Chandigarh

StateCommission

CC/755/2017

A P Residency Pvt. Ltd. - Complainant(s)

Versus

M/s BCL Homes Ltd. - Opp.Party(s)

14 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	755 of 2017
Date of Institution	:	25.10.2017
Date of Decision	:	14.05.2018

 

1. M/s AP Residency Pvt. Limited having its Registered Office at 3, Police Line Road, Near Telephone Exchange, Ambala City, Ambala, Haryana, through its Director Mr.Pawan Aggarwal.
2. Pawan Aggarwal, son of Sh.Om Prakash, resident of House No.698/3, B-7, Inder Nagar, Ambala City, Ambala, Haryana.

 

…Complainants

V e r s u s

M/s BCL Homes Ltd., having its registered office at Shop No.140, Village Dariya, Chandigarh-160002, through its Directors Sh.Tajinder Kumar Bansal, Sh.Baldev Chand Bansal and Sh.Rajiv Kumar.

…..Opposite Party

Argued by:-       Sh.Vipul Dharmani, Advocate for the complainants.

Sh.Hitesh Verma, Advocate for the opposite party.

 

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

 

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

                        SH.DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

       

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.847 of 2017 titled as Sanjay Kumar and another Vs. M/s BCL Homes Limited and another, this complaint has been partly accepted with costs. 

2.         Certified copy of the order passed in consumer complaint bearing No. 847 of 2017 shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 847 of 2017, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion

 

 

 

Sd/-                         Sd/-                                         Sd/-

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint No.	:	847 of 2017
Date of Institution	:	19.12.2017
Date of Decision	:	14.05.2018

 

1. Sanjay Kumar son of Sh.Chajju Ram, R/o House No.40A, Sector 32-A, Chandigarh.
2. Mrs.Madhu wife of Sh.Sanjay Kumar, R/o House No.40A, Sector 32-A, Chandigarh.

…Complainants

V e r s u s

1. M/s BCL Homes Ltd., through its Director Sh.Tejinder Kumar Bansal @Gopal Bansal Village Kishanpura, Adjoining Sector 20, Panchkula, NAC Zirakpur, District Mohali

2^nd Address:- Shop No.140, Village Daria, U.T., Chandigarh.

3^rd Address:- House No.253, Sector 7, Panchkula.

2. Sh.Tejinder Kumar Bansal @Gopal Bansal, Director BCL Homes Limited Village Kishanpura, Adjoining Sector 20, Panchkula, NAC Zirakpur, District Mohali

2^nd Address:- Shop No.140,Village Daria, U.T., Chandigarh.

3^rd Address:- House No.253, Sector 7, Panchkula.

…..Opposite Parties

Argued by:-       Sh.Kamal Kant Verma, Advocate for the complainants.

Sh.Hitesh Verma, Advocate for opposite party no.2.

Opposite party no.1 exparte.

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

 

Complaint No.	:	846 of 2017
Date of Institution	:	19.12.2017
Date of Decision	:	14.05.2018

 

1. Parmod Kumar Babbar son of Late Sh.Ram Pal Babbar.
2. Smt. Parveen Lata Babbar wife of Sh.Parmod Kumar Babbar

Both resident of House No.40, Sector 32-A, Chandigarh.

…Complainants

V e r s u s

1. M/s BCL Homes Ltd., through its Director Sh.Tejinder Kumar Bansal @Gopal Bansal Village Kishanpura, Adjoining Sector 20, Panchkula, NAC Zirakpur, District Mohali

2^nd Address:- Shop No.140, , Village Dariya, U.T., Chandigarh.

3^rd Address:- House No.253, Sector 7, Panchkula.

2. Sh.Tejinder Kumar Bansal @Gopal Bansal, Director BCL Homes Limited Village Kishanpura, Adjoining Sector 20, Panchkula, NAC Zirakpur, District Mohali

2^nd Address:- Shop No.140, , Village Dariya, U.T., Chandigarh.

3^rd Address:- House No.253, Sector 7, Panchkula.

…..Opposite Parties

Argued by:-       Sh.Kamal Kant Verma, Advocate for the complainants.

Sh.Hitesh Verma, Advocate for opposite party no.2.

Opposite party no.1 exparte.

 

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

 

Complaint No.	:	755 of 2017
Date of Institution	:	25.10.2017
Date of Decision	:	14.05.2018

 

1. M/s AP Residency Pvt. Limited having its Registered Office at 3, Police Line Road, Near Telephone Exchange, Ambala City, Ambala, Haryana, through its Director Mr.Pawan Aggarwal.
2. Pawan Aggarwal, son of Sh.Om Prakash, resident of House No.698/3, B-7, Inder Nagar, Ambala City, Ambala, Haryana.

 

…Complainants

V e r s u s

M/s BCL Homes Ltd., having its registered office at Shop No.140, Village Dariya, Chandigarh-160002, through its Directors Sh.Tajinder Kumar Bansal, Sh.Baldev Chand Bansal and Sh.Rajiv Kumar.

…..Opposite Party

Argued by:-       Sh.Vipul Dharmani, Advocate for the complainants.

Sh.Hitesh Verma, Advocate for the opposite party.

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

 

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

                        SH.DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of the aforesaid three consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In the said complaints, refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s). At the time of arguments, on 25.04.2018, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.847 of 2017 titled as Sanjay Kumar and another Vs. M/s BCL Homes Limited and another. The complainants were in need to purchase a flat, for their residential purposes. Through newspapers, they came to know that the opposite parties have launched their project, namely “Chinar Homes”, Kishanpura, Zirakpur, Punjab and booking was open for flats, comprising 3BHK, measuring 2170 square feet. Many tall claims were made, qua the project, by issuance of brochure, copy of which is placed on record as Annexure C-1. Copy of newspaper namely “Tribune” dated 04.02.2012, has been placed on record, as Annexure C-1/A. The complainants booked a flat on 11.06.2012 against sale consideration of Rs.45 lacs. They paid an amount of Rs.5 lacs, through two cheques dated 15.06.2012. It was told to them that approvals qua the project will be got issued shortly and possession of the built-up flat will be delivered in next three years. It was conveyed to the complainants, that they are liable to pay Rs.10 lacs, at the time, when possession will be delivered and balance sale consideration was to be paid, in 240 equal monthly installments of Rs.12,500/- per month, starting from the date of offer of possession of the unit. Possession of the unit was not offered, by the committed date. However, the complainants received one letter dated 16.09.2014 Annexure C-5, stating that, in case, the complainants opted for other property, then instead of Rs.5 lacs already paid by them, an amount of Rs.8 lacs, will be adjusted in their account. The complainants were not convinced. They took up the matter with the opposite parties and after great persuasion, the opposite parties agreed to refund the amount deposited by them, with interest and post dated cheque (01.04.2016) for an amount for Rs.6,54,122/- was handed over to the complainants. When presented, the said cheque was dishonoured, for reasons “insufficient funds”, in the account of the opposite parties. Copy of the said cheque and receipt have been placed on record as Annexure C-6 and C-7. Again, the matter was taken up with the opposite parties and a fresh cheque dated 31.05.2017, in the sum of Rs.7,00,250/- was given to them, however, when presented, the said cheque also dishonoured, for reasons “insufficient funds”, in the account of the opposite parties. Legal notice dated 29.06.2017 was served upon the opposite parties, to refund the amount paid with interest, but they refused to accept the said notice. Complaint filed under Section 138 of the Negotiable Instruments Act, 1881, is also pending consideration. It is positive case of the complainants that the project is not complete. Even requisite permissions were not available with the opposite parties and it was sold unauthorizedly.

                By alleging deficiency in providing service and adoption of unfair trade practice on the part of the opposite parties, this complaint has been filed by the complainants, seeking refund of amount paid, alongwith interest, compensation and litigation expenses.    

3.          Notice of this complaint was issued to the opposite parties on 12.01.2018, which was accepted by Sh.Hitesh Verma, Advocate, (generally appears as Counsel for opposite party no.2), who was present in the Commission, for some other case. To opposite party no.1 notice was sent through post for 16.02.2018, on which date none appeared. Again, notice was issued to opposite party no.1, on 16.02.2018, for 08.03.2018, yet, none appeared on its behalf, as a result whereof, by invoking the provisions of Consumer Protection Regulations 2005, it was proceeded against exparte. On the other hand, reply and evidence was not placed on record by opposite party no.2, despite opportunities given and cost imposed. The mater was adjourned to 26.03.2018 but needful was not done. When neither cost imposed was paid, nor reply and evidence was filed by opposite party no.2, subject to further imposition of cost, in the interest of justice, the matter was adjourned to 25.04.2018. Even on the said date, nothing was done by opposite party no.2, whereupon, following order was passed by this Commission:-

“Cost of Rs.6000/- (Rs.3000/- imposed on 08.03.2018 and Rs.3000/- imposed on 26.03.2018) neither paid nor deposited.

                 It is stated by Counsel for Opposite Party No.2 that despite intimation, Opposite Party No.2 has failed to supply requisite documents to file reply and evidence/affidavit. He also states that cost amount was also not transferred over to him for making payment in Court.

                Notice of motion was issued to the Opposite Parties in this case on 12.01.2018, on which date, Sh.Hitesh Verma, Advocate accepted the notice in Court on behalf of Opposite Party No.2. Time was granted to file reply and evidence/affidavit. Thereafter, three more dates were given to file reply and evidence/affidavit. However, nothing has been done. Hence, the defence of Opposite Party No.2 stands closed.

                It is agreed between the Counsel  for the parties that facts involved in this complaint and the connected complaints bearing Nos.755 & 846 of 2017, by and large, are the same and all the matters can be disposed of by passing one consolidated order.

                Arguments heard.

                Reserved for orders"

 

4.         The sequence of events, referred to above, clearly indicates that there is an outright attempt on the part of the opposite parties, to delay the proceedings and also not to discharge their liability. Not only in this case, in large number of complaints, where final orders have been passed against them, despite issuance of repeated notices, there is no attempt by them, to discharge the liability imposed. Despite issuance of nonbailable warrants, the Police has failed to arrest functionaries of opposite party no.1.
5.         So far as the present case is concerned, it is on record, that under allotment, the complainants paid an amount of Rs.5 lacs to purchase a 3 BHK flat. Rs.10 lacs were to be paid at the time of handing over possession i.e. three years from the date of booking. Balance sale consideration was to be paid in 240 equal monthly installments starting from the date of offer of possession. More than five and a half years have gone, delivery of possession of the unit is not in sight. There is nothing on record to show that requisite approvals from the competent Authorities were available with the opposite parties, when the project, in question, was sold. Rather it came to the notice of this Commission that the project is under litigation. In the case of Rajesh Kumar Nagpal Vs. BCL Homes Ltd. and ors., complaint case no.724 of 2016, decided on 07.02.2017, it was noticed that as per allotment letter, possession of the unit was to be delivered within a period of three years, when it was not delivered, a complaint was filed and noting above facts in the allotment letter, this Commission observed as under:-

 

“It is stipulated therein 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. However, if possession is not delivered within 27 months as committed, opposite parties no.1 to 3 were liable to pay an amount of Rs.10,000/- per month, for the period of delay.

 

                It is virtually admitted on record that till today, no offer has been made to hand over possession of the constructed unit by the opposite parties no.1 to 3 to the complainant. Rather perusal of documents, as also photographs placed on record depicts that the project is not complete and construction is virtually stopped at the site. In 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, 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.”

 

        It was noted as a matter of concern that the entire project site and the construction raised thereon stood mortgaged with the Bank namely Canara Bank/opposite party no.4. At the time of arguments, it also transpires that for committing default in repayment of loan, dispute has been raised by the financial institutions in various Courts, Debt Recovery Tribunal etc. This act of opposite parties no.1 to 3, in committing default in repayment of loan, in no manner can be termed as force majeure circumstances, and as such, they cannot claim any immunity, under the said plea. Even otherwise, the complainant has no concern, whatsoever, with the dispute, if any, arose between opposite parties no.1 to 3 and opposite party no.4/Canara Bank (third party, with which there is no privity of contract with the complainant). If that is so, one cannot visualize handing over possession of the units, in near future. Neither in the written statement nor at the time of arguments, any commitment was made, giving exact time-frame, within which period, possession of the unit can be delivered to the complainant…………….”

 

6.         It was also so said by this Commission, in large number of other complaints, filed by the consumers qua properties, in this very project. Even today, at the time of arguments, Counsel for opposite party no.2 has failed to give any commitment, as to within how much time, possession of the unit can be delivered and further whether, requisite sanctions were available with the Company, when the project was sold. He failed to give any satisfactory answer.
7.         Hard-earned money, deposited by the complainants, towards the unit, in question, was utilized by the opposite parties, for a number of years. The opposite parties, by neither delivering 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. They did not even prefer to file written reply and evidence, to the allegations levelled against them, by the complainants, in the complaint. The complainants cannot be made to wait for an indefinite period, at the whims and fancies of the opposite parties.
8.         Now the question arises, as to what amount, the complainants are entitled to and also as to from which date, rate of interest is required to be awarded to them. It is an admitted fact that the complainants, in this case have paid an amount of Rs.5 lacs, towards part price of the unit, in question, as far as back, in June 2012, as is evident from the receipt Annexure C-3. It is also evident from record, that thereafter, for whatever reason may be,  the opposite parties, had issued a cheque in the sum of Rs.7,00,250/- on 31.05.2017, against Rs.5 lacs, to the complainants, as they failed to deliver possession of the unit, in question. The said cheque bounced, when presented before the bank concerned, on account of insufficient funds, in the account of the opposite parties. The said act was a fraud committed by the opposite parties on the complainants, as they were in their knowledge, that their promise will not be fulfilled, and the said cheque bounced. Such act cannot be taken as settlement of the dispute between the parties. Neither before this Court nor before the Criminal Court, where proceedings under Section 138 of Negotiable Instrument Act are going on, any attempt has been made to discharge liability by the opposite parties, as per that settlement. It is proved on record that from the very beginning, there was no intention on the part of the opposite parties, to refund the amount paid by the complainant. Such an act of the opposite parties cannot be taken against the complainants. The complainants, are, thus, held entitled to the refund of amount of Rs.5 lacs paid by them,  alongwith interest, from the date of deposit till realization.

                In view of above act and conduct of the opposite parties, 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.

9.         For the reasons recorded above, all the three complaints are partly accepted, with costs, in the following manner:-

 

In consumer complaint bearing no.847 of 2017, the opposite parties are jointly and severally directed as under:-

 

1. To refund the amount of   Rs.5 lacs to  the complainants,  alongwith simple interest @10% per annum, from the respective date of payment onwards.
2. To pay compensation, in the sum of Rs.20,000/- 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.7,000/- to the complainants.
4. The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) thereafter shall carry penal interest @12% per annum instead of 10% per annum, from the date of default and the amounts mentioned in clauses (ii) and (iii) shall carry interest @12% per annum, from the date of filing of this complaint, till realization.

 

In consumer complaint bearing no.846 of 2017, the opposite parties are jointly and severally directed as under:-

1. To refund the amount of   Rs.5 lacs to  the complainants,  alongwith simple interest @10% per annum, from the respective date of payment onwards.
2. To pay compensation, in the sum of Rs.20,000/- 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.7,000/- to the complainants.
4. The aforesaid awarded amounts, in the manner mentioned in clauses (i) to (iii), shall be paid within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) thereafter shall carry penal interest @12% per annum instead of 10% per annum, from the date of default and the amounts mentioned in clauses (ii) and (iii) shall carry interest @12% per annum, from the date of filing of this complaint, till realization.

 

In consumer complaint bearing no.755 of 2017, the opposite party is directed as under:-

1. To refund the amount of   Rs.35 lacs to  the complainants,  alongwith simple interest @12% per annum, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1,50,000/- 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 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned in clause (i) thereafter shall carry penal interest @15% per annum instead of 12% per annum, from the date of default and the amounts mentioned in clauses (ii) and (iii) shall carry interest @12% per annum, from the date of filing of this complaint, till realization.

10.         However, it is made clear that, if the complainants, in any of the cases above, 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).
11.         Certified copy of this order be placed in connected case files also.
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.

14.05.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.