State Consumer Disputes Redressal Commission
Vipan Kumar vs Pearls Infrastructure Projects Ltd. on 25 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.337 of 2016
Date of Institution : 21.10.2016
Order reserved on: 23.01.2018
Date of Decision : 25.01.2018
1. Vipan Kumar s/o Late Sh. Shamlal Mittal,
2. Alka Mittal w/o Sh. Vipan Kumar,
both residents of Shankar Steel Company, Ram Nagar Gagret,
District Una, Himachal Pradesh.
.....Complainants
Versus
1. Pearls Infrastructure Projects Ltd., SCO 6, Sector-69, Mohali
through its Managing Director/Authorized Signatory.
2. Pearls Infrastructure Projects Ltd., having its registered office
at 2-3rd Floor, A-Wing, Statesman House, Barakhamba Road,
Connaught Place, New Delhi-110001, through its Managing
Director/Authorized Signatory.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. S.S. Gill, Advocate For the opposite parties : Ex-parte ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that they booked a residential plot measuring 200 square yards for basic sale price of Rs.46,00,000/- in Pearls City, Sector-100, Mohali with OPs for their personal and family use by paying booking amount of Rs.4,60,000/-, Consumer Complaint No.337 of 2016 2 vide receipt nos.12727 and 12728 dated 10.02.2011. Subsequently, plot no.503 was allotted to them on 10.02.2011 by OPs. They paid payments of price to OPs of the above said plot, details of which are as under:
S.No. Receipt No. Date Amount(Rs.) 1. 14326 20/04/2011 2,30,000/- 2. 14370 22/04/2011 2,30,000/- 3. 14899 13/05/2011 2,30,000/- 4. 15415 30/05/2011 2,30,000/- 5. 15941 17/06/2011 2,30,000/- 6. 18494 29/09/2011 2,00,000/- 7. 18495 29/09/2011 1,45,000/- 8. 19496 21/11/2011 1,45,000/- 9. 19497 21/11/2011 2,00,000/- 10. 21951 26/03/2012 1,94,302/- 11. 21953 26/03/2012 1,94,303/- 12. 24932 22/08/2012 3,45,000/- 13. 25799 06/10/2012 3,45,000/- 14. 27924 12/02/2013 3,40,000/- 15. 32111 01/01/2014 4,60,000/- 16. 33064 20/03/2014 6,90,000/-
It is further averred that OPs kept on collecting the payments from them from February 2011 to May 2013 without getting the buyers agreement executed thereby violating Section 6 of Punjab Apartment of Property and Regulation Act, 1995. Non-execution of Buyers Consumer Complaint No.337 of 2016 3 agreement was an unfair trade practice on the part of OPs. Subsequently, the buyers agreement was executed between the parties on 16.05.2013 and as per clause 10 of this agreement, the possession of plot was to be delivered within three years from the date of signing of buyer agreement by OPs to complainants. Till date, no possession has been delivered to complainants by OPs. OPs have not obtained completion certificate from competent authority as per Section 14(ii) of PAPRA Act 1995, which can only be issued, if the developer has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads and so on to the satisfaction of GMADA. The OPs still get the partial completion certificate from competent authority and have not completed the development work on the site. Without giving option to complainants for becoming the member of the Club, OPs charged the fee of club from them in advance thereby violating clause 18 of buyers agreement. OPs further told them that sector 100 and sector 104 would have common club, which was being developed in sector 104, but the same has not been developed by OPs in sector 100 as well. Later on, OPs apprised them that water tank for supplying the water to sector 100 Mohali would be built in sector 104 Mohali and the same would be catering to sector 100 and 104 Mohali. Sewage treatment plant has not yet been started by OPs. No security promise and water works arrangement promise has been made in sector 100, which makes the area unlivable. The community centre is also in deplorable state Consumer Complaint No.337 of 2016 4 without street lights. No transformer and feeders were installed there. The power house of sector 104 is to cater to sector 100 Mohali for the time being. The said sector does not have a permanent electricity connection as of date. It is further averred that deadline given to OPs for completing the project by PUDA has already been elapsed six months ago. They have alleged deficiency in service and unfair trade practice on the part of OPs and prayed for refund of deposited amounts of Rs.48,68,605/- alongwith interest @18% per annum from the date of deposits till realization; further to pay compensation of Rs.5,00,000/- for mental harassment; and Rs.1,00,000/- as litigation expenses.
2. Upon notice, OPs have appeared and filed written reply by raising preliminary objections that complainants have not impleaded M/s PACL India Ltd., which is the owner of the project and has acquired, purchased and obtained CLU, requisite licenses, approvals/permissions etc. from the government authorities, regarding land in the Pearls City, Mohali. M/s Pearls Infrastructure Projects Limited is not the owner of land in the Pearls City, it has been just looking after the marketing and sales of residential/commercial units in the Pearls City and has been authorised to supervise work in the Pearls city, Mohali. The present complaint is not maintainable, as clause no.29 of buyers agreement contains Arbitration Clause for resolution of disputes. The complainants are not consumers of OPs, as they purchased the said plot for earning profits only. The complaint was contested by OPs Consumer Complaint No.337 of 2016 5 even on merits by averring that basic price of the plot was fixed at Rs.46,00,000/- and it is matter of record and the preferential charges, cost of electrification, EDC and IDC are not included in the basic sale price of the plot. It is averred that development has taken place in Sector 100, Pearl City, Mohali. Road work, sewerage, water supply etc. is already complete. The significant development has already been done in Setor-100, Pearl City, S.A.S. Nagar (Mohali), where the plot of complainants is situated and road work, sewerage, water supply etc. is already complete. It is denied that there is any deficiency in service and unfair trade practice on the part of answering OPs. They have controverted the other averments of the complainants and prayed for dismissal of the complaint.
3. The complainants tendered in evidence affidavit of Vipan Kumar complainant no.1 Ex.C-A alongwith copies of documents Ex.C-1 to C-8 and closed the evidence. Despite giving several opportunities, OPs have not produced the evidence on the record and were set ex-parte, vide order dated 23.01.2017.
4. We have heard the learned counsel for the complainant as OPs are exparte in this case and have also examined the record of the case. Pleadings in this case have been carefully perused by us. Evidence on the record has also been referred to as led by the complainants to prove their case. It is the case of the complainants that they booked a residential plot measuring 200 square yards for basic sale price of Rs.46,00,000/- in Pearls City, Sector-100, Mohali for their personal and family use with OPs by paying booking amount Consumer Complaint No.337 of 2016 6 of Rs.4,60,000/-, vide receipt nos.12727 and 12728 dated 10.02.2011. Subsequently, plot no.503 was allotted to them on 10.02.1011 by OPs. They made the payments to OPs of the above said plot on different dates, as tabulated in para no.2 of the complaint. The possession was to be delivered to complainants within three years from the date of execution of plot buyers agreement, as per clause 10 of Buyers agreement, which was executed between them on 16.05.2013. The developer can offer possession only if they obtained partial completion certificate of the project, as per notification dated 02.09.2014, under Section 14(ii) of PAPRA Act, 1995. The GMADA has issued the certificate on its satisfaction regarding the fact that developer has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads, etc. The OPs are yet to get the completion certificate either full or partial from the competent authority for development of the project, as mandated by Section 14 of PAPRA Act, 1995. The club has not still been developed in Sector 104 by OPs and the club is being developed in Sector 104 jointly for Sector 104 and Sector 100. Sewage treatment plant has yet not been made operational in Sector 104 and the it is cater to sector 100, which is already in messy state. No water work arrangement has been made in Sector 100 making the area unlivable. The promise of hightech 24x7 security has also not been fulfilled. The community centre is also in deplorable state without any street lights. There are no transformers and feeders Consumer Complaint No.337 of 2016 7 installed in the said Sector. The complainants have pointed out deficiency in service on the part of OPs. Vipan Kumar complainant no.1 tendered his affidavit Ex.C-A pointing out the deficiencies in service as referred to above. Ex.C-1 is the allotment letter dated 10.02.2011 issued by OPs to complainants allotting plot no.503 of 200 square yards for basic sale price of Rs.46,00,000/-. The complainants have paid the amounts to OPs on different dates. Receipts Ex.C-2(a) to C-2(r) may be referred to in this regard. The complainants have paid various amounts to OPs on different dates, vide above referred receipts. Plot buyers agreement Ex.C-3 was executed between the parties on 16.05.2013. PACL India Limited is also confirming party as promoter of this buyers agreement and it is signatory to it. Clause 10 of plot buyers agreement is the relevant provision of law, which is reproduced as under:-
10: 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, which ever 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 aforestated 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 decisions/clearances or it non-delivery of possession Consumer Complaint No.337 of 2016 8 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."
It is, thus, clear that possession of the said plot was agreed to be delivered within three years from the date of official launch of Sector 100 of said township or from the date of signing of plot buyers agreement. Ex.C-3 was executed between the parties on 16.05.2013 and the date of delivery of possession is till 16.05.2016. The possession has not been delivered by OPs to complainants as yet.
The notification of the Government is Ex.C-4 dated 02.09.2014 for delivery of complete possession, as mandated by Section 14(ii) of PAPRA Act, 1995. One Mohan Dutt sought information under Right to Information Act, 2005 from Public Information Officer-cum-AEO GMADA, SAS Nagar (Mohali) to the effect that PACL is not exempted from taking the completion certificate of this project. Promoter has not applied for completion certificate of the project to the competent authorities under Section 14 of PAPRA Act, 1995. The brochure issued by OPs is Ex.C-8, wherein they represented the various features of the project like large area reserved for green belts, lavishly designed club house offer a plethora of sports and leisure activities, provision for multiplex cum shopping mall with all modern facilities, specially earmarked area for senior secondary school, nursery school and creches, dispensary, gurudwara and Consumer Complaint No.337 of 2016 9 temple, meticulously planned infrastructure, 24x7 hitech security, an array of options to choose from independent built-up villas to built up apartments and variable plot sizes starting from 150 square yards (125.41 square meters).
5. The OPs have not yet completed the project despite lapse of three years scheduled time to deliver the possession in this case. The complainants have paid the amount of Rs.48,68,605/- to OPs, despite the fact that the basic sale price of the plot was Rs.46,00,000/-. We find no deficiency on the part of complainants. They have paid their money due for above plot, but OPs have not yet completed the project by removing the deficiencies nor obtained partial or completion certificate for delivery of possession to complainants from the competent authorities and no partial/completion certificate has been brought on record as well.
6. As a result of our above discussion, we hold that OPs have utilized the hard earned money of the complainants without performing their contractual obligations to correspondingly develop the project. The complainants are thus, entitled to refund of their entire deposited amounts of Rs.48,68,605/- with interest @12% per annum from the date of their deposits till actual payment from OPs. We also award the compensation of Rs.1,00,000/- for mental harassments and Rs.30,000/- as cost of litigation to the complainants. The OPs are directed to pay the above amounts to complainants within two months from the date of receipt of certified copy of this order. In case, the amount is required to be paid by Consumer Complaint No.337 of 2016 10 PACL due to its control over the project, then in that eventuality, the recovery shall be effected by complainants through the instrumentality of SEBI Committee constituted by Hon'ble Supreme Court in Civil Appeal no.13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India". Top Court has passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the Incharge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc., wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited. Herein this case, PACL Limited is also a party to buyers agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case for recovery of refund amounts, as per direction of the Hon'ble Supreme Court.
Consumer Complaint No.337 of 2016 11
7. Arguments in this complaint were heard on 23.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 25, 2018.
(MM)