Taneja Developers & Infrastructure Ltd vs Sukh Nandan Kaur Sabarwal

This appeal has been filed by the appellant, Taneja Developer & Infrastructure Ltd. against the order dated 3.2.2016 passed by the State

Commission, Punjab (for short, ‘State Commission ) in CC No.78 of 2015.

2 . Brief facts of the case are that respondent booked a plot with the appellant/OP in their project. The project was approved by the State Government

vide approval dated 31.8.2006. The respondent/complainant applied in the project in the year 2008 and provisional allotment was made vide OP’s

letter dated 2.2.2009 wherein Plot No.640 was allotted to the respondent/complainant. There was some land acquisition problem and the matter was

under litigation so possession could not be delivered by the OP to the complainant. Complainant then preferred a complaint before the State

Commission bearing CC No.78 of 2015.

The complaint was resisted by the OP on the ground that OP had right to allot alternate plot. Hence, the complaint was not maintainable. The State

Commission after considering the submissions of both the parties, allowed the complaint as under:

“In view of the above discussion, the complaint is allowed and following directions are issued to the opposite parties:

to refund the amount of Rs.26,50,000/- alongwith interest at the rate of 12% per annum from the date of different deposits till the payment of that

amount

to pay Rs.1,50,000/- as compensation, for mental tension and harassment suffered by the complainant and

to pay Rs.11,000/- as costs of litigation.â€​

4 . Aggrieved with the above order, the present appeal has been preferred by the OP/appellant.

5 . Heard the learned counsel for both the parties and perused the record. The learned counsel for the appellant stated that no time for possession was

given in the allotment letter and therefore, the complaint was pre-mature and complainant was not entitled to file the complaint. It was further stated

that as per terms and conditions of the allotment letter (clause no.2), the OP is entitled to effect changes in the layout plans and consequently in the

allotment, if the condition so warrants. In the present case, the land is in process of acquisition by the Government and therefore, the possession

cannot be handed over and consequently there is a delay. However, OP is ready to give alternate plot to the complainant and this offer has already

been made to the complainant. However, the complainant has not accepted this offer. The State Commission has ordered refund of the total amount

paid by the complainant alongwith 12% p.a. interest and a compensation of Rs.1.5 lakhs. There is no deficiency on the part of the OP as the delay is

occurring due to process of acquisition and the OP is not responsible for the delay. Therefore, there should be no question of giving possession to the

complainant.

6 . It was further stated by the learned counsel for the appellant that the State Commission has ordered 100% refund with 12% interest per annum,

whereas as per clause 9 of the terms and conditions of the allotment, if the money is to be refunded then 20% earnest money is to be deducted if the

allotment is cancelled. The State Commission has not considered this clause of the allotment letter which is in the form of an agreement and the

parties are bound by it. Therefore, if the total amount is to be refunded to the complainant, the OP is entitled to retain 20% of the total consideration.

7 . On the other hand, learned counsel for the respondent/complainant stated that the complainant floated the project even before getting the approval

of lay out plan of the project. It was specifically mentioned in clause (iv) of the approval letter dated 31.8.2006 that the project shall not be advertised

and no money shall be collected until the project plan and lay out are approved. It was mentioned by the learned counsel that the layout plan has been

approved in the year 2013, whereas the project was advertised in the year 2008 itself which was totally against the approval letter of the State

Government. Hence, prima facie the OP is guilty of unfair trade practice.

It was further mentioned by the learned counsel for the respondent that in response to a letter of the complainant, the OP had replied in the year

2009 itself that the land belonged to them, however the proceedings of land acquisition started only in the year 2013. Thus, the OP misrepresented the

facts before the complainant and hence, complainant is fully entitled to get his refund alongwith interest. The learned counsel for the complainant

further stated that the possession has already been delayed so much and now he is not interested even in the alternative plot being offered by the OP

as the complainant is not sure whether the complainant will ever get possession even of the alternative plot. Therefore, complainant is now only

interested in getting his refund. The learned counsel further argued that there is no question of deduction of any earnest money because the

complainant is not withdrawing from the project on its own, rather the circumstances have been created by the OP that they are unable to handover

the plot and complainant cannot wait till an indefinite period to get the possession of the plot.

9 . I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on

record.

10 . I find force in the argument of the learned counsel for the complainant that the project was advertised without getting the approval of the layout

plan etc. as no specific date was mentioned by the learned counsel for the OP for getting this approval. Apart from this, it is to be noted that no builder

buyer agreement has been signed between the parties and the allotment letter is the only kind of agreement between the parties. This allotment letter

does not mention any date for possession therefore, its foundation is based on the unfair trade practice. A consumer generally expects that he will get

the possession of the plot after depositing roughly the full amount within a period of 3-4 years as the maximum limit.

If the possession is not given within that period, the consumer will file the complaint to get the possession or to get his refund. As the land is under

acquisition, the plot cannot be handed over to the respondent within a reasonable time also. As the matter has been delayed too much, the complainant

is not interested in getting the alternate allotment. Even though clause 2 of the terms and conditions of the allotment authorises the OP to change the

allotment on its own or on the orders of any statutory authority, this clause only entitles the OP to change the layout plans and consequently the plot

number may also be changed. It is not the case of the appellant that they have changed the layout plan as no revised layout plan has been submitted

before this Commission. Hence, this clause does not seem to be applicable in the present case.

11 . As there was no time limit for giving the possession of the plot and enough time has passed and the possession has not been given to the

respondent/complainant and that too because of the inability of the appellant to handover the possession due to delay in land acquisition, the

complainant is not at fault in any way. On the contrary, it was the duty of the appellant as per the allotment letter to handover the possession of the

plot to the complainant which the OP has not been able to do and therefore, the OP is clearly deficient in providing the services for which the money

was paid by the complainant to the OP. In the present case, complainant has not cancelled the allotment, rather he is asking for possession to be

delivered and the OP is not able to handover the possession and therefore, the State Commission has ordered refund of the deposited amount. If the

OP is not able to handover the possession of the plot to the complainant, the complainant cannot wait for possession indefinitely and therefore, the

State Commission was fully justified in ordering refund of the amount. I also find the rate of interest allowed by the State Commission and the

compensation allowed as reasonable in the facts and circumstances of the case.

12 . Based on the above discussion, I do not find any force in the appeal and the same is dismissed with both parties bearing their own costs.