State Consumer Disputes Redressal Commission
Saroj Bala vs Bestech Business Tower on 16 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Misc. Application No.341 of 2017
In/and
Consumer Complaint No.302 of 2015
Date of institution : 26.11.2015
Reserved on : 05.06.2017
Date of decision : 16.06.2017
1. Smt. Saroj Bala wd/o Shri Ravi Chopra,
2. Shri Himanshu Chopra s/o Shri Ravi Chopra,
Residents of H.No.1611, Sector 15, Panchkula, Haryana.
.......Complainants
Versus
1. Bestech Business Tower at Bestech Square, Sector-66,
Mohali, Punjab, through its authorized Director &
Representative.
2. Bestech India Pvt. Ltd., # 124, Sector-44, Gurgaon, Haryana,
through its authorized Signatory/Director.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainants : Shri Anish Garg, Advocate. For the opposite parties : Shri Sanjay Vij, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
At the outset, it may be stated here that we are proceeding to decide this complaint in view of the fact that no objection, whatsoever, has been raised by the complainants to proceed with Consumer Complaint No.302 of 2015 2 the complaint. They have already accepted the costs awarded by the Hon'ble Supreme Court and the written statement of the opposite parties has already been taken on record. Even extension has been granted to the opposite parties.
M.A. No.341 of 2017:
2. This is an application for placing on record the additional affidavit along with written arguments. Allowed as prayed for.
Main Case:
3. The complainants, Saroj Bala and Himanshu Chopra, have filed this Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the C.P. Act"), for the issuance of following directions to the opposite parties:-
i) to refund the amount of ₹36,63,730/- along with interest @ 21% per annum from the date of payment/instalments till its realization;
ii) to pay ₹5,00,000/-, as compensation for mental and physical harassment and for financial loss; and
iii) to pay ₹22,000/-, as litigation expenses.
4. Brief facts, as stated in the complaint, are that complainant No.1 is a widow and retired lady from Punjab School Education Board, whereas complainant No.2 is son of complainant No.1. The complainants have filed this joint complaint as they are joint applicants for purchasing office space from the opposite parties for doing business to earn their livelihood by way of self-employment after the retirement of complainant No.1 from her job and also to settle her son complainant No.2 in life. As such, both the Consumer Complaint No.302 of 2015 3 complainants fall within the definition of "consumer" as defined in Section 2(1)(d) of the C.P. Act. It is averred that the complainants were attracted by the rosy pictures shown by the opposite parties that a Project known as "Bestech Business Tower" to be located at Sector 66, Mohali, is being constructed. The complainants opted for an area measuring 1065 square feet for office space for settlement of complainant No.1 herself and her son complainant No.2. In pursuance of the brochure and other information supplied by the opposite parties the possession was to be handed over within a period of 3 years from the date of booking. Being allured by the tall claims of the opposite parties the complainants booked the office space and paid an amount of ₹36,63,730/- in instalments to the opposite parties. Initially an amount of ₹50,000/- was paid on 18.6.2011 as the booking amount and thereafter in pursuance of the demands and the Schedule for payment, they had already paid upto 24.4.2014 an amount of ₹36,63,730/-, vide various receipts Ex.C-1 to Ex.C-16. It is further averred that the complainants visited the project site and found that there was no progress at the site and requested the opposite parties to complete the project. So the commitment to give possession within a period of 3 years from the date of booking of the said office space appeared to be false. The complainants had been paying the instalments as per the Schedule but thereafter they stopped making payments after realizing that possession of the office space will not be given as per the stipulation and the commitment given. It is further averred in the complaint that the complainants asked the opposite parties to issue allotment letter Consumer Complaint No.302 of 2015 4 with respect to the property in question as a result of which complainant No.1 signed some of the papers and consequently allotment letter Ex.C-17 in the shape of Allotment Form was issued on 16.7.2011. The Schedule of Payment was also given in Ex.C-17. After about four years the complainants gave a notice dated 14.4.2015, Ex.C-18, stating that they have already paid the amount when she was working and the first payment was made on 18.6.2011 and the remaining payments were made from time to time. There was no progress at the spot. The matter was discussed with Mohit Goyal, Managing Director of the opposite parties telephonically and personally on 9.4.2015 but of no avail. The complainant had already deposited ₹36,63,730/- and asked for the refund of the same. Thereafter a legal notice dated 8.9.2015 Ex.C19 was also given mentioning everything. Having realized that neither the amount paid is being refunded nor there is any progress in the project, the present joint complaint was filed by the complainants for the reliefs, reproduced above.
5. In pursuance of the notice initially the opposite parties did not file any reply. Thereafter they filed M.A. No.435 of 2016 for extension of time for filing reply. However, that application was dismissed by this Commission, vide order dated 4.4.2016. However, Hon'ble Supreme Court vide order dated 2.9.2016 allowed two weeks time to the opposite parties to file written reply subject to payment of ₹50,000/- to the complainants. Costs were paid by the opposite parties to the complainants and thereafter the written reply filed by the opposite parties was ordered to be taken on record, vide Consumer Complaint No.302 of 2015 5 order dated 21.12.2016 in pursuance of the order of the Hon'ble Supreme Court dated 16.12.2016.
6. In the reply the opposite parties took the preliminary objections that the complainants have not approached this Commission with clean hands and are guilty of suppression and concealment of true and material facts. The property in question is commercial in nature and the complaint does not lie. It should be thrown on account of lack of jurisdiction to entertain and adjudicate upon. The complainants had booked the property in dispute for the purpose of resale in order to make profits and as such they cannot be permitted to raise any grievance by filing the instant complaint. Even otherwise on account of breach of terms and conditions of the provisional allotment the Unit/Office Space allotted to the complainants has already been cancelled and, as such, the invocation of the provisions of the C.P. Act and maintainability of the present complaint is without jurisdiction. The present complaint is a guise of civil suit for recovery of money which dispute cannot be gone into by this Commission. Various other objections have also been taken and it is further averred that the opposite parties are reputed colonizers and developers and have successfully completed various projects in Punjab, Uttar Pradesh, Madhya Pradesh, Maharashtra and Haryana and after obtaining the requisite permission for the development of the IT complex, they started the present project which is known as Bestech Business Tower. The present complaint has been filed by the complainants just to harass and humiliate the opposite parties. After the booking was done, IT Consumer Complaint No.302 of 2015 6 Unit No.320 was allotted to the complainants and the complainants chose construction linked plan. However, right from the beginning the complainants have been irregular in making the payments of instalments, which evidently shows that the complainants had indeed made the booking for speculative gains to make profits by reselling the same and the answering opposite parties were constrained to issue call notices/reminders etc. to the complainants dated 16.7.2011, 31.12.2011, 27.01.2012, 29.02.2012, 24.04.2012, 25.07.2012, 05.01.2013, 06.02.2013, 26.02.2013, 19.03.2013, 28.04.2014, 06.06.2014, 28.07.2014, 17.10.2014 and 07.01.2015 (Annexure R-2 Colly) asking them to make the payment of instalments but they stopped making payments. It is submitted that Partial Occupation Certificate was also given with regard to the complex on 14.7.2014 and 2.2.2015 (Annexure R-4 Colly) and thereafter intimation was sent to the complainants on 3.2.2015 (Annexure R-5) offering them physical possession of the IT Unit and also requesting them to clear and make the payment of all the outstanding dues as per the payment plan opted by them. Even thereafter reminders dated 18.3.2015 and 23.4.2015 (Annexure R-6 Colly) were sent by the opposite parties to the complainants. Despite receiving the said letter and the reminders, the complainants failed to turn up to take physical possession of the allotted space and to make payment of the outstanding amounts. Thereafter the opposite parties sent notice dated 14.5.2015 (Annexure R-7) thereby granting final opportunity to the complainants to remit the outstanding dues within a period of 15 days of the receipt of the said Consumer Complaint No.302 of 2015 7 letter. In-spite of receiving the same the complainants did not come forward to make the payment of the sale consideration in respect of the property in question and having afforded adequate and numerous opportunities to the complainants, the answering opposite parties were left with no other alternative but to cancel the allotment made and such a cancellation letter was issued on 20.8.2015 (Annexure R-8). The project has been successfully completed and several reputed companies, for example, Reliance JIO, Schneider, Mobikasa, Bajaj Electricals, Indus Tower, Talwar and Talwar (Law Firm) etc. have started their operations from Tower-A of the Complex. Photographs of the Complex have been annexed on the record as Annexure R-9 (Colly). On merits, it is submitted that this is a commercial venture and there is no issue of earning livelihood by way of self-employment when complainant No.1 was already in service at the time she applied for the allotment of the office space in question. The other averments have been denied. The complainants are at fault and they stopped making payments from 25.1.2013. Four instalments are still pending against the complainants. The complainants cannot claim the possession unless they make the payment nor are they entitled to any interest. There is no deficiency in service or adoption of unfair trade practice on their part. A prayer for dismissal of the complaint has been made.
7. In support of their case the complainants tendered into evidence affidavit of Saroj Bala, complainant No.1, as Ex.CA and documents Ex.C-1 to Ex.C-20. On the other hand, opposite parties Consumer Complaint No.302 of 2015 8 tendered in evidence affidavit of their authorized person, Smt. Shiveta Raina as Ex.OP-A and documents Ex.OP-1 to Ex.OP-23 and Annexure R-1 to Annexure R-9.
8. We have heard learned counsel for both the sides and have carefully gone through the averments of both the sides and the evidence produced in support of their respective averments. We have also gone through the written arguments submitted by both the sides.
9. It was argued by the learned counsel for the complainants that it is made out from the allegations made in the complaint that the complainants fall under the definition of 'consumer' as they agreed to purchase the Office Space for the purpose of earning their livelihood by way of self-employment. It has been specifically mentioned by the complainants in para no.1 of the complaint that complainant No.1 is a widow and retired from the Punjab School Education Board and complainant No.2 is her son. The office space in question was only purchased with a purpose to earn their livelihood by way of self- employment after retirement of complainant No.1 and to settle her son after the office space was given. It has also been mentioned in para no.2 of the complaint that complainant No.1 asked the opposite parties that she was going to retire from Punjab School Education Board and for settlement of herself and for her son in future, they wanted to start the business for earning their livelihood. Cogent and convincing evidence has been produced in support of the allegations made in the complaint. Therefore, the complaint is very much maintainable before this Commission and cannot be dismissed on Consumer Complaint No.302 of 2015 9 the ground that the office space in question is commercial in nature. The complainants had already made the payment of substantial amount towards the sale consideration of the said office space as per the Payment Plan, which is a Construction Linked. The booking of the office space was made by depositing ₹50,000/- on 18.6.2011 and the possession thereof was to be delivered by the opposite parties within a period of 3 years from the date of booking i.e. by 18.6.2014. The complainants continued to pay the instalments upto 2013. They stopped making payments only when they visited the site and found that there was no progress in the construction of the Project and there was no inkling of delivery of possession in near future. Thereafter the complainants made a request to the opposite parties that since the Project is not likely to be completed in near future, therefore, they are no more interested in the office space and requested to return their money, vide letter dated 14.4.2015, Ex.OP18. However, the opposite parties instead of refunding the amount cancelled the allotment, vide letter dated 20.8.2015, Ex.OP-
23. The complainants even served a legal notice upon them dated 8.9.2015, Ex.C-19, through their counsel demanding refund of the amount of ₹36,63,730/- along with interest at the rate of 21% per annum from the date of booking of office space i.e. 18.6.2011 till its realization along with ₹5,00,000/- as compensation. However, nothing was done in the matter by the opposite parties and ultimately the complainants were constrained to file the present complaint before this Commission for the redressal of their grievances. The action of the opposite parties firstly in not constructing the office Consumer Complaint No.302 of 2015 10 space as promised by them within the stipulated period as per the terms and conditions of the allotment letter and secondly in not refunding the amount deposited by the complainants not only amounts to deficiency in service but also adoption of unfair trade practice by them, as a result of which the complainants suffered harassment, mental tension and financial loss. Therefore, the complainants are entitled to the refund of the amount of ₹36,63,730/- along with interest at the rate of 21% per annum besides compensation and litigation expenses.
10. On the other hand, it was argued by the learned counsel for the opposite parties that the complainants are not consumers as defined under the C.P. Act as the property in question, which was booked by the complainants with the opposite parties was commercial in nature and as such, this Commission was not competent to entertain this complaint. The complainants have not come to the Commission with clean hands and have withheld material information. The property in question is commercial in nature and the complaint is not maintainable. The case of the complainants does not fall within the definition of 'consumer' as well as Explanation appended to Section 2(1)(d)(ii) of the C.P. Act. The joint complaint cannot be filed by the complainants. The dispute between the parties relates to the interpretations of the clauses, which cannot be gone into by this Commission. Actually it is a civil suit, which has been filed in the shape of consumer complaint. It was further argued that the opposite party is a Colonizer and Developer of immense repute and had developed and executed Consumer Complaint No.302 of 2015 11 successfully several residential as well as commercial colonies in both the States of Punjab and Haryana and other parts of the country. The complainants have filed the present complaint with ulterior motive just to harm the reputation of the opposite parties. The complainants have not made the payment of all the instalments as per the schedule given in the Allotment Form in spite of issuance of various notices/call notices commencing from 16.7.2011 till 7.1.2015 (Annexure R-2 Colley). Even Partial Occupation Certificate was issued in respect of the Complex, vide letter dated 2.2.2015, Ex.OP-18 by the concerned Department. The complainants were asked to take possession, vide letter dated 3.2.2015, Ex.OP-19 but they did not turn up. It was further argued that ultimately the allotment was cancelled, vide letter dated 20.08.2015, Ex.OP-23 and 20% earnest money was forfeited. It was further argued that after the cancellation of the allotment of the office space there is no relationship between the complainants and the opposite parties existing anymore and the complainants are no more the consumers. Moreover, at the time of booking of the office space complainant No.1 was in Government service and, as such, she cannot be considered that she wanted the property in question for earning her livelihood by way of self-employment. He relied upon following judgments of Hon'ble National Commission:-
i) "Balbir Singh Randhawa v. DLF Universal Limited & Anr." reported in 2016(2)CLT 283;
ii) "Harish Kumar Kochar v. Gillco Developers Pvt. Ltd.
& others" reported in 2015(1) CLT 495;
Consumer Complaint No.302 of 2015 12
iii) "Puneet Singh v. Aerens Entertainment Zone Ltd."
reported in 2015(4) CLT 277; and
iv) "Satish Batra v. Sudhir Rawal" reported in 2013(1) Civil Court Cases 200 (SC).
11. We have given thoughtful consideration to the contentions raised by the learned counsel for both the sides.
12. The first and foremost question which needs to be decided by this Commission is, whether the Office Space in question is a commercial unit or the same was purchased by the complainants for earning their livelihood by means of self-employment? For ready reference, Section 2(1)(d)(ii) of the CP Act is reproduced hereunder:-
"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 Consumer Complaint No.302 of 2015 13 partly promised, or under any system of deferred payment and includes any beneficiary of 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 purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;
A perusal of the above reproduced definition of 'consumer' clearly reveals that the commercial aspect of any transaction is not covered under the definition of the 'consumer' except in case it is to earn livelihood for self-employment.
13. Admittedly the office space in question has been booked by both the complainants by making a joint application for its allotment with the opposite parties. A copy of the application filed by the complainants with the opposite parties has been placed on record by the opposite parties themselves Ex.OP-1 and a perusal of the same Consumer Complaint No.302 of 2015 14 would reveal that Saroj Bala, complainant No.1, is applicant No.1, whereas Himanshu Chopra, complainant No.2 is applicant No.2 in that application. The complaint has been filed jointly by the complainants. It has been specifically mentioned by the complainants in para no.1 of the complaint that complainant No.1 is a widow and retired from the Punjab School Education Board and complainant No.2 is her son. The office space in question was only purchased with a purpose to earn their livelihood by way of self- employment after retirement of complainant No.1 and her son i.e. complainant No.2. Presuming that if complainant No.1 books the property just for settlement of her family member, specifically son, by adding him as a co-applicant, then it is to be seen, whether it was for earning livelihood by way of self-employment by the son alone? When there are specific averments which have not been categorically rebutted by leading cogent evidence by the opposite parties that the son is otherwise settled in life, it cannot be presumed that the said space is being purchased for commercial purpose and not for the settlement of the son. In view of the categorical averments in the complaint for settlement of the son and consequential earning of livelihood by doing business in the said place certainly the complainants fall in the definition of "consumer" as defined under Section 2(1)(d)(ii) of the C.P. Act. There is no bar of purchasing a unit by a number of persons in their joint names specifically the family members. The complainants are mother and son and complainant No.1 also happened to have been retired at the time of filing the complaint. We do find that when there is specific Consumer Complaint No.302 of 2015 15 clause that she will be getting possession after a period of three years and by that time she will be retired from the service, then certainly she could book the office space to earn her livelihood by way of self-employment after retirement. It is also a fact that when an employee retires, mere pension is not sufficient and keeping in view the health and capability one can work to earn livelihood by way of self-employment to generate further income so that he or she may enjoy descent life as he or she was enjoying while in service. It is always necessity of a person to maintain at least some standard of living, which he or she was enjoying while in service. In these circumstances we are of the definite view that this office space was not purchased by the complainants for commercial purpose and the same was purchased for earning their livelihood by way of self- employment.
14. So far as the judgment of Hon'ble National Commission in Balbir Singh Randhawa's case (supra) is concerned, the complainant in that case was gainfully employed in abroad and booked commercial space in India with a view to earn livelihood by means of self-employment after retirement. No time frame was given in that complaint. Therefore, it was held by the Hon'ble National Commission in that case that the aforesaid vague averment in the complaint will not bring the case of the complainant within the ambit of Section 2(1)(d) of the C.P. Act. The facts of that case were different. In the present case complainant No.1 was given the assurance that she would be delivered the possession after a period of three years of the booking of the same and by the time the office Consumer Complaint No.302 of 2015 16 space was to be allotted to her, she would have been retired. Moreover, complainant No.1 is co-applicant with complainant No.2, who is her son and who was not in any service. In Puneet Singh's case (supra) the complainant had booked one other shop in the project jointly along with her cousin and it is in those circumstances that the Hon'ble National Commission held that she cannot maintain the consumer complaint. In the present case, as stated above, the facts are different. In Harish Kumar Kochar's case (supra) the plea of earning his livelihood through proposed construction on the plot was never taken by the petitioner. However, in the present case it is the specific plea of the complainants that they have booked the office space for earning their livelihood by way of self employment. Thus, the facts in all the three judgments of the Hon'ble National Commission were different and as such, the same are not applicable to the facts of the present case.
15. In the judgment of U.T. State Commission passed in Consumer Complaint No.688 of 2016 decided on 27.2.2017 (Arvind Batra and Ors. v. Emaar MGF Land Limited and Ors.) similar objection was raised by the opposite parties that the complainants are not consumers as the unit, in question, has been purchased for commercial/investment purpose. It has been observed by the U.T. State Commission that the complainants have specifically averred in the opening para of the complaint that since the complainants were willing to own a commercial unit in Mohali for the purpose of earning livelihood by means of self-employment, they applied for a commercial unit in the project of the opposite parties. This averment Consumer Complaint No.302 of 2015 17 of the complainants has also been supported by their respective affidavits. It has been held that it may be stated here that there is nothing on record to show that the complainants are property dealer(s), and are indulged in sale and purchase of property on regular basis. Moreover, in the rejoinder, the complainants have stated that the unit, in question, was purchased by them for the purpose of self-employment and the complainants are still seeking possession and are only aggrieved qua the compensation for delay in offering possession of the said unit. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration.
16. In judgment of Hon'ble National Commission passed in Consumer Complaint No.88 of 2012 decided on 9.9.2014 (Kushal K. Rana v. M/s DLF Commercial Complexes Ltd.) the submission made by the counsel for the opposite party was that the complainant is not a consumer. He contended that the complainant is a businessman and he has got another office space. It was submitted by the OP that the complainant had admitted that he was a Director of a Company, namely, M/s Kushal Infraproject Industries (India) Ltd. The address of the Company had been suppressed. It has been held by the Hon'ble National Commission in para no.22 as under:-
"This argument is berefit of merit. The allegation that the complainant is owner of another space is merely an assertion which is not supported by any cogent or plausible evidence. At the time of arguments, the complainant was present and he Consumer Complaint No.302 of 2015 18 informed this Commission that he did not have any other office space. The complainant also explained that he is a resident of Uday Park, New Delhi, which is exclusively a residential accommodation. It must be borne in mind that the case was filed in the name of an individual and not by any company. An individual proprietor can run the business for his own and his family benefits or he can earn his livelihood by transacting any business, as per explanation appended to Section 2(1)(d)(ii) of the C.P. Act, 1986. There lies no rub. His status as a 'consumer' does not stand clouded. In para no.5 of the complaint, the complainant has mentioned that he requires the said office space for his own personal use and for carrying out his business work therein. Consequently, the present case falls within the four corners of Section 2(1)(d) of the C.P. Act, 1986. The argument advanced by the counsel for the OP does not deserve any consideration."
16. In Laxmi Engineering Works v. P.S.G. Industrial Institutes reported in 1995(2) CPC 2 (Supreme Court), the Hon'ble Apex Court in Paras 10 and 18, inter-alia, held as under:-
"10. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself, "exclusively for the purpose of earning his livelihood"
and "by means of self-employment" make the intention of Consumer Complaint No.302 of 2015 19 Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood."
"18. Whether the purpose for which a person has bought goods is a "commercial purpose" within the meaning of the definition of expression "consumer" in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case."
17. In the present case the complainants in para no.2 of the complaint have specifically mentioned that complainant No.1 was going to retire from Punjab School Education Board and they wanted to start the business for getting their livelihood after retirement of complainant No.1 for settlement of herself and for her son in future. In view of the proposition of law, referred to above, and the peculiar facts of the present case, we are of the considered view that the complainants are 'consumers' as defined under Section 2(1)(d) of the C.P. Act, 1986, and this complaint is very much maintainable.
18. Now, coming to the other merits of the case. The complainants by making a joint application to the opposite parties booked the office space in question and deposited ₹50,000/- on 18.6.2011, vide receipt Ex.C-1. Thereafter the complainants continued to make payment of instalments regularly till 20.8.2012. As per Clause 8 of the Application Form, the possession of the said office space/Unit was tentatively proposed to be offered by the Company to the complainants/intending allottee(s) within 30 months (excluding a grace period of 6 months) from the date of execution of Consumer Complaint No.302 of 2015 20 Buyer's Agreement subject to timely payment by the complainants. Therefore, the possession of the office space/unit was to be offered by the opposite party upto 18.6.2014. It is the specific case of the complainants that during the deal, they visited the project spot and came to know that there was no progress at all on the spot and there was no inkling of delivery of possession of the office space/unit in near future. Still they waited for the construction of the office space/unit at the spot. However, vide letter dated 14.4.2015, Ex.C18, the complainants requested the opposite parties for the refund of ₹36,63,730/-. It is after this letter that the opposite parties instead of refunding the amount cancelled the allotment of the complainants and forfeited 20% of the earnest amount, vide letter dated 20.8.2015, Ex.OP-23. A perusal of letter dated 20.8.2015 reveals that no clause etc. have been mentioned for cancelling the allotment of the office space/unit in favour of the complainants. Thereafter the complainants sent legal notice dated 8.9.2015, Ex.C- 19, upon the opposite parties to refund the amount of ₹36,63,730/- along with interest at the rate of 21% per annum along with ₹5,00,000/- as litigation expenses. It is now well settled that once the complainant is satisfied that the Project of the Builder/Developer is not going to be completed and there is no possibility of delivery of possession of the flat/house/shop/plot etc., such complainant can opt out of the Project and claim refund of the amount without forfeiture of any amount. There is no fun in first depositing the amount with the opposite parties and then to file consumer complaint for the refund of the same. So in these circumstances the judgment cited by the Consumer Complaint No.302 of 2015 21 learned counsel for the opposite parties in Satish Batra's case (supra) is not applicable to the present case.
19. It is admitted by the opposite parties that the Partial Completion Certificate was issued, vide letters dated 14.07.2014 and 02.02.2015 Annexure R-4 (colly.), meaning thereby that there was not much progress at the spot; resultantly leading to apprehension in the minds of the complainants that the project will not be completed in near future.
20. As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA.
21. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
22. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the Consumer Complaint No.302 of 2015 22 amount deposited by the buyers, who intend to purchase the plots/flats/office space, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
23. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment/office space by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
24. 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."
25. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned Consumer Complaint No.302 of 2015 23 provisions of PAPRA, while launching and promising to develop their project. Thus, first the delay in not delivering the possession of plot within the agreed period and thereafter in not refunding the amount deposited by the complainants amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties, for which the complainants are to be suitably compensated.
26. The C.P. Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the office space in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of office space and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite parties, they would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat/office space within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the office space booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the Consumer Complaint No.302 of 2015 24 very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainants to book the office space, due to which the complainants have 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 complainants is a deposit held by the opposite parties in trust of complainants and it should be used for the purpose of building the plots, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were 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 complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the opposite parties in shattering their hope of getting the office space by waiting for all this period. In these circumstances, the complainants are entitled to the refund of Consumer Complaint No.302 of 2015 25 the amount deposited by them, along with interest and suitable compensation.
27. The complainants have claimed refund of ₹36,63,730/- along with interest at the rate of 21% per annum. Hon'ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. In view of the above authority as well as Rule 17 of PAPRA, the complainants are entitled to the refund of their deposited amount, along with interest at the rate of 12% per annum.
28. In view of above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund ₹36,63,730/-, to the complainants, along with interest at the rate of 12% per annum from the respective dates of deposits till realization, as per Rule 17 of PAPRA;
ii) to pay ₹3,00,000/-, as compensation for the mental agony and harassment suffered by them; and
iii) to pay ₹22,000/-, as costs of litigation.
29. The opposite parties shall comply with the order within 30 days of the receipt of certified copy of the order, failing which the compensation amount shall also carry interest at the rate of 12% per annum from the date of this order till realization. Consumer Complaint No.302 of 2015 26
30. The complaint could not be decided within the stipulated period, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER June 16, 2017 Bansal