STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 03.04.2017
Date of final hearing: 25.04.2023
Date of pronouncement: 10.05.2023
CONSUMER COMPLAINT NO. 198 OF 2017
IN THE MATTER OF: -
Satish Kumar Goyal S/o Ram Goyal, R/o H.No. 63, Gulmohar Avenue, Dhakoli-Zirakpur-Mohali-160104, Punjab.
…..Complainant
Versus
M/s Ahlawat Developers and promoter, SCO 124, First Floor, Swastick Vihar, Sector-5, MDC, Panchkula-134109 through its Managing Director/Director/Partner/Authorised Signatory.
…..Opposite Party
CORAM: Naresh Katyal, Judicial Member
Present:- Sh. Munish Goel, counsel for the complainant.
Sh. R.S. Sihag, counsel for the opposite party.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:-
Facts, in complaint are: opposite party advertised for sale of apartments at “Himachal One” Pinjore Nalagarh Road, District: Solan (HP). Complainant contacted opposite party for purchasing an apartment in March, 2014. OP informed that work for completion of basic amenities, as well as construction would be started shortly and applicants would be provided apartments within 24 months from date of booking. He was told that: project stood cleared from all concerned departments and development work of whole area is at full swing for providing basic amenities like: electricity, road, water, sanitation, electric poles, fully developed parks etc.
2. Complainant purchased one apartment for Rs.19,25,000/-. He paid Rs.1,00,000/- to OP vide cheque No. 714254 dated 11.04.214 (Annexure C-1). OP informed complainant that he has been allotted Apartment No. 101, First Floor, Tower D-1. Complainant further paid Rs.5.00 lacs vide cheque No. 380383 dated 24.04.2014 (Annexure C-2). Apartment Buyer Agreement (Annexure C-3) mentions sale price of apartment as Rs.19,25,000/- and complainant has already paid Rs.6.00 lacs. Super Area of apartment is 1150 sq. feet. Complainant opted for construction linked plan. Clause 14 of agreement provides for possession of apartment within two years of signing of Apartment Buyer Agreement and physical possession would be given to him, after obtaining completion certificate from competent authority. OP was supposed to deliver possession by 30.04.2016. Clause 14 of agreement further mentions that OP would pay compensation @ Rs.5/- per sq. fee, per month for period of such delay after expiry of initial period of 180 days form stipulated date of deliver of possession. Complainant also paid Rs.2.00 lacs vide cheque No. 023054 dated 28.06.2014 (Annexure C-4).
3. It is pleaded that OP neither started construction at site, nor completed it, nor obtained necessary approvals and sanctions from competent authority for making construction at site. OP has not offered possession at site on 30.04.2016 and thereafter OP has not obtained completion certificate from competent authority; as such it is not in a position to deliver possession. OP informed complainant that it has not been able to get approvals from competent authority like; Forest Department, Pollution Control Department, National Highway Authority of India, Himachal Pradesh Govt. etc. as such construction has not been started.
4. Complainant sought refund of deposited amount after 30.04.2016; wrote letter dated 24.01.216 (Annexure C-5). OP neither replied, nor paid him compensation as per clause 14 of agreement. He made payment of Rs.8.00 lacs till date, out of total price of Rs.19,25,000/-. He requested OP to give physical possession of apartment, but OP is not in possession of land; no development at site had taken place and as such OP has failed to give him physical possession of apartment, as per agreement. OP has neither refunded amount till date. Complainant’s deposited amount is in custody of OP and it is utilizing the same. OP is deficient in its service; there is unfair trade practice; and is liable to compensate the complainant. He has suffered huge mental agony and harassment.
5. Complainant has annexed calculation sheet (Annexure C-6) and pleaded that amount involved in this case is Rs.26,30,825/-. Thus, by pleading course of action; complainant has filed this complaint with prayer that; OP be directed to refund Rs.8,00,000/- with 18% cumulative interest p.a. from date of payment till it is refunded. OP be directed to pay Rs.2,00,000/- as compensation for causing him mental tension, harassment and mental agony and to pay Rs.55,000/- as cost of litigation. Entire text of complaint is supported by complainant’s affidavit.
6. OP raised contest. In defence so entered; it is pleaded in preliminary objections that; complainant is permanent resident of H.No. 63, Gulmohar Avenue, Dhakoli- Zirakpur, Mohali. He is also owner of flat at Plot No. GH 108, Sector-20 Panchkula. He has also got a flat in Sector 14, Panchkula. He is having multiple properties, in an around Panchkula. Sole purpose of his booking apartment with OP was for resale. Complainant was earlier known to promoter of OP and has been investing in his earlier projects. Copy of brochure giving details of project and payment plan is Annexure OP-1. Complainant owing to his past association with promoter of OP, was also granted concession of Rs.1,70,000/-, from price quoted in brochure for two bedrooms apartment.
7. It is pleaded that complainant was allotted Plot No. 101, First Floor, Tower D-1, Housing Colony, Himachal One, Pinjore- Nalagarh Road, Malku Majra, Baddi- Solan (HP). Investment was made by complainant solely for speculative purpose/resale/ commercial purpose to get regular return, as such he is not a consumer. Although, in terms of schedule of payment; the complainant who had opted for construction linked payment plan, was to make payment of Rs.1,00,000/- only; however, he made payment of another Rs.5,00,000/- on 24.04.2014 before signing of Apartment Buyer Agreement on 30.04.2014, whereas as is evident from its clause 14; possession of flat was to be offered within 24 months.
8. It is pleaded that in Tower D-1; there were total 20 two bedrooms flats to be constructed. Only 16 flats were booked for which prospective allottees paid amount ranging between 6-8 lacs each. Since even after more than one year; total flats in Tower D-1 could not be booked due to slump in real estate market and sluggish demand for flats in Industrial Township of Baddi, due to expiry of Industrial Package by Govt. of India; OP called prospective allotees, including complainant, to consider shifting their booking to 3 bedrooms apartment in adjoining tower which was nearing completion, at same sq. feet rate. In reference, 10 persons agreed to the offer of alternate 3 bedrooms apartment; 4 persons agreed to get refund of their deposited amount; 2 persons, including complainant failed to give any specific response to offer. He (complainant) sought time to discuss with his family members. Instead of giving any response, he filed this complaint with malafide motive and extraneous reasons. He has no cause of action. He is not a bonafide consumer.
9. On merits, it is pleaded that since complainant is having multiple properties, he has failed to prove/show that apartment in question was purchased by him for his own use and occupation. He has made investment in project of OP, as per his own divulgence to the properties of OP, for speculative purpose. There being no requirement in terms of buyer agreement dated 30.04.2014; he voluntarily paid further amount of Rs.2,00,000/- on 28.06.2014. Only around 35-40% of total price was paid by complainant, under construction linked plan, as opted for by him. His reliance on completion of construction of his allotted apartment by 31.12.2016 and payment of compensation on account of delay @Rs.5/- per sq. feet is misplaced, wrong and illegal. It is pleaded that OP has raised substantial construction at site and numbers of families after construction and occupation of apartments are residing happily at project site. It is denied that OP has not obtained completion certificate. As per plea, no demand was ever raised in June, 2014. However, if any demand was raised, same was not payable by complainant, since he opted for construction linked plan. Complainant never approached OP, as alleged. It is evident from Apartment Buyer Agreement that Op has got necessary approval of project from competent authority viz. Baddi Barotiwala Nalagarh Development Authority. M/s Ahlawat Developers and Promoter is lawful owner of land measuring 27 bighas situated at Revenue Estate of Malku Majra, for which, permission under Section 118 was obtained from Govt. of Himachal Pradesh vide letter dated 17.04.2017
10. It is pleaded that letter dated 24.10.2016, allegedly issued by complainant has never been received by OP. It is denied that OP is not having possession of land and no development had taken place at site. There is no deficiency in service or unfair trade practice adopted by OP. It is pleaded that OP, through medium of reply, again offer allotment of a three bedrooms apartment in aforesaid project to complainant, so as to subserve his need and requirement, at same price, as was contracted for two bedrooms apartment.
11. Parties to this lis, led their respective evidence. Complainant has tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath and placed reliance on documents Ex.C1 to Ex.C10 and closed his evidence on 21.08.2019. Per contra, OP has tendered duly sworn affidavit Ex.OPW1/A of Sh. J.S. Ahlawat towards affirmative statement of this witness and relied on documents Ex.OP1 and EX.OP2 and closed its evidence on 04.07.2022.
12. On 30.01.2023; written arguments were submitted by both the parties. On 25.04.2023; oral submissions were also addressed by learned counsel appearing for both parties.
13. Submission on behalf of complainant is that he purchased one apartment from OP for Rs.19,25,000/-. Initially, he paid Rs.1,00,000/- on 11.04.2014. He was allotted Apartment No. 101, First Floor, Tower D-1. He paid Rs.5.00 lacs on 24.04.2014. He also paid Rs.2.00 lacs on 28.06.2014. Apartment Buyer Agreement was executed on 30.04.2014. Allotment of apartment to him (complainant) was two bedrooms apartment, which has super area of 1150 sq. feet. He opted for construction linked plan. It is urged that clause 14 of Buyer Agreement; possession was to be provided within two years of signing of Apartment Buyer Agreement i.e. by 30.04.2016, after completing construction at site and after obtaining completion certificate. Under this clause 14; after expiry of 180 days from stipulated date of delivery of possession; complainant was to be paid compensation @ Rs.5/- per sq. feet and this penal clause is attracted in this case, as OP has neither started construction at site, nor obtained requisite approvals and sanctions from competent authority for making construction, nor offered possession at site to complainant on 30.04.2016, nor obtained completion certificate. It is urged that OP is not in a position to deliver possession. No development had taken place on site; no possession of apartment has been delivered. Complainant sought refund of amount (Rs.8.00 lacs) from OP after 30.04.2016, but amount has not been refunded by OP. It is urged that price of two BHK apartment is Rs.19,25,000/-. OP cannot compel complainant to purchase three BHK apartment, which has comparatively higher price. It is urged that OP has utilized the amount paid by complainant. As per contention; there is apparent deficiency in service of OP and unfair trade practice on its part as builder (OP) has not provided possession of allotted apartment.
14. Refuting the contention; it is urged on behalf of OP that complainant owns multiple dwelling units, in and around Panchkula. Sole purpose of his booking of 2 BHK apartment with OP, was for its resale. It is urged that complainant had prior acquaintance with promoter of OP. Details of project and payment plan specified in brochure reflects that allotment price of Rs.20,95,000/- was reduced to Rs.19,25,000/- and benefit of Rs.1,70,000/- was given to complainant. It is urged that complainant paid Rs.1,00,000/- on 11.04.2014; Rs.5,00,000/- on 24.04.2014; Rs.2,00,000/- on 28.06.2014. As complainant opted for construction linked plan, so only booking amount was payable in terms of agreement. Other payments were made by him without any demand from OP. It is urged that complainant is not a consumer of OP as his solitary purpose, so conveyed by him to OP, to purchase 2 BHK dwelling unit, was commercial/speculative. It is urged that Plot No. 101, First Floor was allotted to him in Tower D-1, in which there were 20 flats of 2 BHK. Out of these 20 flats; 16 were booked for which prospective allottees had paid amount ranging between 6-8 lacs each. It is urged that due to slump in real estate market and sluggish demand for flats, expiry of Industrial Package by Govt. of India; OP asked complainant and other prospective allotees to consider for shifting of their booking to 3 BHK apartment in adjoining tower at same sq. feet rate. 10 persons agreed for the offer; 4 persons agreed for refund and 2 persons (including complainant) did not respond and filed this complaint for extraneous reasons.
15. Admittedly, complainant booked 2 BHK dwelling unit in the project of OP. Admittedly 2 BHK apartment No. 101, First Floor, Tower D-1 was allotted to him. Admittedly, complainant had paid Rs.8,00,000/- in response to allotment, against total agreed apartment price of Rs.19,25,000/-. There are three cheque payments viz. cheque of Rs.1,00,000/- dated 11.04.2014 bearing No. 714254 (Ex.C-1); cheque of Rs.5,00,000/- dated 24.04.2014 bearing No.380383 (Ex.C-2); cheque of Rs.2,00,000/- dated 28.06.2014 bearing No. 023054 (Ex.C-4). Total amount of these three cheques, so paid to OP is thus, Rs.8,00,000/-. Apartment Buyer Agreement Ex.C-3 reflects that sale price of unit (2 BHK), apartment No. 101, First Floor, Tower D-1, super area 1150 sq. feet as Rs.19,25,000/-, which was executed on 30.04.2014. It bears signature of complainant and authorized signatory of OP at every its page, so Buyer Agreement Ex.C-3 constitutes a binding contract between parties to this lis and it has formed a formidable and acceptable base. Admittedly complainant opted for “Construction Linked Plan”.
16. Above admitted facts clearly attire a status of ‘consumer’ upon complainant, of OP as OP had received consideration of Rs.8,00,000/- from him, in relation to 2 BHK dwelling unit (No. 101, First Floor, Tower D-1) so allotted to him. Even if, Rs.5,00,000/-, over and above the booking price of Rs.1,00,000/-, was paid by complainant to OP through cheque Ex.C-2, before Apartment Buyer Agreement got its light of day, yet complainant cannot be found faulted on that aspect, for the reasons that: OP should not have accepted that cheque Ex.C-2. After Apartment Buyer Agreement was reduced into writing on 30.04.2014; OP had further accepted cheque of Rs.2,00,000/- (Ex.C-4) from complainant on 28.06.2014. Legally, it would imply that: on acceptance of three cheque payments (Ex.C-1, Ex.C-2, Ex.C-4); OP, by virtue of legal implications so flowing; on account of principle of estopple; is estopped to urge that complainant had not adhered to payment schedule strictly as per Apartment Buyer Agreement Ex.C-3. If there is any deviation by complainant from the course of payment schedule, then OP has acquiesced to such deviation by its own conduct. In fact, as per OP’s own case, it has received amount ranging from 6-8 lacs from each prospective allottee of 2 BHK which were 16 in number. So, payment of Rs.8,00,000/- by complainant was not unusual. These facts would not establish that complainant is not a consumer of OP; his motive for booking and getting allotment of unit, in the project of OP was commercial so accentuated by his intention to secure monetary gains for himself. There is no evidence, worth the name, so led by OP to prove that complainant has ever generated any significant monetary gains, from his other residential apartments owned by him, in an around Panchkula. Assumptions have no place in law. Contention of OP stood repelled as it is bereft of credence.
17. Again, adverting to Apartment Buyer Agreement dated 30.04.2014 (Ex.C-3). Clause 14 of it is reproduced below:-
“That the possession of the said apartment is proposed to be delivered by the Owner to the Allottee within Two Years from the date of signing of the Apartment Buyer Agreement, subject to timely payment by the Allottee of sale price, stamp duty, external development and other charges due and payable according to the annexed Payment Plan applicable to him/her or as demanded by Owner. Owner on obtaining certificate for occupation and use from Competent Authorities shall hand over the physical possession of the apartment to the Allottee for his/her occupation and use, subject the Allottee having complied with all the terms and conditions of the agreement. In the event of his/her failure to take over the possession of the Apartment Allotted, within sixty (60) days from the date of intimation offering possession in writing by the Owner, the same shall lie at risk and cost of the Allottee and the Allottee shall be liable to pay to Owner compensation as holding charges @ Rs.5/- per sq. feet of the super area per month for the entire period of such delay. Save and except what is stated in Clause 14 hereof, if the Owner fails to complete the construction of the said Building/Apartment within the stipulated period as aforesaid then Owner shall pay to the Allottee compensation @ Rs.5/- per sq. feet of the super area per month for the period of such delay after expiry of initial period of One Hundred and Eighty (180) days from the stipulated date for delivery of possession.”
It is deciphered from oral evidence led by OP that its project of 2 BHK could not materialize. This Commission is of firm view that there is an infringement of clause 14 of Apartment Buyer Agreement (Ex.C-3) by OP. It is not that project in question has been delayed by OP; rather here is the case where project has been abandoned. It has not been conceived even. Reasons quoted by OP for such act of abandonment of project in its defence are beyond the realm of acceptability at legal pedestal. In the scenario of given facts, OP cannot be termed to be novice and neophyte of ground realities so far as of its project of 2 BHK apartment is concerned. It cannot act to the prejudice and peril of complainant.
18. Contention on behalf of OP that it is offering 3 BHK apartment to complainant, at same sq. feet rate as of 2 BHK unit, but complainant has not responded and thus his malafide intention is visible, does not carry weight. Ex.OP1 reflects basic price of 3 BHK unit as Rs.33,82,000/- as against basic price of 2 BHK unit which is Rs.20,95,000/- though as per Apartment Buyer Agreement Ex.C-3 dated 30.04.2014 complainant was offered price of Rs.19,25,000/-. Hence, there is hallmark of difference in basic price of two categories of dwelling units, on their comparative analysis. Secondly, 3 BHK unit cannot be foisted forcibly upon any prospective buyer. There can be no exception to complainant. It is the sole wisdom of complainant to accept the offer of 3 BHK unit, or not to accept. His wisdom cannot be doubted and questioned on flimsy ground that his intention is bad. Rather, it project OP to be dominating the wisdom of complainant, by dictating its command.
19. So, fact remains that; complainant despite paying 8 lacs of Rupees to OP, for allotted 2 BHK dwelling unit, the total agreed price of which was Rs.19,25,000/- as per Apartment Buyer Agreement Ex.C-3 dated 30.04.2014; he has not been offered physical possession within stipulated time as per agreement, or within reasonable time after expiry of stipulated period of two years. It is proved that OP is not in a position to deliver possession of 2 BHK unit to complainant. In scenario of this; OP cannot be allowed to enrich itself at the cost of complainant’s money. There is proved deficiency in service of OP towards complainant. Hence, this complaint merits acceptance and is partly allowed. Accordingly, OP (M/s Ahlawat Developer & Promoter) is directed to refund Rs.8,00,000/- to complainant, with interest @7% p.a. from 28.06.2014. Reason is obvious: By 28.06.2014; OP had already received Rs.8,00,000/- from complainant through three separate cheques and Apartment Buyer Agreement was also executed. Ex-facie, it is deciphered that complainant did suffered mental agony, which is compound effect of OP’s fallacy, and it must had added to the tale of woes of complainant. Hence, complainant is also entitled to Rs.22,000/- towards mental agony, harassment and litigation expenses and OP is also directed to pay this amount of Rs.22,000/- to complainant in addition to Rs.8,00,000/- plus interest.
20. Two months’ time is granted to OP to comply with directions aforesaid and make payment to complainant. If OP defaults to comply with direction of this order, then, awarded amount of Rs.8,00,000/- will carry interest @ 9% p.a. from 28.06.2014 till actual payment thereof. Complainant would be at liberty to adopt appropriate legal recourse, to get execute this order, in case, OP defaults to comply with same. In aforesaid terms this complaint stands disposed off, being partly allowed.
21. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
22. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
23. File be consigned to record room.
Date of pronouncement: 10th May, 2023
