State Consumer Disputes Redressal Commission
Mukesh Kumar Nagar vs Country Colonisers Pvt. Ltd. on 22 November, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 385 of 2016
Date of Institution : 15.12.2016
Date of Reserve : 31.10.2017
Date of Decision : 22.11.2017
Mukesh Kumar Nagar son of Sh. Satyanarayan Nagar, Resident of
House No. 921, Sector 9, First Floor, Gurgaon, Haryana.
....Complainant
Versus
1. Country Colonizers Private Limited (Wave Group Company),
through its Chairman Sh. Rajinder Singh Chadha, having their
Corporate Office at C-1, Sector 3, Noida - 201 301, Uttar Pradesh.
2. M/s Country Colonisers Private Limited (Wave Group
Company) through its Authorised Signatory Harmandeep Singh
Kandhari having registered office at P.O. Rayon and Silk Mills,
Adjoining Coca Cola Depot, G.T. Road, Chheharta, Amritsar,
Punjab.
3. M/s Country Colonisers Pvt. Ltd., An Wave Infratech Venture
through its Vice Chairman Sh. Manpreet Singh Chadha having its
Office at Site Office, Sector 85, Mohali, Punjab
4. Housing and Development Corporation Bank (HDFC) through
its Branch Manager having its Office at SCO No. 153-155, Sector
8-C, Chandigarh.
....Opposite parties
Consumer Complaint No. 385 of 2016 2
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Sanjeev Sharma, Advocate
For Op Nos.1 to 3 : Sh. Tejeshwar Singh, Advocate
For OP No. 4 : Ms. Anjali Moudgil, Advocate for
Sh. Shekhar Verma, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Op Nos. 1 to 3 launched the luxury project of residential floors by the name of Wave Floor in Sector 85 and 99, SAS Nagar (Mohali). It was also apprised by the Ops that present project is mega project and shall have mix of flats, villas, commercial complexes and club house being promoted by Ops being this prestigious gated community with a running wall throughout the periphery of the entire township with luxury swimming pool, a world class tennis court, indoor games and a health club. The brochure further enumerated that it will have jogging trail, walking paths, tennis courts, badminton courts, sit out plaza, swimming pool, kids park, splash pool etc. with luxury condominiums with 100% power backup. Complainant was staying Consumer Complaint No. 385 of 2016 3 in a rented premises, approached the Ops and allured to the advertisement and representations made by Ops and that the possession of the flat will be handed over within a short period as the construction has started and that the possession will be delivered in the year 2015, he submitted the application form and then buyer's agreement was executed. Ops promised to deliver the possession of the flat within 24 months with a grace period of 6 months i.e. maximum upto 30 months. Residential floor bearing No. 185 on first floor, Block A in Sector 85 was allotted having saleable super area of approx 1350 sq. ft. with basic sale price under subvention plan as Rs. 63,50,000/- alongwith EDC charges of Rs. 1,30,500/- and Rs. 75,000/- towards club membership, thus, total price was fixed at Rs. 65,55,050/-. IFMS, stamp duty, service tax charges and other charges/taxes were to be decided at the time of offer of possession. After signing of application form, the Ops delayed in execution of residential floor allottee arrangement for a period of 11 months to gain undue advantage and executed the same on 10.2.2014. Then complainant approached HDFC Bank for availing a home loan and a sum of Rs. 48,50,000/- was approved on 24.3.2014. It was provided under Clause 5.5 of the buyer's agreement if the Ops failed to offer possession of the said plot to the allottees by the end of grace period, the Ops shall be liable to pay to the allottee compensation calculated @ Rs. 5/- per sq. ft. per month of the super area. 30 months expired on 9.8.2016. According to Clause 6.1, it was provided that on completion of the construction, the developer shall hand over the possession of the Consumer Complaint No. 385 of 2016 4 same in the manner stated under Clause 5. The developer shall execute the appropriate documents of conveyance/sale deed in favour of the allottee for transfer of ownership of the said flat. The complainant asked the Ops to give the exact date of handing over the possession on account of loss of interest and payment of EMIs to the bank without getting the possession whereas Ops kept on asking the complainant to pay the amounts as asked by them and complainant paid it. However, Ops failed to complete the construction and to hand over the possession of the residential floor as agreed. When the complainant visited the site, they were anguished and pained to see that the development/construction of the flat is far from complete. Even completion/occupation certificate was not applied to the GMADA. Ops also collected EDC @ Rs. 522/- per sq. yard and club membership of Rs. 75,000/- from the complainant whereas there was no development at the site, which included parks, landscapes, gated community, pavements, jogging trails, swimming pool, gym, spa etc. The complainant has paid a sum of Rs. 60,05,037/- as demanded by the Ops. The Ops also submitted revised layout plan of the project and had delayed the project so as to reap undue enrichment for themselves at the sake of poor consumers. The complainant, who is residing in the rented accommodation has suffered a double blow on account of false assurances of Ops as they have not completed the project and handed over the floor to the complainant. They also did not adhere to the provisions of PAPRA. Alleging deficiency in service on the part of Ops, this complaint has been filed before this Commission Consumer Complaint No. 385 of 2016 5 seeking direction against the Ops to refund a sum of Rs. 60,05,037/- paid by the complainant to Ops alongwith suitable interest rate, pay compensation to the tune of Rs. 5,00,000/- and Rs. 55,000/- as litigation expenses and repay the amount of EMI/interest paid by the complainant to the bank.
2. Upon notice, Op Nos. 1 to 3 filed their written reply taking preliminary objections that Raghav Sharma is Authorised Representative of the Op and reply has been filed by him on their behalf; the complaint is not maintainable as the complainant does not fall under the definition of the consumer as complainant already owns House No. 921, Sector 9, FF, Gurgaon, Haryana, House No. 2484, Sector 66, Mohali and Sangrampura, Tehsil Deoli, Distt. Tonk, Rajasthan, therefore, the present floor was booked for investment purposes; the complaint is not maintainable in view of Arbitration Clause in the agreement; the complainant opted for subvention linked plan. Under this plan, the complainant paid 15% of the basic sale price, following which the residential floor allottee arrangement was executed between the allottee and the developer and subsequently, a tripartite agreement was executed with them and the bank and the complainant had taken the loan. The amount under this plan became due to the Ops in accordance with the stage of the construction and the bank was to pay these amounts as and when they became due. The bank paid the entire remainder of the amount except for 15% of the basic sale price, service tax, preferential location charges, EDC, club membership etc. Under the tripartite agreement, the EMI commenced from the month Consumer Complaint No. 385 of 2016 6 following the month in which the loan disbursement is complete. Till such commencement, the complainant is liable to pay the pre-EMI interest, which was agreed simple interest charged on the loan amount disbursed. Under Clause 3, the developer had agreed to pay pre-EMI interest on behalf of the allottee for 24 months from the date of disbursement of the first loan installment. Under Clause 4, the liability of the borrower to pay the EMI amount is not subject to the stage of the construction. In this case, the loan was disbursed on 24.3.2014, therefore, Ops were liable to pay pre-EMI interest upto 23.3.2016 and after that the complainant was obliged to bear the installment of pre-EMI interest as per the terms of the tri-partite agreement. The complainant paid 15% of the BSP and the remaining amount was to be disbursed by Op No. 4 and pre- EMI interest was to be paid by Ops to the Bank on behalf of the complainant. However, as soon as the complainant was required to start paying the installment as per the tri-partite agreement, he filed the present false and frivolous complaint; the complainant has failed to fulfill his obligation under the agreement. An amount of Rs. 4,81,933/- pertaining to within 45 days of booking was required to be paid by 20.5.2013, however, that amount was completely paid by 4.12.2013 with delayed period of more than 6 months. Ops have a cause of action to recover the penal amount as the complainant has failed to fulfill his obligation. In case the construction was delayed beyond the period fixed under the agreement, Clause 5.5 stipulated that Ops will pay penal charges @ Rs. 5/- per sq. ft. per month for the delayed period; the prayer of the complainant for Consumer Complaint No. 385 of 2016 7 refund of the paid amount is not maintainable in the light of terms and conditions of tripartite agreement. Whereas Ops have made huge payments on behalf of the complainant on account of pre-EMI interest. Ops further entered into memorandum of agreement dated 3.2.2006 with the State of Punjab and according to Clause 5(e) of the memorandum of agreement, the State Government was to acquire land under the provisions of the Land Acquisition Act, 1984 and transfer the same to the Ops. The approved plan of the entire project also shows critical areas i.e. lands, which are not in possession of the Ops and due to the failure of the State Government in acquiring the same. The land which is not available to the Ops from 10% of the total land required for the entire project. They requested the State Government to acquire 23.21 acres of land, which fall within the master plan of the project. Further GMADA was to provide external access roads to the project upon execution of land use agreements with the local farmers, which the GMADA has failed. However, Op No. 1 entered into a land use agreement with local farmers from whose land an access road has been laid for proper access to the project. Therefore, the delay, if any, in completion of the apartment of the complainant was due to the reasons which were beyond the control of Ops; the State Commission does not have the jurisdiction to entertain and decide the present complaint as intricate questions of law and facts are involved, therefore, the matter be relegated to the Civil Court; the Commission does not have the pecuniary jurisdiction to entertain this complaint and that there is no cause of action for the Consumer Complaint No. 385 of 2016 8 complainant to file this complaint. On merits, booking of the apartment by the complainant with the Ops is admitted. It was denied that any assurance was given with regard to the project by the Ops. It was never promised to the complainant that the possession will be delivered in 2015 or that it would be mandatory that possession will be delivered within 30 months after execution of the floor allottee arrangement. Ops have only promised to endeavour to complete the construction within a period of 30 months. Under the subvention scheme interest on EMI to the banks are being paid by the Ops on behalf of the complainant as per the tripartite agreement. It was denied that the complainant had been approaching the Ops with regard to the completion of the apartment. It was also denied that the complainant visited the site in August, 2016 and that there was no construction at the site. It was denied that Ops violated any provisions of the PAPRA. Other averments of the complaint were denied. It has been stated that there is no merit in the complaint, it be dismissed.
3. Op No. 4 in its reply took the preliminary objections that the complaint has been directed only against Op Nos. 1 to 3 in terms of apartment buyer's agreement as per the finance advanced by this Op, the rights of the parties are governed by the loan agreement. In case of cancellation of the unit or in the contingency of termination of plot buyer's agreement, this Op has the first charge/right to seek apportionment of its dues. The account of the complainant is regular. On merits, the averments were denied as they relate to Op Nos. 1 to 3. It was stated that complainant availed Consumer Complaint No. 385 of 2016 9 a loan of Rs. 45,32,500/- out of sanctioned loan amount of Rs. 48,50,000/- as per loan account No. 61106,5774, therefore, no deficiency in service on the part of this Op; complaint is without merit, it be dismissed.
4. To support his contentions, the parties led their respective evidence.
5. The complainant in his evidence has tendered his affidavit as Ex. CW/1 and documents Exs. C-1 to C-11. On the other hand, Op Nos. 1 to 3 had tendered affidavit of Sh. Raghav Sharma, Authorised Signatory Ex. Op-1/A and documents Exs. Op1/1 to Ex. Op-1/19.
6. We have heard the counsel for the parties and have carefully gone through the averments made in the complaint as well as in the application, written reply filed by the Ops in the complaint as well in the applications, evidence and documents on the record.
Misc. Application No. 2064 of 2017
7. Counsel for Op Nos. 1 to 3 moved an application on behalf of Op Nos. 1 to 3 seeking directions to the complainant to specify the exact details of the amount of the EMI/interest allegedly paid by him to the Bank to determine the pecuniary jurisdiction of this Commission. Its reply was filed by the complainant alongwith that detail of the interest amount has been given after calculating interest @ 18% and after calculating this amount, he has referred the total recoverable amount of Rs. 77,90,207.87p. No other calculation sheet has been supplied by the counsel for Op Nos. 1 Consumer Complaint No. 385 of 2016 10 to 3. In this application, Ops have taken the point of pecuniary jurisdiction. The pecuniary jurisdiction of this Commission is from Rs. 20 Lacs to Rs. 1 Crore. As per the complaint, the complainant had paid a sum of Rs. 60,05,037/- and on that amount, he has sought interest and after calculating the interest, it has come to Rs. 77,90,207.87p and after adding the amount of compensation of Rs. 5 Lacs, which is required to be added for the purpose of pecuniary jurisdiction, it comes to approximately Rs. 83 Lacs, which is below to Rs. 1 Crore. Counsel for Op nos. 1 to 3 has not been able to justify how this Commission does not have the pecuniary jurisdiction to entertain this complaint and accordingly, this objection raised by the counsel for the Ops is hereby dismissed. Misc. Application No. 2137 of 2017 for referring the case for mediation
8. The matter was taken up by this Commission. We have also gone through the reply filed by the complainant to this application. During the course of arguments, counsel for the Ops was unable to commit within how much time they will deliver the possession, therefore, in case they are not committing the final date when they will deliver the possession then the complainant cannot be asked to wait for an indefinite period. In mediation, the matter could be compromised between the parties with consent of both the parties. In case the Ops are not giving any definite period then complainant says that he has already asked for refund of the amount to which he is entitled in case the possession is not given within time frame given by the Ops. In these circumstances, Consumer Complaint No. 385 of 2016 11 compromise in the mediation is not possible, accordingly, the application is disposed off.
9. Now before taking the complaint, some preliminary objections have been taken by Op Nos. 1 to 3 that complicated questions of law and facts are involved, therefore, the matter be referred to the Civil Court. In case we go through the pleadings of the parties, the complainant had booked one apartment with Ops and had paid a sum of Rs. 60,05,037/- as demanded by the Ops from time to time. Buyer's agreement is there and Ops have failed to deliver the possession within the time frame as agreed in the agreement. It is only the interpretation of agreement and then to see whether there is any deficiency in service on the part of Ops. We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. The benches of this Commission are headed by retired High Court Judges/retired District & Session Judges, who have long experience at their back and are fully competent to decide such like matters. In this regard, we are fortified by the judgment of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 wherein it was held that 'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'. Further reference can be made to "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287, decided by the Hon'ble National Consumer Complaint No. 385 of 2016 12 Commission. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. Therefore, we are of the opinion that this Commission is fully competent to decide this complaint and no cause of action is made out to refer the case to the Civil Court.
10. Ops No. 1 to 3 raised the objection that there is arbitration clause No. 79 exists in the agreement and in case any dispute arose between the parties, the matter is to be referred to the Arbitrator. In case the Ops were really interested that the matter should be referred to the Arbitrator then they should have moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 alongwith the written reply but no such application was filed. Otherwise under Section 3 of the CP Act, additional remedy has been provided under the Act, therefore, we are of the opinion that the Consumer Fora are duly competent to deal with the complaint despite having the arbitration clause in the agreement.
11. As per the averments in the complaint, the complainant booked one residential floor with Ops. Ex. C-1 is the brochure giving various features of the scheme. Ex. C-2 is the copy of rent agreement. Ex. C-3 is the expression of interest. Ex. C-4 is the copy of latest construction photographs. Ex. C-5 is the agreement of residential floor allottees arrangement executed between the Consumer Complaint No. 385 of 2016 13 parties on 10.2.2014. According to Clause 5.1, the possession was to be delivered as under:-
"5.1 Subject to Clause 5.2 and further subject to all the Allottee(s) of the said "Residential Floor" in the "Said Project"
making timely payment(s), the Developer shall endeavor to complete the development of the "Said Project" in general and the said "Residential Floor" in particular as far as possible within 24 (twenty four) months along with an extended period of (6) six months from the date of execution of this "Residential Floor" Allottee(s)Arrangement and/or from the date of start of construction of "Residential Floor", which is later."
In case of non-compliance then Clause No. 5.4 is relevant, which reads as under:-
"The Allottee(s) shall take possession of the said "Residential Floor" within 30 (thirty) days from the date of issue of offer letter to take possession, failing which the Allottee(s) undertakes and agrees to pay the Holding Charges as may be decided by the Developer from time to time besides the applicable Maintenance Charges, for the entire period after expiry of 30 (thirty) days during which the Allottee(s) does not take delivery of physical possession of the "Residential Floor". The Holding Charges shall be decided by the Developer and the same may be revised or modified from time to time, by the Developer in view of the prevailing circumstances. The purpose for imposition of this charge is to Consumer Complaint No. 385 of 2016 14 ensure and secure the habitation in the "Said Project" at the earliest which otherwise is the object of the Government for granting development of the "Said Project". It is hereby clarified that these Holding Charges shall be independent of all dues and charges specified hereunder. Where the Allottee(s) omits, fails, refuses and/or neglects to take possession of the said "Residential Floor" from the Developer for any reasons whatsoever, the said "Residential Floor" shall be held by the Developer at the risk and cost of the Allottee(s) and the Developer shall in its sole discretion, reserve the right to cancel the allotment in such circumstances and forfeit the Earnest Money, recover delayed payment interest and other outstanding dues accrued as per this "Residential Floor" Allottee(s) Arrangement and refund the balance price paid by the Allottee(s) without any interest/compensation upon realization of money from resale/re-allotment to any other intending Allottee(s)."
Under the subvention scheme schedule, payment was to be made as under:-
Schedule of Payments Subvention Payment Plan On Booking 5 Lacs Within 45 days of booking 15% 15% of Sale Price less booking Amount On start of Construction/ 30% Excavation Consumer Complaint No. 385 of 2016 15 On completion of First Floor roof 30% + 100% PLC, 50% slab EDC, 50% Club Membership On completion of Brick Works & 15% +50% EDC, 50% plaster works Club Membership On intimation of Possession 10% IFMS + Stamp Duty + Registration Charges + Other Charges 100% In reply to para No. 20 of the complaint complainant averred that he had paid a sum of Rs. 60,05,037/- and in reply to this, Op Nos. 1 to 3 have not given any specific reply of the same. It is nowhere stated that payment made by the complainant was late. However, within the stipulated period, the Ops failed to deliver the possession. In case, the possession is not delivered within the time then the complainant has a right to ask for the refund. A reference has been taken from the judgment of the Hon'ble National Commission reported as II (2014) CPJ 131 "PUDA versus Kanwalpreet Singh" that in case there is delay in handing over the possession, it amounts to deficiency in service and refund order can be passed. A reference has also been made to I (2017) CPJ 513 (NC) "Neha Suri versus Unitech Reliable Project Pvt. Ltd." In that case, the possession of the flat was not given as agreed. It amounts to deficiency in service. Amount deposited alongwith interest was ordered to be refunded. Similar order was passed in I (2017) CPJ 113 "Vishal Issar v. Park Wood Developers Pvt. Ltd.".
This Commission has already held in Consumer Complaint No. 164 of 2016 "Harmit Singh Arora versus M/s Country Colonisers Consumer Complaint No. 385 of 2016 16 Private Limited", decided on 2.2.2017 against the same opposite party that in case possession of the apartment has not been given as agreed then it amounts to deficiency in service and that the complainants are not bound to pay further payments when the project is not coming at the site and refund alongwith interest order was ordered.
12. After taking the approximate 80% of the amount, Ops failed to construct and deliver the possession of the flat to the complainant, therefore, Op Nos. 1 to 3 are deficient in service. Therefore, the complaint is liable to be allowed.
13. No other point was argued.
14. Sequel to the above, we allow the complaint and direct Ops No. 1 to 3 as under:-
(i) to refund a sum of Rs. 60,05,037/- alongwith interest @ 12% from the various dates of deposit till actual payment;
(ii) Op No. 4 will have the first charge whatever amount has been received by Op Nos. 1 to 3 from Op No. 4. Firstly the account of Op No. 4 will be cleared and the remaining amount will be paid to the complainant.
(iii) Op Nos. 1 to 3 are directed to pay a sum of Rs.
1 Lac on account of mental and physical harassment by making arrangements of various payments, visiting the Ops but Ops failed to complete the project.
Consumer Complaint No. 385 of 2016 17
(iv) Ops No. 1 to 3 pay Rs. 21,000/- towards litigation expenses.
The above directions be complied by Ops No. 1 to 3 within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
15. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
16. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER November 22, 2017.
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