State Consumer Disputes Redressal Commission
Kuldeep Singh Minhas vs Taneja Developers & Others on 19 February, 2016
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.56 of 2014 Date of Institution: 20.03.2014 Date of Decision : 19.02.2016 Kuldeep Singh Minhas son of Sh. Sarmukh Singh, resident of H.No.2066, Ist Floor, Sector 71, Mohali, Tehsil and District Mohali now residing at 3119, DADDIE CRES, MISSISSAUGA, ANTARIO IATIN2 CANADA through its Special Power of Attorney Mandeep Singh son of Tarlok Singh, resident of Patti Jagirpur, Village Daroli Kalan, District Jalandhar (Punjab). .....Complainant Versus 1. Tanjeja Developers and Infrastructure Ltd., Regd., Office 9, Kasturba Gandhi Marg, New Delhi 110001, through its Managing Director. 2. Taneja Developers and Infrastructure Ltd., through its authorized officer, SCO No.1098-99, Sector 22-B, Chandigarh 3. The Branch Head, Incharge of Allotments, TDI City, SCO No.51-52, Sector 118, Mohali, Tehsil and District Mohali. ....Opposite Parties Consumer 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.
Shri H.S Guram, Member.
Present:-
For the complainant : Sh.Tribhuwan Singla, Advocate For the Opposite parties : Sh.S.K Monga, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Kuldeep Singh Minhas has filed this complaint U/s 17 (1)(a) of The Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that this complaint is being filed through his special power of attorney holder Mandeep Singh, vide special power of attorney dated 17.05.2013. The OPs started a Mega project in the name of TDI City at Sector 110-111, Mohali and inveigled the complainant on above-referred schemes of all requisite sanctions from the State Government for setting up of the Mega Project have been duly received. On the false allurement of the OPs, the complainant deposited Rs.7,96,875/- with OPs, vide demand draft no.462792 dated 22.08.2008 drawn on ICICI Bank Ltd Mohali. The OPs started threatening the complainant to deposit further installments and issued letter dated 19.06.2009, 14.10.2009, 22.12.2009. The complainant deposited Rs.4 lacs on 02.04.2010 with the assurance that the project was near completion and possession would be delivered forthwith thereof. The demand draft no.676434 dated 02.04.2010 was duly credited in the account of the OPs. The letter of allotment was issued by the OPs in favour of the complainant by giving a plot no.1437 of 250 sq. yards and the plot location was on wide road (18 meter and above) and terms and conditions of the allotment of the plots were also handed over to complainant. Neither any time of registration nor the time of allotment, any payment schedule was given or provided to the complainant, despite his request. The complainant further deposited 2,87,500/- with OPs on 22.05.2010 and OPs assured to deliver the possession forthwith to him. The OPs demanded more money from the complainant and complainant took a loan from IDBI Bank for payment of money and paid an amount of Rs.2,50,000/-, which was paid through demand draft no.983056 dated 23.06.2010. The receipt dated 23.06.2010 depositing the money along with the loan disbursement advice dated 23.06.2010 including the tripartite agreement between the complainant, IDBI Home Finance Ltd and Taneja Developers is dated 23.06.2010 and account statement is attached. The complainant received letter dated 22.10.2010 demanding more amount of Rs.15,33,939/- by OPs without disclosing the fact of the amount which was required. The complainant time and again demanded from OPs that their project was not approved by the government and they could not raise demand without approval thereof. A letter dated 07.05.2011 cancelling the registration of the complainant was issued by the OPs instead of replying the letter of complainant. The complainant requested the OPs to supply complete information with regard to their project, but OPs failed to give any information. The complainant's friend filed application under RTI Act, vide letter dated 18.7.2011 from the office of Public Information Officer and he received information with regard to OPs and according to which the revised plan of TDI City to 110-111, SAS Nagar was passed on 16.08.2010. Zoning plan was approved on 1.11.2010 and they were asked to take 'No Objection' from the Forest Department, PSEB and other formalities from the concerned department. Copy of letter dated 06.08.2010 with regard to approval of plans of OPs is attached. The OPs are demanding further installments without getting the proper sanctioning from the concerned authorities. The complainant approached OPs time and again for delivery of possession, but nothing was done and complainant has to leave India from Canada also. The complainant sent numerous letters to OPs in this regard, but of no use. The OPs assured the complainant to deliver the possession within a year, at the time of receipt of Rs.7,96,875/-, but project was not officially launched and no clearance from any government authority was taken. The complainant has alleged deficiency in service on the part of OPs and, thus, prayed for refund of the amount of Rs.17,34,375/- along with interest @ 18% per annum and compensation of Rs.5 lac for mental harassment and Rs.33,000/- as costs of litigation.
2. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is not maintainable in the present form. The complaint is based on misrepresentation and concealment of material facts and merits dismissal on that score. The Government of Punjab formulated Industrial Policy 2003. Housing and Urban Development were also made the subjects of the said policy. The OPs submitted its proposal to Directorate of Industries and Commerce Punjab to develop a Mega Housing Project with an investment of over Rs.310.57 crores. The said proposal was accepted by Directorate of Industries and Commerce Punjab and letter of intent was issued in favour of OPs on 31.08.2006. The OPs/Company was already in the process of purchasing the lands in the Hadbast of village Bhagomajra and Behrampur and even letter of intent was issued by the Directorate of Industries and Commerce Punjab. After the approval of Mega Housing Project, various persons came forward to get themselves registered for allotment of residential/commercial plots in the future township projects of OPs. The complainant also solicited enquires through broker M/s Narang Associates in order to make investments in the upcoming Mega Housing Project of OPs Company at Mohali, as he wanted to make some investments in real estate. The complainant was apprised about the whole scheme of the upcoming Mega Housing Project of the OP/Company at Mohali. It was also explained to him that the sectors in which the Mega Housing Project has been approved by the Government of Punjab and within the draft master plan of Mohali have been duly conceived by the Government of Punjab in accordance with the provisions of Punjab Regional and Town Planning & Development Act, 1995. The complainant submitted an advance registration form dated 21.09.2008 to OPs and deposited Rs.7,96,875/- through cheque no.462792 dated 22.08.2008 drawn on ICICI Bank and requested that the same amount be treated as registration deposit. As per terms and conditions of the application dated 21.09.2008, the amount of registration was required to be adjusted against the booking amount payable by the complainant at the time of offer of allotment of the plot. The cheque sent by the complainant was encashed by the OPs at New Delhi and amount of Rs.7,96,875/- was treated as his registration deposit. It was submitted in the application that PLC, EDC and other statutory levies would be payable in addition to the basic sale price of the plot. A plot buyer agreement was executed between the complainant and OPs-Company on 03.04.2010. The complainant was shown the approved layout plan and he opted to get the allotment of plot no.1437 in Sectors 110-111, TDI City Mohali. Before signing the plot buyer agreement, the complainant had also satisfied himself about the development work in the Mega Housing Project of the OPs-Company. An allotment letter was prepared by the OPs-Company on 14.04.2010, which was received by the complainant under his signatures on 15.05.2010. After execution of the aforesaid agreement dated 03.04.2010, the complainant made payment of Rs.6,87,500/- on 06.04.2010 towards sale consideration of the plot allotted to him. The complainant was not having sufficient funds in his hand at that time and he issued post dated cheque of Rs.2,87,500/- out of the amount of Rs.6,87,500/-. On 27.04.2010, the complainant was found to be in arrears of Rs.10,86,560/- and OPs-Company issued a reminder letter to the complainant and he was requested to make the payment within 15 days from the date of the said letter issued to the complainant. A complete payment schedule was prescribed in the application form itself with a further stipulation in the buyer agreement that delay of payment by two months can lead to cancellation of application/allotment. The complainant was found to be in arrears of Rs.12,68,792/- and OPs issued a demand letter dated 18.06.2010 requesting to make the payment within 15 days. The complainant visited the office of OPs-Company and requested for some more time to make the payment within 15 days. The complainant deposited a demand draft for a sum of Rs.2,50,000/- on 08.07.2010. The complainant was found to be in arrears of Rs.10,51,197/- and the OPs-Company issued a letter dated 24.08.2010 to the complainant, but complainant did not turn up for making the due payment. Uptil October 2010, the complainant was in arrears of Rs.15,33,939/- and the OP/Company issued a letter dated 22.10.2010 to the complainant requesting him to make the payment of outstanding dues towards the sale consideration of the residential plot allotted to him. Uptil January 2011, the complainant was in arrears of Rs.19,39,599/- and the OP/Company requested the complainant to clear off the dues by sending demand draft dated 08.01.2011. The complainant became in arrears of Rs.19,95,181/- by March 2011 and OPs issued the letter dated 23.04.2011 asking the complainant to deposit the outstanding payments finally. It was further averred that plot can neither be termed as 'Goods' within the meanings of Section 2(1)(i) of the Consumer Protection Act 1986, Section 2(7) of the Sale of Goods Act, 1930 nor a plot can be termed as 'Services' within the meanings of Section 2(I)(o) of the CP Act. The complaint was also contested even on merits by the OPs on the above-referred grounds. It was pleaded that as per approvals accorded by the Government, a layout plan of the Mega Housing Project of the OPs-Company was approved by the competent authority on 04.06.2009. The Local Commissioner was appointed in the same case titled as "Taneja Developers & Infrastructures Limited versus Shashi B. Sud", where it was reported that basic amenities like road, electricity, water, streetlight and sewerage are available in the Mega Housing Project, vide report dated 20.11.2012 of Local Commissioner. OPs controverted the averments of the complainant and prayed for dismissal of the complaint.
3. The complainant tendered in evidence the affidavit of Mandeep Singh Special Power of Attorney of Kuldeep Singh Minhas Ex.PW-1 along with copies of documents Ex.C-1 to Ex.C-19. As against it; OPs tendered in evidence affidavit of Rohit Gogia Authorized Signatory of OPs Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-14.
4. We have heard learned counsel for the parties at considerable length and have also examined the record of the case.
5. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs in this case and as such prayed for refund of the amount of Rs.17,34,375/- along with interest @ 18% per annum, besides Rs. 5 lac as compensation for mental harassment, loss of time and money due to deficiency in service on the part of OPs and Rs.33,000/- as cost of litigation. The OPs controverted the averments of the complainant in the written reply filed by them. We have to refer to evidence on the record to determine the controversy brewing between the parties, as to whether any unfair trade practice or deficiency in service in this case is proved or not? Ex.C-1 is deed of power of attorney executed by complainant Kuldeep Singh Minhas in favour of Mandeep Singh. Ex.C-2 is receipt dated 22.09.2008 with regard to deposit of the amount of Rs.7,96,875/- by the complainant with OPs on 22.09.08. Ex.C-3 is the third reminder dated 19.06.2009 sent by the OPs to complainant with regard to remitting an amount of Rs.7,40,625/- to OPs by the complainant. It is recorded in it that complainant has not replied previous reminder and telephone calls of OPs to take the allotment of the plot. It is followed by another last and final reminders dated 14.10.2009 Ex.C-4 with regard to deposit of the amount of Rs.4,21,875/- by complainant with OPs, as cost of the plot. Another reminder is dated 22.12.2009 Ex.C-5 regarding deposit of amount of Rs.8,92,537/- along with interest of Rs.48,787/- by the complainant with the OPs, as costs of the plot. Ex.C-6 is receipt dated 02.04.2010 regarding deposit of amount of Rs.4 lac by the complainant with OPs. Ex.C-7 is allotment letter dated 14.04.2010 with regard to residential plot in the above-referred area. Ex.C-7 further shows that the scheme of OPs is regarding investment of plot in TDI City Agra, this is not in continuation with the plot in dispute in this case, which is at Agra. Ex.C-8 is another receipt dated 25.05.2010 with regard to deposit of Rs.2,87,500/- by the complainant with OPs. Ex.C-9 is demand drat no.983056 dated 23.06.2010 issued by IDBI Bank with regard to Rs.2,50,000/- in favour of OPs. Ex.C-10 is loan disbursement advice-cum-sanction letter addressed to complainant by IDBI Bank. Ex.C-11 is tripartite agreement executed between the complainant, OPs and IDBI Bank dated Nil May 2010. Ex.C-12 is transaction enquiry of the loan account of the complainant with IDBI Bank. Demand letter dated 22.10.2010 Ex.C-13 addressed to complainant by OPs with regard to remitting an amount of Rs.15,33,939/- within 21 days of receipt of the letter. It is recorded in it that if any delay occurred in making the payment, it will attract interest at 21% p.a, this rate of interest has been mentioned in the demand letter Ex.C-13 dated 22.10.2010 on the record. Ex.C-14 is registered letter addressed by OPs to complainant regarding surrendering original receipts issued to complainant and his registration amount would be refunded, as per company's policy. The information obtained by complainant under RTI Act is Ex.C-15 to Ex.C-17 on the record. These are the vital documents in this case. Ex.C-19 is the status information of the plot. The above-referred documents have been relied upon by the complainant to prove that they have paid most of the amounts, as price of the plot, but neither its possession has been given nor the plan has been approved by the OPs so far.
6. On the other hand, OPs relied upon Advanced Registration Form Ex.OP-1 dated 21.09.2008 with regard to booking of the plot of 250 sq. yards by the complainant. The certain columns of it are lying blank. Clause (c ) of it lays down that applicant shall be entitled to refund of the amount by giving 30 days notice along with simple interest @ 10% per annum for the period of such delay mentioned earlier in the clause. This letter is dated 21.09.2008 and allotment of the plot was to be made at the most by 20.09.2009 and not later that. Buyers Agreement dated 03.04.2010 is Ex.OP-2 on the record. We observe that in the Clause (e), the date of allotment is recorded as 14.04.2010, whereas, the Buyers Agreement is dated 03.04.2010. If Buyers Agreement Ex.OP-2 was executed on 03.04.2010, then there was no question regarding the date of allotment letter as 14.04.2010. Ex.OP-3 is allotment letter dated 14.04.2010 in respect of residential plot to complainant. We have examined this letter of allotment and it nowhere records that on which date the possession has to be given thereof. Ex.OP-4 to Ex.OP-7 are receipts and Ex.OP-8 to Ex.OP-12 are the reminders. Ex.OP-13 is draft of the plan on the record. We find that this is only draft of plan of Sectors 110-111 Mohali. This is only plan prepared by Architect and it nowhere shows that it was approved by the competent authority. The counsel for the OPs strongly relied upon the report of Local Commissioner Ex.OP-14 submitted in FA No.1471 of 2012 titled as "M/s Taneja Developers and Infrastructure Ltd and others versus Shashi B. Sud and another " . We find that this report of Local Commissioner is in some other case, which cannot be read as evidence in this case. No such Local Commissioner has been got appointed in this case by the Ops and consequently report of Local Commissioner Ex.OP-14, which was obtained in some other case cannot be read against the complainant in this case. Affidavit of Rohit Gogia Authorized Signatory Ex.OP-A on the record.
7. From appraisal of above-referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that in the booking order Ex.C-16 revised lay out plan of TDI City Sectors 110-111 SAS Nagar Mohali is 111.45 acre wherein some other land was added and it toted up to 130.65 acre. Its requisite licence fee and urban development fund was deposited on 28.06.2010 only. Ex.C-17 shows that plan drawing was found correct on 18.10.2010 and there was no question of any approval prior thereto. Ex.C-18 is another document obtained under RTI Act. It was approved on 01.11.2010 by the authority only and not prior thereto. We find that Buyers Agreement Ex.OP-2 is dated 03.04.2010 and allotment letter Ex.OP-3 is dated.14.04.2010. Advanced Registration Form Ex.OP-1 dated 21.09.2008 regarding offer of allotment for a residential plot shall be made within 12 months of registration of application. The allotment letter Ex.OP-3 is dated 14.04.2010 much time after the agreement date thereof. Even in Buyers Agreement, which was executed on 03.04.2010, there is mentioned the date of allotment as 14.04.2010, which means that this Buyers Agreement was got executed later on after 14.04.2010, otherwise there was no question of insertion of the date of allotment letter on 14.04.2010 in this agreement dated 03.04.2010. The lay out plan has not been approved by the competent authority. Only 5% amount was to be paid at the time of offer of possession as per Plan-B detail. The complainant deposited the major amounts with OPs, as per receipts placed on the record. There is no approval granted by the authority or proof of laying of roads and provision of other amenities in the scheme. No date of possession has been given in it to the complainant, which is also an unfair trade practice on the part of the OPs to the complainant. In the circumstances of the case the complainant relied upon law laid down by State Consumer Disputes Redressal Commission, UT Chandigarh in Sh. Dharam Pal Gupta versus M/s Emaar MGF Land Ltd and others, Complaint No.147 of 2015 instituted on 22.07.2015, decided on 13.10.2015. No date of handing over the possession was provided to the complainant. The OPs have committed a default in not providing the date of possession of the plot to complainant despite charging the major money from him. Even lay out plan was not got approved by the OPs of this scheme. Consequently, we hold that OPs are deficient in service to the complainant, besides being guilty of unfair trade practice, as well.
8. As a result of our above discussion, we accept the complaint of the complainant and order the refund of the entire deposited amount by the complainant with the OPs of Rs.17,34,375/- along with interest @ 10% per annum from the date of deposit till its actual payment. The complainant is also awarded rupees one lac for mental harassment and Rs.25,000/- is further awarded as costs of litigation. The compliance of the order be made by the OPs within a period of 45 days from the date of receipt of certified copy of order, failing which the complainant shall be entitled to invoke the provisions of Section 25 and 27 of the Consumer Protection Act, 1986.
9. Arguments in this complaint were heard on 16.02.2016 and the order was reserved. Now the order be communicated to the parties.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S GURAM) MEMBER February 19, 2016.
(ravi)