State Consumer Disputes Redressal Commission
Manmohan Singh vs Mariners Buildcon India Ltd. on 16 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
SECTOR 37-A, CHANDIGARH.
Consumer Complaint No. 212 of 2015
Date of institution : 25.08.2015
Date of decision : 16.03.2017
Mr. Manmohan Singh Bhagnihal S/o Sh. P.P. Singh,
Correspondence Address :- 58A, Pocket GH-10, Sunder
Apartment, Outer Ring Road, Pachim Vihar, New Delhi - 87.
....Complainant
Versus
1. Mariners Buildcon India Limited, C-10, Ground Floor, Kailash
Colony, New Delhi, through Mr. H.S. Anand, Managing
Director, through its Managing Director/ Director/ Authorized
Signatory.
2. Mariners Buildcon India Limited, Sunny Enclave, Desu Majra,
Tehsil Kharar, District Mohali, through its Managing
Director/Director.
....Opposite parties No. 1 & 2
3. M/s Bajwa Developers Ltd., Regd. Office : Sunny Enclave,
Desu Majra, Tehsil Kharar, District Mohali, through its
Managing Director/Director.
...Opposite Party No. 3
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Consumer Complaint No. 212 of 2015 2
Present:-
For the complainant : Shri Sandeep Bhardwaj, Advocate
For OP Nos. 1 & 2 : Ex.-parte.
For Op No. 3 : Sh. T.S. Khaira, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
This complaint has been filed by the complainant under Section 17 of the Consumer Protection Act, 1986 (for short the Act) against the opposite parties on the averments that the complainant is a sailor and wanted residential accommodation/villa. Allured by the assurance given by the representatives of Op Nos. 1 & 2 and their advertisement made through brochure, the complainant became a Member of their Society and got himself registered with Op Nos. 1 & 2 for allotment of a Villa and paid a sum of Rs. 5,50,000/- on 10.1.2007. Another sum of Rs. 4,00,000/- was paid on 14.2.2007 and then he applied with Op Nos. 1 & 2 vide application dated 8.1.2008 alongwith cheque of Rs. 1,50,000/-. He paid another amount of Rs. 4,50,000/- on 29.3.2008. The complainant many times visited to the office of Op Nos. 1 & 2 and they represented that they will start giving position of the Villa in the month of April, 2012 and by August, 2012, they will deliver the possession of all the units. He was asked to pay second installment of Rs. 7 Lacs and he paid vide cheque No. 097429 dated 14.7.2011. In the meantime, Op Nos. 1 & 2 had conducted seminars and meetings. Vide email dated 29.6.2011, they informed the complainant that they had received sanctions in respect of said Consumer Complaint No. 212 of 2015 3 project but true picture was not disclosed. Then they issued email that they have joined hands with Bajwa Developers Private Limited and there project will fall under the Mega Project of M/s Bajwa Developers, although the complainant did not have any privity of contract with M/s Bajwa Developers. Being a bonafide consumer, he continued to pay the installments in time to Op No. 1 & 2 and also expressed his grievance not to update the construction of the Villa. Op Nos. 1 & 2 in their email dated 22.12.2011, apologized their act of delay. They again visited Op Nos. 1 & 2 but no development at the site. Op No. 1 vide their email dated 21.12.2011 informed about the appointment of some Arbitrator. Vide email dated 5.2.2013, they informed the complainant that CLU in respect of Sector 123 has been granted by the Competent Authority. Vide email dated 14.6.2013, they confirmed the allotment of one expandable villa measuring 300 sq. yards with basic sale price of Rs. 39.5 Lacs in favour of the complainant. Vide email dated 5.3.2014, it was informed by Ops that the final layout plan has been sanctioned and Bhoomi Puja will take place in May, 2014. The complainant has paid a sum of Rs. 22,50,000/- to Op Nos. 1 & 2. The complainant saw the project of Op Nos. 1 & 2 just a farce and no possibility of delivery of the possession and again tried to contact Op Nos. 1 & 2. Vide email dated 9.6.2014, they informed about the safety of the project. Then he sought information under RTI Act, 2005 on 22.10.2014 from Punjab Town Planning and Development Authority, who informed that no permission has been given to Op Nos. 1 & 2 by this department to Consumer Complaint No. 212 of 2015 4 launch their project, namely, Mohali Oceanic at Sector 123, Mohali. Similarly, PUDA also gave information that no CLU has been issued to Mariners Buildcon India Limited, Mohali Oceanic at Sector 123, Mohali. Then GMADA also intimated that no licence has been issued/granted to Mariners Buildcon India Limited to launch/setup any colony or project, namely, Mohali Oceanic at Sector 123, Mohali. Then Senior Town Planner, Town and Gram Planning Department of Punjab also intimated that neither they have received any document with regard to launching/setting up of project, namely, Mariners Buildcon India Limited, Mohali Oceanic nor any CLU has been granted. In this backdrop, the complainant felt that virtually there is no chance of the project getting ahead and Op Nos. 1 & 2 are habitual defaulters and collected the money of prospective buyers on false assurance in order to grab their sale consideration, therefore, the complainant cannot wait for an indefinite period for possession of Villa. Although Op Nos. 1 & 2 had agreed through their email dated 5.1.2015 and 5.2.2015 to refund the amount received but till date, no amount has been received. This act and conduct of Ops amounted to unfair trade practice as well as deficiency in service on the part of Ops. Accordingly, complaint was filed against Ops seeking directions against Op Nos. 1 & 2 as under:-
"(i) to refund the amount of Rs. 22,50,000/- deposited by the complainant alongwith interest @ 18% p.a., from the respective dates of deposits till realization. Consumer Complaint No. 212 of 2015 5
(ii) to pay compensation in the sum of Rs. 5 Lacs for mental agony, physical harassment and financial loss caused to the complainant.
(iii) to pay litigation cost of Rs. 1 Lac to the complainant.
(iv) or any other directions which this Hon'ble Commission may deem fit in the facts and circumstances of the case.
2. Notice was given to Ops. Op Nos. 1 & 2 were not served through ordinary process, therefore, they were ordered to served through publication notice in "Times of India" and they were served through publication notice in the said newspaper dated 27.9.2016 but none has come present on behalf of Op nos. 1 & 2, therefore, Op Nos. 1 & 2 were proceeded ex-parte.
3. Op No. 3 appeared and filed the written reply taking preliminary objections that no cause of action has arisen against this Op as there was no privity of contract between the complainant and this Op, therefore, complaint against this Op is not maintainable as there is no consumer and service provider relationship between the complainant and this Op. Although MOU was entered between Op Nos. 1 & 2 and this Op for purchase of 17 acres of land to be developed by Op Nos. 1 & 2 but Op Nos. 1 & 2 failed to pay for the same and the matter was referred to the Arbitrator and Arbitrator Tribunal found that Op Nos. 1 & 2 have not complied with the terms and conditions of the agreement and award was passed against Op Nos. 1 & 2 and in favour of Op No.
3. On merits, it has been stated that this Op has been added just a Consumer Complaint No. 212 of 2015 6 proforma respondent, therefore, no merit in the complaint, it be dismissed qua this Op.
4. The parties led their respective evidence in the complaint.
5. Complainant in his evidence has tendered his affidavit Ex. CW-1/A and documents Exs. C-1 to C-25. On the other hand, Op No. 3 had tendered into evidence affidavit of Jarnail Singh Bajwa Ex. Op-3/A, arbitration award Ex. Op-3/1.
6. We have heard the counsel for the complainant Sh. Sandeep Bhardwaj, Advocate and counsel for Op No. 3 Sh. T.S. Khaira, Advocate whereas Op Nos. 1 & 2 are ex-parte.
7. With regard to relationship of complainant and Op No. 3, certainly, there is no privity of contract between the complainant and Op No. 3. It was an agreement between Op Nos. 1 & 2 on the one side and Op No. 3 on the other side, however, there was a dispute between Op Nos. 1 & 2 and Op No. 3 and the matter was referred to the Arbitrator. The order passed by the Arbitrator has been placed on the record as Ex. Op-3/1. Accordingly, the claim of the applicant/Op Nos. 1 & 2 was rejected, therefore, Op No. 3 is just a proforma respondent and not a contesting Op.
8. With regard to services offered by Op Nos. 1 & 2, the complainant has placed on the record Ex. C-1 the admission fee of Rs. 500/- paid on 25.11.06 vide receipt No. 265, Ex. C-2 is the brochure, Ex. C-3 is receipt No. 312 dated 10.1.2007 vide which a sum of Rs. 5,50,000/- was received by Op Nos. 1 & 2. Vide receipt No. 346 dated 14.2.2017, a sum of Rs. 4 Lacs was received by Op Consumer Complaint No. 212 of 2015 7 Nos. 1 & 2. Then the complainant filled up the application form on 8.10.2008 vide application form Ex. C-5 alongwith that a sum of Rs. 1,50,000/- was paid vide cheque No. 584143 dated 8.1.2008 (Ex. C-6). Then the complainant paid another amount of Rs. 4,50,000/- vide receipt No. 190 dated 29.3.2008 and another amount of Rs. 7 Lacs was paid vide receipt No. 370 dated 10.9.2012. There is various correspondences between the complainant and Ops through email Exs. C-10, 11, 12 and 13 in which Ops No. 1 & 2 assured the complainant for delivery of possession of the Villa. Vide letter dated 14.6.2013 (Ex. C-14), there was confirmation of allotment of one expandable villa in their project Mohali Oceanic at Sector 123, Mohali for constructed area of 1850 sq. ft. and BSP Rs. 39.5 Lacs. Vide email dated Ex. C-15, they gave the assurance to complete the project and to deliver the Villa. However, when the complainant and others sought information under RTI from GMADA, they vide their letter dated 22.10.2014 (Ex. C-19) gave the information that no project under the name and style of Mohali Oceanic in Sector 123, Mohali has been approved by them. Vide another letter Ex. C-20 dated 28.10.2014, it was intimated that according to their record, no CLU was issued in favour of M/s Marinder Buildcon India Ltd., Mohali Oceanic, Sector 123, Mohali. Vide another letter dated 3.11.2014 (Ex. C-21), it was intimated by GMADA that no licence was issued in favour of M/s Mariners Buildcon India Ltd., Sector 123, Mohali to set up any colony. Vide another letter dated 5.11.2014 (Ex. C-22) from Urban and Gram Planning Department, Punjab, it was intimated that no CLU was Consumer Complaint No. 212 of 2015 8 given by them in the name of Mariners Buildcon India Ltd., therefore, Op Nos. 1 & 2 had raised the funds from the complainant and similar other persons on false assurance. In fact they did not have any licence to develop the Colony, no CLU from GMADA or Urban and Gram Planning Department, Punjab/PUDA and till these certificates are taken they cannot launch any project and receive any money from the public in general according to the provisions under PAPRA, 1995. Therefore, it amounts to unfair trade practice on the part of Ops. In such a situation, similar view has been expressed by this Commission in number of other cases. The counsel for the complainant has relied upon the judgment of this Commission rendered in Consumer Complaint No. 82 of 2015 "Mrs. Ishwinder Kaur versus Mariners Buildcon India Limited", decided on 17.5.2016 in favour of the complainant and the present complaint is also on the similar facts. In the absence of any rebuttal from the Ops, there is no reason to disbelieve the version given by the complainant. Accordingly, we accept the complaint against Op Nos. 1 & 2 and ordered Op Nos. 1 & 2 as under:-
(i) refund a sum of Rs. 22.50 lacs alongwith interest @ 11% p.a. from the date of deposit till payment;
(ii) pay Rs. 2 lacs on account of unfair trade practice and deficiency in service to receive the payment and launch the project without proper approvals from the competent authority i.e. CLU from the PUDA and Town and Gram Planning Department, Punjab or licence from the GMADA, layout plans or other certificates as provided under the PAPRA; and Consumer Complaint No. 212 of 2015 9
(iii) Rs. 21,000/- as litigation expenses.
9. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
10. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER March 16, 2017.
as Consumer Complaint No. 212 of 2015 10