National Consumer Disputes Redressal
M/S. Taneja Developers And ... vs Sukhpal Singh Bullar & Anr. on 15 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 180 OF 2019 (Against the Order dated 14/09/2018 in Complaint No. 299/2018 of the State Commission Punjab) 1. M/S. TANEJA DEVELOPERS AND INFRASTRUCTURE LTD. 10 SHAHEED BHAGAT SINGH MARG NEAR GOLE MARKET NEW DELHI -1 ...........Appellant(s) Versus 1. SUKHPAL SINGH BULLAR & ANR. H NO 1604, SECTOR 49, PUSHPAI COLONY CHANDIGARH 2. JASBIR SINGH BAJWA H NO 1604, SECTOR 49, PUSHPAI COLONY CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. DINESH SINGH,PRESIDING MEMBER HON'BLE MR. JUSTICE KARUNA NAND BAJPAYEE,MEMBER For the Appellant : Mr.Vaibhav Agnihotri, Advocate with Ms. Kavita, Advocate For the Respondent : Mr. Yadvinder Singh Dhillon, Advocate with Respondent no. 1 in person Dated : 15 Sep 2022 ORDER
1. This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 14.09.2018 of the State Commission in complaint no. 299 of 2018.
We have heard the learned counsel for the builder co. (the appellant herein) and the learned counsel for the complainants (the respondents herein). We have also perused the material on record including inter alia the State Commission's impugned Order dated 14.09.2018 and the memorandum of appeal.
2. The appeal has been filed with self-admitted delay of 02 days.
In the interest of justice, for the reasons mentioned in the application for condonation of delay, to provide fair opportunity to the appellant builder co., to decide the matter on merit rather than dismiss it on the threshold of limitation, the short delay in filing the appeal is condoned.
3. The matter relates to a builder-buyer dispute. As evinces from a reading of the complaint filed by the complainants, the written version filed by the builder co. and the appraisal made by the State Commission, one Ms. Harmisha booked a plot with the builder co. and paid a sum of Rs. 10 lakh on 04.04.2006. Subsequently the complainants paid Rs. 10 lakh to the said Ms. Harmisha and got the booking transferred in their names with the consent of the builder co. They paid a sum of Rs. 1 lakh to the builder co. as transfer charges on 11.10.2008. On that same date they also paid a further sum of Rs. 5 lakh to the builder co. Even after receiving an amount of Rs. 10 lakh in 2006 and Rs. 1 lakh plus Rs. 5 lakh in 2008 i.e. total Rs. 16 lakh the builder co. neither allotted any particular specific plot to the complainants nor made available or executed any related documents. The builder co. did not correspond further with the complainants at all. It even ignored a legal notice sent by the complainants on 22.12.2016. The complainants went before the State Commission on 17.04.2018. The State Commission ordered the builder co. to refund the deposited amount of Rs. 16 lakh with interest at the rate of 12% per annum from the respective dates of deposits till realization along with lumpsum Rs. 20 thousand as compensation for mental agony inclusive of litigation expenses. It also stipulated that the award shall be made good within one month, failing which the lumpsum Rs. 20 thousand too shall carry interest at the rate of 12% per annum from the date of its Order.
4. A perusal of the State Commission's impugned Order shows that it is a well-appraised and reasoned order and has aptly dealt with the issues germane to the dispute.
5. The State Commission has considered and dismissed the preliminary objection regarding the complainants not being 'consumer' under the Act 1986 (paras 8 to 13 of its Order). It has rightly observed that "As discussed above, in the present case also, the complainants had purchased the plot in dispute, in the project of opposite parties exclusively for the purpose of earning livelihood of complainant No. 1 by way of self-employment. Admittedly the complainants got transferred the Registration Rights of one Harshima in their favour after making the payment of Rs. 10,00,000/- to her and another payment of Rs. 1,00,000/- to the opposite parties as transfer fee. It has also been admitted that the complainants have deposited another sum of Rs. 5,00,000/- with them and they were given priority No. 186 for allotment of plot. Since both the parties have entered into an agreement for a consideration, as such the complainants fall within the definition of "consumer" as defined under Section 2(1)(d) of the C.P. Act. Therefore, this objection raised by the opposite parties, being devoid of merit, stands rejected.".
The onus to substantiate its assertion that the plot was for 'commercial purpose' and not exclusively for earning livelihood by means of self-employment was on the builder co., which onus it miserably failed to discharge, no worthwhile convincing evidence to support its assertion was ever led by the builder co. And admittedly the builder co. accepted part consideration for a plot. As such the complainants were undoubtedly 'consumer' within the meaning of section 2(1)(d)(ii) of the Act 1986 read with the Explanation thereto, with no substantial or convincing or persuasive material to hold to the contrary.
6. The State Commission has also considered and dismissed the preliminary objection regarding the complaint being barred by limitation (para 14 of its Order). It has rightly observed that "since neither possession has been delivered nor the amount deposited by the complainants has been refunded till date and, as such, in view of the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainants is within limitation."
Since even allotment of any particular specific plot, far less its possession, was ever made nor alongside refund of the deposited amount too was made, there was continuing cause of action and the two year limitation period prescribed in section 24A(1) of the Act 1986 was not attracted. Even otherwise, looking at it another way, the very fact that the builder co. was indefinitely retaining the complainants' deposited amount was in itself sufficient cause to justifiably condone the delay under section 24A(2), anything otherwise would have been tantamount to a travesty of justice, leaving the complainants helpless and remediless. As such the State Commission's decision to dismiss this objection cannot be faulted with.
7. The State Commission has extensively dealt with the substance of the dispute in paras 15 to 19 of its Order.
Paras 16, 17 and 18 of its appraisal may be reproduced below for reference:
16. Now coming to the merits of the case. Admittedly Harshima deposited Rs.10,00,000/- with the opposite parties as advance against present and future project for commercial area and she was given Registration No.MCP-10033, vide receipt dated 4.4.2006, Ex.C-2. Admittedly the complainants came into contact with said Harshima and in order to earn livelihood by way of self-employment of complainant No.1, they purchased the said registration rights from her and got the same transferred in their names from the opposite parties after making payment of Rs.10,00,000/- to them and after making another payment of Rs.1,00,000/-, as transfer fee, vide receipt dated 11.10.2008, Ex.C-4. It has also been admitted that the complainants have deposited another sum of Rs.5,00,000/- with them, vide receipt dated 11.10.2008, Ex.C-5 and they were given priority No.186 for allotment of a plot. It is the case of the complainants that thereafter the opposite parties did not do anything in respect of the project in question. They even did not send any document regarding allotment of plot or other terms and conditions to the complainants. They remained mum for all these years. Ultimately the complainants served a legal notice upon the opposite parties dated 22.12.2016, Ex.C-7. However, the opposite parties failed to respond. The opposite parties have not produced on record any evidence to prove that the project in question is complete in all respects and all the amenities as promised have been provided at the spot. No Completion and Occupation Certificate as required under Section 14 of the Punjab Apartment and Property Act, 1995 (in short, "PAPRA") has been obtained from the competent authority by the opposite parties and produced on the record of this case. There is no likelihood of completion of the project and delivery of fully developed plot in question to the complainants. The complainants cannot be made to wait for perpetuity for delivery of fully developed plot in question. No construction activity is going on at the site and the project is lying abandoned.
17. The opposite parties failed to give cogent and convincing reasons for non-development of the project and non-delivery of possession of the fully developed plot to the complainants within a reasonable time. It was also the duty of the opposite parties to comply with all the formalities of the Government, before launching the project itself. It was the bounden duty/responsibility of the opposite parties to complete the development of the project, in question, within a reasonable time. Due to non-delivery of possession of the plot, in question, during all these years, the complainants have been suffering mental agony, harassment and financial loss continuously. Since the very purpose of purchasing the plot in question has been defeated, therefore, the complainants are well within their rights to claim refund of the amount deposited by them. However, the opposite parties neither delivered the possession of the fully developed plot to the complainants nor refunded the amount deposited by them, which caused harassment and mental tension to the complainants. This act and conduct of the opposite parties certainly amount to deficiency in service and adoption of unfair trade practice on their part.
18. The C.P. Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have purchased the plot from the opposite parties with the hope to get the possession of the same in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof in a stipulated period and ultimate delivery of possession. 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 complainants have suffered loss, as discussed above. 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 very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to develop the site in question and deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the plot, due to which the complainants 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 developing the project, 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.
(emphasis supplied)
8. The highhanded act of unjustifiably and inexplicably omitting to allot any particular specific plot and make available or execute the related documents is clearly manifest in the present case, not to speak of the unjust act of unduly retaining the complainants' deposited amount for a protracted period in an indefinite manner.
9. In their complaint the complainants had asked for possession over a plot or in the alternative refund of their deposited amount, along with compensation in either eventuality. The State Commission, inter alia noting that the builder co. had not produced any evidence to show that completion and occupancy certificate had been obtained from the competent authority, there was no likelihood of completion of the project and delivery of a fully developed plot to the complainants and no construction activity was going on at the site and the project was lying abandoned, ordered for refund along with compensation by way of interest on the deposited amount.
10. There can be no two opinions that in such facts and situation the builder co. was dutybound to refund the amount deposited by the complainants along with just and equitable compensation, there can hardly be any reason to hold otherwise.
11. The State Commission has awarded compensation by way of interest on the deposited amount at the rate of 12% per annum from the respective dates of deposit till realisation.
Learned counsel for the builder co. however contests the rate of interest as well as the period for which the interest has been awarded.
12. Regarding the rate of interest learned counsel submits that the rate of 12% per annum is on the higher side. He submits that a rate of 9% per annum is acceptable to the builder co.
In rebuttal learned counsel for the complainants submits that the State Commission has awarded interest as provided for in Rule 17 of the Punjab Apartments and Property Regulations Rules, 1995 (PAPRA). He further submits that, even otherwise, in the overall facts and circumstances of the case, inter alia taking into account the patent deficiency and unfairness & deceptiveness on the part of the builder co. by way of its acts of not ever allotting a particular specific plot, nor making available or executing related documents, retaining the complainants' deposited amount for a protracted period in an indefinite manner, as also considering the continuing uncertainty and difficulty faced by the complainants, the rate of interest of 12% per annum is quite reasonable and justified per se and there is no good reason to extenuate the same.
13. We note that the State Commission has essentially drawn its rationale from a state legislation (i.e. Punjab Apartment and Property Regulation Act, 1995 (PAPRA)) and has objectively awarded the rate of interest without much subjectivity. However even otherwise in the given facts and circumstances of the present case the rate of interest of 12% per annum awarded by the State Commission appears to be just and equitable per se, commensurate with the loss and injury suffered. We do not perceive any elements of disproportion. As such we see no good ground to disturb the same.
14. Learned counsel for the builder co. further submits that the builder co. is willing to pay interest only uptil 12.10.2011 i.e. till the date it had published a public notice. He draws our attention to the said notice, which is being reproduced below for reference:
PUBLIC NOTICE Whereas, my clients M/s Taneja Developers & Infrastructure Ltd., 9, Kasturba Gandhi Marg, New Delhi, had made provisional offer of allotment of few commercial plots in the TDI City, Sectors 117-118-119, SAS Nagar, Mohali, against the advance registration amounts and upon signing of Company's application forms containing terms and conditions of the allotment.
Whereas, my clients have noticed that the following persons to whom the provisional offer of allotment of commercial plots were made in the TDI City, Sectors 117-118-119, SAS Nagar, Mohali, are failing to follow the payment schedule knowing fully well that the non-adherance of payment schedule may result into cancellation of their provisional offers of allotments.
Therefore, by virtue of this notice the following persons who are found to be in arrears of dues are called upon to clear off all their dues uptil Oct. 31, 2011, failing which my clients shall be constrained to proceed to act as per the Company's policy in the matter and the allottees shall be left with no lien / claim / title / interest / rights whatsoever qua the provisional offers of allotments made in their favour S. No. CUSTOMER ID NAME 1 MCP-10058 Mrs. KIRPA DEVI 2 MCP-10227 Mr. S.S. BAJAJ & Mr. DAVINDER ARORA 3 MCP-10077 Mr. SANDEEP KUMAR 4 MCP-10026 Mr. JASPAL SINGH 5 MCP-10169 Mr. BHUPINDER SINGH & Mr. LAKHWIDER SINGH 6 MCP-10101 Mr. GURCHARAN SINGH 7 MCP-10132 Ms. HARSIMRAT KAUR 8 MCP-10179 Mrs. KAMALJIT KAUR 9 MCP-10142 Mrs. KAMALJIT KAUR 10 MCP-10117 Mrs. ASHA SURI & RACHNA SURI 11 MCP-10148 Mr. CHANDER KUMAR, Mr. PREM CHAND & Mrs. SANGEETA 12 MCP-10161 Mr. DEEP NARULA 13 MCP-10182 Mr. VIPUL GOYAL 14 MCP-10190 Mr. MANN SINGH & Mrs. GURDEEP KAUR 15 MCP-10153 Mr. TRILOK CHAND AGGARWAL 16 MCP-10033 Mr. SUKHPAL SINGH BHULLAR & Mr. JASBIR SINGH BAJWA 17 MCP-10114 Mr. ASHWANI KUMAR 18 MCP-10112 Mrs. ARUNA GUPTA & M/S GYAN CHAND(HUF) 19 MCP-10205 Mr. JAGBIR SINGH 20 MCP-10241 Mr. SURESH GOYAL 21 MCP-10104 Mr. ANIL KHURANA 22 MCP-10123 Mr. ASHWANI GABA 23 MCP-10069 Mr. SURINDER GUPTA 24 MCP-10080 Mr. SURINDER GUPTA 25 MCP-10057 Mrs. SHARANJIT KAUR 26 MCP-10240 Mr. AMAN MEHRA 27 MCP-10194 Mr. INDER JEET SINGH ANAND 28 MCP-10215 M/S AMIT PAINT, Mr. KISHAN LAL MALIK & Mr. SUKHPAL SINGH 29 MCP-10175 Mr. SANDEEP SINGH 30 MCP-10036 Dr. GURMEET KAUR SABHARWAL & Mr. S. BRIJINDER SINGH 31 MCP-10234 Mrs. JAGJEET KAUR 32 MCP-10128 Mr. SUKHDEEP SINGH & Mr. HARINDER PAUL 33 MCP-10203 Mr. RAVINDER PAL SINGH 34 MCP-10204 M/S JAISHIV REALTECH PRIVATE LIMITED Place: Chandigarh sd/-
Dated:
(Aman Sharma) Advocate 3038, Sector 21-D Chandigarh Counsel for M/s Taneja Developers & Infrastructure Ltd.
Learned counsel admits that there is no material placed with its appeal to show the date and newspaper in which the said notice was published. He however submits on instructions that the notice was published on 12.10.2011 in 'The Hindustan Times'.
Learned counsel further submits that since the builder co. had published the said notice on 12.10.2011 it is willing to pay interest only uptil the date of its publication since in his contention the complainants had been put to notice on the said date and delay beyond the said date was at their own risk & cost and peril. The submission is that beyond the said date the builder co. does not deem it necessary to pay any interest and it was within its rights to retain the deposited amount without any liability for any compensation by way of interest on the deposited amount or by any other manner of computation.
In rebuttal learned counsel for the complainants submits that the facts of the matter are that even after having received Rs. 16 lakh from the complainants the builder co. did not fulfill even its first and foremost duties of allotting a particular specific plot and making available and executing the related documents but continued to retain the complainants' deposited amount for a protracted period in an indefinite manner. The public notice being referred to had not come to the knowledge of the complainants at all. There is absolutely no explanation as to why direct individual correspondence with the complainants was not undertaken by the builder co. He further submits that the notice as is being shown has been articulated in a manner as if the complainants owed money to the builder and were renegading in paying the same and the notice was in the nature of a caution to them. The language was of a creditor towards a debtor when the actual position in fact was exactly the reserve i.e. the builder co. was the debtor and the complainants were the creditor. He also submits that the language of the notice as is said to have been published has a vein of slander, it was published in a newspaper which could be read by the public at large.
On a query from the bench, learned counsel for the builder co. fairly admits that no individual correspondence was ever made by the builder co. with the complainants.
15. We do not fail to see that the public notice dated 12.10.2011 was articulated in an unfitting manner and also contained a strain of slander. But we fail to understand what prevented the builder co. from entering into individual correspondence with the complainants as is the usual normal wont in such matters. We also fail to understand what prevented the builder co. from refunding the complainants' deposited amount, with or without interest, with or without deduction, rather than retaining it for a protracted period in an indefinite manner. In such facts and situation taking recourse behind such indirect mode of public notice has inherent elements of motivated slyness and misplaced chicanery. The builder co. has no explanation as to why individual correspondence in the normal wont was not made, through speed post or registered mode or courier or even through 'dasti'. Recourse to publication is ordinarily and mostly made as a last resort when all other normal modes of direct communication like registered post etc. have failed. The mode of communication ought to be effective, not evasive. Such kind of publication can not be permitted to be made a contrivance of evading actual communication.
Disconcertingly enough, even after the said notice, effective or evasive, whatever it be, the builder co. still kept on retaining the complainants' money which never belonged to it and continued to make wrongful gain in its favour and cause wrongful loss to the complainants.
As such the period for which interest has to be paid has necessarily to be from the respective dates of deposit till actual realisation and cannot be curtailed to the date of publication of the said notice which the complainants insistingly affirm did not come to their knowledge.
16. The acts of the builder co., in retaining the complainants' deposited amount for a drawn out period in an indefinite manner, not allotting any particular specific plot, not making available or executing related documents, not communicating individually in the normal routine but taking recourse to the indirect mode of a public notice with misplaced supercilious attitude of a creditor and with a vein of slander, and infringements of provisions of the relevant state legislation (PAPRA) as observed by the State Commission, are unarguably deficient and unfair & deceptive acts and contain ingredients of both 'deficiency' in service as well as 'unfair trade practice'.
Both terms 'deficiency' and 'unfair trade practice' are plainly defined in the Act itself (section 2(1)(g) and section 2(1)(r) of the Act 1986). In respect of 'unfair trade practice' we may elaborate that the list provided under section 2(1)(r) is illustrative and not comprehensive or exhaustive. As such, an unfair method or unfair or deceptive practice, as may be judiciously determined on facts and reason after fair and objective appraisal of the evidence and material on record, would qualify as 'unfair trade practice' within the meaning of section 2(1)(r) .
The 'unfair trade practice' on the part of the builder co. cannot be ignored with indifference or apathy, or can be soft-paddled, it has to be aptly addressed, with curative steps.
17. Clearly the appeal is without substance, bereft of any worth. The same stands dismissed with the following directions:
(i) The impugned Order dated 14.09.2018 of the State Commission is sustained. The award made therein shall be made good by the builder co. through its chief executive (i.e. its chairman or managing director or director in-charge of its affairs or director in-charge of the subject-matter, whichever member of the board of directors he may be) within six weeks.
The amount if any deposited by the builder co. with the State Commission in compliance of this Commission's Order dated 13.02.2019 along with interest if any accrued thereon shall be forthwith released by the State Commission to the complainants as per the due procedure. The balance awarded amount shall be made good by the builder co. within six weeks.
(ii) For the 'unfair trade practice' per se, a cost of Rs. 1 lakh is imposed on the builder co. through its chief executive which shall be deposited in the 'Consumer Legal Aid Account' of the State Commission within six weeks.
The builder co. through its chief executive is ordered under section 39(1)(g) of the Act 2019 (corresponding section 14(1)(f) of the Act 1986) to forthwith discontinue such 'unfair trade practice' as is manifested in this case.
Additionally the builder co. through its chief executive is directed to send a copy each of this Order to the other 33 allottees mentioned in the public notice dated 12.10.2011 for their information and to file proof thereof with the State Commission within six weeks.
(iii) In case of failure or omission in compliance of the above directions within the stipulated period, the State Commission shall forthwith undertake execution, for 'enforcement' and for 'penalty', as per the law.
18. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.
...................... DINESH SINGH PRESIDING MEMBER ......................J KARUNA NAND BAJPAYEE MEMBER