Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2021 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he entered into an agreement with Opposite Parties verbally on 19.04.2014 and lateron reduced into writing on 20.06.2015 for allotment of Unit No.1 in Block C-3 at ground floor having approximately area 710 square feet with Opposite Party and deposited Rs.1,28,863/- on 19.08.2014 and Rs.2,15,200/- on 16.09.2014 and total amount deposited Rs.3,44,063/-. Further as per the agreement, the flats were to be constructed within a period of 2 years and the possession was to be handed over soon before year of 2017. Further the complainant also taken into confidence that 85% of the flat will be financed by the nationalized bank or the employers of the complainant and in case the allottees want to avail the loan facility from their employers of financial institutions/ agencies to facilitate the purchase of the said unit, then the Opposite Parties shall facilitate the process. Thereafter, the complainant approached the bank for getting the loan, but the bank officials refused for the finance due to the reason that the building is not in existence and the Opposite Parties have not received the appropriates approval from the competent authority to raise the construction of flats of 2 BHK category for which the complainant made the payment to the Opposite Parties. From the date of the agreement till today, no construction has been started by the Opposite Parties and the land where the construction was to be made is lying vacant till date so, the question of giving possession to the complainant within 24 months does not arise which completely shows that there is a deficiency in service on the part of the Opposite Parties. Thereafter, the complainant made so many requests to the Opposite Parties either to hand over the possession of the flat or to refund the amount alongwith interest @ 24% per annum, but the Opposite Parties did not pay any heed to the request of the complainant. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to refund the deposited amount of Rs.3,44,063/- alongwith interest @ 24% per annum, to pay Rs.1 lakh on account of causing loss and mental tension and harassment and to pay Rs.20,000/- as litigation expenses or any other relief to which this District Consumer Commission may deem fit be also granted.
3. None has come present on behalf of Opposite Party No.1, hence Opposite Party No.1 was proceeded against exparte.
4. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the complaint against Opposite Party No.2 is not maintainable as there is no privity of contract between the complainant and Opposite Party No.2. Neither any amount was ever paid by the complainant to the Opposite Party No.2 nor there is any agreement between the parties. Even as per the averments made in the complaint, the agreement is between the complainant and Opposite Party No.1 and the amount, if any, is stated to be paid to the Opposite Party No.1 and therefore, liability, if any, accrues to Opposite Party No.1 only and Opposite Party No.2 has nothing to do with any such alleged liability. On merits, Opposite Party No.2 took up almost the same and similar pleas as taken up by them in the preliminary objections and prayer for dismissal of the complaint has also been made.
5. In order to prove his case, the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C9 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.2 tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.OP2/1 to Ex.OP2/6 and closed their evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant as well as ld.counsel for the Opposite Party No.2 have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the complainant is that the complainant entered into an agreement with Opposite Parties verbally on 19.04.2014 and lateron reduced into writing on 20.06.2015 for allotment of Unit No.1 in Block C-3 at ground floor having approximately area 710 square feet with Opposite Party and deposited Rs.1,28,863/- on 19.08.2014 and Rs.2,15,200/- on 16.09.2014 and total amount deposited Rs.3,44,863/-. Further as per the agreement, the flats were to be constructed within a period of 2 years and the possession was to be handed over soon before year of 2017. Further the complainant also taken into confidence that 85% of the flat will be financed by the nationalized bank or the employers of the complainant and in case the allottees want to avail the loan facility from their employers of financial institutions/ agencies to facilitate the purchase of the said unit, then the Opposite Parties shall facilitate the process. Thereafter, the complainant approached the bank for getting the loan, but the bank officials refused for the finance due to the reason that the building is not in existence and the Opposite Parties have not received the appropriates approval from the competent authority to raise the construction of flats of 2 BHK category for which the complainant made the payment to the Opposite Parties. From the date of the agreement till today, no construction has been started by the Opposite Parties and the land where the construction was to be made is lying vacant till date so, the question of giving possession to the complainant within 24 months does not arise which completely shows that there is a deficiency in service on the part of the Opposite Parties. On the other hand, none has come present on behalf of Opposite Party No.1, rather they chose to remain exparte. However, ld.counsel for Opposite Party No.2 has specifically contended that the complaint against Opposite Party No.2 is not maintainable as there is no privity of contract between the complainant and Opposite Party No.2. Neither any amount was ever paid by the complainant to the Opposite Party No.2 nor there is any agreement between the parties. Even as per the averments made in the complaint, the agreement is between the complainant and Opposite Party No.1 and the amount, if any, is stated to be paid to the Opposite Party No.1 and therefore, liability, if any, accrues to Opposite Party No.1 only and Opposite Party No.2 has nothing to do with any such alleged liability.
9. In unreported case in Consumer Complaints bearing No.246, 249 and 250 of 2016 decided through common order dated 22.11.2017 titled as Kanwal Sharanjit Singh Dhillon and others Vs M/s. Phoenix Infra (P) Ltd., Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has held in para No.10 that MOU between present Opposite Party No.2 has no concern with the complaint filed by buyers for refund of the deposited amounts with Opposite Party No.1. Decision given by Hon’ble State Commission in case of Paramjit Kaur Tiwana (Supra) has been challenged before Hon’ble National Consumer Disputes Redressal Commission, New Delhi is a fact borne from perusal of order dated 18.08.2017 passed in First Appeal No.1545 of 2017 titled as M/s. AIPL Ambuja Housing and Urban Infrastructure Ltd. Vs Paramjit Kaur Tiwana and others. Operation of the order of Hon’ble State Commission in above stated case of Paramjit Kaur Tiwana has been stayed by Hon’ble National Commission, subject to deposit of lump sum amount of Rs.15 Lac.
10. In case bearing Consumer Complaint No.258 of 2016 titled as Vandana Gupta Vs Phoenix Infra Pvt. Ltd. and others decided on 13.10.2017, Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has specifically held in para No.16 and 17 that liability of present Opposite Party No.2 M/s. AIPL Ambuja Housing and Urban Infrastructure Ltd. to refund the amount is not there because of want of privity of contract between complainant and builder. In para no.17 of this order dated 13.10.2017, it has been specifically held that liability of refunding the amount remains of builder because of the fault lying with them and not of Opposite Party No.3. Same is the view expressed by Hon’ble State Commission in case bearing consumer complaint No.70 of 2017 titled as Shelly Gupta Vs Phoenix Infra Pvt. Ltd. etc. decided on 19.03.2018. So in view of the above discussion, liability of refund the amount remains of OP1 only and not of OP2.
11. As per case title Jagannath Mandal Vs Sanjoy Ghosh 2013(2) CPJ 272 (NC), if despite agreed payment, construction of building not completed by builder, but he left the work, then in view of deficiency in service on the part of builder, he is liable to refund the amount. Further as per ratio of this case, if 60% of the payment made for 60% of the work done, then on account of non receipt of total agreed amount, deficiency in service on the part of respondents cannot be held. So virtually crux of this case is that in case the complainants do not pay the full amount of agreed consideration, then they will not be entitled to unproportionate compensation.
12. As per law laid down in Randhir Singh and another Vs Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015 (1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver the possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is defaulter, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case and as such, complainants are not entitled to interest until they sought refund of the paid amount. In this case also less than 20% of the sale consideration amount only paid as referred above and project could not be completed due to dispute between Opposite Parties, which virtually arose because of the non-payment of due amount by the builder and as such, entitlement of the complainants for refund of the amount with interest will be with effect from date of payment.
13. In view of the aforesaid facts and circumstances of the case, since Opposite Party No.1-Phoenix Infra has failed to hand over the possession of the flat to the complainant, they are directed to refund the entire amount deposited against the plot in question i.e. Rs.3,44,063/- (Rupees three lakh forty four thousands and sixty three only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 09.10.2017 till its actual realization. However, complaint against Opposite Party No.2 stands dismissed. The compliance of this order be made by Opposite Party No.1-Phoenix Infra within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
14. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
