State Consumer Disputes Redressal Commission
Pankaj Sood vs Unitech Ltd. on 12 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. Consumer Complaint No.762 of 2017
Date of institution : 05.09.2017
Date of decision : 12.03.2018
Pankaj Sood son of Shri Bhupinder Lal through his power of attorney
Holder Dr. Onkar Chand Sood son of Late Shri Thakar Dass Sood,
Resident of Mehdudia Niwas, Fingask Estate, Shimla-171 003
Himachal Pradesh.
.......Complainant
Versus
1. Unitech Limited through its Chairman having its Marketing
Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
2nd Address:
M/s Unitech Limited, through Director Ajay Chandra, having
registered office at 6, Community Centre, Saket, New Delhi-
110 017.
2. Ramesh Chandra, Chairman of M/s Unitech Limited having
registered office at 6, Community Centre, Saket, New Delhi-
110 017.
(Deleted vide order dated 25.1.2018)
3. Ajay Chandra, Director of M/s Unitech Limited having
registered office at 6, Community Centre, Saket, New Delhi-
110 017.
4. Alice Developers Private Limited through its Director having
registered office at 6, Community Centre, Saket, New Delhi-
110 017.
Consumer Complaint No.762 of 2017 2
5. Sanjeev Hingorani, Director of M/s Alice Developers Private
Limited having registered office at 6, Community Centre,
Saket, New Delhi-110 017.
........Opposite Parties
2. Consumer Complaint No.794 of 2017
Date of institution : 08.09.2017
Date of decision : 12.03.2018
1. Parduman Singh son of Teja Singh,
2. Navjeet Kaur wife of Parduman Singh,
Both residents of House No.C-603, 6th Floor, Tower C, Sector-
116, Gold Homes, Kharar, SAS Nagar (Mohali).
.......Complainants
Versus
1. Unitech Limited Regd. Office 6, Community Centre, Saket,
New Delhi through its Managing Director.
2. Unitech Limited (Uniworld City, Mohali), Marketing Office at
SCO-189-90-91, Sector 17, Chandigarh through its authorized
officer.
3. Alice Developer's Pvt. Ltd., registered office at Basement 6,
Community Centre, Saket, New Delhi, through its Managing
Director.
4. Ajay Chandra, Managing Director, Unitech, Office 6,
Community Centre, Saket, New Delhi.
5. Sanjay Chandra, Managing Director, Unitech, Office 6,
Community Centre, Saket, New Delhi.
Consumer Complaint No.762 of 2017 3
6. Sanjeev Hingorani, Director, Alice Developers Pvt. Ltd.,
Registered Office at Basement 6, Community Centre, Saket,
New Delhi.
7. Satbir Singh Yadav, Director, Alice Developers Pvt. Ltd.,
Registered Office at Basement 6, Community Centre, Saket,
New Delhi.
........Opposite Parties
Consumer Complaints 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 Sanjeev Sharma, Advocate. For opposite parties Nos.1&3 : Ms. Vertika H. Singh, Advocate. For opposite party No.2 : Deleted vide order dated 25.1.2018. For opposite party No.4 & 5 : Ms. Kshitija Mittal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
Both above referred Consumer Complaints are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these complaints. The facts are taken from Consumer Complaint No.762 of 2017.
2. The present complaint (CC No.762 of 2017) has been filed by Pankaj Sood, complainant, through his power of attorney, under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "C.P. Act") for the issuance of following directions to the opposite parties:-
Consumer Complaint No.762 of 2017 4
i) to refund ₹31,58,346/- i.e. the entire amount paid along with interest @ 18% per annum compounded from the date of deposit till its actual realization;
ii) to pay ₹5,00,000/- towards damages and compensation on account of mental agony/torture and physical harassment caused to the complainant; and
iii) to pay ₹55,000/- towards litigation/counsel fee.
Facts of the Complaint:
2. Brief facts, as stated in the complaint are, to the effect that the opposite parties launched the project by the name of "Uniworld City", Sector 107, Mohali and propagated to provide "Residential Space"
the epitome of distinctive style. They assured high quality of residential complex and apprised that their plots, villas, commercial complexes are also coming up in the said vicinity being promoted by them within this prestigious gated community characterized by outstanding levels of comforts, convenience and security and that the project of the opposite parties would be a huge success. It is averred that opposite party No.1 had given the development rights to one of its subsidiary company i.e. opposite party No.4 and had assured the complainant that Unitech is responsible for execution and timely handover of possession. Based on the assurance of opposite party No.2 and 3 being the Chairman and Managing Directors of Unitech Limited and of opposite party No.5 being Director of opposite party No.4 the complainant invested with them for purchase of a residential flat at Mohali. Opposite parties Nos.2, 3 Consumer Complaint No.762 of 2017 5 and 5 are responsible for day to day affairs of the respective Companies. It is further averred that the complainant, who was looking for a decent residential accommodation for himself and his family at Mohali got allured by the advertisements and promotions by opposite parties and approached them to inquire about the above referred project. The Representatives of the opposite parties told him that project is one of the prestigious projects which is being launched in Mohali and the possession will be handed over to him within a period of 36 months from date of signing of buyer's agreement. Accordingly the complainant signed the application form dated 7.7.2010 and paid a sum of ₹4,77,000/- to the opposite parties. It is further averred that 3 Bedrooms Apartment/Flat No.0146 on 2nd Floor, Block-B measuring 137.96 square meters (approximately 1485 square feet) in the said project was allotted to him, vide allotment letter dated 7.7.2010 for a total price of ₹36,11,276/- including EDC/IDC and PLC charges and the complainant had opted for construction linked plan for payment of instalments. Thereafter Buyer's Agreement was executed between the complainant and the opposite parties on 6.8.2010 and as per para 4(a) of Article 4 of the Agreement the possession was to be offered within 36 months from the date of signing of buyer's agreement and as such, possession was to be delivered to him by 5.8.2013. The complainant paid all the instalments on time as per the demands of the opposite parties against receipts and in all he had deposited ₹31,58,346/-. It is further averred that on 9.9.2013 his Consumer Complaint No.762 of 2017 6 father-in-law visited the site in question and was shocked to know about the ground reality as no development was there on the actual project site in Sector 107, Mohali. There were no approach/connecting roads, no proper internal roads, no water and drainage system, no streetlights and there was not even a semblance of any development being carried out at the project. The project has been abandoned by the opposite parties and the complainant has been left in lurch. The project of the opposite parties was not complete till the date of filing of the complaint even after the passage of more than 7 years from signing of the buyer's agreement. Therefore, on 20.8.2017 the complainant asked the opposite parties to refund the amount along with interest at the rate of 18% per annum as compensation for delay in possession and for not refunding the amount of the complainant. The act of the opposite parties in not handing over the possession of the flat or in not refunding the amount deposited by the complainant along with interest, compensation and costs not only amounts to deficiency in service but also adoption of unfair trade practice on their part. Hence the present complaint for issuance of the above mentioned directions to the opposite parties.
Defence of Opposite Parties:
3. Upon notice opposite parties Nos.1, 3, 4 and 5 appeared through counsel. However, on the statement of learned counsel for the complainant, opposite party No.2 was ordered to be deleted from the array of opposite parties, vide order dated 25.1.2018. Opposite Consumer Complaint No.762 of 2017 7 parties No.1 and 3 in their reply did not dispute the purchase of the apartment by the complainant in the manner stated in the complaint. Opposite party No.1 & 3 averred that the payments made by the complainant were accepted by them only on behalf of opposite party No.4 i.e. the developer and that the possession of the apartment has not been handed over to him so far. They denied the other allegations made in the complaint and averred that it was opposite party No.4, who was solely responsible for the construction of the apartment and the complainant was well aware of that fact, as it was so mutually agreed at the time the Buyer's Agreement was executed. It was opposite party No.4, who had agreed to sell the apartment/flat to the complainant and that opposite party was given the discretion to forfeit the booking/registration amount or the earnest money, as the case may be, in case the complainant sought cancellation of the allotment or refund of the amount. It was opposite party No.4, who was liable to pay the charges on account of delay in delivery of possession of the flat/apartment. All the terms and conditions of the Buyer's Agreement related to that opposite party and opposite party No.1-Company was only the Confirming Party and had no role in the construction work or the delivery of possession of the flat/apartment. It had entered into a Development Agreement dated 01.12.2008 with opposite party No.4, vide which the development rights were given to that opposite party, with respect to 33.2438 acres of land and such additional land of the project, allocated vide notifications and amendments to the Development Agreement. Opposite party No.4 Consumer Complaint No.762 of 2017 8 was to construct and complete independent floors on plots of various sizes, each plot having three floors and the complex area earmarked for construction of independent floors to be known as "Unihomes". That opposite party was authorized to use opposite party No.1- Company's Trademark and Logo for various purposes; such as, promotional, marketing, advertisements, brochures, hoardings etc. The payments were received by them on behalf of opposite party No.4 and that fact was very much in the knowledge of the complainant. In all these circumstances, the complaint is not maintainable against them. The demands for payment were raised by them on behalf of opposite party No.4 and the receipts were also issued by them on behalf of that opposite party. The payments, so received, were deposited in the Bank account of that opposite party. The complainant being investor just wants to wriggle out of the transaction and therefore, on one pretext or other is trying to seek refund of the amount paid by him. The complainant has apparent mala fide intentions to create frivolous grounds for transgressing the agreement. Because of decline in the real estate market the complainant thought to withdraw his investment and as such, he is not entitled to any relief under the provisions of the C.P. Act. No cause of action has accrued to him to file the complaint and the same is not maintainable under the provisions of the C.P. Act. They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 6.8.2010 was executed at New Delhi and all the demands of the payments have Consumer Complaint No.762 of 2017 9 been raised by the Gurgaon office of the opposite parties on behalf of Alice Developers Pvt. Ltd. and the receipts of the same have also been issued by the Gurgaon office of the opposite parties on behalf of opposite party No.4. This Commission also do not have pecuniary jurisdiction to entertain and decide this complaint as the amount claimed in the complaint exceeds Rs.One Crore. The facts, as narrated in the complaint, do not constitute "consumer dispute' as defined in Section 2(1) (e) of the C.P. Act. The complainant is seeking relief, which is not covered under the definition of "consumer dispute". He raised issues relating to contractual matter arising out of the terms and conditions of the Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. They prayed for the dismissal of the complaint with heavy costs; being false, frivolous and vexatious. Defence of Opposite Party No.4 and 5:
4. Opposite parties Nos.4 and 5 in their separate reply submitted in preliminary submissions that Sanjeev Hingorani, opposite party No.5, has resigned from the post of Director of Alice Developers Private Limited, vide resignation dated 12.6.2017 and, therefore, his name may be deleted from the array of parties in the interest of justice as per rules. They took the preliminary objections to the effect that the complainant is resident of Himachal Pradesh and is simply an investor, who had invested in the said unit for resale purposes. But due to slump in the real estate market the complainant was not able to resell the said property. Since the Consumer Complaint No.762 of 2017 10 complainant had purchased the said unit for commercial purposes and since he is already having a residential house where he is residing presently, therefore, he does not fall within the ambit of the definition of 'consumer' as per the C.P. Act. The present complaint has been filed through the general power of attorney, who is not competent as he can only give oath of the facts to which he had his personal knowledge and cannot depose about the facts which are in the personal knowledge of the original complainant. The facts, as narrated in the complaint, do not constitute "consumer dispute' as defined in Section 2(1) (e) of the C.P. Act. The complainant is seeking relief, which is not covered under the definition of "consumer dispute". He raised issues relating to contractual matter arising out of the terms and conditions of the Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. No cause of action has accrued to him to file the complaint and the same is not maintainable under the provisions of the C.P. Act. The opposite parties have throughout discharged all the services to the complainant in a bona fide manner. Moreover, the complainant has never approached the opposite parties with regard to any grievance and has directly filed the present complaint without approaching them for any refund. They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 6.8.2010 was executed at New Delhi. This Commission also do not have pecuniary jurisdiction to entertain and decide this complaint as the amount claimed in the complaint Consumer Complaint No.762 of 2017 11 exceeds ₹One Crore. As per the terms and conditions of the Buyer's Agreement the delivery of possession was subject to force majeure circumstances and the Developer is entitled to a reasonable extension of time in the agreed date for delivery of possession of the apartment. Thus, it was only due to unforeseen circumstances beyond the control of the answering opposite parties that the delivery has been delayed. Moreover, as per Article 4.e of the Buyer's Agreement it was also mutually agreed that if for any reason the developer is not in a position to offer the apartment, the developer may offer the apartment allottee an alternative property or refund the amount paid by the allottee in full with interest @ 10% p.a. from the date of payment made by the apartment allottee without any further liability to pay any damages, charges or compensation. Thus, the complainant is not entitled to refund if allotted alternate property. The opposite parties have sincere intention and are also making honest efforts to deliver the possession of the said unit at the earliest. The answering opposite parties have all the required approvals for the project and have also applied for partial completion of the project, vide letter dated 3.2.2016. Moreover, the complainant has paid ₹31,58,346/- as against the sale consideration of ₹36,11,276/- of the unit and as per Article 2.d of the Buyer' Agreement the timely payment of the instalment was the essence of the Agreement and the complainant failed to fulfil the same. Thus, the non-payment of the remaining instalments disentitles him for any relief under the Agreement and also as per the law of estoppel. On Consumer Complaint No.762 of 2017 12 merits, the purchase of the flat/apartment by the complainant from them in the manner stated in the complaint and the payments as reflected in the complaint have been admitted. Denying all other averments made in the complaint a prayer for dismissal of the complaint was made.
Evidence of the Parties:
5. For proving the allegations made in the complaint, the complainant proved on record affidavit of Dr. Onkar Chand Sood, his power of attorney holder as Ex.CA and documents Ex.C1 to Ex.C6. On the other hand, opposite party No.1 and 3 proved on record the affidavit of their Authorized Representative, Lalit Gupta, Ex.OP1/A, and documents Ex.OP1/1 to Ex.OP1/3. Opposite parties Nos.4 and 5 have also filed affidavit of their Authorized Representative Atamjeet Singh Virk as Ex.OP-4/A and documents Ex.OP-4/1 and Ex.OP-4/2.
6. We have carefully gone through the averments of the parties, evidence produced by them in support of their respective averments and have heard their learned counsel.
Contentions of the Parties:
7. It has been contended by the learned counsel for the complainant that by virtue of the facts, proved on the record by the oral and documentary evidence of the complainant, the complainant is entitled to the refund of the amount, so paid by him for purchasing the flat/apartment, from the opposite parties and they are also liable to pay interest on that amount; besides the compensation for the Consumer Complaint No.762 of 2017 13 mental agony, harassment and financial loss suffered by him on account of the acts on their part as detailed in the complaint and in collecting the huge amount, without developing the project and having failed to deliver the possession of the flat/apartment within the stipulated period of 36 months.
8. On the other hand, it was submitted by the learned counsel for opposite party No.1 and 3 that the deficiency in service, if any, can be said to be only on the part of opposite party No.4; as, by virtue of the agreement so executed between the parties, it was that opposite party, which had sold the flat/apartment to the complainant and received the amount, as mentioned in the complaint, towards the consideration of that flat/apartment and it was for that opposite party itself to deliver the possession. Opposite party No.1 was only a "Confirming Party" and, as such, no liability can be fastened to it.
9. It was submitted by the learned counsel for opposite party No.4 and 5 that the period of 36 months, so mentioned in the Buyer's Agreement, was a tentative period and was subject to force majeure circumstances. It was only due to unforeseen circumstances beyond the control of opposite parties Nos.4 and 5 that the delivery has been delayed. Moreover, vide Article 4.e of the Buyer's Agreement, it was also mutually agreed that if for any reason the developer is not in a position to offer the apartment, the developer may offer the apartment allottee an alternative property or refund the amount paid by the allottee in full within interest @ 10% per annum from the date of payment made by the apartment allottee without any further Consumer Complaint No.762 of 2017 14 liability to pay any damages, charges or compensation. Thus, the complainant is not entitled to refund if allotted alternate property. They are making sincere and honest efforts to deliver the possession of the said unit at the earliest. Therefore, it cannot be said that there was any deficiency in service on the part of these opposite parties or that they adopted any unfair trade practice. The complainant cannot ask for the refund of the amount, when these opposite parties are ready to deliver possession of the flat itself to him. It has been further argued by the learned counsel for opposite parties Nos.4 and 5 that since Sanjeev Hingorani, opposite party No.5, has resigned from the post of Director of Alice Developers Private Limited, vide resignation dated 12.6.2017 and, therefore, his name may be deleted from the array of parties in the interest of justice as per rules. Consideration of Contentions:
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
11. At the outset it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:
i) Consumer Complaint No.327 of 2015 (Balwinder Singh and another v. Unitech Limited and others) decided on 20.9.2016.
ii) Consumer Complaint No.122 of 2015 (Sh. Puneet Chugh Vs. Unitech Limited & Ors), decided on 12.09.2016;
Consumer Complaint No.762 of 2017 15
iii) Consumer Complaint No.233 of 2015 (Naresh Kumar Vs. Unitech Limited & Ors), decided on 08.09.2016;
iv) Consumer Complaint No.197 of 2015 (Vineet Sood vs. Unitech Limited & others) decided on 10.11.2016;
v) Consumer Complaint No.234 of 2015 (Smt. Neelam Khurana v. Unitech Limited & others) decided on 6.3.2017, vide which bunch of 9 Consumer Complaints has been decided.
vi) Consumer Complaint No.431 of 2017 (Rajesh Gori and another v. Unitech Limited and others) decided on 25.10.2017; and
vii) Consumer Complaint No.565 of 2017 (Gagandeep Singh v.
Unitech Limited and others) decided on 5.1.2018.
12. The matter in the present complaints is squarely covered by the orders passed in above said complaints, so we intend to decide the present complaints in view of orders passed in above said complaints.
13. At the time of arguments, it was not disputed that the complainant performed his part of the contract under the Buyer's Agreement dated 6.8.2010; which was proved on the record as Ex.C-3. As per Annexure-A of the Agreement, which contains the Payment Plan, he was to pay the total sale consideration of the flat in instalments; which were construction linked. It was not denied that he had deposited ₹31,58,346/- against the total sale consideration of ₹36,11,276/-, as per that Payment Plan. It is not the case of any of the opposite parties that the complainant had not Consumer Complaint No.762 of 2017 16 fulfilled his part of the contract. Once he had paid the said amount under the agreement, he became entitled to the possession of the flat. As per Clause 4.a(i) of the agreement, the same was to be delivered within 36 months of the signing thereof, subject to force majeure circumstances. It is an admitted fact that the possession was not delivered to him within that period and not till the filing of the present complaint; which was filed in the year 2017. Opposite party No.4 has tried to take cover of force majeure circumstances for that delay in delivery of possession. However, no such circumstance has been alleged or proved on record by it. It is simply stated in the reply filed by opposite parties Nos.4 and 5 that it was only due to unforeseen circumstances beyond the control of the answering opposite parties that the delivery has been delayed. However, no such circumstance has been proved on record.
14. The present case, in view of the averments of the opposite parties, involves the determination of their inter-se dispute; as to what were the respective rights and liabilities of the opposite parties under the agreement; who was liable to deliver the possession to the complainant; and who is liable to refund the amount, in dispute, and pay the compensation etc.? The determination of those questions involves interpretation of the Buyer's Agreement, Ex.C-3. In the agreement, opposite party No.1 has been described as the "Confirming Party", whereas opposite party No.4 has been described as the "Developer". As per Clause 3 at Page No.2 of the agreement, opposite party No.1 had assigned to opposite party No.4 rights with Consumer Complaint No.762 of 2017 17 respect to 33.2438 acres of land. The most important Clauses for determining that relationship are reproduced below:
"AND WHEREAS on a part of the Said Land, the Developer shall construct and complete independent Floors on plots of various sizes, each Plot having 3 floors and the Complex area earmarked for construction of Independent floors to be known as "Unihomes" each floor being independent and constituting a separate Unit. AND WHEREAS in terms of Clause 4.2.2 of the said Development Agreement, Unitech has agreed to join the Developer as a confirming party in the transfer/allotment and assignment of rights in the Developed Units to the prospective purchasers of the Developed Units and also to execute the Conveyance Deeds for such Developed Units in favour of such Purchasers.
AND WHEREAS the Developer has also authorized Unitech to market, sell either itself or through its channel partners, the built-up/developed areas/Apartments on its behalf including deposit of collected monies of marketed areas/sold units in the designated Account of the Developer.
2.m. Design and specifications:
(i) That at the time of taking over the possession of the Floor, the Purchaser (s) shall satisfy himself about the design, specifications etc. of the Floor. The Consumer Complaint No.762 of 2017 18 Purchaser(s) after taking possession of the Apartment shall have no claim against Unitech or the Developer in respect of any item of construction or work in the Floor, which may be said not to have been done or carried out or completed or for any alleged non-compliance of design, specification, building material etc.
4.a Delivery of Possession:
(i) That the possession of the Floor is proposed to be offered to the purchaser(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Purchaser (s) under this Agreement have been paid within the stipulated period. It is, however, understood between he Parties that various Floors shall be ready and shall be completed in phases and handed over to the Purchaser (s) accordingly.
8.b Force Majeure:
That, however, if the handing over of possession of the Floor is delayed for reasons of "Force Majeure"
or circumstances beyond the control of the Developer or because of any notice or order of the Government, including slow down strike, civil commotion or by reason of war, enemy or terrorist Consumer Complaint No.762 of 2017 19 action or an act of God, delay in the grant of completion/occupation certificate by the Government and/or any act of public or competent authority, the Developer shall be entitled to a reasonable extension of time in the agreed date for delivery of possession of the Floor."
A minute perusal of these Clauses makes it clear that the delivery of possession of the flat/apartment was not the exclusive liability of opposite party No.4, but all the opposite parties were liable, jointly and severally. However, as per clause 4.c. of the Agreement, Ex.C3, the compensation at the rate of ₹5/- per square foot per month of the super area of the floor for the period of delay in offering the possession beyond the period of 36 months was to be paid by opposite party No.4. Opposite parties No.1 and 3 have pleaded in para no.3 on merits of their reply that the entire amount paid by the complainant was deposited in the designated account of opposite party No.4. That fact was duly proved by Lalit Gupta by making a deposition to that effect in his affidavit Ex.OP-1/A. Such a fact was required to be proved by documentary evidence but no such document was proved on the record and in the absence of any document and merely on the basis of the statement of Lalit Gupta it cannot be concluded that the amounts so paid by the complainant were passed over to opposite party No.4. So far as the plea of learned counsel for opposite parties Nos.4 and 5 to the effect that opposite party No.5 has resigned from the post of Director, Alice Consumer Complaint No.762 of 2017 20 Developers Private Limited is concerned, there is no force in the same as it will not affect the merits of the case as also the liability of opposite party No.5. The resignation was given on 12.6.2017, when he found no way out to escape his contractual liability. Therefore, this plea is not tenable and is rejected. Hence all the opposite parties i.e. opposite parties Nos.1, 3, 4 and 5 are jointly and severally liable.
15. 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 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 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.
16. 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.Consumer Complaint No.762 of 2017 21
17. 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/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.
18. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
19. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the 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."
20. 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. The opposite parties 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 Consumer Complaint No.762 of 2017 22 by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of flat/apartment within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.
21. The C.P. Act came into being in the year 1986. It is 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. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the flat/apartment in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of flat/apartment and delivery of possession in a stipulated period. 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 builder is under obligation to deliver the possession of the plot/unit/flat/apartment within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat/apartment booked. From the facts and Consumer Complaint No.762 of 2017 23 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 Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the flat/apartment, 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 building the Apartments, 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 Consumer Complaint No.762 of 2017 24 the opposite parties in shattering his hope of getting the flat/apartment by waiting for all this period. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and suitable compensation.
22. The complainant has claimed refund of ₹31,58,346/- along with interest at the rate of 18% per annum. Hon'ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. In view of the above authority as well as Rule 17 of PAPRA, the complainant is entitled to the refund of his deposited amount, along with interest at the rate of 12% per annum.
23. In view of above discussion, the complaint (CC No.762 of 2017) is allowed and the following directions are issued to the opposite parties:
i) to refund ₹31,58,346/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposits till realization, as per Rule 17 of PAPRA;
ii) to pay ₹1,00,000/-, as compensation for the mental agony and harassment suffered by him; and
iii) to pay ₹20,000/-, as costs of litigation. Consumer Complaint No.762 of 2017 25
24. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof.
Consumer Complaint No.794 of 2017
25. In this complaint, Parduman Singh and Navjeet Kaur, complainants, purchased one residential Floor, vide Customer Code:
SFL0028, First Floor to be built on Plot No.0015 measuring 1010 square feet in Uniworld City, Sector 107, Mohali for a total sale consideration of ₹22,50,801/- excluding service tax and club membership, vide allotment letter dated 14.4.2010 (Ex.C-2). The Buyer's Agreement was signed between the complainant and the opposite parties on 10.5.2010 (Ex.C-3). As per the version of the complainants, they paid an amount equal to ₹19,26,443/-, vide Customer Ledger (Accounts) Ex.C-5. The possession of the Flat/Apartment was to be given within 36 months from the date of agreement i.e. upto 10.5.2013. However, the opposite parties have not offered possession even after delay of more than 4 years from the date of filing of the complaint. Rest of the averments are almost same as in CC No.762 of 2017. A prayer for a direction to the opposite parties to refund the amount of ₹19,26,443/- along with interest, compensation and costs was made. Opposite parties No.1 and 2 took the same stand in their reply as taken in CC No.762 of 2017. Opposite parties Nos.3, 6 and 7 have also taken same stand in their reply as has been taken in CC No.762 of 2017. Similar arguments have been raised by the learned counsel for the parties as have been raised in CC No.762 of 2017.Consumer Complaint No.762 of 2017 26
26. In view of the discussion held in CC No.762 of 2017, this complaint is also allowed in the same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹19,26,443/- to the complainants along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹1,00,000/-, as compensation for the harassment
and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
27. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 12, 2018 Bansal