State Consumer Disputes Redressal Commission
Romesh Garg vs M/S Skyrock City And Others on 29 April, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 51 of 2014
Date of institution: 13.03.2014
Date of Decision: 29.4.2015
Romesh Garg son of Sh. Siri Ram R/o 118-A, Model House, Ludhiana.
.....Complainant
Versus
1. M/s Skyrock City, S.C.O. No. 672, First Floor, Sector 70, Mohali,
Punjab 160059 through its President.
2. M/s Sky Rock City Welfare Society (Registered), S.C.O. No. 672,
First Floor, Sector 70, Mohali, Punjab 160059.
3. Mr. Navjeet Singh, President, M/s Sky Rock City Welfare Society
(Regd.) R/o House No. 248, United Co-operative House Building
Society Limited, Sector 68, S.A.S. Nagar, Mohali.
.....Opposite Parties
Consumer Complaint under section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the complainant : Sh. Deepak Goyal, Advocate For the opposite parties : Sh. Hitten Nehra, Advocate Gurcharan Singh Saran, Presiding Judicial Member The complainant has filed this consumer complaint under Section 17 of the Consumer Protection Act (in short 'the Act') against Consumer Complaint No. 51 of 2014 2 the opposite parties (in short 'the Ops') on the allegations that he came across the advertisement published in the newspaper by the OPs publishing to launch of the project in the name and style of Skyrock City in Sector 111-112, S.A.S. Nagar, Mohali. When he contacted with the OPs through their sale representative, he was given very rosy picture about the upcoming project within a very close proximity of 'City Beautiful' Chandigarh, within the Municipal Limits of Mohali and approved from GAMADA and after satisfying with the project of the OPs, the complainant showed his willingness to purchase a plot and visited the Authorized Sales Associates namely Karnal Properties and paid Rs. 5000/- towards the membership fee vide receipt dated 06.06.2011.. He was demanded 10% of the total amount of the plot in question which comes to Rs. 4,50,000/-, that amount was also paid vide receipt dated 06.06.2011. The complainant was made to fill up the application form for membership dated 12.06.2011 and accordingly he had purchased residential plot measuring 500 sq. yard for total value of Rs. 45 lacs. Then he received a notice dated 03.08.2011 demanding 2nd instalment amounting to Rs. 6,75,000/- which was paid vide cheque No. 000029 dated 01.09.2011 drawn on Bank of India vide receipt No. 3981 dated 01.09.2011. It was further averred that his membership No. was R 2063. The complainant thereafter received another letter dated 25.11.2011 for next instalment and he had paid a sum of Rs.
11,25,000/- vide cheque No. 000032 dated 14.01.2012. Vide letter dated 14.01.2012 he had asked for share certificate alongwith the details of the latest development regarding approvals from GAMADA. Consumer Complaint No. 51 of 2014 3 However, he did not receive any response from the OPs. In the meantime, he received another letter dated 24.01.2012 vide which a sum of Rs. 2,25,000/- towards CLU being 5% of the agreed price was demanded and complainant was threatened to charge interest @ 2% per annum in the event of being any default. Vide letter dated 08.02.2012 posted on 10.02.2012 a sum of Rs. 2,25,000/- was sent to the OPs towards CLU. After that the complainant also asked from the OPs with regard to the payment plan for the balance 45% amount, copy of Constitution of Association of the Society with details of bye laws/rules, copies of CLU certificate and project approval certificate issued by GAMADA/PUDA, time period within which the roads and other basic amenities (water & sewerage) are to be provided and plot numbers are to be allotted to share holders, Society share allotment letter, receipt of Rs. 11,25,000/- towards 3rd instalment etc. However, the complainant did not receive any response from the OPs but he received phone call of the President of the society in which he was assured of the issuance of share certificate and other information and allotment letter after receipt of Rs. 2,25,000/- and accordingly, he made the payment vide cheque dated 07.05.2012. Share certificate was sent to the complainant whereas other information was not sent. He again received another letter dated 09.08.2012 wherein a demand of Rs. 11,25,000/- towards next instalment and Rs. 3,75,000/- towards EDC charges total Rs. 15,00,000/- was demanded out of which the complainant paid Rs. 12,75,000/- as Rs. 2,25,000/- was already paid as CLU. In this way, the complainant had paid a sum of Rs. 37,55,000/- to the OPs Consumer Complaint No. 51 of 2014 4 whereas there was no response from the OPs. Then he sent a letter dated 23.05.2013 but OPs were again did not respond to the letter. The complainant feeling helpless, then issued a legal notice dated 06.01.2014 vide registered post to the OPs, however, again there was not response from the OPs, therefore, OPs are guilty in deficiency in service. He was made member on the plea that their project is nearing its final approval from the Government Departments and that the payments were made towards the development of the project. Despite passing of two and half years, OPs had failed to issue the allotment letter. Terms and conditions have also not been sent to the complainant after receipt of more than 80% of the total consideration money. Hence the complaint with the directions to the OPs to repay the payment of Rs. 37,55,000/- alongwith interest @ 18%, Rs. 5,00,000/- as compensation and Rs. 55,000/- as litigation expenses.
2. The complaint was contested by the OPs who filed written reply taking preliminary objections that the complaint is wholly mis- conceived, groundless and unsustainable. Hon'ble Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in this complaint, the complaint is manifastely outside the purview of the Act. The complaint is baseless and flagrant abuse of process of law. The compliant is false, frivolous and vexatious and liable to be dismissed under section 26 of the Act. The Hon'ble Supreme Court in Civil Appeal No. 331 of 2007 titled as Ganeshlal Vs. Shyam wherein it was held that where there is sale of land simpliciter, it is not covered under the definition of 'services' or 'deficiency'. The Consumer Complaint No. 51 of 2014 5 complainant booked one plot of 500 sq. yard @ 9000/- per sq. yds therefore, he does not come within the definition of 'consumer'. Even as per the terms and conditions, in case, the complainant after paying some instalments, not interested to continue, then he will be refunded the entire amount paid with 8% per annum after three years from the date of requisition and the complainant has requested for refund on 06.01.2014, therefore, the complaint is pre-mature, whereas the complainant has concealed the fact regarding the agreed terms and conditions between the parties and OPs is a registered welfare society providing cheap and affordable housing facilities to its members on no profit no loss basis and society accumulated funds from its members and purchased land under the name of society and applied for various approval with the statutory authorities. All the approvals from statutory authorities were received and the society is in the process of allotment to its eligible members who had paid 90% instalments. Since the development of the site is under progress, the condition incorporated with regard to refund with interest is agreed by all its members and that the OPs had to pay hefty amounts to statutory authorities for various approvals and in case members are allowed to take refund instantly, then whole project will become unviable. On merits, it was admitted that the complainant approached the OPs for its membership, membership was granted and he was allotted one plot of 500 sq. yds @ 9000 per sq. yds excluding CLU charges as demanded by GAMADA. All the papers and share certificate was handed over to the complainant on 09.04.2012. The complainant was aware that the approvals were in Consumer Complaint No. 51 of 2014 6 the pipeline as in the welfare society the members have put their funds to deposit with various statutory authorities, which now they have obtained. The complainant paid a sum of Rs. 33,75,000/- as price of the plot and the refund can be made according to the terms and conditions. It is submitted that the complaint is without merit and the same be dismissed.
3. The parties lead their evidence in support of their respective contentions.
4. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-A alongwith documents i.e receipt dated 06.06.2011 Ex. C-1, receipt dated 06.06.2011 Ex. C-2, application form dated 12.06.2011 Ex. C-3, notice dated 03.08.2011 Ex. C-4, receipt dated 01.09.2011 Ex. C-5, receipt dated 05.01.2012 Ex. C-6, letter dated 25.12.2011 Ex. C-7, letter dated 14.01.2012 Ex. C-8, letter dated 24.01.2012 Ex. C-9, letter dated 08.02.2012 Ex. C- 10, letter dated 09.04.2012 Ex. C-11, letter dated 25.04.2012 Ex. C- 12, letter dated 07.05.2012 Ex. C-13, share certificate dated 09.04.2012 Ex. C-14, letter dated 09.08.2012 Ex. C-15, letter dated 20.08.2012 Ex. C-16, letter dated 28.11.2012 Ex. C-17, letter dated 23.05.2013 Ex. C-18, legal notice dated 06.01.2014 Ex. C-19, statement of accounts dated 12.04.2014 Ex. C-20 and closed the evidence. On the other hand OPs tendered into evidence reply on oath of Sh. Navjeet Singh, President as Ex. OP-A, copy of memorandum of society Ex. OP-1, copy of letter of intent (LOI) Ex. OP-2, copy of change of land use Ex. OP-3, copy of registration certificate as Ex. OP-4, copy of orders of appeal Ex. OP-5, copy of Consumer Complaint No. 51 of 2014 7 demand notice of GMADA Ex. OP-6, copy of licence to develop colony Ex. OP-7, and copy of application form for membership alongwith terms and conditions Ex. OP-8 and close the evidence.
5. We have heard Sh. Deepak Goyal, Advocate and Sh. Hiten Nehra, Advocate counsels for the parties and have perused documents and evidence placed on the record.
6. Counsel for the OPs has drawn the attention of this Commission with regard to clause 17 of Memorandum of Society where there is provision of Arbitration Clause. However, entire statement will reveal that the OPs did not raise any objection that there is any Arbitration Clause in the Memorandum of Society, therefore, matter be referred to Arbitration. In case, the matter is required to be referred to Arbitration, the parties are to intend to refer the matter to the Arbitration is required to move the application filed under section 8 of the Act which reads as under:-
8. Power to refer parties to arbitration where there is an arbitration agreement. - (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.
(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial Consumer Complaint No. 51 of 2014 8 authority, an arbitration may be commenced or continued and an arbitral award made."
but no such application has been filed by the OPs to refer the matter to the Arbitration alongwith written reply. Moreover, in case, no application is moved then under section 3 of the Act, additional remedy is provided to approach Consumer Fora under the CP Act. Therefore, we do not agree with the submission made by the counsel for the OP that this Commission do not have the jurisdiction to entertain the complaint and that the matter be referred for arbitration to the Arbitrator.
7. The next question is whether there is any deficiency in service on the part of the OPs. It is pertinent to mention here that the OPs is not a builder rather it is a welfare society under which the complainant is also one of the members to provide cheap infrastructures to poor class is one of the aim of this society. There is no dispute that the complainant is a member of this society. Ex. OP-8 is the application form for the membership filled in by the complainant and after getting its membership, he had paid a sum of Rs. 37,55,000/- to the OPs and various steps have been mentioned in the terms and conditions of the allotment of the plot. As per Ex. OP-8 the conditions are as under:-
Conditions:-
1. If due to any reason project does not viable 50% of membership fee may be refunded to the applicant.
2. Balance 50% amount may be adjusted in lieu of the membership of the SKY ROCK CITY WELFARE SOCIETY (REGD.) Consumer Complaint No. 51 of 2014 9
3. Membership Fee is to be deposited Rupees Five Thousand Only.
4. If the applicant doesn't want to continue even after paying some instalments, he/she will be refunded the entire amount paid with 8% interest P.A. after three years from the date of requisition.
5. The plot possession will be handed over physically not later than two years of registration/requisition. Terms and Conditions will be changed at any point of time (if required)
6. The map copy of location is available at website: www.gmada.gov.in (GMADA, Mohali) of sectors.
7. Plot Development cost will be charged as per PUDA (GMADA) approved rate & m/s. SKY ROCK CITY WELFARE SOCIETY (Regd.) (Act XXI of 1860) will not enhance any further expansion cost (Rs.
1000/- per square yard for now etc.) After floating this society, some developments have been made by its office bearers. The licence was granted by GAMADA to develop colony under the name and style of Skyrock City in Sector 111-112, S.A.S. Nagar, Mohali subject to conditions laid down under rule 12.02 of the PAPRA Rules, 1995. CLU was given by the Department of Town and Country Planning vide their letter dated 04.03.2011 Ex. OP-3. The society was registered as on 04.08.2010 Ex. OP-4. EDC Charges were demanded by GAMADA vide their letter dated 09.06.2014 (Ex. OP-6) and licence to develop colony dated 06.05.2014 (Ex. OP-7) and the development project is in the process and in case the complainant does not want to continue with its membership after paying some instalments then he can withdraw the amount according to the terms and conditions referred above. Whereas contention of the counsel for the complainant is that the Consumer Complaint No. 51 of 2014 10 possession was to be given within 2 years of registration/requisition and registration of the complainant is dated 06.06.2011. A period of more than two years have already passed and as per the clause referred above under the terms and conditions, he is entitled to the refund in case he is not interested to make further payment. Before giving the actual possession, firstly the complainant was required to pay 90% of the amount and only 10% was to be paid at the time of possession. It shows that the complainant was required to pay Rs. 40,00,500/- in instalments before the possession which he has not paid. In view of the correspondence made by the complainant to the OPs, it is clear that at the time he booked his plot with the OPs society, approval from GAMADA and various authorities was still to be taken and only after that development can be done under the PAPRA Rules 1995. A reference can be made to the letter dated 14.01.2012 (Ex. C-8) at the time of paying Rs. 11,25,000/-, he requested the OPs to tell the latest development regarding purchase of land and development thereof by the society, sanction of the project by GAMADA and allotment of plot number etc. Then he wrote a similar letter dated 08.02.2012. After that there is another letter dated 23.05.2013 Ex. C-18 written by the society to its members that project has been approved by PUDA/GAMADA and that a sum of Rs. 4 crore is required to be paid for completing rest of the formalities and after that legal notice Ex. C-19 was given by the complainant through his counsel.
8. It is not like the case of the builder where payments has been made and then there is obligation on the part of the OPs to Consumer Complaint No. 51 of 2014 11 deliver the possession. Here it is a society and all the members have elected their Managing Body, otherwise all the members are responsible for the development of the project. After registration of the society, certainly various amounts have been demanded from every member for the purchase of the land and approvals from various departments like GAMADA, department of town and country planning and other certain formalities under 12.2 of PAPRA Rule 1995 are required to be completed. Some of the formalities have been completed by the OPs and some are yet to be completed. Share Certificate has already been issued to the complainant. The time frame of 2 years was granted from registration/requisition. The approval was given by GAMADA vide their letter dated 23.09.2013 (Ex. OP-2) whereas licence was granted to develop the residential colony under name and style Skyrock City in Sector 111-112, S.A.S. Nagar, Mohali as on 06.05.2014. Its date of registration/requisition therefore two years will commence from this date whereas the complaint was filed by the complainant on 13.03.2014. Certainly, it is pre-mature. The OPs are developing the society after obtaining various approvals/permission and are in progress and at this stage there is no deficiency in service on their part.
9. Keeping in view of the position referred above, we dismiss the complaint being pre-mature and having no deficiency in service on the part of the OPs on the date of the complaint.
10. The arguments in this consumer complaint were heard on 23.04.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
Consumer Complaint No. 51 of 2014 12
11. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER April 29, 2015.
Rupinder