Chandigarh

DF-I

CC/744/2014

Luv Kumar Soni - Complainant(s)

Versus

Managing Director, Royale City Promoters Private Limited. - Opp.Party(s)

R.S. Randhawa

12 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No	:	CC/744/2014
Date  of  Institution	:	13/11/2014
Date   of   Decision	:	12/02/2016

 

 

 

 

 

Luv Kumar Soni son of Shri Om Parkash Soni resident of House No.B-36, Ashok Nagar, Ambala Cantt.

 

…........ Complainant.

Vs

 

[1]  Managing Director, Royale City Promoters Private Limited, Registered Office: SCO No.44, Sector 20-C, Chandigarh.

 

[2]  Manager, Customer Care, Royale City Promoters Private Limited, Registered Office: SCO No.44, Sector 20-C, Chandigarh.

 

[3]  Managing Director, D.S.P. Real Estate Private Limited, SCO No.363, 1^st Floor, Sector 32-D, Chandigarh.

 

…........ Opposite Parties

 

 

BEFORE:   MR. SURJEET KAUR             PRESIDING MEMBER

          SH. SURESH KUMAR SARDANA     MEMBER

 

For Complainant	:	Sh. Inderdeep Singh, Advocate.
For OPs No.1 & 2	:	Sh. Savinder Singh Gill, Advocate.
For OP No.3	:	Sh. Sandeep Bhardwaj, Advocate.

 

PER SURESH KUMAR SARDANA, MEMBER

 

          Succinctly put, the complainant in response to the advertisement of the Opposite Parties about their project namely Chandigarh Royale City, Zirakpur-Patiala Highway, Village Karala, Tehsil Dera Bassi, District SAS Nagar Mohali, booked a flat at approximate rate of Rs.26.90 lacs. The complainant after submitting Advance Registration Form had paid a total sum of Rs.8.00 lacs to the OPs No.1 & 2 against receipts (Ann.C-1 to C-4). It is averred that as per the advance registration form, the company i.e. Opposite Parties No.1 & 2 would refund the booking amount or any paid up amount to the customer with 12% p.a. interest on his request if the Company did not get approval of the project within 12 months from the date of booking of flat.  It is averred that now more than 3 years have passed, the project is yet to see the light of the day.  Moreover, Opposite Parties No.1 & 2 have not executed agreement to sell, as per the advance registration form, despite several requests of the complainant.  It is pleaded that the complainant started requesting the Opposite Parties after the lapse of one year, to get the project approved at the earliest and to further execute the agreement to sell, but to no avail.  Thereafter, the complainant sought refund of Rs.8.00 lacs from the Opposite Parties No.1 & 2 along with interest @12% p.a. as per the advanced registration form, but nothing happened.  It is alleged that against the demand of above refund, the Opposite Parties No.1 & 2 sent a demand of Rs.2,76,000/- despite that the complainant do not want to retain the flat in question because of inordinate delay of more than 3 years on the part of OPs NO.1 & 2.  Thereafter, a legal notice was sent, but to no result.  Hence, alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainants have filed the instant complaint.

 

2.      Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

3.      Opposite Parties No.1 & 2, in their joint reply by way of affidavit, while admitting the factual matrix of the case, have pleaded that the complainant had booked the flat only for commercial purpose and for gaining benefit and is involved in the business of buying and selling properties, therefore, he is not covered under the definition of consumer. It has been further pleaded that the last amount paid by the complainant was in Nov., 2011, whereas the present complaint was filed in Nov., 2014 i.e. after the lapse of about three years and as such the complaint is barred by limitation. It has also been pleaded that the complainant has not approached this Forum with clean hands as he has alleged that the Opposite Parties are bound by the clause that “company will refund the booking amount or any paid up amount to the customer with 12% interest on request of customer if company does not get approval of project within 12 months from the date of booking.”  Whereas, the complainant himself agreed: “I/We agreed to register myself/ourself against the investment in the future project of Chandigarh Royal City Promoters Pvt. Ltd. subject to the approval by Govt. of Punjab/Govt. of India and all other competent authorities.  I further agree that this expression on interest does not bind the company for any obligation in future.”  The complainant claimed the amount on the basis of the clause as mentioned above in which he said that the amount be refunded because the company has not get the approvals within 12 months, whereas, it is pertinent to mention that the answering Opposite Parties got the Change of Land Use on 28.11.2011 just after the five months of the booking amount paid by the complainant. Further, the company got all the necessary approvals in the year 2012 within the time period and lodged the project in the month of August 2012 and after started to raise the constructions, the Opposite Parties No.1 & 2 demanded the installments from the complainant but the complainant failed to do so, whereas in his self-declaration he has stated that this expression on interest/advanced registration forum does not bind the company for any obligation in the future, therefore, the present complaint is liable to be dismissed. The remaining averments were denied, being false and frivolous. Thus, denying any deficiency in service on their part, prayer for dismissal of the complaint has been made.

 

4.      In its separate written statement, Opposite Party No.3 has pleaded that the complainant is not consumers qua it as he has not paid any consideration to it. It has further been pleaded that the complainant could not take benefits of his own wrongs as he has put his signatures on the documents after reading and understanding the nature of the same.  The remaining allegations were denied being false and frivolous. Pleading that there is no deficiency in service on its part, prayer for dismissal of the complaint has been made.

 

5.      We have heard the learned counsel for the parties and have gone through the entire documents on record.

 

6.      Before coming to the merits of the complaint, it will be appropriate to look into the preliminary objection of the Opposite Parties No.1 & 2. Opposite Parties No.1 & 2 in preliminary objections have stated that the complainant is not ‘Consumer’ as defined under section 2 (1) (d) (ii) of Consumer Protection Act.  As per Opposite Parties No.1 & 2, the complainant has booked the flat for commercial purpose and for gaining benefit as he is involved in the business of buying and selling of properties and therefore, he is not covered under the definition of ‘consumer’.  We have gone through the documentary evidence led by the parties in this regard. Opposite Parties No.1 & 2 have failed to show the indulgence of the complainant in the business activity of buying and selling properties in order to gain any benefit as alleged. Therefore, this objection of Opposite Parties No.1 & 2 is not sustainable and the same is rejected accordingly. 

 

7.      As far as the objection of Opposite Parties No.1 & 2 that the complaint being barred by time is concerned, the same is also devoid of merit because the complainant sent letter dated 12.12.2012 (Ann.C-5) duly received by Opposite Parties No.1 & 2 whereby refund of the amount paid was claimed by him.  Thereafter, the complainant sent legal notice on 19.9.2014 (Ann.C-7) for refund of deposited amount, but despite it they failed to refund the deposited amount till date as such cause of action is recurring one and the complaint is well within limitation. Hence, the objection of Opposite Parties No.1 & 2 in this regard is therefore rejected.

 

8.      The Opposite Parties No.1 & 2 objected that the complainants opted for the construction installment plan and after the payment of Rs.8.00 lacs, they never approached the answering OPs to pay the balance installments despite they have called numerous times.  This plea of OPs No.1 & 2 is also not sustainable as there is no such demand from OPs No.1 & 2 for the payment of balance amount except one letter dated 02.12.2013 (Ann.C-6) and that too was sent when the complainants had already applied for the refund of their amount of Rs.8.00 lacs paid as earnest money and also duly conveyed their intention for the cancellation of the booking due to delay in the project.

 

9.      Further, the preliminary objection with regard to the pecuniary jurisdiction of this Forum to decide the matter, it is clarified that the complainants vide present complaint have asked for the refund of rs.8.00 lacs with ancillary relief, which is below Rs.20.00 lacs and thus, the matter in question is well within the pecuniary jurisdiction of this Forum.

 

10.      Now coming to the question, as to whether, the complainants are entitled to refund of deposited amounts with interest or not. The answer to this question is in the affirmative. A perusal of the copy of Advance Registration Form (Ann.C-1) dated 24.6.2011 reveals that the OPs claimed in their Advance Registration Form that company (OPs) will refund the booking amount or any paid up amount to the customer with 12% p.a. interest on request of customer if company does not get approval of project within 12 months from the date of booking. In the instant case, it is admitted that an amount of Rs.8.00 lacs have been paid on different dates to the Opposite Parties as also is evident from the receipts (Annexures C-2 to C-4). However, as per the arguments of the Opposite Parties No.1 & 2, the approval to develop the township has been received on 31.12.2012 i.e. more than 12 months of booking (24.6.2011) by the complainants. Though Opposite Parties No.1 & 2 have submitted that they got the change of land use from the Government of Punjab on 28.11.2011 but it does not mean that they also got the approval of GMADA through license, which in fact (Ann.R-10) was received only vide letter dated 31.12.2012 after a period of more than 12 months of the advance registration form dated 24.6.2011. Opposite Parties No.1 & 2 after receipt of the amount of Rs.8.00 lacs failed to acknowledge the booking and thereafter they sent a letter only on 02.12.2013 (Ann.C-6) to the complainants demanding the outstanding payment including the EDC by 10.12.2013. This act on the part of Opposite Parties No.1 & 2 points out towards unfair trade practice and deficiency in service on its part. Moreover, the complainants have also placed on record the letter dated 12.12.2012 (Ann.c-5) and legal notice dated 19.9.2014 (Ann.C-7) whereby they requested Opposite Parties No.1 & 2 to refund the paid up amount with 12% p.a. interest  as per the clause of the ‘advance registration form’.  In this view of the matter, we are of the considered view that the complainants are well within their rights to seek the refund of the deposited amount as per clause of the advance registration form, Annexure C-1.  

 

11.      The Opposite Parties No.1 & 2 have submitted that in the Advance Registration Forum, it was in clear cut terms that Expression of Interest did not bind the Company for any obligation in future and as such, the Opposite Parties No.1 & 2 were not bound to refund Rs.8.00 lacs  deposited by the complainant along with interest @12% p.a.  It is observed that the Advance Registration Forum is required to be read as a whole and not in piecemeal.  If the same is read in its proper perspective, then only one conclusion arrives that the OPs NO.1 & 2 undertook to refund the amount deposited by the complainants along with interest @12% p.a., in case they failed to obtain the licence from GMADA within one year from the date of submission thereof.  In the present complaint, it is very much clear that Advance Registration Form was submitted by the complainant on 24.06.2011, whereas the licence by GMADA was granted to the Opposite Parties No.1 & 2 on 31.12.2012 i.e. much after the expiry of 12 months, as stipulated in the terms & conditions of the same.  If in the Advance Registration Form, the OPs No.1 & 2 tried to absolve from any absolve from any obligation in future, that did not mean that they could usurp the amount deposited by the innocent consumers as booking amount etc. for the residential plots. Thus, it is abundant duty/obligation of Opposite Parties No.1 & 2 to refund the amount of the complainants.  

 

12.      Otherwise also, according to law, the OPs No.1 & 2 could not start booking of the residential plots, and obtain money from the innocent consumers, before actually the license and all the permissions and sanctions had been granted to them, by the Competent Authority. In case Kamal Sood Vs. DLF Universal Ltd., reported as  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. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licenses and without getting the necessary approvals, the same amounted to indulgence into unfair trade practice, on the part of the builder.

 

13.      In view of the above discussion, the present complaint deserves to be allowed against Opposite Parties No.1 & 2 and the same is accordingly allowed qua them and dismissed qua Opposite Party No.3. Opposite Parties No.1 & 2 are directed as under:-

 

 

1. To refund the amount of Rs.8.00 lacs to the complainant along with interest @12% p.a. from the respective dates of its deposit till actual payment.

 

 

2. To pay a sum of Rs.1,00,000/- as compensation to the complainant on account of mental tension, agony, harassment.

 

3. To pay Rs.15,000/- as litigation expenses.

          The complaint against Opposite Party No.3 fails and is accordingly dismissed with no order as to costs. 

14.      This order be complied with by the Opposite Parties No.1 & 2, within 30 days from the date of receipt of its certified copy, failing they shall pay the amount at Sr. No.(ii) above with interest @12% per annum from the date of filing of the Complaint, till actual payment, besides complying with the directions at Sr. No.(i) and (iii) above.

 

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

Announced

12^th February, 2016                                           

Sd/-

(SURJEET KAUR)

PRESIDING MEMBER

 

Sd/-

(SURESH KUMAR SARDANA)                                                                                                      MEMBER

“Dutt”