State Consumer Disputes Redressal Commission
Vasdev Singla vs Barnala Builders And Property ... on 9 November, 2017
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,
PUNJAB, CHANDIGARH.
1. Misc Application No.1187 of 2017
In/and
Consumer Complaint No.211 of 2017
Date of institution : 07.04.2017
Date of decision : 09.11.2017
Vasdev Singla son of Sh. Prem Sagar, resident of # 2468, Sector 23-C,
Chandigarh, presently residing at flat No; D-403, Rishi Apartment,
Sector 70, Mohali.
....Complainant
Versus
Barnala Builders & Property Consultants SCO-1, Zirakpur-Patiala Road,
Opp. Yes Bank, Zirakpur, Punjab through its MD/Authorized signatory.
....Opposite Party
2. Misc. Application No. 1189 of 2017
In/and
Consumer Complaint No.212 of 2017
Date of institution : 07.04.2017
Date of decision : 09.11.2017
Vasdev Singla son of Sh. Prem Sagar, resident of # 2468, Sector 23-C,
Chandigarh, presently residing at flat No; D-403, Rishi Apartment,
Sector 70, Mohali.
....Complainant
Versus
Barnala Builders & Property Consultants, SCO-1, Zirakpur-Patiala
Road, Opp. Yes Bank, Zirakpur, Punjab through its MD/Authorized
signatory.
....Opposite Party
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 : Sh. Subhash Chand, Advocate. For the opposite party : Sh. Ambrish Sharma, Advocate. Consumer Complaint No.211 of 2017 2 MRS. KIRAN SIBAL, MEMBER This order will dispose of the above mentioned two Consumer Complaints filed by the complainant, under Section 17 (1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the C.P. Act"), as the facts and the questions of law involved in these complaints are the same. The facts of the complaints are verbatim and both the complaints have been filed against the same opposite party by the same complainant. The facts are taken from Consumer Complaint No.211 of 2017. Consumer Complaint No.211 of 2017:
2. Brief facts, as set out in the complaint, are that in the year 2011 opposite party floated a residential project in the name and style of "MAYA GARDEN CITY", situated at Chandigarh-Ambala Highway. The complainant having seen the brochure in the office of the opposite party, got attracted by such an advertisement and booked 1 BHK Flat bearing No.408 measuring 610 sq. ft with the opposite party on 07.02.2013 for a total price of ₹16,01,250/-. The complainant received a letter dated 16.02.2013 whereby an offer for allotment had been made to him. Opposite Party allotted apartment number 408 in Block J- 1 at 4th Floor and accepted an earnest money of ₹2,00,000/- at that time. A formal agreement was signed between the complainant and the opposite party on 04.03.2013. As per clause 18 of the Agreement, the possession was to be handed over on or before 30.11.2014. Pursuant to the signing of the agreement the complainant had paid an amount of ₹15,26,311/- up till 19.07.2014 as per the demands raised by opposite party from time to time. The opposite party despite receiving the Consumer Complaint No.211 of 2017 3 payment of ₹2,40,175/- on 04.03.2013 and ₹45,749/- on 19.07.2014 has not provided its receipts to the complainant. Further, in demand letter dated 19.09.2013 opposite party has acknowledged the payment of ₹7,20,562/-, thereby admitting the payment of ₹4,80,387/- and ₹2,40,175/-. However, in this letter opposite party had not disclosed the amount of ₹30,500/- received by it on 23.02.2013. Vide demand letter dated 15.01.2014, opposite party had acknowledged the payment of ₹8,80,562/- thereby admitting the payment of ₹4,80,387/-, ₹2,40,175/-
and ₹1,60,000/-. The complainant has also obtained certificate from the bank showing that on 04.03.2013 Demand Draft No.2534 had been prepared favouring opposite party for ₹2,40,175/- and the same amount had been debited from account of the complainant. The complainant has also placed on record Demand Draft No.81633 dated 19.07.2014 for Rs.45,749/- favouring opposite party showing that the account of the complainant had been debited with the said amount. Even after accepting such huge amount from the complainant, the opposite party had again raised an illegal demand on 14.09.2015 for ₹1,20,688/- towards balance and ₹4,224/- towards service tax. It was also averred that the project had already been delayed by opposite party, at least by 11 months but still opposite party is demanding interest for late payment. As per agreement, the project was to be completed in November 2014, but allegedly offer of possession was made in September 2015 that too without the completion and occupancy certificate from the competent authorities. The complainant had also written letters to opposite party regarding the deficiency in service on Consumer Complaint No.211 of 2017 4 various dates which the opposite party had failed to respond and vide letter dated 14.09.2015 it was pointed out that the area of the flat had been reduced than mentioned in the agreement. The complainant had already made a total payment of ₹15,26,311/- against the total price of the flat i.e. ₹16,01,250/- but still the opposite party is illegally demanding more payment. A legal notice dated 29.11.2016 was sent to the opposite party seeking refund of ₹15,26,311/- along with interest @ 18% per annum. The allotment of the flat to the complainant without any permission or licence was illegal, unfair trade practice and deficiency in service as the money of the complainant had been used for more than three years, without any communication to him regarding the development of the site. This act and conduct of the opposite party amounted to deficiency in service and adoption of unfair trade practice, due to which the complainant suffered mental tension and harassment. Accordingly, the complainant has prayed for issuance of following directions to the opposite party:
i) to refund the amount of ₹15,26,311/-, along with interest at the rate of 18% from the date of actual deposits, till the date of actual payment;
ii) to pay ₹5,00,000/-, as compensation for mental agony caused to the complainant; and
(iii) to pay litigation cost of ₹50,000/-.Consumer Complaint No.211 of 2017 5
Defence of the opposite party:
3. Upon notice, opposite party appeared and filed written reply to the complaint, raising preliminary objections that present complaint is not maintainable as it has been filed under Section 12 and not under Section 17 of the C.P. Act. In view of the provisions of Section 12 of the C.P. Act, only the District Consumer Forum is empowered to hear the complaint and not the State Commission. This Commission does not have pecuniary jurisdiction to entertain and decide the present complaint because the claim of the complainant is less than ₹20,00,000/-. It has been pleaded that the complainant is an investor and not a "consumer", as he has booked two flats No.J1-212 & JI-408 in the same housing project but on different floor i.e. one on 2nd floor and the other on 4th floor. He has filed two complaints for refund of the deposited amount along with interest and compensation stating that the flat in question was booked for his self- use and construction of his own residential house, which is not possible as the flats in question are on different floors and cannot be furnished for his personal use. As such, the complainant does not fall within the definition of "consumer" and the complaint is liable to the dismissed. It was further pleaded that the present complaint is bad for mis-joinder of the parties. The flat in question had been mortgaged by the complainant with Bank of Maharashtra and the bank has first charge and vested interest in the flat in question. The present complaint cannot be decided without securing the vested interest of the bank. Hence the Bank is a necessary party to present dispute and as such, the complainant is not Consumer Complaint No.211 of 2017 6 entitled for any relief. It was further pleaded that this Commission has no jurisdiction to decide issues in regard to Service Tax raised by the complainant. The complainant has raised many disputes on the basis of terms and conditions as settled between the parties. The nature of dispute is an inter-se dispute between the parties based on a contract i.e. Agreement to Sell. In view of the settled terms and conditions specified in application form and clause 23 of the Agreement to Sell, any dispute between the parties qua the flat in question, at first instance, shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration proceedings, which shall be governed under the Arbitration & Conciliation Act, 1996 at Zirakpur but in the present complaint, the complainant straightway approached this Commission without complying with the agreed terms and conditions. It was also pleaded that the complainant has concealed material facts and has not approached this Commission with clean hands. The complainant has also filed false affidavit, which amounts to criminal act. As such, the complainant is liable to be prosecuted in view of the relevant provisions of IPC and Cr.P.C. On merits, it is averred that the complainant had already booked flat No.J1-212 in the housing project in question. To make further investment in realty sector, on 09.02.2013, the complainant purchased the flat in question from open market from one Mr. Muninder Kumar and got it transferred in his name. Thereafter the OP issued fresh allotment letter in the name of complainant, vide allotment letter No.5521 dated 16.02.2013. The complainant did not pay any amount of ₹2,00,000/-, as claimed by him. Consumer Complaint No.211 of 2017 7
The opposite party transferred the amount of ₹4,80,387/- from the account of Sh. Muninder Kumar i.e. the earlier allottee, to the account of complainant and thereafter executed the agreement to sell on 04.03.2013. It was submitted that as the complainant had purchased the flat from the open market, he opted for payment Plan-B according to which the complainant was required to deposit 90% of the cost of flat within 410 days from the date of booking. The payment made by the complainant against his flat is a matter of record and the same is not disputed. It was further submitted that there was no dispute regarding the payment of ₹2,40,175/- and ₹45,749/- made by the complainant to the opposite party and that at no stage, the opposite party had refused to issue receipt to him. It was the duty of the complainant to collect his receipt against the payment made. The complainant had paid ₹30,500/- as non-refundable transfer fee for transfer of the flat as he had purchased the said flat from open market. He was not a direct buyer of the flat from the opposite party and, as such, the amount of ₹30,500/- is not a part of the cost of the flat. It was further contended that the opposite party issued offer of possession letter on 14.09.2015 and whatsoever amount demanded in the said offer letter had to be paid by the complainant against the flat booked by him and that there was no delay in offering the possession of flat in question. It was submitted that the complainant is liable to pay the service tax as the same has been imposed by the Government. It was also contended that the housing project in question consists of 1667 flats. The opposite party has started giving possession of flats and till date almost 1500 flats have been Consumer Complaint No.211 of 2017 8 delivered to the respective allottees, who are happily residing there. The entire housing project is fully equipped with all the facilities like water, electricity, lifts and other basic amenities and there was no delay in offering the possession of the flat in question to the complainant. The opposite party has already applied for completion certificate with MC, Zirakpur which has been forwarded by the Municipal Corporation to Government of Punjab for necessary action, hence there is no unfair trade practice on the part of the opposite party. It was submitted that till date the opposite party has only received ₹14,80,562/- on account of cost of flat and ₹45,749/- as service tax which has been deposited in the Government Account. Hence, the averment that the complainant had paid ₹15,26,311/- as cost of flat to the opposite party is wrong and denied. The complainant himself is not clear about the amount he has paid to the opposite party as in the legal notice dated 29.11.2016 the complainant claimed an amount of ₹15,26,124/- and in the present complaint he is seeking refund of ₹15,26,311/-. The opposite party has not used the money of the complainant for its personal benefit and the same has been used for the construction of his flat. The opposite party is rightly demanding the balance cost of flat amounting to ₹1,20,688/- and that the completion certificate has no relevance with payment of balance cost of flat. The complainant neither wants to take over the possession of his flat nor is cancelling the same which shows that the complainant is not ready to fulfill his part of the contract. Denying all other averments made in the complaint a prayer for dismissal of the complaint has been made. It is also prayed that the complainant be Consumer Complaint No.211 of 2017 9 prosecuted under the relevant provisions of IPC and Cr.P.C for filing the false affidavit in judicial proceedings.
4. The opposite party has also filed Misc. Application No.1187 of 2017 for dismissal of the complaint on the ground that the value of the flat is ₹16,01,250/- and as such, this Commission does not have the pecuniary jurisdiction to entertain and decide the present complaint. Evidence of the Parties
5. To prove his claim, the complainant tendered in evidence his own affidavit Ex.CA, along with documents Ex.C-1 to Ex.C-11A, including Ex.C3-A to Ex.C3-C, Ex.C-10-A to Ex.C10-F. On the other hand, opposite party tendered in evidence affidavit of its Manager, Sh.Sandeep Bansal as Ex.OP-A along with documents Ex.OP-1 to Ex.OP-8.
Contentions of the Parties
6. We have heard learned counsel for both the sides and have carefully gone through the record.
7. Learned counsel for the complainant has vehemently argued that the opposite party has been deficient in rendering service to the complainant and it has adopted unfair trade practice in the present complaint, pleading that the possession has not been handed over despite the fact that the complainant has made over 90% of the total consideration of the flat in question to the opposite party. As per the agreement, project was to be completed in November 2014 but offer of possession was made in 2015 that too without the completion and occupancy certificate from the concerned Government Department. It Consumer Complaint No.211 of 2017 10 has also been argued that the opposite party after accepting the huge amount from the complainant is further raising illegal demand of ₹1,20,688/- and ₹4,224/- towards service tax. Since the complainant has made total payment of ₹15,26,311/-, out of the total price of ₹16,01,250/-, this demand of the opposite party is illegal and it resulted into loss of faith due to deficiency in service. The learned counsel has further argued on similar lines as averred in the complaint and prayed for allowing the complaint already mentioned in the prayer clause.
8. Per contra it has been vehemently argued by learned counsel for the opposite party that this Commission does not have pecuniary jurisdiction to entertain and decide the complaint, as the claim of the complainant was less than ₹20,00,000/- and it was filed under Section 12 and not under Section 17 of the C.P. Act. It has been further argued that the complainant was an investor and not a "consumer", as he had booked two flats in the same housing project but on different floors i.e. one on the 2nd floor and the other on the 4th floor. It is not possible for single family to use two flats which are on different floors for their personal use. It has further been argued that the possession was offered to the complainant in September 2015. The opposite party in its written statement has categorically replied to each and every averment made by the complainant with regard to the receipts, service tax, amenities provided, transfer of title, disputed amounts etc. and denied all other allegations of the complaint. He has further argued that the opposite party had already applied for the permissions/sanctions of the competent authorities regarding completion and occupancy certificate Consumer Complaint No.211 of 2017 11 and as such, there is no violation on its part. It has been prayed that there is no merit in the present complaint and the same be dismissed. Consideration of Contentions
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
M.A. No.1187 of 2017 and Main Case (O&M):-
10. In regard to the pecuniary jurisdiction of this Commission, it is an admitted fact that the total sale consideration of the said residential flat was ₹16,01,250/- and pursuant to the signing of agreement, complainant had paid an amount of ₹15,26,311/-. Thereafter, due to the delay in offering the possession, the complainant has prayed for refunding of the amount of ₹15,26,311/- along with interest @ 18%; compensation of ₹5,00,000/- for mental agony and harassment; and litigation cost of ₹50,000/-. Accordingly, the value of compensation so claimed exceeds ₹20,00,000/. Hence, it is well within the jurisdiction of this Commission to entertain and decide the present complaint, as per the law laid down in the judgment of Hon'ble National Commission in "AMBRISH KUMAR SHUKLA & 21 ORS. Vs. FERROUS INFRASTRUCTURE PVT. LTD" (NC) I (2017) CPJ 1 (NC), in which it has been held that it is the value of the goods purchased or the services hired, which is to be taken into consideration and not the compensation for determining the pecuniary jurisdiction. Since the value of the flat is ₹16,01,250/- and the complainant has paid and sought refund of ₹15,26,311/- (as claimed in the complaint) along with interest at the rate of 18% per annum from different dates of deposits till Consumer Complaint No.211 of 2017 12 payment; besides, compensation and costs certainly the value of the reliefs claimed exceeds ₹20,00,000/-. Therefore, certainly this Commission has got the pecuniary jurisdiction to entertain and decide this complaint. This also answers the contention of the opposite party that the present complaint is maintainable under Section 12 of the C.P. Act and that this Commission is not empowered to hear and decide the same. As such, the contention of the opposite party in this regard in the preliminary objections as well as in Misc. Application No.1187 of 2017 filed by it; being devoid of any merit, is rejected.
11. So far the plea of the opposite party that the complainant has purchased two flats and as such, he is an investor and does not fall under the definition of 'consumer' is concerned, this matter is no more res integra. There is nothing on record that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis, and as such, the flats in question were purchased by him by way of investment, with a view to resell the same as and when there was escalation in the prices thereof. Thus, in the absence of any cogent evidence in support of the objections raised by the learned counsel for the opposite party, mere bald assertion i.e. simply saying that the complainant having purchased two flats, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the buyer(s) of the residential unit(s), would be termed as consumer(s), Consumer Complaint No.211 of 2017 13 unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the Consumer Complaint No.211 of 2017 14 requirement of his family cannot be met in one house."
12. Similar question came up for adjudication before the Hon'ble National Commission in First Appeal No.237 of 2015 (Akshay Sood v. M/s Pal Infrastructure & Developers Pvt. Ltd. & Anr.) decided on 2.1.2017, in which the complaint of the appellant/complainant was dismissed by the State Commission on the ground that he is not a 'Consumer' within the meaning of Section 2(1)(d) of the C.P. Act as he had initially booked three flats, later on changed to two flats, all in his name. The State Commission has come to the conclusion that if a 'consumer' purchases more than one residential unit, he knocks himself out of the ambit of the term 'consumer'. Hon'ble National Commission has held that onus to prove that the flats in question had been purchased by the complainant for the sole purpose of trading in them was on the Developer, which it has failed to discharge. It has been held in para no.7 as under:-
"7. In view of the above and in the light of several decisions by this Bench, including orders dated 21.07.2015 and 05.11.2015 passed in Sai Everest Developers & Anr. v. Harbans Singh Kohli & Ors. (First Appeal No.530 of 2015) and other connected Appeals and Rajesh Malhotra & Ors. V. Acron Developers Pvt. Ltd. & Ors., II(2016) CPJ 125 (NC), wherein it has been held that unless it is shown by bringing on record some cogent material that the purchaser is engaged in the purchase and sale of flats/houses on regular basis, with a Consumer Complaint No.211 of 2017 15 view to make profit by sale of flats/houses, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purpose, the decision of the Fora below, laying down an abstract proposition that if more than one residential unit is purchased by one person, he ceases to be a 'consumer', cannot be sustained."
No such evidence has been adduced by the opposite party in the present complaint. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, raised by the opposite party; being devoid of merit, is rejected.
13. Now coming to the merits of the case. Admittedly, in the year 2011 opposite party floated the residential project in the name and style of "MAYA GARDEN CITY" situated at Chandigarh-Ambala Highway. The complainant having seen the brochure in the office of the opposite party, got attracted by such an advertisement and booked 1 BHK Flat No.408 measuring 610 sq. ft. with the opposite party on 07.02.2013 and received a letter dated 16.02.2013 whereby an offer for allotment had been made to the complainant. Opposite Party allotted apartment number 408 in Block J-1 at 4th Floor and an earnest money of ₹2,00,000/- had been accepted at that time. The total price of the flat was ₹16,01,250/- and thereafter a formal agreement was signed between the parties on 04.03.2013. As per clause 18 of the agreement, the possession was to be handed over on 30.11.2014 but the offer for Consumer Complaint No.211 of 2017 16 possession was made in September 2015 after the delay of about 11 months. Moreover, there are no basic amenities in the project of the opposite party like club, yoga centre etc. Even the area of the flat has been reduced as mentioned in the Agreement. The complainant wrote a number of letters to it but it did not give any reply to the same. Admittedly at the time of offer of possession to the complainant the opposite party was not in possession of completion certificate/occupancy certificate from the competent authorities. Constrained with the circumstances the complainant served legal notice dated 29.11.2016 upon the opposite party and sought refund of the amount of ₹15,26,311/-, so deposited by him. However, the opposite party failed to reply the same.
14. Admittedly, the amount has been utilized by the opposite party, which is trust money, for earning profits in its business. The opposite party has also violated the provisions of the PAPRA by not obtaining the necessary sanctions/permissions from the competent authority before launching the scheme and collecting money from the people. Therefore, the opposite party violated Sections 3, 5, 9 and 12 of PAPRA.
15. The opposite party 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. It is 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 Consumer Complaint No.211 of 2017 17 be bound by the reciprocal promises of performing its part of the Agreement.
16. By executing the Agreement Ex.C-2 and receiving the amount more than ₹25,000/- the opposite party violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amount to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by him. The opposite party cannot withhold his amount and is liable to refund the same along with interest.
17. 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 party to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite party with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite party 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 party 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 party, he would have invested the Consumer Complaint No.211 of 2017 18 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 party i.e. builder knew from the very beginning that it 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 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 party in trust of complainant and it should be used for the purpose of developing 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 Consumer Complaint No.211 of 2017 19 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 plot by waiting for all this period.
18. Perusal of letter dated 16.02.2013 Ex.C-1, receipts Ex.C-3, Ex.C3A to Ex.C3C and statement of account as Ex.C-4 shows that a total sum of ₹14,81,267/- was deposited by the complainant with the opposite party. He is claiming refund of ₹15,26,311/- in the complaint. The opposite party in para No.10 of its reply specifically admitted that it has received ₹14,80,562/- towards the cost of the flat and ₹45,749/- on account of service tax, totaling ₹15,26,311/-, from the complainant.
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. In view of above referred discussion, and perusal of the record, the complaint (CC No.211 of 2017) is allowed and following directions are issued to the opposite party:-
(i) to refund ₹15,26,311/- along with interest @ 12% from the respective dates of deposit; and.
(ii) to pay ₹33,000/-, as litigation expenses.
The opposite party shall first pay the above said amount to the Consumer Complaint No.211 of 2017 20 concerned Bank, from which the home loan had been taken by the complainant and thereafter shall refund the remaining amount, if any, to the complainant.
CC No.212 of 2017
21. Similarly, CC No.212 of 2017 has also been filed by the same complainant and the OP is also the same. In this case, the complainant booked one BHK flat No.212 measuring 610 sq. feet with the OP on 13.09.2011 and allotment letter was issued, vide letter dated 14.09.2011. The total price of the flat was ₹16,00,000/- and the complainant has paid ₹16,44,496/- with the opposite party uptill 19.07.2014. As per the agreement the project was to be completed in November 2014 but the offer of possession was made in September 2015 after a delay of 11 months. Pleading deficiency in service on account of delay the complainant has prayed for refund of ₹16,44,496/- along with interest @ 18% from the date of actual deposits till realization; to pay ₹5,00,000/- for mental agony and harassment; and ₹50,000/- as litigation cost.
22. The opposite party filed reply on the similar lines of its reply as given in CC No.211 of 2017.
23. In this case also, the opposite party filed M.A. No.1189 of 2017 seeking dismissal of the complaint on the ground of pecuniary jurisdiction.
24. In this case, the complainant tendered in evidence his own affidavit as Ex.CA along with documents i.e. Ex.C-1 to Ex.C-9, Ex.C5A to Ex.C5F, Ex.C8A and Ex.C-9A to Ex.C-9F. The opposite party Consumer Complaint No.211 of 2017 21 tendered affidavit of Sh. Sandeep Bansal, Manager as Ex.OPA along with documents i.e. Ex.OP1 to Ex.OP7.
25. Misc. Application No.1189 of 2017 filed by the OP is dismissed in view of our findings given in CC No.211 of 2017 holding that this Commission has the pecuniary jurisdiction to entertain and decide this complaint.
26. As per receipts Ex.C-5, Ex.C-5A to Ex.C-5F and Ex.C-7, the complainant has deposited a sum of ₹16,45,749/-.In the prayer clause the complainant has sought refund of ₹16,44,496/-. We cannot grant relief more than prayed for in the complaint. As such, the complainant is held entitled to the refund of ₹16,44,496/- along with interest.
27. In view of the reasons and discussions held in CC No.211 of 2017 (Vasdev Singla Vs. Barnala Builders and Property Consultants), this complaint (Consumer Complaint No.212 of 2017 is hereby allowed and following directions are issued to the opposite party:-
i) refund of ₹16,44,496/- along with interest @ 12% from the respective dates of deposit; and
ii) to pay ₹33,000/- as litigation expenses.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER November 9, 2017.
Bansal