State Consumer Disputes Redressal Commission
Gurpreet Kaur Bains vs Pearls Infrastructure Projects Ltd. on 11 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.211 of 2016
Date of Institution : 08.07.2016
Order reserved on: 09.01.2018
Date of Decision : 11.01.2018
1. Gurpreet Kaur Bains w/o Sh. Randeep Singh Bains,
2. Randeep Singh Bains s/o Late Sh. Surmukh Singh Bains,
3. Sandeep Singh Bains s/oo Late Sh. Surmukh Singh Bains,
all residents of Village Kheri Bir Singh, Post Office- Rupal Heri
Tehsil-Bassi Pathana, District-Fatehgarh Sahib.
.....Complainants
Versus
1. Pearls Infrastructure Projects Ltd., SCO 6, Sector-69, Mohali
through its Managing Director/Authorized Signatory.
2. Pearls Infrastructure Projects Ltd., having its registered office
at 2-3rd floor, A-wing, Statesman House, Barakhamba Road,
Connaught Place, New Delhi-110001 through its Managing
Director/Authorized Signatory.
3. P.A.C.L. Limited, having its office at 7th floor, Gopal Das
Bhavan, 28, Barakhamba Road, New Delhi-110001 through its
Managing Director/Authorized Signatory.
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. S.S. Gill, Advocate For opposite parties no.1&2 : Sh. D.K. Singal, Advocate For opposite party no.3 : Ex-parte ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that they have booked a Consumer Complaint No.211 of 2016 2 residential plot for their personal and family use, keeping in view their joint family status and plot booked was of 250 square yards for basic sale price of Rs.72,50,000/- in Pearls City, Sector-100 Mohali township of the OPs and they paid the amount of Rs.7,25,000/- vide receipt no.25010 dated 25.08.2012. Subsequently, plot no.122 was allotted to them on 25.08.2012 and they paid another payment of Rs.7,25,000/- to OPs on 11.10.2012. OP no.3 company has acquired and purchased the land in Sector 100 for the township Pearl City and OP no.3 entered into project management agreement for the project management and supervision of developments on the said township with OP nos.1 and 2. The buyer's agreement was executed between the parties, but OPs have not mentioned the date of execution thereof to get undue benefit. Subsequent payments made by the complainants to OPs are as under:-
S.No. Receipt No. Date Amount (Rs.) 1. 26778 29/11/2012 Rs.7,25,000/- 2. 28422 08/03/2013 Rs.3,63,750/- 3. 28918 06/04/2013 Rs.1,80,000/- 4. 29724 29/05/2013 Rs.5,43,750/- 5. 30805 02/09/2013 Rs.35,000/- 6. 32657 17/02/2014 Rs.5,61,315/- 7. 32658 17/02/2014 Rs.4,326/- 8. 34364 29/01/2015 Rs.5,45,000/-
As per clause 10 of plot buyers agreement, OPs were to deliver the possession of plot within three years from the date of execution of Consumer Complaint No.211 of 2016 3 above agreement, but OPs intentionally left the date of agreement blank to avoid their liability. The OPs have not delivered the possession thereof to complainants. The promoter has to obtain the completion certificate from competent authority under Section 14 of PAPRA Act, 1995 and the said certificate can only be issued, if the developer has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads etc. to the satisfaction of GMADA. The OPs have not completed the development work on the site and information obtained under Right to Information Act has been annexed herewith in this regard. The OPs promised the club facility in Sector 100, as per brochure and also charged for club membership in advance. As per clause 18 of plot buyers agreement, it was optional for complainants to become the members of the club only, but no such option was given by OPs to them to exercise this discretion. The OPs are out to develop the club in Sector 104 to cater residents of Sector 100 as well, which is beyond the terms of agreement. The water tank supplying the water to Sector 100 would be built in Sector 104, as per information of complainant. The OPs have not started the sewage treatment plant in Sector 100, which is being catered in Sector 104 only, which is also in shambles. The promise of high-tech 24x7 security promise, as per the brochure is also a lie. No water works arrangement has been made in Sector 100, which makes the area unlivable. The community centre is in deplorable state and there are no street lights in the said area. There Consumer Complaint No.211 of 2016 4 are no transformers and feeders installed in the said township as well. The power house of Sector 104 Mohali is to cater to Sector 100 Mohali for the time being, as represented by OPs. The said Sector even does not have a permanent electricity connection till date. The OPs charged 18% interest rate per annum on account of delay in making payments from the allottees, whereas no such penalty clause has been contained in buyers agreement in regard to delay in delivery of possession by OPs. The complainants made timely payments till January 2015, but thereafter news broke out that Pearls group was involved in the collective investments scheme, whereby Securities and Exchange Board of India held Pearls guilty of collecting over 49,000 crores in an unauthorized manner. The complainants stopped making the payments to OP nos.1 and 2 thereafter. The Pearls Infrastructure Projects Limited, while doing the marketing of the project, never disclosed the facts that the land belongs to PACL limited, which is in a business of collecting money from investors through an unauthorized way. PACL limited has been ordered to return the money to investors within three months from the date of order. The complainants have, thus, prayed for refund of deposited amounts of Rs.49,51,891/- paid to OPs alongwith interest @18% per annum from the date of deposits till realization; further prayed for compensation of Rs.3,00,000/- for mental harassment and Rs.1,00,000/- as litigation expenses.
2. Upon notice, OP nos.1 and 2 appeared and filed written reply by raising preliminary objections that OP no.3 PACL Limited Consumer Complaint No.211 of 2016 5 has acquired and purchased the land measuring 500 square acres in Sectors 100 and 104 SAS Nagar (Mohali) for development and construction of the an integrated township to be known as Pearls City, Mohali. The plot buyers agreement was executed between the parties on 01.11.2012. As per the said agreement, all the requisite permissions were obtained by promoter OP no.3 from competent authorities from time to time. The promoter also entered into project management agreement dated 11.07.2006 with OP nos.1 and 2. As per Project Management Agreement, supervision and development of the said township and further sold residential plots and marking has to be conducted by OP nos.1 and 2 being branch office of OP no.2 on behalf of promoter. The role of OP nos.1 and 2 is quite limited in the present case and it acted as an agent of OP no.3. The original land owner has been stopped by the Apex Court to carry out any kind of activity, the developer OP no.1 cannot pursue it in its independent capacity. The Apex Court directed SEBI, vide order dated 02.02.2016, to constitute a committee for disposal of land purchased by OP no.3 PACL Limited and Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, would be the Chairman of said Committee. The activities of OP no.3 has been taken over by said SEBI by virtue of the said order and OP nos.1 and 2 could not carry out any activity nor OP no.3 could carry out any activity therein. The complainants invested the amounts for commercial purposes and as such are not the consumers. As per clause 29 of buyers agreement, there was arbitration provision for Consumer Complaint No.211 of 2016 6 settlement of dispute between the parties. The OPs controverted the averments of complainants regarding lack of facilities in the project. It was denied that OPs were to deliver the possession within three years from the date of agreement 01.11.2012. The complainants have not made the timely payments and amount of Rs.35,41,300/- is still outstanding from them. Rest of the averments of the complainants were denied by them. OP nos.1 and 2 prayed for dismissal of complainants. OP no.3 was set exparte in this complaint, vide order dated 18.01.2017.
3. The complainants tendered in evidence affidavit of Randeep Singh Bains complainant no.2 Ex.C-A alongwith copies of documents Ex.C-1 to C-8 and closed the evidence. As against it, OP no.2 tendered in evidence copies of documents Ex.OP2/1 and Ex.OP2/2, Mark A and Mark B and closed the evidence.
4. We have heard the learned counsel for the parties and also examined the record of the case. Affidavit of complainant no.2 Randeep Singh Bains is Ex.C-A on the record, which has been carefully perused by us coupled with the pleadings of the parties. Allotment letter dated 25.08.2012 issued by OP nos.1 and 2 to complainants is Ex.C-1 on the record. Plot buyers agreement was executed between the parties without any date on it. The date of execution of buyers agreement is mentioned as 01.11.2012 in the written version by OP nos.1 and 2. OP no.3 is also party to this buyers agreement on the record and it is signed by the representative of OP no.3 as well. It cannot be said that OP no.3 has Consumer Complaint No.211 of 2016 7 no concern in the matter. OP no.3 is party to buyers agreement Ex.C-2 in this case between the parties. The schedule of payment of the amounts is part of this agreement contained in Annexure A. The various amounts paid by the complainants to OPs are evidenced by receipts Ex.3/A to Ex.C/K on the record. These amounts have been received by OP nos.1 and 2 and receipts have been issued by OP nos.1 and 2 to complainants in this regard. Ex.C-4 is the copy of Punjab Govt. notification dated 02.09.2014 bearing no.4966-CTP (Pb)/SP-458 issued by Govt. of Punjab Department of Housing and Urban Development (Housing II Branch). It is mandatory to issue the completion certificate or partially completion certificate for delivering the possession as enjoined by Section 14 of PAPRA Act 1995, which makes it essential to obtain completion certificate from the competent authority by the promoter before delivery of possession to allottee. Ex.C-5 is the application under right to information Act moved by one Mohan Dutt to Public Information Officer GMADA dated 27.07.2015. Ex.C-5/A is copy of information supplied to Mohan Dutt by GMADA under RTI Act, that the completion certificate has not been applied by PACL Limited nor it is exempted from this obligation. This information was conveyed on 10.09.2015 to Mohan Dutt, the allottee of this project. The brochure issued by OPs of this project is also placed on the record. Ex.C-7/A is letter written by complainant to OP nos.1 and 2 seeking clarification regarding solvency of Pearls Group. The complainant wrote letter to OP nos.1 and 2 for non development of the proposed township, as per their Consumer Complaint No.211 of 2016 8 promise. Another letter Ex.C-7/D dated 04.02.2016 is duly proved by the copy of postal receipt. The complainants sought refund of the amounts from OPs vide letter Ex.C-7/E dated 09.03.2016 and vide another letter dated Ex.C-7/F. The complainants also sent legal notice Ex.C-8 to OPs in this regard. As against it, OPs relied upon copy of board resolution dated 17.03.2017 Ex.OP2/1 and copy of letter dated 03.03.2015 Ex.OP2/2 and order of Apex Court Mark A constituting the committee in this regard.
5. From analysis of above referred evidence on the record, it is evident that complainants adduced evidence on the record in support of their pleadings and evidence contained in affidavit of complainant no.2 that OPs have not carried out any development activities in the project. It has appeared in their evidence that OPs have not taken the completion certificate of the project, as mandated by Section 14 of PAPRA Act, 1995. The OPs were duty bound to deliver the possession within three years from the date of execution of agreement, which as per their pleaded case was 01.11.2012, but they failed to do so. The OPs have not developed the club as promised by them. Even community centre is in deplorable state on the spot. No street lights are there and there is no proper system of electricity. Even the sewage system is heavily overloaded, as it is to cater to Sectors 100 and 104 residents. The consumer is justified in stopping the payments, where OPs have not started carrying out the development on the spot, as held by the National Commission in "Prasad Homes Pvt. Ltd Versus E. Mahender Reddy and others" Consumer Complaint No.211 of 2016 9
2008(4)CPR-325. The counsel for the complainants also relied upon judgment of this Commission passed in consumer complaint no.177 of 2016, decided on 30.11.2017 titled as "Karan Mittal & another Vs. Pearls Infrastructure Project Ltd. & another" in this regard. The Apex Court has constituted a committee, which has taken over the control of OP no.3. The OPs held out numerous facilities to the customers to allure them to purchase the plots, but they have not been provided in this case, as per evidence of the complainants on the file. The OPs failed to rebut the evidence of the complainants on the record. The year 2018 has started running, but there is no completion certificate with OPs of this project even at present, as mandated by Section 14 of PAPRA Act. So in the circumstances of the case, the complaint of the complainants succeeds for refund of the entire deposited amounts with 12% interest from the date of deposit till actual payment from OPs.
6. As a result of our above discussion, we accept this complaint of the complainants and direct OPs to refund the entire deposited amounts to them with interest @12% per annum from the date of their deposits till actual payment. We also award the compensation of Rs.2,00,000/- to complainants for mental harassment and Rs.30,000/- as costs of litigation in this complaint. In case, the amount is required to be paid by OP no.3 due to its control over the project, then in that eventuality, the recovery shall be effected by complainants through the instrumentality of SEBI Committee constituted by Hon'ble Supreme Court in Civil Appeal Consumer Complaint No.211 of 2016 10 no.13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India". Top Court has passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the Incharge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc., wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited. Herein this case, PACL Limited is also a party to buyers agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case for recovery of refund amounts, as per direction of the Hon'ble Supreme Court.
7. Arguments in this complaint were heard on 09.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
Consumer Complaint No.211 of 2016 11
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 11, 2018.
(MM)