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

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1.  Upkiran Kaur d/o Sh.Harcharan Singh resident of H.No.7, Celia Court, Chad stone, VIC 3148, Australia through his special attorney Sh.Harcharan Singh s/o Sh.Bahal Singh r/o H.No.B-403, Rishi Apartments, Sector 70, Mohali.

2.  Indermeet Kaur d/o Sh.Harcharan Singh  Baidwan, resident of E-904, Supertech Icone Apartment, Indrapuram Ghaziabad (U.P.)-201010 through her special attorney Sh.Harcharan Singh s/o Sh.Bahal Singh r/o H.No.B-403, Rishi Apartments, Sector 70, Mohali.

3.  Harcharan Singh Baidwan s/o Sh.Bahal Singh resident of r/o D-301, Rishi Apartments, Sector 70, Mohali.

4.  Karnail Singh s/o Sh.Harcharan Singh r/o H.No.227, Apapa Road, Igamnu Industrial Estate, Iganmu Lagos, P.O.Box  51167,Falomo Ikoyi, Lagos, through his attorney Sh.Harcharan Singh s/o Sh.Bahal Singh.

…..Complainants

                 V E R S U S

1]  M/s Gee City Builders (P) Ltd., through its Manging Director, H.No.1464, Sector 43-B, Ground Floor, Chandigarh.

2]  Sh.Jatinder Mittal s/o Sh.R.L.Mittal, Duly constituted Attorney/Authorized Signatory of M/s Gee City Builders (P) Ltd., r/o H.No.630, Sector 8, Panchkula.

                      ……Opposite Parties

CORAM: SH.P.D.GOEL                    PRESIDENT

         SH.RAJINDER SINGH GILL           MEMBER

DR.(MRS.) MADANJIT KAUR SAHOTA     MEMBER

Argued by: Sh.Vishal Bali, Counsel for complainant

           Sh.Arvind Mittal, Counsel for OPs.        

PER P.D. GOEL, PRESIDENT

        In brief, the case of the complainants is that in response to a scheme floated by OP in the year 2006 for allotment of flats in Rishi Apartments, Baddi, Distt. Solan (H.P.), the complainant NO.1 along with her mother Smt.Amarjit Kaur submitted an application dated 03.03.2006 for allotment of residential unit in the said multistoried apartments. After entering into an agreement dated 15.12.2006 (Annexure C-4), the complainants were allotted apartment bearing NO.B-14-307 having 785  sq. ft. on 3^rd Floor, B-14 Block in the said Rishi Apartments, Baddi, Distt. Solan (H.P.) for total sale consideration of Rs.13,39,975/-. The complainants averred that Smt.Amarjit Kaur died on 22.12.2006.

         According to the complainants, the complainant NO.1 deposited Rs.16 lacs vide receipts (Annexures C-6 and C-7) against the total sale consideration of Rs.13,39,975 and therefore, the excess amount was adjusted by the Ops in the payments made by the other family members of the complainant No.1 for purchase of the flat in their scheme.  The possession of the said flat was to be delivered within 24 months from the date of signing of the agreement which they failed to deliver till date and even stopped the construction of the apartments for the reasons best known to them. According to the complainants, the deposited amount was not refunded by the Ops despite their visits and repeated requests and even despite service of the legal notice dated 06.06.2009 which amounts to deficiency in service, hence this complaint.

2.      OPs filed written statement and took some preliminary objections. On merits, the averments of the complainants with regard to the allotment apartment bearing NO.B-14-307 having 785  sq. ft. on 3^rd Floor, B-14 Block in the Rishi Apartments, Baddi, Distt. Solan (H.P.) for total sale consideration of Rs.13,39,975/- and deposit of Rs.16 lacs and the adjustment of the excess amount in the remaining flats have been admitted. It has been pleaded that the AnnexureC-1 dated 15.12.2006 was never signed by the complainant No.1 at Chandigarh and even the said agreement does not bear the signatures of the complainant No.1. It has been pleaded that the complainant No.3 made the investment in order to claim exemption from the capital gains and to earn profit from booming real estate market in year 2006. It has been denied that the constructions of the flat was ever stopped. However, It has been pleaded that the construction of the flats was started immediately after 04.01.2008 i.e. when the environmental clearances was obtained and the same was completed. The completion certificate was requested from the concerned authority vide letter dated 18.02.2009. It has further been pleaded that the complainant was offered possession on 13.07.2009 and reminder to this effect was also sent on 23.12.2009 and it is the complainant who failed to take the possession of the flat.    Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

3.      Parties led evidence in support of their contentions.

4.       We have heard the learned counsel for the parties and have also perused the record and written submissions filed by the parties.   

5.       The learned counsel for OPs argued that the complainants are not the consumers as defined under the Consumer Protection Act, 1986 but are investors for all intends and purposes as the apartment in question has been purchased by them for commercial purpose. But to prove this allegation, the OPs have not been able to lead any evidence to show that the complainant No.1 along with deceased Smt.Amarjit Kaur have purchased the apartment in question for resale for earning any profit. Mere allegation is not sufficient to hold that the complainants have purchased the flat in question for commercial purpose without there being any cogent and convincing evidence. The complainants No.2 to 4 are the legal heirs of late Sh.Amarjit Kaur as such they are competent to file the present complaint on behalf of Smt.Amarjit Kaur. Thus, the complainants are consumers qua the OPs as defined under the provisions of the Consumer Protection Act, 1986.

6.       The learned counsel for OPs has further argued that the complainant No.1-Smt.Upkiran Kaur is residing abroad in Australia and has never visited the site or even the office of OPs. Therefore, signatures of complainant NO.1 on the agreement are not genuine one.  The argument raised by the learned counsel for OPs has no force particularly when the OPs are also one of the signatory to the agreement to sell (Annexure C-4) entered between the OPs and Smt.Upkiran Kaur.  It is also not the case of the Ops that in pursuance of the agreement to sell they have not received the entire sale consideration from the allottees.

7.      The learned counsel for the complainants has argued that the OPs collected the amount from allottees by giving false assurances that all the necessary permissions had already been obtained by it. The learned counsel drawn our attention to Para No.3 on Page No.22 of the agreement (Annexure C-4), wherein it is stated that seller has already obtained the requisite permission/sanction from the concerned authority. That the seller has taken the permission of the land and maps have been got sanctioned from the concerned authorities. He further contended that subsequently it was found that it had not obtained the permission and had lied to the customers to grab the amount from them. This fact is proved from Para No.5 of the preliminary objections raised in the written statement filed by OPs, in which, it was admitted that a license had been obtained by the OPs from the Himachal Pradesh Housing and Urban Development Authority on 26.8.2006, copy of which is Annexure R-7. OPs also admitted that the drawings were subsequently revised and approved from Baddi-Barotiwala Nalagarh Development Authority, Himachal Pradesh on 7.2.2007 (Annexure R-8-A) and the environmental clearance was obtained from Government of India as on 4.1.2008 (Annexure R-11). When the Pollution Control Board, Himachal Pradesh was informed, they directed the OP to comply with Condition No.8 of the said clearance letter, which was done by the OPs on 1.5.2008. It is, therefore, clear that the OPs had misled the complainants through Annexure C-4 alleging that the necessary permissions/sanctions had already been obtained from the concerned authorities though the same had not been obtained. In case Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), the Hon’ble National Consumer Disputes Redressal Commission (hereinafter to be referred as National Commission) held as follows: -

“2. In our view, it is unfair trade practice on the part of the builder to 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 purchaser of the flat/building.”

8.       The contention of the learned counsel for the OPs that the time was taken by the authorities in granting the sanctions for which the OPs cannot be blamed and rather they would be entitled to reasonable extension of time in delivery of possession was considered in the aforementioned authority and the Hon’ble National Commission, further held as follows: -

“22.     Normally, delay in construction of building may arise because of various reasons. But, in our country, it is known fact that delay occurs in obtaining various permissions from different governmental authorities, and this fact is well-known to the builder. The time normally taken in getting such permissions could have been contemplated by the builder before issuing the brochure. It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.”

9.       It was, therefore, an unfair trade practice on the part of the OPs to have collected the amount from the complainants before obtaining all the necessary permission from the concerned authorities permitting it to raise constructions.  It is also an unfair trade practice in misleading the complainants of having taken the necessary permissions when they had not taken all the permissions till then.

10.      The learned counsel for the OPs has further argued that, in fact, the period of 24 months for delivery of possession should start from 4.1.2008 when the environmental clearance was given to the OPs and not from the date of agreement. This argument cannot be accepted. The OPs never informed the complainant No.1 and deceased Smt.Amarjit Kaur at the time of entering into agreement (Annexure C-4) that it had not obtained the environmental clearance or other permissions from the competent authorities. Rather the assurance was given by the OPs that all the permissions have been obtained and therefore, the complainant No.1 and Smt.Amarjit Kaur were given to understand that the start of construction would take no time.  In view of this fact, the period of 24 months would start from the date of the agreement Annexure C-4 and not from the date of start of the construction. The Hon’ble National Commission in the case Kamal Sood (Supra) held as follows: -

“20.     In our view, before obtaining statutory clearances, such as, sanction for construction and approval of Site Plan and other relevant documents, if the builder issues tempting advertisement or promises to deliver the possession of the constructed flat within 2 to 3 years, then the fault lies with the builder.”

                        This contention of the learned counsel for the OPs, therefore, cannot be accepted as correct because the OPs had been misleading their customers regarding the period of delivery of possession.

11.      It was further argued by the learned counsel for OPs that the possession of the flat had already been offered to the complainants but they were adamant in the refund of the amount. It is pertinent to mention here that the agreement (Annexure C-4), was regarding the sale and purchase of Unit No.B-14-307, which was on the 3rd Floor of Block B-14 of the complex. The learned counsel for the OPs referred to Annexure R-13 dated 16.04.2009 vide which the possession of Unit No.B-9-302 was offered. Admittedly, the OPs never offered possession of Unit No.B-14-307 as agreed to vide Annexure C-4.  OPs did not produce any evidence if there ever was a change in the numbering pattern or that Unit No.B-9-302, which was being offered to the complainants was earlier numbered as Unit No.B-14-307. There is, therefore, no doubt in our mind that OPs now to defeat the claim of the complainants has raised a false plea that there was change in the renumbering pattern of the flats. More so, in order to prove this assertion, OPs were required to produce the approved site plan prior to the agreement (Annexure C-4) and the subsequent approved site plan showing the change of the numbering pattern, which they have failed to prove.

12.      From the evidence referred to above, it is clear that the complainants had agreed to purchase Unit No.B-14-307, which was in Block No.14. The OPs tried to unilaterally change the said flat from Block No.14 to Block No. 9 and flat No.307 to 302 without the consent of the complainants. The learned counsel for the complainants has argued that, in fact, Unit No.B-9-302 did not have the same location and surroundings as were commanded by Flat No.B-14-307. Therefore, the complainants were not interested in purchasing the changed flat. Thus, it is held that the right course for the OPs in such situation was to refund the amount and not to thrust a different flat on the complainant instead of the one regarding which the agreement to sell had been entered into.

13.      As a result of the above discussion, this complaint is accepted with a direction to the OPs to refund Rs.13,39,975/- to the complainants along with interest @ 18% per annum from the date of its respective deposits till realization. The Ops are also directed to pay to the complainant a sum of Rs.10000/- as costs of litigation.

14.      The certified copies of this order be sent to the parties free of charge. The file be consigned.