State Consumer Disputes Redressal Commission
Vishal Singh vs Baba Estates And Colonizers on 30 October, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.377 of 2016
Date of institution : 07.12.2016
Reserved on : 13.10.2017
Date of decision : 30.10.2017
Vishal Singh s/o Baldev Singh, presently residing at House
No.R10/6C, New Navy Nagar, Colaba, Mumbai-400 005,
Maharashtra.
........Complainant
Versus
1. Baba Estates and Colonizers through its Director, SCO-87, 2nd
Floor, Sector 44-C, Chandigarh.
2. Ravnish Sharma s/o B.D. Sharma, Partner, Baba Estates and
Colonizers, SCO-87, 2nd Floor, Sector 44-C, Chandigarh.
........Opposite Parties
Consumer Complaint Under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Shri Aman Sharma, Advocate. For the opposite parties: Shri J.S. Sathi, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Vishal Singh, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986, for the issuance of following directions to the opposite parties:-
i) to refund the amount of ₹21,05,000/- along with interest @ 24% from the date of deposit till its realization;
Consumer Complaint No.377 of 2016 2
ii) to pay compensation of ₹2,00,000/- for harassment and
mental agony suffered by him; and
iii) to pay litigation charges/costs.
Facts of the Complaint:
2. Brief facts, stated in the complaint, are that the complainant is serving in the Indian Navy and is likely to retire in July 2018. One of the brothers of the complainant is residing in Mohali. In fact, he is residing in official accommodation in New Navy Nagar, Colaba, Mumbai and is on board INS Viraat. Now, the complainant is going to be decommissioned and in order to settle at Mohali where his elder brother is also residing along with his parents, he started looking for a residential accommodation for himself and for his family in the year 2014-15. In pursuance of the advertisement made by the opposite parties regarding their project called "Shivjot Apartments"
situated at Kharar, District Mohali, Punjab, the complainant made an application for the allotment of a 2BHK flat in the said project of the opposite parties on 13.1.2015 and an amount of ₹1,00,000/- was deposited through cheque dated 13.1.2015 drawn on ICICI Bank Ltd. After the receipt of the application, opposite parties allotted Flat No.137, 2nd Floor having super area of 1050 square feet in its aforementioned Project for a total sale consideration of ₹23,00,000/- and allotment letter dated 13.2.2015 was issued. On the same very day Agreement to Sell was also executed between the complainant and the opposite parties and Payment Plan was given in the said Agreement. As per the terms of the Agreement and Allotment letter, the possession was to be delivered on or before May 2015. It was Consumer Complaint No.377 of 2016 3 also mentioned that as and when the instalment was to become due, the opposite parties were to inform the complainant. It is averred in the complaint that the complainant had been paying instalments regularly and the payment was to be made as and when the same is to be sought. The payments were construction linked. Just to pay the amount in lump sum the complainant availed a home loan of ₹18,40,000/- from the HDFC Bank Ltd. on 29.1.2015 at the rate of 10.15% per annum on a variable rate basis. After the sanction of the loan, a tripartite agreement was entered between the complainant, the HDFC Bank Ltd. and the opposite parties and an amount of ₹3,60,000/- was deposited towards the sale consideration and the receipt regarding the same was also issued. The HDFC Bank Ltd. made payment of ₹10,00,000/- on 16.3.2015. Further payment of ₹45,114/- was made, vide cheque dated 25.3.2015. Thereafter payment of ₹4,00,000/- was made by the HDFC Bank to the opposite parties on 5.11.2015 and another payment of ₹2,00,000/- was made on 3.3.2016 by the HDFC Bank Ltd. to the opposite parties towards sale consideration. In this manner, the complainant has paid ₹21,05,114/-, out of the total sale consideration of ₹23,00,000/-. Still the possession was not handed over, though the possession was to be handed over in May 2015. Even by giving two months grace period it could have been delivered in July 2015. There is no construction. The completion of construction will take more time. There is no likelihood of completion of the Project in near future. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties, the present complaint Consumer Complaint No.377 of 2016 4 has been filed for issuance of the above mentioned directions to the opposite parties.
Defence of the Opposite Parties:
3. Upon notice opposite parties appeared and filed joint reply taking a stand that the price of the Flat was ₹26,00,000/- and ₹3,00,000/- was to be given as concession if the amount is paid within four months without any default. It was admitted that the complainant had booked a Flat, which was allotted. The brother of the complainant went to the office of the opposite parties and misbehaved with the lady staff. The averments made in the complaint have been denied. However, in para no.6 of the reply the opposite parties admitted the payment of amount of ₹21,05,114/-, which included service tax to the tune of ₹45,114/-. The payment plan was construction linked payment plan. The complainant did not make the payment as per the agreement to sell and as per the schedule of payment. Many requests were made to the complainant to make the payment as per schedule. The complainant made the payment in time as per the schedule only on 13.1.2015 and 16.2.2015 but thereafter he made one pretext or the other to make the payment in time. The complainant made the payment on 13.1.2015, 16.2.2015, 17.3.2015, 15.11.2015 and 3.3.2016 which is clearly in violation of the terms and conditions of the agreement to sell. The complainant was liable to pay interest @ 24% annually as per the agreement in case he makes the payment late. It is further averred that still the complainant has to make the balance payment of ₹2,40,000/- besides interest amount on the delayed payment and Consumer Complaint No.377 of 2016 5 the balance service tax. At the time of approaching the opposite parties, the complainant had visited the site and after getting himself satisfied he gave application, as the Flat was almost ready and only finishing work was to be completed. It is further averred that when the complainant failed to make the payment in time in-spite of issuance of reminders, then the opposite parties had no other option but to cancel the flat of the complainant. When the complainant came to know about this fact, he sent his brother; namely, Vikas Singh, who came in the office of the opposite parties and used abusive language and also misbehaved with the lady staff.
Thereafter the opposite parties sent a legal notice to the complainant but he refused to take the same. The construction is already in full swing and the complainant has intentionally approached this Commission to harass the opposite parties. Denying any deficiency in service or adoption of unfair trade practice a prayer for dismissal of the complaint was made.
Evidence of the Parties:
4. To prove the allegations made in the complaint, the complainant tendered in evidence his affidavit as Ex.C-A and documents Ex.C-1 to Ex.C-11. On the other hand, the opposite parties tendered in evidence affidavit of Ravnish Sharma, opposite party No.2 as Ex.OPA and documents Ex.OP-1 to Ex.OP-21.
5. We have carefully gone through the averments of the parties and the evidence produced by them in support of those averments.
We have also gone through the written arguments submitted by Consumer Complaint No.377 of 2016 6 opposite parties Nos.1 and 2 and have heard learned counsel for the parties.
Contentions of the Parties:
6. Learned counsel for the complainant argued on the same lines as averred in the complaint that the complainant is going to retire in July 2018 and for that purpose he had purchased the Flat and had paid some amount from his own pocket and a part of it was paid by availing home loan from the H.D.F.C. Bank Ltd. The total price of the Flat in question was ₹23,00,000/-, out of which the complainant paid ₹21,05,114/-. As per the terms and conditions of the allotment letter, the possession of the flat was to be delivered in May 2015.
However, there is no progress at the spot. There is no likelihood of completion of the project. Even no completion certificate has been taken by the opposite parties from the competent authorities. Rather the complainant has doubts that it can be completed in near future. The Project is in abandoned stage. The complainant is no more interested in the flat and has requested the opposite parties for the refund of the amount deposited along with interest and compensation. However, the opposite parties failed to refund the amount deposited. This action of the opposite parties in not refunding the amount deposited by the complainant not only amounts to deficiency in service but also adoption of unfair trade practice on their part.
7. On the other hand, learned counsel for the opposite parties argued that the Project is in full swing. The amount deposited by the complainant included service tax to the tune of ₹45,114/-. The Consumer Complaint No.377 of 2016 7 complainant has not been taking the possession of the Flat intentionally. It was admitted that as per the terms of the Agreement dated 13.2.2015, Ex.C-4, the possession was to be delivered in May 2015 but the delay has been admitted by the learned counsel for the opposite parties while arguing the matter. The complainant did not adhere to payment schedule as agreed in Agreement Ex.C-4. An amount of ₹5,47,000/- is still due towards the complainant. The complainant did not make due payment and did not pay interest on delayed instalments. Therefore, the opposite parties were left with no other option except to cancel the allotment. The flat in question could not be handed over to the complainant due to his own act and omissions. There is no deficiency in service or adoption of unfair trade practice on their part. This complaint, therefore, deserves to be dismissed with costs.
Consideration of Contentions:
8. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
9. The purchase of the flat in question in the manner, stated in the complaint, has not been denied. It has been admitted in para 6 of the reply on merit that the complainant made the payment of ₹21,05,114/- out of the total sale consideration of ₹23,00,000/- and the possession of the flat, complete in all respects, was to be delivered to the complainant in May 2015. Therefore, the complainant has paid the substantial part of the price of the flat in question leaving aside small amount, which was to be paid at the time of delivery of possession. The complainant has been regularly Consumer Complaint No.377 of 2016 8 paying the instalments. Some amount has been paid by him from his own pocket and the remaining amount was paid by availing home loan from the H.D.F.C. Bank Ltd. Certainly there is violation of the terms and conditions of the Agreement to Sell Ex.C-4. The possession is not likely to be delivered in near future as no document has been placed on record by the opposite parties with regard to the completion of the Project and by which date it will be ready for delivery. Not only this, no document substantiating the status of the Project or the photographs etc. have been annexed regarding the progress of the Project. A specific question was put to the learned counsel for the opposite parties to explain about the present status of the Project but he failed to give any satisfactory reply but only relied upon the site plan, which does not indicate the level of the construction. Therefore, there is no likelihood of completion of the project and delivery of the flat in question, complete in all respects, in near future. Much delay has already occurred. Hence the apprehension in the mind of the complainant is genuine and as such, he is entitled to ask for the refund of the amount deposited with the opposite parties.
10. As per Section 3 (General Liabilities of Promoter) of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such colony is to be 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 Consumer Complaint No.377 of 2016 9 land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA.
11. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
12. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/apartments/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
13. The opposite parties had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement. Consumer Complaint No.377 of 2016 10
14. The C.P. Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of the amount to the opposite parties and got the home loan sanctioned from the HDFC Bank Ltd. with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by Consumer Complaint No.377 of 2016 11 misrepresenting induced the complainant to book the flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant 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, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was 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 the complainant, are also required to be taken into consideration for awarding compensation. In addition to that, he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering his hope of getting the flat by waiting for all this period.
15. Under Section 12 of the PAPRA read with Rule 17 of the Rules framed thereunder, if the amount is to be refunded, it is to be refunded along with interest at the rate of 12% per annum. Consumer Complaint No.377 of 2016 12
16. In view of the above discussion, the complaint is allowed and the following directions are issued to the opposite parties:-
i) to refund the amount of ₹21,05,114/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹1,00,000/-, as compensation for the harassment
and mental agony suffered by him; and
iii) to pay ₹22,000/-, as cost of litigation.
17. The compliance of this order shall be made by the opposite parties within two month from the date of receipt of the certified copy of this order and failing that, they shall be liable to pay interest on the said amount of compensation of ₹1,00,000/- at the rate of 12% per annum from the date of this order till the date of payment.
18. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER October 30, 2017 Bansal Consumer Complaint No.377 of 2016 13