view of delay caused in handing over possession of the unit, also met the same fate. Thereafter, letter dated 21.07.2015, seeking refund of amount paid with interest etc. also failed to yield any result. Despite opportunity given, the opposite parties failed to file written reply and evidence. It has been seen in large number of cases that there is an attempt on the part of the opposite parties, to delay the proceedings, at the cost of poor consumers. Possession of the unit was to be delivered on or before 27.12.2013, more than three and a half years have lapsed, nothing has been done. 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. 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 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 refund of the amount deposited, 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.         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.34,69,634/- 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.1,25,000/- 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.33,000/- 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.

10.         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).
11.         Certified Copies of this order be sent to the parties, free of charge.
12.         The files be consigned to Record Room, after completion.

Pronounced.

29.05.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.