STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | | 96 of 2018 |
Date of Institution | | 26.04.2018 |
Date of Decision | | 15.05.2018 |
Urban Umbrella DMC (Project Capital Greens), 220, Global Business Park, Ambala-Chandigarh Expressway, Opp. Metro Wholesale Zirakpur, District Mohali through its Director Neeraj Saxena.
M/S Urban Umbrella, 1455/675, VPO Karala, Zirakpur-Patiala Highway, Distt.SAS Nagar, Mohali(Punjab) through its proprietor Mr.Neeraj Saxena.
……Appellant
V e r s u s
- Sunil Sood son of Sh.J.D.Sood, R/o #2336, Sector 38-C, Chandigarh.
- M/s UK Homes Pvt. Ltd., SCO 68-69-70, Level IV, Sector 17-C, Chandigarh through its Director Mr.Uday Raj Singh Brar.
- M/s UK Homes Pvt. Ltd., through its Director Mr.Uday Raj Singh Brar, Village & Post Office Karala, Chandigarh – Patiala Highway (NH-64), District, Mohali.
...Respondents
Appeal under Section 15 of the Consumer Protection Act,1986 against
order dated 09.10.2017 passed by District Consumer Disputes Redressal Forum-II, U. T. Chandigarh in C.C.No.No.684/2015..
Argued by: Mr. Devinder Kumar, advocate for the appellant.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT
MR.DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Appellant/OP No.3 has filed this appeal against order dated 9.10.2017, passed by the District Consumer Disputes Redressal Forum(II), U.T. Chandigarh (for short the Forum only), allowing a complaint filed by respondent No.1/complainant.
2. Attracted by glossy advertisements issued by OPs No.1 & 2/Respondents No.2&3 and the appellant, respondent No.1/complainant purchased a plot measuring 125 sq.yards by making payment of Rs.1,87,500/- on 18.5.2012. Subsequently, he deposited an amount of Rs.2,21,875/- on 24.9.2012. Thereafter, in lieu of plot bearing No.762 measuring 125 sq.yards, Plot No.144 measuring 108 sq. yds was allotted to him. The complainant was informed vide letter dated 22.7.2014 that final layout plan of the project, in which the above plot was situated, was approved by the competent authority. He was also issued allotment letter for the above said plot. Thereafter, he also paid an amount of Rs.1,12,275/-. When he was asked to sign fresh agreement, he noticed that there was no development at the site. When he insisted that he be given possession of the plot in a developed project, it was promised that he will be paid interest on the amount deposited @ 12% p.a. vide letter dated 11.8.2015 (annexure C-13). When neither interest amount was paid, nor the principal amount was refunded, he filed a consumer complaint before the Forum.
3. Upon notice, OPs No.1 & 2/Respondent No.2 & 3 failed to put in appearance before the Forum and they were proceeded against ex parte on 22.3.2016.
Written statement was filed only by OP No.3/appellant. Averments made by the complainant i.e. the project was taken over by the said OP was denied. It was said that Memorandum of Understanding was signed on 13.1.2015 giving the appellant right of development and management of one of the projects of OPs No.1 & 2. Payment of Rs.1.30 crore to OPs No.1 & 2 was admitted. It was specifically stated that no privity of contract existed between the appellant and the complainant, as such, no relief could be granted against it.
4. The Forum, on analysis of pleadings of the parties, evidence on record, and the arguments addressed, observed as under ;
“The complainant booked a residential plot measuring 125 Sq. Yards on the basic sale price of Rs.12,900/- per sq.yard with OPs No.1 & 2 in their project Capital Green on Zirakpur-Patiala Road. The complainant made the following payments:-
Dated Amount
18.5.2012 Rs.1,87,500/- (Ann.C-1)
24.9.2012 Rs.2,21,875/- (Ann.C-4)
15.12.2014 Rs.1,12,275/-(Ann.C-11)
The OPs No.1 & 2 allotted the complainant a Plot No.762 measuring 125 sq. yd. (Ann.C-5), but later on, at their own, without any even consent of the complainant revised the allotment plan and allotted the complainant another Plot No.144 measuring 108 Sq. Yd. vide letter dated 20.9.2014 (Ann.C-10).
The OPs No.1 & 2 vide their letter dated 22.7.2014 (Ann.C-9) conveyed the complainant about the approval of the project by the Govt. of Punjab and assured him early completion of the project.
The MOU (Memorandum of Understanding) dated 13.1.2015, clandestinely drafted, between M/s UK Homes Private Limited i.e. OPs No.1 & 2 and M/s Urban Umbrella Development Management Company i.e. OP No.3 the complete project of 125 Bighas known as “Capital Green”, residential and commercial colony at Zirakpur-Patiala Highway, VPO Karala, Banur, Distt. SAS Nagar, Mohali (Punjab), has transferred in favour of M/s Urban Umbrella Development Management Company i.e. OP No.3, with complete land rights with sales, marketing, execution of agreement to sell and development of plots/units till possession. However, the MOU (Para No.9) further contains:-
“That the sale amount received by the FIRST PARTY from those Intending Allottee(s), as mentioned in “Annexure-C” of this MoU, who do not wish to retain their Plots/Units in the said PROJECT, then it will be the Sole responsibility of the FIRST PARTY to either refund them or adjust that amount in any of their (FIRST PARTY) other Projects. Under no circumstances, the SECOND PARTY will be responsible for the amount received from those intending Allottee(s), as mentioned in “Annexure-C” of this MOU, who do not wish to retain their Plots/Units in the said PROJECT.”
The complainant has made the payment of Rs.5,21,650/- to OPs No.1 & 2 and he was allotted plot No.144 measuring 108 Sq.Yards in the Capital Green Project, which has been later acquired by Opposite Party No.3. The right of the complainant qua Plot No.144 cannot be taken away or defeated by way of such instrument of deed i.e. MOU between OPs No.1 & 2 and OP No.3. The complainant has first charge over the plot No.144 in the Capital Green Project till refund of his money, notwithstanding any terms and conditions stipulated in the MOU. The Opposite Party No.3 has taken over the project with consideration having complete knowledge of payments received by OPs No.1 & 2 and allotment of plots to the buyers and as such cannot evade its liability of refund of money or otherwise to the persons, who made the payment to Opposite Parties No.1 & 2 and got allotment of plots.
The OPs No.1 & 2 and Opposite Party No.3 jointly and severally are liable to payback the amount to the complainant, which he has deposited with Opposite Party No.1 & 2.
The project, however, still hanging on and there is no iota of evidence on record regarding undertaking of any development work in the said project by the Opposite Parties so far. There is proved deficiency in service on the part of the OPs No.1 & 2 as well as OP No.3.”
5.. It was rightly noticed that Memorandum of Understanding signed between the appellant and respondents No.2 & 3/OP Nos.1 & 2 was proved on record. It was also rightly noticed that by incorporating some provisions in the memorandum of understanding, right of the complainant qua plot, against which payment was made, cannot be taken away as per law. It was further noticed that the complainant has first right over the plot allotted till such time the amount deposited is not returned to him. It was also rightly noted that taking over of the project by the appellant/OP No.3 was proved on record.
6. In similar circumstances, this Commission in Balrajbir Singh & another Vs Chandigarh Overseas Private Limited, Appeal No.53 of 2016 decided on 5.7.016 held the OPs liable to refund the amount. Thus, we are of the opinion that the view taken by the Forum in ordering refund of the amount alongwith interest and other ancillary relief is quite justified. No case is made out to interfere in the order, under challenge.
7. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
8. Certified copies of this order, be sent to the parties, free of charge.
9. The file be consigned to Record Room, after completion.
