Tricity Home Search Builder Consumer Complaint

Post coversTricity Home Search Builder Consumer Complaint wherein builder failed to provide possession on time. Hence Refund plus compensation.

Consumer Protection act, the safeguard of the customer.

Consumer Protection Act,1986 is a law to protect the interests of the consumers and provides safety to consumers regarding defective products, dissatisfactory services, and unfair trade practices. It gives consumers the right to information on various aspects of goods and services. In this case study, we will see how the state CONSUMER DISPUTES REDRESSAL COMMISSION enshrined this principal in a complaint where the opposite parties have made false statement of facts

Dhamendra Kumar Bhart v.s M/s Tricity Home Search Builders & Promoters

Brief facts about the case

The complainant who got retired from Indian Air Force on 31.07.2015 rendered services of the OPs for the allotment of a housing known as at Zirakpur on Patiala Highway. The complainant was living in a rented house and was playing Rs.12,000/- per month and he got impressed by the housing project developed by the OPs, a 2 BHK Independent Floor and paid Rs.10,00,000/- dated 22.10.2015, thereafter the OPs issued allotment letter to the complainant on 30.10.2015 of the said unit. The total price of the said fat was decided Rs.30,19,500/- including EDC, Service Tax, Car Parking charges etc and both the parties agreed that the rest of the amount is to be paid after the delivery of the possession which would be within a period of two years. The OPs gave assurance that they have taken approval from the Punjab Government and have obtained necessary permissions from the competent authorities. Later, when the complainant inquired about the development of the said flat, the opposite party did not give him any. The late delivery of the possession is resulting in loss of Rs.12,000/- per month i.e., Rs.1,44,000/- per annum and when on March, 2017, the complainant visited the project site, he saw no development work started by the OPs. In response to the repeated requests and instead of handing over the possession of the flat, OPs executed Buyer Agreement dated 05.10.2017, where the clause 6 states that

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“The possession of the said flat will be given within 6 months, if the first party fails to deliver the possession of the above said floor after 6 months from the execution of this agreement, then they will be liable to pay 9% per annum interest on the amount paid by the second party to the first party”.

The OPs neither gave the possession of the allotment nor paid the interest @ 9% per annum on the deposited amount. The OPs are enjoying the money given by the complainant that is of Rs.10,00,000/-. The complainant also took loan from PNB Housing of Rs.16,00,000/- but after seeing the development status of the said flat, he has to cancel the loan, suffer the loss of Rs.23,648/-. Hence, the complainant sends a legal notice to the OPs 22.10.2018 demanding refund with interest and compensation but no reply has been given by the OPs. The complainant has alleged deficiency in service and unfair trade practice on the part of the OPs, and filled a complaint under section 17 of the C.P Act,1986, and prayed the OPs to

to refund an amount of Rs.10,00,000/- along with interest @ 18% p.a. from the date of respective deposit to till actual realization.
to pay Rs.2,00,000/- as compensation for harassment suffered by the complainant.
to pay Rs.55,000/- as cost of litigation expenses.
to pay Rs.1,44,000/- being Rent amount for the period w.e.f. October 2017 to October 2018 paid by the complainant due to non-delivery of the possession in time by the opposite party.
to pay Rs.23,648/- as reversal charges i.e. loss suffered by the complainant for cancellation of the loan.
Any other relief, which this Commission may deem fit

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Reply from the OPs

The OPs claim that they never gave assurance to the complainant regarding deliver of possession of the said flat. The OPs have requested many times to make the payment as per the construction linked plan and also sign the buyer’s agreement but the complainant always denied. The claim by the complainant that in March 2017, he saw no development in construction at the construction is wrong as the project was complete and only the work of white wash was remaining and hence no delay in delivery of the possession. The complainant on October 2017, changed his plan from buying 2BHK to purchasing 3BHK which was accepted by the OPs; however, the complainant was required to pay the rest of the amount according to the payment plan and get the sale deed registered in his favour, the complainant did not have any funds remaining. The OPs did not forfeit the earlier amount that complainant gave as the booking amount of 2BHK. The complainant took loan from PNB housing and the fact that the loan was loan cancelled shows that it is the complainant is not interested in o take the possession of the flat and get the sale deed registered in his favour. The OPs have all the necessary approval and sanction from the competent authority and requests the complaint to be dismissed.

Evidence submitted by the complainant

Complaint
Affidavit
Bank account statement
Provisional allotment letter
Buyer’s Agreement
Letter of approval of sanction of the loan from PNB Housing
The legal notice that was send to the OPs

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Evidence submitted by the OPs

Self-attested affidavit of Randhir Sood, Partner of M/s Tricity Home Search Builders & Promoters
Documents that show that approvals and sanctions were taken from competent authority.

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Contention of the complainant

The complainant who retired from Indian Air Force booked a flat developed by the OPs’ company where the payment of Rs.10,00,000/- was made as a booking amount followed by an allotment letter was issued by the OPs to the complainant. On 05.10.2017, the buyer’s agreement was executed where the clause 6 stated that the possession of the said flat would be given within six months from the execution of the agreement and if they failed to do so, they would be liable to pay 9% per annum interest on the amount paid. The complainant got a loan sanction from PNB Housing which he cancelled because of the non-developmental work of the said flat by the OPs and suffered the loss of reversal charges of Rs.23,648/. Since the OPs have failed to handover the possession of the flat till date, the complainant has sought refund of his deposited amounts by issuing legal notice upon OPs and prayed for the allowing of the complainant.

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Contention of the OPs

The complainant is at default and there is no deficiency in service on the part of the OPs. The OPs denies that they have given assurance that the delivery of the possession will be given within 2 years since when the complaint approached the OPs in the month of October, 2015. The complainant also has only paid a part of payment and remaining amount was payable according to the construction linked plan. The OPs have requested the complainant for the payment of the rest of the amount and sign the buyer’s agreement which was refused by the complainant and continued to default in making payment. OPs also have approval and sanction form competent authority and prayed for dismissal of the complaint.

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Consideration of the complainant

The complainant booked a 2 BHK Independent floor in the project developed by the OPs company where he paid Rs. 10,00,000/-, on receipt of that the OPs issued and the same is reflecting in the copy of the complainant’s bank account statement and in the allotment letter. The total value of the flat was Rs.30,19,500/- including EDC, Service Tax, Car Parking charges etc, and the delivery of the possession was to within a period of two years from the date of booking. Upon requesting numerous times for handing over the possession the OPs executed the buyer’s agreement after a much delay from the date of booking of the flat. The clause 5 of the buyer’s agreement states that the possession of the flat was to be given within six months from the execution of the Buyer’s Agreement that is latest by April, 2018, else the OPs were liable to pay 9% interest on the amount paid by the complainant. The complainant also took loan of Rs.16,00,000/- from PNB Housing which he cancelled as there was no development of the project, suffering a loss of Rs.23,648/- on account of disbursement reversal charges. Complainant send a legal notice to the OPs to refund the amount along with interest and compensation which they failed to do so till date. The complainant has also prayed for a sum of Rs.1,44,000/- being rent amount for the period October, 2017 to October, 2018 paid by the complainant due to non-delivery of possession of the flat by the OPs. The commission rejects this plea as there was no privity of contract between the parties regarding the payment of any rent charges by the OPs. The OPs denied the allegation and claims that the complainant was paying any rent or there was any oral tenancy between the parties.

The OPs have denied that they gave assurance that delivery of the possession will be handed within two years, in the allotment letter it was mentioned that e final allotment letter would be given after full and final payment. However, as per the Buyer’s Agreement the possession was to be given within six months subject to the payment of the balance amount. The commission observed that the claim of the OPs that they had requisite permissions from the competent authorities does not hold water as the documents revealed that it was issued by the office of Municipal Council, Zirakpur to some Mr. Surjit Singh and Sahib Singh and not in the favour of the OPs, so the project was complete in March, 2017 does not find favour with us and is therefore rejected. The OPs violated the Punjab Apartment and Property Regulation Rules, 1995 (in short “PAPRA”) as they delayed the execution of the buyer’s agreement for almost two years almost two years from the date of receiving the initial booking amount of Rs.10,00,000/- and issuance of Provisional Allotment Letter and includes

Also Read- Orders & Judgements – Real Estate Regulatory Authority, Punjab

Volition of Section 5 (Development of land into Colony) of PAPRA, the OPs were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission.

Violation of Section 3 (General Liabilities of Promoter) of the PAPRA as the OPs have failed to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land.

Violates Section 9 of PAPRA as they failed to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats and no evidence was submitted by the OPs

According to the Rule 17 framed under Section 45 of the PAPRA,

Rate of interest on refund of advance money upon cancellation of agreement. – The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”

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The OPs have been using the money of the complainant for the development of the project. When they insist on the performance of the duty by the complainant then they are also obliged to perform their part of function. The Consumer Protection Act is one of the benevolent pieces of legislation to protect the consumers from exploitation and cannot be overlooked. The complainant has made payment of substantial amount to the OPs, with the hope to get the possession of the plot within a reasonable time. It is clear that the OPs made false statement of facts. Following directions are issued to the OPs:

i) to refund the amount of Rs.10,00,000/- along with interest at the rate of 12% per annum from the date of deposit i.e., 26.10.2015 till realization, as per Rule 17 of PAPRA; and
ii) to pay Rs.20,000/-, as lumpsum compensation, for the mental agony and harassment suffered by the complainant towards litigation expenses.

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.