State Consumer Disputes Redressal Commission
Pankaj Krishan Gupta vs Tdi Infratech Ltd. on 12 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.675 of 2017
Date of institution : 10.08.2017
Date of decision : 12.01.2018
Pankaj Krishan Gupta S/o Sh. S.P. Gupta R/o H.No.24, Behind
Bhagwati Mandir, Mahesh Nagar, Ambala Cantt-133001.
....Complainant
Versus
1. TDI Infratech Ltd. Regional Office SCO 144-145,
International Airport Road, TDI City, Sector 117, Mohali
(Punjab) through its M.D./Authorised Signatory.
2. TDI Infratech Ltd. Regd. Office: 9, Kasturba Gandhi Marg,
New Delhi through its M/D/Authorised Signatory.
3. Sh. Ravinder Kumar Taneja Managing Director of TDI
Infratech Ltd. 9, Kasturba Gandhi, Marg, New Delhi.
4. Ms. Renu Taneja Director of TDI Infratech Ltd. 9, Kasturba
Gandhi Marg, New Delhi.
5. Sh. Kamal Taneja Director of TDI Infratech Ltd. 9, Kasturba
Gandhi Marg, New Delhi.
6. Sh. Devki Nandan Taneja Director of TDI Infratech Ltd. 9,
Kasturba Gandhi Marg, New Delhi.
7. Sh. Ved Prakash Director of TDI Infratech Ltd.9, Kasturba
Gandhi Marg, New Delhi.
8. Sh. Amit Batra Authorized Signatory of TDI Infratech Ltd. 9,
Kasturba Gandhi Marg, New Delhi.
....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 complainant : Sh. Rajesh Gupta, Advocate For the OPs : Sh. Puneet Tuli, Advocate Consumer Complaint No.675 of 2017 2 KIRAN SIBAL, MEMBER The instant complaint has been filed by the complainant, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against opposite parties (in short "OPs").
2. The facts in brief, as set out in the complaint, are that the complainant entered into a buyer's agreement with the OPs on 19.07.2008 for purchase of a plot bearing No.610, measuring 250 sq. yards for a total sale consideration of Rs.23,00,000/- including transfer charges of Rs.1,00,000/-. The said plot was in the name of one Sh. Parveen Aggarwal, which has been purchased by the complainant by way of transfer. The same was acknowledged and recorded as transferee in the records as Nominee ID MPP-10727 on 19.01.2006. The complainant had paid an amount of Rs.3,00,000/- to Mr. Parveen Aggarwal, which he had paid on account of registration on 20.06.2005. Rs.1,00,000/- was paid by the complainant to the OPs on 19.01.2008 as transfer fee. He has paid Rs.1,87,000/- on 19.01.2008 on account of 2nd installment, Rs.1,62,500/- on 31.03.2008 on account of 3rd installment, Rs.2,06,250/- on 04.06.2008 on account of EDC-1, Rs.65,000/- on 31.07.2008 on account of preference location charges, Rs.1,78,750/- on 25.09.2008 on account of 4th installment, Rs.2,06,250/- on 27.11.2008 on account of EDC-2, Rs.32,500/- on 27.11.2008 on account of preference location charges, Rs.3,25,000/- on 27.11.2008 on account of 5th and 6th installment and Rs.1,78,749/- on 29.09.2009 on account of 7th installment. In Consumer Complaint No.675 of 2017 3 this way the complainant has made a total payment of Rs.19,42,499/- against total sale consideration of Rs.23,00,000/-. Thereafter, the complainant received a communication dated 09.01.2016 from the OPs informing the complainant that plot No.610 cannot be allotted to him as the State Government has failed to acquire that portion of the land and offered to allot another plot to him. But the same was not acceptable to the complainant as it was at a much inferior location and the complainant demanded his money back along with interest @ 21% P.A. compounded at the stage of making of every payment. Furthermore, the complainant received a letter dated 13.04.2017 whereby the OPs informed him that they were ready to refund the amount as per company policy. When the complainant contacted the OPs for the refund, he was informed that the amount deposited by him would be refunded with 12% interest. As per the complainant, this was unfair trade practice as the agreement in question stipulates that if the buyer makes default in making any payment, then he will be liable to pay interest @21% compounded, at the stage of succeeding installment. Same rule should apply to OPs as well, since the OPs cannot have two set of rules; one for themselves and second one for buyers. It is pertinent to mention here that for paying various amounts to the OPs, the complainant had obtained a loan from IDBI Bank and has made part payment from that loan account. Perusal of clause 10 of the buyers agreement show that in the event of delay in payment Consumer Complaint No.675 of 2017 4 the buyer shall have to pay the outstanding amount along with interest @21% per annum, at the time of every succeeding installment, for the entire period of such delay. Similarly, the OPs are bound to pay the outstanding amount along with interest @21% per annum compounded at the time of every payment made by the complainant. The OPs failed to handover the possession of the plot as promised by them and there being steep appreciation in the market value of the land and cost of construction, for this reason the complainant cannot get a comparable plot at the same price which the OPs have promised to charge. The OPs had entered into an agreement with the complainant without being in possession of the property, which amounts to unfair trade practice. Thereafter, the complainant served upon the OPs a legal notice dated 15.05.2017 and requested them to pay the amount along with 21% interest compounded, at each stage of payment but till date the OPs failed to do so on the one pretext or the other causing mental tension, agony and physical suffering to the complainant. In response to the legal notice the complainant received letter dated 08.06.2017 from the OPs vide which he was informed that an Arbitrator had been appointed in that case on the false pretext that there was a dispute between the parties. It was alleged that there was no dispute between the complainant and the OPs particularly when the OPs were not in a position to hand over the possession of the promised plot and they cannot be allowed to take benefit of their Consumer Complaint No.675 of 2017 5 own wrong and were liable to refund the amount as demanded by the complainant. He prayed for allowing the complaint and for issuance of following directions to the OPs:
i) to refund the amount of Rs.19,42,499/- and also to pay interest of Rs.56,71,340/- on this amount of Rs.19,42,499/- along with interest @21% per annum from the date of filing of this complaint.
ii) To pay Rs.5 lac as compensation for mental tension and harassment.
iii) To pay Rs.55,000/- as litigation expenses.
Defence of the OP
3. Upon notice, the OPs appeared and filed written reply to the complaint, raising preliminary objections that the complainant entered into a buyer's agreement with the OPs on 19.07.2008 for purchase of a plot bearing No.610, measuring 250 sq. yards for a total sale consideration of Rs.23,00,000/- including transfer charges of Rs.1,00,000/-. The said plot was in the name of one Sh. Parveen Aggarwal and was purchased by the complainant in transfer. They denied the other allegations made in the complaint and averred that the Government of Punjab with a view to attract new investment in the State formulated Industrial Policy, 2003 and Housing and Urban Development were also made the subjects of the said Policy. In view of that Policy they started the process of purchasing the land to set-up the Mega Housing Project at Mohali. Their proposal to develop an area of 160 acres of land with the investment of Rs.266.50 Crore was accepted by Consumer Complaint No.675 of 2017 6 the Directorate of Industries and Commerce and letter of intent was issued in favour of the Company on 21.12.2005. That letter contained certain conditions and vide agreement executed with the OPs company, accorded various concessions subject to the conditions, one of them being that, the residential project at the location specified must be of 100 acres or above at a single geographical location and shall be developed in contiguity. The Punjab Government agreed to make acquisition of land for the Company under the provisions of the Land Acquisition Act, 1894 to the extent of 10% of the total area of the Project as it wanted the development in contiguity and wanted to facilitate the Company to fill up 'Critical Gap' of the land, which this Company was unable to acquire directly from the land owners. While the company was developing the said project Mr. Parveen Aggarwal s/o Sh. Tara Chand, came forward to make investments by getting himself registered for allotment in the said township project and was conferred with registration rights in respect of a residential plot measuring 250 Sq. yds. in future project of the company. Later on, the said Mr. Parveen Aggarwal transferred its registration rights in respect of the plot to present complainant after complying with necessary formalities with the company and furnishing required documents dated 19.01.2006. Allotment letter dated 28.5.2008 regarding Plot No.610 measuring 250 Sq. yds in the forthcoming fully integrated township "TDI City" at Mohali was issued to the complainant. As per the terms and conditions of the allotment Consumer Complaint No.675 of 2017 7 letter, they could make additions, alterations and changes in the position of the plot. Subsequently, a Buyers Agreement was executed between the complainant and OPs company dated 19.07.2008 constituting the entire agreement between the complainant and OPs company qua residential plot No.610 for the basic sale price of Rs.6,500/- per Sq. yards amounting to total BSP of Rs.16,25,000/- plus external development charges quantified at approximately Rs.4,12,500/- thereby totaling to Rs.20,37,500/-. As per the letter of intent, in order to acquire critical gap area to the extent of 10% of project land, the OPs company sent requisition to the Punjab Government for making acquisition of such area and accordingly the notifications were issued under Sections 4 and 6 of the Land Acquisition Act, 1894. However, those notifications became subject-matter of the litigation before the Hon'ble High Court in CWP Nos.15651 of 2009 and 15216 of 2009; which are listed for hearing for 07.11.2017. In these circumstances, the complainant could accept the allotment of alternative plot out of the available plot No.5226, vide letter dated 09.01.2016 and was asked to visit the company office to complete the documentation in that regard. When the complainant did not respond to the aforesaid communication, the OPs company again issued another letter dated 13.04.2017, wherein he was asked to take the refund of the amount paid by him but again the complainant did not respond. Thereafter, the OPs company received a legal notice dated Consumer Complaint No.675 of 2017 8 15.05.2017 from the complainant demanding a refund of Rs.19,42,499/- along with interest @21% per annum compounding from the date of every payment, thereby raising a dispute in the terms of clause 39 of the Buyer's agreement dated 19.07.2008. Thereafter, the OPs company referred the matter to an arbitrator in accordance with the Arbitration and Conciliation Act, 1996 and even after an intimation regarding appointment of the Arbitrator dated 08.06.2017, the complainant did not turn up for the arbitration proceedings. The next date of hearing was 07.10.2017 before the Arbitral Tribunal. The decision to offer the alternate plot or refund stemmed out of, firstly, the inability/delay on the part of Government to acquire the requisite parcel of land as per its commitment and thereafter, the same issue being under litigation before the Hon'ble High Court of Punjab and Haryana, hence, there being no fault on the part of replying company. The complainant is not a 'consumer' within the meaning of Section 2(1)(d) of the Act and there is no deficiency in service on their part. On merits, the similar submissions were averred as already mentioned in the written reply by OPs. The complaint filed by the complainant is misconceived and he has no cause of action to file the same. The same is not maintainable in the present form and the OPs prayed for the dismissal thereof with costs. Consumer Complaint No.675 of 2017 9 Evidence of the Parties
4. To prove his claim, the complainant tendered in evidence his own affidavit Ex.CA, along with documents Ex.C-1 to Ex.C-18.
5. OPs tendered affidavit of Sh. Jatin Jain as Ex.OP/A along with documents Ex.OP/1 to Ex.OP/5.
Contentions of the Parties
6. We have heard learned counsel for the parties and have gone through the record carefully.
7. Learned counsel for the complainant vehemently argued and submitted written arguments on similar lines as averred in the complaint with specific mention to clause 8 and clause 10 of the Buyer's Agreement. Clause 8 of the said agreement states that "In case a particular plot is omitted or Seller is unable to hand over the same or any alternative plot to the Purchaser(s), the Seller will be liable to refund only the actual amount(s) received by him form the Purchaser(s) towards the price along with a simple interest @ 12% p.a. and shall not be liable to pay any compensation". Clause 10 of the said agreement states that:
"the timely payment of installments or other sums and dues as stated herein, is the essence of this Agreement. It shall be incumbent on the Purchaser(s) to comply with all the terms and conditions of payment and other terms and conditions of sale. Seller shall be under no obligation to send a notice of demand to the Purchaser(s) and the Purchaser(s) doth hereby confirms to Consumer Complaint No.675 of 2017 10 make payment as per payment plan opted by him as annexed under Schedule I and hereby waives any right to receive notice for the same. In the event, the installment(s) and/or other sum(s) payable are delayed, the Purchaser(s) shall have to pay interest on the outstanding amount due to the Seller, @21% per annum, compounded at the time of every succeeding installment, for the entire period of such delay".
In the present complaint, when the OPs were approached for refund of the amount, the complainant was offered simple interest at 12% per annum. This amounts to unfair trade practice as the agreement in question stipulates if the buyer makes default in making any payment, then he will be liable to pay interest @21% per annum compounded at the stage of succeeding installments. It was pleaded that same yardsticks should apply to the OPs. In support of this averment, the learned counsel for the complainant has placed reliance on the Judgment passed by Hon'ble National Commission titled as " Swarn Talwar & Ors. Vs. Unitech Limited on 14 August 2015". It has been observed that "the allottee(s) shall pay the balance amount of the consideration in accordance with the Payment Plan annexed as Annexure 'A' hereto. In the event Allottee(s) fails to pay the balance consideration or in the event of any delay in payment of any installment and/or other charges, in accordance with the Payment Plan, the Allottee(s) shall be liable to pay interest calculated from the due date of outstanding amount @18% per annum compounded quarterly."
Consumer Complaint No.675 of 2017 11Resting the arguments, based on the above mentioned observation of the Hon'ble National Commission(supra). Learned counsel for the complainant prayed for allowing the complaint.
8. Per contra the learned counsel for the OPs that the aforesaid allotment was as per the tentative Layout Plans, which was subject to variation, addition, alteration, modification therein instruction of regulatory authority including the Town and Country Planning Department, Government of Punjab. Therefore, after complying with all necessary formalities with the company and earlier allottee, furnishing of documents and making required payment, the present complainant put himself into the shoes of earlier allottees accepting all terms and conditions alleged in the registration form and allotment letter. They had offered alternate plot to the complainant vide letter dated 09.01.2016 and further vide letter dated 13.04.2017 sent the intimation for refund of amount paid with the objective to avoid the delay in handing over the possession to the complainant, showing the genuineness of the OPs for taking care of the interest of its customers. In view of the matter, the present complaint being wholly misconceived, barred by limitation, it was prayed that the complaint be dismissed with costs.
Consideration of the Contentions
9. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the record, carefully.
Consumer Complaint No.675 of 2017 12
10. Admittedly, the complainant entered into a buyer's agreement (Ex.C-1) dated 19.07.2008 with the OPs for purchase of a plot bearing No.610, measuring 250 sq. yards for a total sale consideration of Rs.23,00,000/- including transfer charges of Rs.1,00,000/-. The said plot was in the name of one Sh. Parveen Aggarwal and was purchased by the complainant in transfer. The same was acknowledged and recorded as transferee in the records as Nominee ID MPP-10727 on 19.01.2006. The complainant had paid an amount of Rs.3,00,000/- to Mr. Parveen Aggarwal which he had paid to the OPs, on account of registration on 20.06.2005 (Ex.C-4), Rs.1,00,000/- (Ex.C-6) was paid by the complainant to the OPs on 19.01.2008 as transfer charges, Rs.1,87,500/- (Ex.C-5) on 19.01.2008 on account of 2nd installment, Rs.1,62,500/- (Ex.C-7) on 31.03.2008 on account of 3rd installment, Rs.2,06,250/- (Ex.C-8) on 04.06.2008 on account of EDC-1, Rs.65,000/- (Ex.C-9) on 31.07.2008 on account of preference location charges, Rs.1,78,750/- (Ex.C-10) on 25.09.2008 on account of 4th installment, Rs.2,06,250/- (Ex.C-11) on 27.11.2008 on account of EDC-2, Rs.32,500/-(Ex.C-12) on 27.11.2008 on account of preference location charges, Rs.3,25,000/-(Ex.C-13) on 27.11.2008 on account of 5th and 6th installment and Rs.1,78,749/-(Ex.C-14) on 29.09.2009 on account of 7th installment. In this way the complainant has made a total payment of Rs.19,42,499/- against total sale consideration of Rs.23,00,000/-. The complainant received a communication dated Consumer Complaint No.675 of 2017 13 09.01.2016(Ex.C-15) from the OPs whereby the complainant was informed that plot No.610 cannot be allotted to him as the State Government has failed to acquire that portion of the land and offered to allot another plot, which was not acceptable to the complainant. The complainant demanded his money back along with interest @21% per annum compounded at the stage of making of every payment. Thereafter, the complainant received another letter dated 13.04.2017(Ex.C-16) whereby he was informed by the OPs that they were ready to refund the amount paid by them @12% interest. The main grievance of the complainant is against this offer of refund of amount with 12% interest and as per the complainant this amounts to unfair trade practice as the agreement in question stipulates that if the buyer makes default in making any payment then he will be liable to pay interest @ 21% compounded at the stage of succeeding installment. A perusal of clause 10 of the buyers agreement shows that in the event of "delay in payment the buyer shall have to pay the outstanding amount along with interest @ 21% per annum compounded at the time of every succeeding installment, for the entire period of such delay. Similarly, the OPs are bound to pay the outstanding amount along with interest @ 21% per annum compounded at the time of every payment made by the complainant". To support this contentions, the complainant has also relied upon the judgment passed by Hon'ble National Consumer Complaint No.675 of 2017 14 Commission in "Swarn Talwar (supra) relevant part of which has already been reproduced above.
11. Further supporting this contention of the complainant we would like to refer the recent judgment passed by the Hon'ble Supreme Court in case titled as "Kusum Agarwal & Anr Vs. Harsha Associates Pvt. Ltd" IV (2017) CPJ 9 (SC). In this case the Hon'ble Supreme Court, finding deficiency in service on the part of the respondents allowed the appeal and the judgment of the Hon'ble National Commission was set-aside. The respondent was directed to refund the amount of Rs.2,05,000/-, along with damages of Rs.50,000/- i.e. Rs.2,55,000/- in all along with interest @ 18% per annum from 06.12.2004 till payment of the entire amount.
12. In lieu of the above cited judgment, we are of the view that in the present complaint also, the complainant is entitled to compensation for deficiency in service and unfair trade practice and as such, the OPs are bound to pay the outstanding amount along with interest at 18% per annum for every payment made by the complainant.
13. Addressing the contention raised by the OPs that the complainant is not a "Consumer" as he has booked the said plot for speculative purpose and resale. We are not inclined to conclude that the complainant does not fall under the definition of Consumer as contained in Section 2(1)(d) of the Consumer Protection Act.
Consumer Complaint No.675 of 2017 15
"Consumer" means any person who:-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary or such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
In the present case the complainant has purchased the said plot in transfer from one Mr. Parveen Aggarwal and has paid the consideration amount to the OPs. There is no cogent evidence to support the plea of the OPs that it had been bought for investment purposes. The OPs have not produced any substantial evidence to prove this contention and that the complainant has bought the said plot for resale. Hence, this plea does not find merit with us. Consumer Complaint No.675 of 2017 16
14. The opposite parties have taken up the excuse that this plot falls in the critical gap area, which is still to be acquired. The opposite parties allotted an alternative plot which was similarly situated and the plots which have been offered in the alternative, are not acceptable to the complainant, as those are situated in the other Sector and not in the Sector in which the plot in dispute was located. On account of the deficiency in service on the part of the opposite parties the complainant suffered harassment and mental agony for which he is entitled to the compensation.
15. The complainant has always been pleading for handing over the physical and legal possession of the said plot in question complete in all respects with all basic facilities promised to the complainant at the time of entering the agreement, after obtaining all due permissions and certificates from the necessary authorities. The aforesaid plea of the complainant is supported by the provisions of Punjab Apartment and Property Regulations Act, 1995 (in short, "PAPRA"), which states, it is the duty of the OPs itself to supply the information with regard to their ownership, permissions from PUDA/GMADA, licences and 'Change of Land Use' etc. The non-supply of this vital information to the complainant is against the provisions of PAPRA.
16. The OPs also failed to lead any evidence to show that they are having the requisite approvals/permissions/sanctions from the competent authorities for developing the said project. Keeping in view of the above circumstances, we hold that the OPs have Consumer Complaint No.675 of 2017 17 failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Promoter) of the PAPRA, the OPs were required to make full and true disclosure of the nature of his title to the land, on which such project 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 project, as approved by the prescribed authority in the case of a project. However, the OPs failed to comply with section 3 of the PAPRA.
17. As per Section 5 (Development of land into Colony) of PAPRA, the OPs were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
18. 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. As such, the opposite parties also violated Section 9 of the PAPRA.
19. Further, as per Section 12 of the PAPRA, if the builder Consumer Complaint No.675 of 2017 18 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.
20. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the scheduled 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 it insists upon the performance of the promise by the consumers, it is to be found by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project. The evidence on record clearly proves that opposite parties have failed to place on record that they were in a position to commence the project even without various sanctions from the competent authorities. As discussed in the foregoing paragraphs it is a clear case of deficiency in service, and unfair trade practice and in this way, it can be inferred that the OPs have cheated the consumers. Thus, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.
21. In view of the above observations and discussions, the present complaint is partly allowed with the following directions to the OPs.
Consumer Complaint No.675 of 2017 19
(i) to refund Rs.19,42,499/- along with interest @ 18% interest per annum from the different dates of deposits till the date of actual payment;
(ii) to pay Rs.20,000/- as litigation expenses
22. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
23. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copies of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER January 12, 2018.
(SK)