State Consumer Disputes Redressal Commission
Devendra Kumar Goel vs M/S Pearls Infrastructure Projects ... on 26 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.594 of 2017
In/and
Consumer Complaint No.382 of 2016
Date of institution : 13.12.2016
Date of decision : 26.09.2017
1. Devendra Kumar Goel (aged 48 years) S/o Sh. Suresh Kumar
Goel, R/o 78, Sky Net Enclave Loahgarh, Patiala Road, Zirakpur
(Punjab), M-9458512130.
2. Smt. Sheela Goel (aged 74 years) D/o Lala Puran Mal, R/o
102/2, Old Kavi Nagar,Ghaziabad.
....Complainants
Versus
1. M/s Pearl Infrastructure Projects Ltd., through its Chairman (Mr.
Nirmal Singh Bhangoo), A Wing, 2nd Floor, Stateman House,
Barakhamba Road, Connaught Place, New Delhi-110011.
Also at:
M/s Pearls Infrastructure Projects Ltd., through its Chairman (Mr.
Nirmal Singh Bhangoo), SCO No.06, Sector 69, SAS Nagar,
Mohali (PB).
2. M/s P.A.C.L. Ltd., through its Chairman (Mr. Nirmal Singh
Bhangoo), A Wing, 2nd Floor, Stateman House, Barakhamba
Road, Connaught Place, New Delhi.
3. M/s Indiabulls Housing Finance Limited, through its Branch
Manager, SCO No.337-338, Ground Floor, Sector 35-B,
Chandigarh (UT)-160035.
....Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainants : Sh. Devendra Kumar Goel, in person For opposite party No.1 : Sh. D.K. Singal, Advocate with Sh.Ammish Goel, Advocate For opposite party No.2 : Ex parte For opposite party No.3 : None.Consumer Complaint No.382 of 2016 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the respondents/opposite parties.
2. Brief facts, as set out in the complaint, are that opposite party No.1 is working as marketing agent of M/s P.A.C.L. Ltd., opposite party No.2. The complainants, being allured by the rosy pictures and assurances of the opposite parties, applied for allotment of one plot in their project "Mohali Township", Sector 100 in February, 2011, by depositing 15% amount as earnest money. The promoter Company i.e. M/s P.A.C.L. Ltd. entered into a Project Management Agreement with opposite party No.1 on 11.07.2006. Earlier, the complainants obtained loan from DHFL, Chandigarh, which was later on transferred to India Bulls House Finance Ltd., Chandigarh-Opposite party No.3. The complainants had paid more than ₹16,95,000/- till 30.09.2016, as interest component and they are bound to pay ₹23,307/-, as interest continuously, besides the principal component as ₹49,00,000/-. The complainants are living on rent and they booked two different plots with the opposite parties for residential purposes; out of one is Plot No.102 in Sector 104 (400 sq.yds.) and the other is Plot No.1546 in Sector 100 (300 sq.yds.) for his nephew, who is totally dependent upon them, as his parents died in road accident on 12.12.2010. As per Clause 10 of the Plots Buyer Agreements, the delivery of possession was due within three years from the date of agreement i.e. by 21.05.2014. However, the Consumer Complaint No.382 of 2016 3 opposite parties failed to start any development work at the site. In fact, opposite party No.2 is involved in Pongee scam and is being investigated by 'Securities and Exchange Board of India' (in short, "SEBI"), as per the directions of the Hon'ble Supreme Court under the Committee constituted under the Chairmanship of former Chief Justice of India, Sh. R.M. Lodha. The Committee is selling the properties through sale on CBI reports. The complainants paid 95% of the sale consideration of the plots to opposite parties No.1 & 2 till the year 2014, but are without possession thereof. In fact, they made total payment of ₹65,35,000/- against the total sale consideration of plot No.1546 i.e. ₹69,00,000/-. The complainants sent letters dated 21.07.2016 to opposite party No.1 asking to deliver the possession, but no reply was received. The Architect M/s Khanna & Associates, Chandigarh had confirmed regarding project approvals as well as about the development in progress, in their reports. In fact, no development work had started at the site. It was further averred that SEBI attached the assets of M/s PACL Ltd. and initiated recovery proceedings on 11.12.2015 against PACL Ltd. and its promoters/Directors for their failure to refund the amount of ₹49,100 Crores with return dues to investors, along with further interest and all costs, charges and expenses incurred in recovery proceedings. The said proceedings have been initiated for their failure to comply with the directions of SEBI issued, vide order dated 22.08.2014, whereby SEBI had directed the defaulters to wind up the schemes and refund money to the investors within a period of three months from the date of that order. It was further pleaded that opposite parties No.1 & 2 Consumer Complaint No.382 of 2016 4 demanded club charges at the rate of ₹35,000/- and service tax, without construction of any club house and non-starting of activities of development at the site. The builder i.e. Pearls Group also stopped development work in other sectors and its accounts have been freezed for the last 3 years. It also stopped delivering physical possession as well as registration of plots in Sector 100. GMADA did not take appropriate action against it. On visiting the office of GMADA, the complainants came to know that the project of opposite parties No.1 & 2 was neither developed, as per plan nor any approvals from the competent authorities were obtained by them. The complainants also requested opposite party No.3-Financer to take up the matter with opposite party No.1. Due to inaction on the part of the Companies, the complainants also requested the Commissioner of Police, Dy. Commissioner of Delhi Police and SHO, Police Station Cannaught Place, New Delhi, on 04.05.2016 to register complaints against them. It was further averred that the loan was given by Chandigarh Office of opposite party No.3 and payment of all the instalments was paid through cheques at Chandigarh. Opposite party No.3 did not take any steps to ensure that there should be delivery of possession by the developers. Rather, it issued notice under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, "SARFAESI Act") to the complainants for want of three instalments. From 2011 to August, 2016 the complainants paid interest amounting to ₹5,96,000/- to DHFL, Sector 26, Chandigarh and further paid ₹7,38,617/- to India Bulls Housing Finance Ltd., Chandigarh. It was Consumer Complaint No.382 of 2016 5 further averred that opposite party No.1 has received the entire consideration amount of the plot in the said project, except the amount which the complainants had to pay at the time of handing over of legal, valid and physical possession, which opposite party No.1 has failed to deliver. The complainants suffered lot of mental tension, emotional and financial loss due to the inaction on the part of opposite parties No.1 &
2. They seek refund of the entire consideration paid to the opposite parties, along with interest at the rate of 18% and liquidated damages to the tune of ₹25,00,000/- for mental and physical harassment. In such circumstances, the following directions were sought:
i) The complaint may be allowed with costs and litigation expenses of ₹1,50,000/-;
ii) opposite parties No.1 & 2 be directed to deliver possession of the developed plot, in question; and
iii) to pay interest at the rate of 12% on the deposited amount from May, 2014 till the delivery of actual possession of the plots;
iv) to pay ₹16,62,292/- (till 30th September) and to pay ₹23,307/- as interest to opposite party No.3, on the loan amount of ₹44,00,000/-
as disbursed till September, 2016, along with future interest;
v) to pay escalation cost at the rate of 12% per year, due to non-
delivery of possession;
vi) to pay compensation of ₹3,00,000/- per year on account of mental agony and harassment suffered by the complainants;
vii) opposite party No.3 be directed not to collect monthly instalments of loan amount and opposite parties No.1 & 2 be directed to pay Consumer Complaint No.382 of 2016 6 the instalments at the rate of ₹23,307/-, as wrong reports related to projects were published by them;
viii) opposite parties No.1 & 2 be further directed to pay monthly rent at the rate of ₹18,000/- per month, due to delay in delivery of possession; and
ix) opposite party No.3 be directed to initiate legal proceedings against opposite parties No.1 & 2, for which the complainants have been requesting again and again.
Defence of the Opposite Parties
3. Upon notice, opposite parties No.1 to 3 appeared through counsels. Opposite parties No.1 & 3 filed their separate replies to the complaint. On 19.07.2017, Sh. Ammish Goel, Advocate, who appeared on behalf of opposite party No.2 on 13.06.2017, stated that he had not to file power of attorney and written statement on behalf of opposite party No.2. As such, opposite party No.2 was proceeded against ex parte, vide order dated 19.07.2017.
4. In the reply filed by opposite party No.1, it raised certain preliminary objections that opposite party No.2-PACL Ltd. acquired and purchased land measuring 500 acres in Sector 100 and 104, SAS Nagar, Mohali, for development and construction of an integrated township, to be known as "Pearls City", Mohali. Accordingly, the Plot Buyer's Agreement was executed on 21.05.2011, as per which all the requisite permissions were obtained by the promoter i.e. opposite party No.2 from the competent authorities from time to time. The promoter also entered into a Project Management Agreement dated 11.07.2006 Consumer Complaint No.382 of 2016 7 with opposite party No.1, as per which the supervision and development of the said township, sale of residential plots and marketing was to be conducted by opposite party No.1 on behalf of the promoter. Thus, the role of opposite party No.1 was very limited in the present case, as it was acting as an agent of the promoter i.e. PACL Ltd. All the payments had been received by opposite party No.1 as an agent on behalf of the promoter. Furthermore, opposite party No.1 is not the owner of land in Pearl City. These facts were in the knowledge of the complainants, while executing the Plot Buyer's Agreement dated 21.05.2011, wherein the aforesaid condition is detailed. Opposite party No.1 came to know that in a case titled as Subrata Bhattacharya vs. Securities & Exchange Board of India, Civil Appeal No.13301/2015, Hon'ble Apex Court, vide order dated 02.02.2016, had directed SEBI to constitute a committee for disposing of the land purchased by PACL India Ltd. Hon'ble Justice R.M. Lodha, the former Chief Justice of India, was appointed as Chairman of the said committee. The Apex Court also observed that the decision with regard to sale of property of the Company (i.e. PACL India Ltd.) by the committee would not be interfered by any Court. Thus, in view of the above directions passed by the Apex Court, this Complaint is not maintainable. Now the said committee is taking care of all the properties of PACL India Ltd. It was further pleaded that as per Clause 29 of the agreement, the dispute between the parties is liable to be referred to the arbitrator. The complainants are not consumers, as they booked two plots in two different sectors with opposite party No.1. The complaint is also not maintainable, as the complainant had defaulted in Consumer Complaint No.382 of 2016 8 making payment of loan to opposite party No.3, who has already initiated the proceedings under SARFAESI Act, 2002, in order to recover the outstanding amount and possession notice U/s 13(4) of SARFAESI Act has already been issued to the complainants. The complaint is hopelessly time barred, because as per agreement, the possession was to be delivered by 21.05.2014 and the complainants could approach this Commission upto 21.05.2016. The complainants have not approached this Commission with clean hands and have concealed material facts. On merits, it was denied that complainant No.1 is living on rent, as no rent deed/payment receipts have been placed on record by the complainants to prove this fact. It was admitted that the complainants booked a plot for the safeguard of their nephew namely Aman, as alleged in the complaint. Opposite party No.1 had been collecting the amount from the buyers on behalf of the promoter. This fact has been mentioned in Plot Buyer's Agreement dated 21.05.2011. It has been duly mentioned in Clause-C of the agreement that all the permissions had been obtained by the promoter. The complainants themselves applied for allotment of plot, after inspecting all the project related documents, notifications, permissions and approvals granted by the Govt. authorities. Opposite parties No.1 & 3 have no concern with each other. It was also admitted that a sum of ₹65,69,755/- was deposited towards the price of the plot, in question, and a sum of ₹7,52,339/- is still pending, which is inclusive of interest accumulated due to default in payment. It was further pleaded that club is in existence in Sector 104, Mohali, which is to be furnished, but the same could not be completed Consumer Complaint No.382 of 2016 9 because of order dated 02.02.2016 passed by the Hon'ble Supreme Court. The delay in delivery of possession occurred due to the order passed by the Hon'ble Supreme Court, vide which a committee was constituted for disposal of property belonging to PACL Ltd. Other similar pleas, as raised in preliminary objections, were reiterated and denying other allegations of the complainants, it was prayed that the complaint may be dismissed.
5. Opposite party No.3, in its reply, raised preliminary objections that the complainants suppressed material facts. Subsequent to default by the complainant and other borrower, their loan account No.HHLCHD00154436 was classified as 'Non-Performing Asset" (NPA) on 22.07.2016 and accordingly, notice dated 23.07.2016 under Section 13 (2) of SARFAESI Act, 2002, calling upon the complainant and other borrower to pay the outstanding amount within 60 days. In view of this fact, the jurisdiction of this Commission is barred under Section 34 of SARFAESI Act. On merits, it was pleaded that complainant No.1, along with his wife Ms. Manisha Goyal, approached opposite party No.3 for availing Home Loan facility of ₹50,00,000/- for purchasing plot No.1546, Sector 100, Pearls City, SAS Nagar, Mohali (Punjab). A Tripartite Agreement dated 01.07.2003 was also executed amongst the complainant, opposite party No.1 and opposite party No.3. Out of loan amount of ₹50,00,000/-, a sum of ₹45,96,380/- has so far been paid to the complainant. Clause 4 of the Tripartite Agreement provides that irrespective of the stage of construction of the project and the delay in handing over the possession, the complainant is bound to make the Consumer Complaint No.382 of 2016 10 payment of instalments. On merits, it was pleaded that as per letter dated 18.06.2013 issued by the office of Dewan Housing Finance Limited with Ref. No.P&sb Chnd Synd/Accounts/0002123, it is evident that all the necessary documents were returned to the complainant, directly on full repayment of their dues. On account of default in making payment of instalments, opposite party No.3 is well within its right to initiate the proceedings under the SARFAESI Act. Other allegations of the complaint were denied and it was prayed that the complaint against opposite party No.3 be dismissed, with exemplary costs.
6. Opposite party No.3 also filed M.A. No.594 of 2017, under Section 26 of the Act, for dismissal of the complaint on the similar grounds, as mentioned in its reply.
Evidence of the Parties
7. To prove their claim, the complainants tendered in evidence affidavit of complainant No.1 as Ex.C-1, along with documents Ex.C-2 to Ex.C-22 and Mark A to D.
8. On the other hand, opposite party No.1 tendered affidavit of Sh. Gurpinder Brar, Senior Manager (Marketing), as Ex.OP-A, along with documents Ex.OP-1/1 and Ex.OP-1/2 as well as copy of judgment Mark-A.
9. Opposite party No.3 tendered affidavit of Sh. Sanjeev Kumar as Ex.OP-3/A and copy of loan agreement, Ex.OP-3/1. Contentions of the Parties
10. We have heard Sh. Devendra Kumar Goel, complainant No.1, in person, learned counsel for opposite party No.1; as opposite Consumer Complaint No.382 of 2016 11 party No.2 was proceeded against ex parte and none appeared on behalf of opposite party No.3 at the time of arguments. We have also gone through the record carefully.
11. Complainant No.1, in person, vehemently, contended that opposite parties No.1 & 2 failed to develop the project/plot, in question, as well as to deliver the possession of the plot, in question, to the complainants within the stipulated period of 3 years, as mentioned in agreement Ex.C-3. In fact, opposite party No.2 ran away after grabbing public money, by abandoning the project. opposite party No.2 is involved in Pongee scam and is being investigated by 'Securities and Exchange Board of India' (in short, "SEBI"), as per the directions of the Hon'ble Supreme Court under the Committee constituted under the Chairmanship of former Chief Justice of India Sh. R.M. Lodha. The Committee is selling the properties through sale on CBI reports. Complainant No.1 and his wife took loan from opposite party No.3, to whom they are regularly making payment of the loan repayment instalments. Due to delay in delivery of possession of the plot, in question, by opposite parties No.1 & 2, the financer has initiated proceedings under SARFAESI Act against the complainants. Due to deficiency in service on the part of opposite parties No.1 & 2, the complainants suffered mental tension and harassment. The complainants are entitled to the refund of the amount deposited, along with interest and compensation. Thus, it was contended that the complaint may be allowed and all the directions, as prayed for in the complaint, be issued to the opposite parties.
Consumer Complaint No.382 of 2016 12
12. Per contra, learned counsel for opposite party No.1 vehemently contended that as per Clause 29 of the agreement, Ex.C-3, the dispute between the parties is liable to be referred to the arbitrator. The complainants are not consumers, as they booked two plots in two different sectors with opposite party No.1. The complaint is also not maintainable, as the complainant and other borrower had defaulted in making payment of loan to opposite party No.3, who has already initiated the proceedings under SARFAESI Act, 2002, in order to recover the outstanding amount and possession notice U/s 13(4) of SARFAESI Act has already been issued to the complainants. It was further contended that all the requisite permissions were obtained by the promoter i.e. opposite party No.2 from the competent authorities from time to time. The promoter also entered into a Project Management Agreement dated 11.07.2006 with opposite party No.1, as per which the supervision and development of the said township, sale of residential plots and marketing was to be conducted by opposite party No.1 on behalf of the promoter. Thus, the role of opposite party No.1 was very limited in the present case, as it was acting only as an agent of the promoter i.e. PACL Ltd. All the payments had been received by opposite party No.1 as an agent on behalf of the promoter. Even opposite party No.1 is not the owner of land in Pearl City. It was further contended that in view of the directions of the Hon'ble Apex Court, a Committee has been constituted to take care of all the properties of PACL India Ltd. There is no deficiency in service on the part of opposite party No.1 and the complaint against it is liable to be dismissed.
Consumer Complaint No.382 of 2016 13Consideration of Contentions
13. We have given our anxious thought to the contentions raised by complainant No.1 as well as learned counsel for opposite party No.1.
14. First of all, we would like to dispose the preliminary objection raised by opposite party No.1 that as per provisions of the agreement, Ex.C-3, the dispute between the parties is liable to be referred to the arbitrator.
15. This point has already been discussed exhaustively and decided by this Commission in M.A. No.1587 of 2015 in Consumer Complaint No.73 of 2015 (Jatinder Pal Singh & Anr. Vs. M/s Bee Gee Builtech & Anr.) decided on 08.03.2017 and, after discussing various judgments of the Hon'ble Supreme Court and National Commission, it was held that the remedy, provided under Section 3 of Consumer Protection Act, 1986, is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer.
16. Recently also, the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as "Aftab Singh Versus EMAAR MGF Land Limited & Anr held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Therefore, the aforesaid objection raised by opposite party No.1 is rejected. Consumer Complaint No.382 of 2016 14
17. The other objection raised by opposite party No.1 is that the complainants are not consumers, as they booked two plots in its different projects is concerned. In this respect, it is relevant to mention here that the Hon'ble National Commission in case Kavit Ahuja V. Shipra Estate Ltd. & Jaikrishna Estate Developers Pvt. Ltd. & Ors. I (2016) CPJ 31 (NC), observed in Para No.4 as follows:
4. The first question, which arises for consideration in this case is as to whether the complainant can be said to be a 'consumer' within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant, provides that the 'consumer' means any person, who hires or avails any services for a consideration but does not include a person, who avails of such services for any commercial purpose. The term 'service' has been defined in Section 2(1) (o) of the Act to mean service of any description which is made available to potential users and includes 'housing construction'. Since the complainant had booked three residential flats which were to be constructed by the developer, she would be a 'consumer', unless it is shown that she had booked the said residential flats for a commercial purpose. The plea taken by the opposite parties in this regard is that booking of as many as three residential flats in the same project clearly shows that the said flats were purchased by the complainant for the purpose of making investments, meaning thereby that she did not intend to live in those flats but intended to sell them later at a higher price. Vide letter dated 29.10.2012, the complainant was directed to file an affidavit, disclosing therein that for what purpose the three flats were booked by her. In compliance of the aforesaid direction, the complainant filed an affidavit stating therein that she had booked three residential flat for use and occupation for herself Consumer Complaint No.382 of 2016 15 and her family members. She wanted to retain one flat for use as her own residence and the other two were for the use and occupation of her in-laws and younger sister Ms. Priya Chopra. She also stated that she does not have any flat or residential house in her name and is staying in a rented accommodation provided by the company; whereas her in-laws are staying in a house constructed in pre-independence period, which is more than thirty years old. She also stated that her younger sister Priya is staying with her parent and does not own a residential flat in her name. According to the complainant she wanted all the family members to stay together and at the same time also have their respective independence and that is why three flats in the same project were booked by her. No evidence has been led by the opposite parties to rebut the aforesaid averments made by the complainant. If the complainant wanted her younger sister as well as her in-laws to stay in her vicinity so that the family can be together while simultaneously maintaining their individual privacy, it cannot be said that the flats were purchased by her for a speculative purpose or for making profit by selling them at a later date. If one of the family members has resources to buy houses for the other members of the family and utilizes those resources with a view to enable the family members to live together in the same complex, it would be difficult to say that such a purchase would be for a commercial purpose.
18. In the present case also, the complainants have specifically pleaded in Para-B of the complaint that complainant No.1 is living on rent since 1997. Complainant No.2 wanted to purchase a residential plot in Mohali, as her only son and daughter-in-law died in a road accident in 2010 and she wanted to be sure that her grandson, Aman, would be Consumer Complaint No.382 of 2016 16 safe and secured in Punjab, while studying and living with his maternal uncle (complainant No.1.). Opposite parties No.1 & 2 have not led any evidence to rebut those averments of the complainants and, thus, it cannot be said that the complainants were not consumers, as they purchased two plots in the projects of opposite party no.1. Thus, the contention of opposite party No.1 in this regard is also rejected.
19. Opposite party No.3 has also raised the plea in its reply as well as filed M.A. No.594 of 2017, pleading that complainant defaulted in making payment of loan and, thus, opposite party No.3 has already initiated the proceedings under SARFAESI Act, 2002, in order to recover the outstanding amount and possession notice U/s 13(4) of SARFAESI Act has already been issued to the complainants. The complaint against opposite party No.3 merits dismissal on this ground only.
20. There is no doubt that opposite party No.3 has initiated proceedings under SARFAESI Act, 2002, in order to recover the outstanding amount and possession notice U/s 13(4) of SARFAESI Act has already been issued to the complainant. However, in the present case, since opposite parties No.1 & 2 have failed to deliver possession of the plot, in question, to complainant No.1 and other borrower within the stipulated period despite receipt of substantial amount and the complainant and other borrower is entitled to the refund of the amount deposited by them, so the amount to be refunded to him shall be first adjusted towards the loan advanced by opposite party No.3. Therefore, the aforesaid plea of opposite party No.3, as well as the above said application (M.A. No.594 of 2017) filed by it, is disposed of accordingly. Consumer Complaint No.382 of 2016 17
21. Now, coming to the merits of the case, admittedly, the plot, in question, was allotted to complainant No.1 and his wife, Smt. Manisha Goel, in the project of opposite parties No.1 & 2. Agreement, Ex.C-3, was duly executed between the parties. As per the complaint, the buyers made total payment of ₹65,35,000/- against the total sale consideration of plot ₹69,00,000/-. As per clause 10 of agreement Ex.C- 3, the possession of the plot, in question, was to be delivered within 3 years, which reads as under:
"possession of the said plot is likely to be delivered within (3) three years, from the date of official launch of Sector 100 of the said township or from the date of signing of flat buyers agreement, whichever is later, subject however to force majeure circumstances, regular and timely payments by the allottees and obtaining requisite permissions/approvals from the concerned authorities. However, if delay in handing over possession of plots within afore-stated time is attributable to any force majeure circumstances, which interalia, includes but not limited to war, enemy action, earthquake, act of God, delay in certain decision/clearances or if non delivery of possession is as a result of any notice, order, rules notification of any Government or public authority or for any reason beyond the control of the promoter, the promoter shall be entitled to a reasonable corresponding extension of time for delivery of the said plot.
22. As per Clause 10 of buyer's agreement Ex.C-3, the onus is upon opposite parties No.1 & 2 to prove that there existed any force majeure circumstances, which were beyond their control to deliver the complete possession of the said plot. However, there is no evidence on record produced by opposite party No.1 to prove that it and opposite Consumer Complaint No.382 of 2016 18 party No.2 failed to deliver possession of the plot, in question, to the complainant and other borrower due to any force majeure circumstance or any other circumstance beyond its control.
23. Opposite party No.1 took defence that it is not liable to deliver possession of the plot, in question, as it was just an agent of opposite party No.2-Developer. All the amounts were forwarded to opposite party No.2 and the deficiency in service, if any, can only be attributed to opposite party No.2 and not opposite party No.1.
24. In view of these pleadings of opposite party No.1, it is to decided whether opposite party No.1-Pearls Infrastructure Projects Ltd. was only an agent of opposite party no.1 or it can be held liable for any deficiency in service or not?
25. The Hon'ble National Commission in Revision Petition No.2697 of 2016 titled as M/s Pearls Infrastructure Project Ltd. Vs. Varun Mahajan has decided this controversy as under:-
"Having glanced thorough the Plot Buyer Agreement and other related documents, which include the receipts issued by the Petitioner acknowledging receipt of money from the Complainant, we are unable to persuade ourselves to agree with the Learned Counsel. It is true that in the said Agreement, there is a reference to the arrangement between PACL and the Petitioner, but the said Agreement is not a tripartite Agreement between PACL, the Petitioner and the Complainant, in as much as it has not been signed by PACL even as a Confirming Party let. A plain reading of the said Agreement leaves no scope for doubt that there was privity of contract between the Complainant and PACL. Admittedly, not only the booking of the flat was at the instance of the Petitioner, the payments towards Consumer Complaint No.382 of 2016 19 the cost of the plot were also being received by the Petitioner against its own receipts. The mere fact that the amounts received from the Complainant were being deposited in an escrow account, maintained for execution of the project, Christened as "Pearls City" the first name of the Petitioner Company, in our view, does not absolve the Petitioner from its liability under the Plot Buyer's Agreement entered into by the Complainant with the Petitioner only."
In view of the law laid down in the above authority as well as keeping in view the fact and circumstances of the present case, it is abundantly clear that both opposite parties No.1 & 2 are liable for deficiency in service jointly and severally.
26. Opposite party No.1 also took up the defence that the committee, constituted as per the directions of the Hon'ble Supreme Court, is taking care of the properties of PACL and, thus, this complaint is not maintainable. There is no doubt with regard to constitution of the said Committee as per the directions of the Hon'ble Supreme Court. However, the proceedings of the present case do not interfere in any manner the proceedings of that committee, as the proceedings before the said Committee are separate proceedings and the said Committee is taking care of the properties of PACL, in order to watch the interest of the innocent investors, including the complainants, who invested in the project of opposite parties No.1 & 2. The said Committee warned the innocent investors not to again invest their hard earned money with PACL, who ran away by grabbing Crores of Rupees of the general public. Therefore, the proceedings before this Commission do not affect the proceedings pending before the said Committee. Consumer Complaint No.382 of 2016 20
27. It stands proved that opposite parties No.1 & 2 failed to hand over the possession of the plot, in question, to complainant No.1 and other borrower within the stipulated period, without any sufficient reason. Complainant No.1 and other borrower cannot be made to wait for delivery of possession for an indefinite period. The amount paid by complainant No.1 and other borrower is a deposit held by the opposite parties, in trust of complainant No.1 and other borrower and it should be used for the purpose of building the plots/flats, as mentioned in Section 9 of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"). The builder is bound to compensate for the loss and injury suffered by complainant No.1 and other borrower for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, complainant No.1 and other borrower have to wage a long drawn and tedious legal battle. As such, the complainant and other borrower were at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to complainant No.1 and other borrower, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the opposite parties in shattering their hope of getting the plot by waiting for all this period. In these circumstances, the complainant No.1 and Smt. Manisha Goel are Consumer Complaint No.382 of 2016 21 entitled to refund of the amount actually deposited by them with the opposite parties, along with interest and suitable compensation.
28. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-
17. 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."
29. As per account statement, which is part of Ex.C-2, opposite party No.1 received ₹65,66,150/- towards the price of the plot, in question. However, opposite party No.1 has admitted in Para No.6(h) of its reply that complainants paid ₹65,69,755/-. Therefore, we take that a sum of ₹65,69,755/- was received by opposite party No.1 towards the price of the plot, in question. Complainant No.1 and other borrower are entitled to the refund of this amount, along with interest and suitable compensation.
30. Though the complaint is not happily worded, but the sum and substance of the complaint shows that the complainant No.1 wants refund of the entire amount deposited by them and other co-buyer with opposite parties No.1 & 2, as is clear from Para No.23 of the complaint.
31. Another important aspect of the case in hand is that the complaint has been filed by Sh. Devendra Kumar Goel (complainant No.1) and Smt. Sheela Goel (complainant No.2). In Para No.5 of the complaint, it has been averred that the complainants booked two plots in Consumer Complaint No.382 of 2016 22 two different Sectors in Mohali for residential purpose only; out of which one is plot No.102 in Sector 104 (400 sq.yds.) and the other is plot No.1546 in Sector 100 (300 sq.yds.). However, all the documents produced in evidence by the complainants pertain to plot No.1546 only. Agreement, Ex.C-3, is regarding plot No.1546, which shows that this plot was allotted to complainant No.1 and Smt. Manisha Goel. Loan agreement, Ex.C-4, is also regarding plot No.1546, which is signed by complainant No.1 and Smt. Manisha Goel. Ex.C-5 is the allotment letter issued in favour of complainant No.1 regarding plot No.1546. In documents Ex.C-6 to Ex.C-8, plot No.1546 is mentioned. Tripartite Agreement, Ex.C-9, which is regarding plot No.1546, was also signed by complainant No.1 and Manisha Goel. Opposite party No.3 also issued notice, under Section 13 (2) SARFAESI Act, Ex.C-11, to complainants No.1 and Smt. Manisha Goel. From these documents, it is clear that complainant No.2 has unnecessarily been impleaded in the complaint, as all the above documents pertain to plot No.1546, which was allotted in favour of complainant No.1 and Manisha Goel. Thus, the refund of the amount deposited towards the purchase of the plot (No.1546), in question, is liable to be made to complainant No.1 and Smt. Manisha Goel.
32. The complainants have also claimed monthly rent at the rate of ₹18,000/- per month, on the ground that they are living on rent and due to delay in delivery of possession, opposite parties No.1 & 2 are liable to pay the above amount towards rent to them. However, we find that there is no such clause in the agreement, Ex.C-3, regarding Consumer Complaint No.382 of 2016 23 payment of rent in case of delay in delivery of possession of the plot, in question. Therefore, this prayer of the complainants is not tenable.
33. Admittedly, complainant No.1 and Smt. Manisha Geol took loan of ₹40,00,000/- from opposite party No.3 for purchasing the plot, in question, as per Loan Agreement, Ex.C-4. Thus, firstly the amount due towards the loan advanced by opposite party No.1 is to be adjusted from the amount to the refunded in this case.
34. In view of our above discussion, the complaint is allowed and the following directions are issued:
i) Opposite parties No.1 & 2 are directed to refund the amount of ₹65,69,755/-, along with interest at the rate of 12% per annum from the date of respective payments till realization, as per Rule 17 of PAPRA;
It is made clear that out of the amount to be refunded, firstly the amount due towards the loan advanced by opposite party No.3, in favour of complainant No.1 and Smt. Manisha Goel, shall be paid to opposite party No.3 and thereafter the remaining amount, if any, shall be paid by opposite parties No.1 & 2 to complainant No.1 and Smt. Manisha Goel.
ii) to pay compensation of ₹1,00,000/-, on account of the mental tension and harassment suffered by the complainant No.1;and
ii) to pay ₹20,000/-, as litigation expenses.
35. Opposite parties No.1 & 2 shall comply with this order within 30 days of the receipt of certified copy of the order, failing which the Consumer Complaint No.382 of 2016 24 compensation amount shall also carry interest at the rate of 12% per annum from the date of this order till realization.
36. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 26, 2017.
(Gurmeet S)