Sushma Chandigarh Grand Zirakpur Consumer Case

Post covers Sushma Chandigarh Grand Zirakpur Consumer Case wherein court ordered refund for non delivery of possession.

Consumer Complaint against Sushma Grand Zirakpur Project.

The judgement came in this case was valid from every point as the complainants have also spend a lot of their savings by also procuring a loan and from what they are getting a court case which is in itself a chaos. Today no one wants to go to court but the number of frauds and crimes spreading in the world is uncountable as everyone has a right to get Justice and it should prevail because justice delayed is justice denied.

JUDGEMENT SUMMARY

CAPT. DR BIREN SURI & OTHERS V. SUSHMA BUILDTECH PRIVATE LIMITED

Today we are talking about the case of Capt. Dr. Biren Suri & others v. Sushma Buildtech Limited in state consumer disputes redressal commission, U.T., Chandigarh. The case leading for the plaintiff is Sh. Ranjan Lohan and for the defendant is Sh. Sanjeev Sharma. The date of institution was on 8^th April, 2019. The case is that the complainants haven’t got the possession of the unit in time as they have paid the substantial amount that is being asked to paid by company what they promised the parties they haven’t stand to it. Now to state the facts and issue of the case along with the judgement came as follows:

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The parties (plantiff) have purchased the units from Sushma Buildtech private limited in which the costing of the units were Rs.61,08813/- Rs.65,00,000/- Rs.80,56,125/- and the amount paid by them was Rs.60,83,820/- Rs.68,63,572/- Rs.40,70,000/-

The due date for the possession was 8^th February, 2017(42 +6 months) 20^th October, 2017(42 +6 months) 18^th February, 2018 (42 +6 months).

The possession of the units was not offered for all the three complainants, delay in offering possession was heard in the complaints. The complainants stated that the opposite parties have not offered possession of the respective units by the promised date or even thereafter despite the fact that substantial amount has been paid along with interest.

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To that the defendant replied that the work has been delayed due to force majeure circumstances that have been faced by the company such as ban on mining by the competent authorities that results into shortage of building material like sand etc.; shortage of labour, freezing of bank accounts on account of RERA (Real estate regulation and development act, 2016) under which possession of the units has to be delivered by July, 2022; the company has pleaded that still if the complainants want refund of the amount paid then forfeiture clause contained in agreements will be made applicable it also stated that complainants were chronic defaulters in making payment of installments towards price of the unit purchased; the number of letters, followed by reminders/ show cause notice were sent to them for the period from 19^th February, 2014 to 19 November, 2014 and when they will fail to pay the remaining amount, allotment of the units was cancelled dated 10^th June, 2016 (annexures OP-7 to OP-16) and they were said to submit the original documents along with NOC from the bank from which they allegedly took housing loan and take back the interest amount out of the deposited amount.

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The next question which needs consideration is whether the case falls under which category pecuniary or territorial jurisdiction, the court dealt earlier with larger bench of national commission stated that according to Section 8 of the arbitration act the complainant and builder cannot circumscribe the jurisdiction of consumer for notwithstanding with amendments, the builder filed civil appeal before Supreme Court which was dismissed on 10^th December, 2018 objection raised by complainants in this regard stands rejected. Objection taken in this regard stands rejected, now coming to territorial jurisdiction it may be stated that according to Section 17(2) of the consumer protection act, 1986 envisages that person aggrieved have remedy to file a complaint before a state commission within the limits of defendant.
The complainants were aggrieved of unfair trade practice, negligence and deficiency in rendering service at the hands of the defendant and they were also facing mental agony, physical harassment and litigation expenses too. They have filed the case with regard to section 2(1)(d) of consumer protection act, 1986 and this commission did not vest with pecuniary and territorial jurisdiction that because it was mentioned in agreement that company proposes to hand over possession by period mentioned therein and also the fact that unit falls under the category of immovable property as such, time was not to be considered as essence of the contract. To pay compensation for causing mental agony and physical harassment deficiency in providing service adoption of unfair trade practice and cost of litigation in lumpsum of Rs. 50,000/- to complainants within a period of 30 days, from date of receipt of certified copy of this order failing which said amount shall carry interest @9% p.a. from date of passing of this order till realization.

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Biren Suri is bad for non-joinder of party i.e., the bank from which complainants therein have availed loan, has not been impleaded therein and no proper court fees has been paid by them and demand raised by company towards GST, service tax has been legally raised from them if any debate is received from government in respect thereof, the same will be transferred in the favour of complainants. To that the court stated that they have perused the record and found that in all three consumer complainants, correct court fees have been paid by them. Irrespective of fact that bank has made party to complaint or not, the commission in each and every complaint filed where refund is ordered it gives direction to the effect that bank from which complainants have raised housing loan for installments shall have first charge of amount payable objection taken in this regard stands rejected.
The agreements in respect of respective units in question, containing detailed terms and conditions, have been executed at Chandigarh office of the company meaning the opposite parties were actually and voluntarily residing and carrying on their business, from their branch office at Chandigarh and personally work for gain here, objection in this regard was rejected by the court.

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Now to deal with the judgment came with regards to the payment given by opposite parties under clauses 7.4(a) and (b) of agreement, were justified in deducting amount Rs.33,73,022/- out of deposited amount Rs.40,70,000/- i.e. twin deductions, (first one is the earnest money to extent of 10% of basic sale price and second was delayed payment interest of Rs.20,48,093/-) it is stated that it is well settled law in case of prove default on part of buyer in making payment towards price of unit, amount exceeding 10% of total price of property cannot be forfeited as earnest money unless builder shows that it has suffered loss to extent of amount actually forfeited by it as the company have not given any evidence for suffered loss and the parties have forfeited more than 40% of basic sale price the company are entitled to forfeiture earnest money equal money to 10% but not delayed payment interest discussed in other case as earnest money is part of purchase price when transaction goes forward; it is forfeited when transaction vendee fails. Thus, the commission is not bound to place reliance upon clause 7(b) of agreement which says that on cancellation of booking amount on account of nonpayment of remaining installments, opposite parties were entitled to forfeit outstanding delayed payment interest over and above earnest money is substantively unfair, harsh, oppressive and unconscionable to complainants. This act amounts to unfair trade practice. Though the company has failed to prove any document to convince this commission, as to at what stage construction level and development work at project had reached, by time when they had received amount of Rs.40,70,000/- from complainants because in connected cases it reveals that project has not been completed and possession of units there has not been delivered by promised date or even thereafter.

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To refund the amount of Rs.60,83,820/- to the complainants along with interest @9% p.a. from respective dates of deposits onwards, within a period of 30 days, to another refund amount Rs.68,63,572/- along with interest of 12% p.a. within a period of 30 days from date of receipt and also (on every one amount 3% penal interest i.e., 15% p.a. (12% p.a. + 3% p.a.), from date of passing order till realization). To refund amount of Rs.32,64,388-(Rs.40,70,000 – Rs.8,05,612 being 10% of basic sale price) to complainants. It was well settled law that non delivery of possession of units in a developed project by the promised date is a material violation on part of builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. This view is supported by principle of law laid down by the Supreme Court of India in case of Pioneer Urban Land & Infrastructure Ltd. V Govindan and also in Raghavan. Section 12 of the Punjab Apartment and Property Regulation act, 1955 read with rule 17 of the PAPRA rules, 1955 this commission could have granted interest @12% p.a. to the complainants and it also stated that these complaints pertaining to refund amount paid by complainants as this commission has not given opinion as to whether the builder could charge GST or not; as to whether total sale consideration constitutes taxes etc. and as whether this commission could go into such issues or not. The judgement was decided by Justice Raj Shekhar Attri.

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For case specific advice, please connect with Top Best Expert Legal Consultants Attorneys in Real Estate/Property Estate/Consumer Court and Consumer Protection Dispute/ Consumer Grievances and Complaints/RERA Lawyers Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur etc.