State Consumer Disputes Redressal Commission
Davinder Singh & Other vs Punjab Urban Planning & Development ... on 25 April, 2023
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.4 of 2022
Date of institution : 14.01.2022
Date of Reserve : 11.04.2023
Date of decision : 25.04.2023
1. Davinder Singh S/o Kehar Singh, R/o H.No.3001, Sector 71,
Mohali.
2. Hardeep Kaur W/o Davinder Singh, R/o H.No.3001, Sector
71, Mohali.
....Complainants
Versus
1. Punjab Urban Planning & Development Authority, through its
Estate Officer, PUDA Bhawan, Sec-62, SAS Nagar, Mohali,
Punjab.
Email:[email protected]
....Opposite Party
Consumer Complaint under Section 47
of the Consumer Protection Act, 2019.
Quorum:-
Mr. H.P.S. Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued By:
For the complainants : Sh. Vinod Verma, Advocate For the opposite party : Sh. Gurinder Singh, Advocate (Defence struck off vide Order Dated 22.03.2022.) KIRAN SIBAL, MEMBER:
The complainant has filed this complaint, under Section 47 of the Consumer Protection Act, 2019 (in short, "the Act"), against the opposite party, seeking following directions:
(a) To give legal and valid physical possession of the plot after leveling the same along with all the amenities, sewerage facilities etc. CC No.4 of 2022 -2-
(b) To pay Rs.40,42,394/- as the interest for the period from the date of deposit of amount till the delivery of legal and valid final possession of the plot.
(c) To give rebate of 5% on the lumpsum amount deposited by the complainants by taking housing loan and excess amount be refunded along with interest @18% p.a. as claimed by the OP in case of delayed payments.
(d) To pay Rs.2,00,000/- to the complainant for causing inconvenience, Mental pain, agony, facing financial hardship etc.
(e) To pay Rs.1,50,000/- as costs of litigation charges etc.
(f) Any other relief which this Commission may deem fit.
2. Brief facts, as set out in the complaint, are that the OP allotted a plot of 256.66 Sq. yard at Gateway City, Sector 118-119, SAS Nagar, to one Suryansh Mohan and Letter of Intent (LOI) was communicated to him vide No.PUDA-E.O.Gateway City/23374 dated 17.06.2015. The complainants approached said Suryansh Mohan for purchase of said plot and paid the requisite amount to him. The sale agreement dated 12.08.2015 was executed between the parties and the ownership of the plot was transferred in the name of the complainants. The terms and conditions of LOI were bindings on the complainants as per letter dated 17.09.2015. The tentative price of the plot was Rs.53,89,860/- fixed at the rate of 21,000/- per Sq. yard. Besides this 2% cancer cess was also to be charged on the total price of the plot. Thereafter, allotment letter dated 21.09.2016 was issued in favour of the complainants and payment of Rs.13,44,000/- had been adjusted towards initial 25% of the price of the plot. It has been further stated in the complaint that the payment of Rs.3465.00 being balance of 25% amount for excess area (0.66 Sq. yard) was to be deposited within 30 days CC No.4 of 2022 -3- from the date of issuance of allotment letter. Further the amount of Rs.40,42,395/- being 75% of the tentative price of plot, could either be paid in lumpsum without any interest within 60 days from the date of issue of allotment letter (excluding date of issue) or in 6 equated half yearly installments (with first installment falling due after one year from the date of issue of allotment letter) along with an interest @ 12% p.a. as indicated in the schedule therein in the allotment letter. As per clause 3(IV) of the allotment letter, in case 75% payment is made in lumpsum within 60 days, a rebate of 5% shall be admissible on the said amount. However, in case payment of amount due is made in lumpsum subsequently at any stage, a rebate of 5% on the balance principal amount shall also be admissible. As per clause 4 of the allotment letter, the possession of the said plot was to be handed over to the allottee after the completion of the development works at site or 18 months from the date of issuance of the allotment letter whichever was earlier. Accordingly, the complainants are entitled to possession after completion of development works or the OPs are bound to give possession after 18 months from 21.09.2016. The complainants had paid a sum of Rs.15,98,520/- to earlier purchaser Sh. Suryansh Mohan and they paid Rs.11,58,819/- along with 12% interest on 18.09.2017, vide receipt No.1260 and Rs.32,88,645/- with interest on 08.11.2017, vide receipt No.1313, to the OP by raising housing loan from Punjab National Bank, for an amount of Rs.31,99,000/- after mortgaging the said plot. Accordingly, the complainants paid a total sum of Rs.57,91,464/- CC No.4 of 2022 -4- along with interest. The complainants had paid full consideration of the plot in due course of time as demanded by OP. The complainant demanded the possession of the plot with all amenities from time to time for the purpose of construction of the house but the OP has failed to deliver the possession till date. The complainants also served a legal notice dated 26.11.2021 to OP but all in vain. It is further stated that as per information gathered by the complainants, some portion of the plot is claimed by third person and a dispute regarding the same is pending in Civil Court, Mohali. The said fact has never been disclosed by the OP till the date of filing the present complaint. The act and conduct of the OP by taking the total sale consideration and not offering the possession after complete development amounts to deficiency in service and unfair trade practice on its part. Hence, the complainants filed the complaint seeking all the reliefs as above.
3. Notice of the complaint has been issued to the OP, who appeared through counsel but failed to file reply to the complaint within stipulated period despite availing sufficient opportunities, hence the defence of the OP for filing written reply was struck off vide order dated 22.03.2022.
4. To prove their case, the complainants filed joint affidavit, along with photocopies of documents i.e. Letter of Intent dated 17.06.2015 as Ex. C-1, transfer of letter of intent dated 17.09.2015 as Ex. C-2, allotment letter dated 21.09.2016 as Ex. C-3, letter for permission to mortgage the plot dated CC No.4 of 2022 -5- 19.11.2018 as Ex. C-4, receipt No.1313 dated 08.11.2017 for depositing sum of Rs.32,88,645/- as Ex. C-5, No due certificate as Ex. C-6, letter dated 30.09.2021 written to OP to vacate the lien as Ex. C-7, letter dated 03.01.2019 demanding possession of plot Ex.C-8, legal notice dated 26.11.2021 Ex.C-9 and letter dated 03.01.2022 requesting the OP to deliver possession Ex. C-10.
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that the opposite parties have failed to complete the development works at the site as well as deliver possession of the plot, in question, to the complainants within the stipulated period, as per terms and conditions of the allotment letter, despite receipt of entire sale consideration from the complainants. The learned counsel further argued that it is an admitted fact that the sewerage connection could not be provided by PUDA as the revenue passage was yet to be acquired and thus the connection with the main sewerage pipeline could not be given. Several other issues like flooding of the site during rainy season due to lower level, lack of security/boundary wall also required to be sort out by the OP. The learned counsel further argued on the similar lines as stated in the complaint and prayed for acceptance of the complaint.
7. On the other hand, learned counsel for the OP argued that the project of the OP is complete and the development works have already been completed except few ones, which fall under CC No.4 of 2022 -6- the Revenue Rastas. Learned counsel further argued that the complainants have sought for physical possession at a belated stage, that too after deemed possession has been awarded to the complainants in terms of condition No.4(I) of the allotment letter. That now PUDA authorities have been dragged into a civil litigation by one Parkash Kaur by filing Civil Suit No.80-20 before Civil Judge (Jr. Division), Mohali titled "Parkash Kaur Vs. GMADA"
wherein ad-interim injunction has been granted against the defendants and OP has been restrained from interfering into the peaceful possession. Therefore, the PUDA authorities are not in a position to offer physical possession of the plot, as the same would amount to contempt of the Court's order dated 01.02.2020.
Further, as the complainants have not applied for approval of building plan and has not started construction over the plot, completion certificate cannot be issued. Alleging no deficiency in service on the part of the OP, the learned counsel prayed for dismissal of the complaint.
8. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and have also carefully gone through pleadings and evidence available on the record.
9. It is not in dispute that initially a Letter of Intent dated 17.06.2015, Ex.C-1, was issued to Sh. Suryansh Mohan, wherein he was allotted the plot in question measuring 256 sq. yards under General Category at Gateway City, S.A.S. Nagar. Thereafter, vide letter dated 17.09.2015, Ex.C-2, the plot was transferred in the CC No.4 of 2022 -7- name of the complainants and an Allotment Letter dated 21.09.2016, Ex.C-3, was issued in the name of the complainants. As per allotment letter, the tentative price of the plot was fixed as Rs.53,89,860/- at the rate of Rs.21,000/- per Sq.Yard. The complainants paid the said amount along with interest, which is duly attested by the OP vide letter dated 16.12.2017, Ex. C-6. As per Clause 4(I) of the allotment letter dated 21.09.2016, the possession of the plot was to be handed over to the complainants after the completion of the development works at site or within a period of 18 months from the date of issuance of the allotment letter whichever is earlier. The relevant clause is reproduced hereunder:-
"4 POSSESSION AND OWNERSHIP I. The possession of the said plot shall be handed over to the allottee after the completion of the development works at site or 18 months from the date of issuance of the allotment letter whichever is earlier. If possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on the expiry of said date."
10. The complainant had paid entire price of the plot along with interest to the opposite party as per the schedule and with penalty for delay in making the payment. On the other hand, the opposite party failed to file written reply along with supported documents within stipulated period due to which its defence had been struck off. Hence, the OP has failed to prove that the project of the opposite party is complete and possession has been offered to the complainant within the stipulated period. The complainants vide letter dated 03.01.2019, Ex. C-8, requested the OP to provide CC No.4 of 2022 -8- possession of the plot No.282 allotted to them, at the earliest. But no reply has been given by the OP to the said request of the complainants. Thereafter, the complainants also served legal notice dated 26.11.2021, Ex. C-9, through registered post, with the request to give physical possession of entire plot along with occupation/completion certificate and sewerage connection and other amenities as needed for habitation purpose, but the OP failed to redress the grievance of the complainants and even no reply to the said notice was given by it.
11. The learned counsel for the OP in the written arguments contended that the Public Health Services i.e. Water Supply, Sewerage lines, Storm Water and Tertiary Water Lines have already been laid except in the area falling under Revenue Rastas. Same situation is in the case of Horticulture Development works. The learned counsel for OP further contended that the complainants had not come forward to take the possession of the plot within stipulated period as per condition No.4(I) of the allotment letter, therefore the possession was deemed to have been handed over on the expiry of said period and further the complainants have neither applied for approval of building plain nor completed the construction, therefore, the completion certificate could not be issued. But we find that no correspondence offering the possession to the complainants has been proved on record by the OP. Meaning thereby that the project still lacks of basic amenities and facilities as promised by the OP. It is evident that the development works are yet to be completed at project site CC No.4 of 2022 -9- and the allotted approach rastas are yet to be acquired and without that the question of raising construction on the plot at this stage does not arise. Therefore, we do not find force in the contentions raised by the OP.
12. From the above, it is clear that the OP has failed to fulfill its contractual obligation of offering the possession of the plot to the complainants within the stipulated time i.e. till 20.03.2018 as per allotment letter. Rather, now at this stage, the OP contended that PUDA authorities are not in a position to offer physical possession of the plot, as the Department has been dragged into a Civil Litigation by one 'Parkash Kaur' by filing Civil Suit no.80-20 before Civil Court at Mohali, wherein ad-interim injunction has been granted against the OP and it has been restrained from interfering into the peaceful possession vide order dated 01.02.2020. But the copy of said order dated 01.02.2020 has not been placed on record in support of the said contention to ascertain the correct and true picture. Moreover, as per terms and conditions of the allotment letter, the possession of the plot was to be handed over to the complainant till 20.03.2018, whereas the ad-interim injunction has been granted against the OP in the alleged civil suit on 01.02.2020, which is much beyond the date of delivering the possession to the complainants.
13. The Hon'ble National Commission in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) decided on 13.06.2018, categorically held that legal possession cannot be delivered in the absence of Completion CC No.4 of 2022 -10- Certificate by the Competent Authority, in Para No.5, which is hereby reproduced as under:-
"5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."
14. In view of our above discussion, it stands proved that the opposite party failed to complete the development works at the site and failed to deliver possession of the plot to the complainants, along with promised facilities/amenities within the stipulated period. Accordingly, the complainants are entitled for actual physical possession of the plot. Further, as there is considerable delay in valid offer of the possession of the plot as agreed by the OP in the allotment letter, the complainants are entitled to compensation on account of delay. The complainants have already played their part by depositing the total sale consideration within the time frame given by the OP. The complainants had also availed housing loan of Rs.31,99,000/- from Punjab National Bank, which is duly repaid by the complainants and the bank had issued 'No Due Certificate' dated 30.09.2021, Ex.C-6. But still complainants are empty handed after CC No.4 of 2022 -11- expiry of stipulated date of possession i.e. 20.03.2018. Accordingly, the complainants are entitled for a reasonable compensation for delayed possession.
15. In view of the above discussions, the complaint is partly allowed and the opposite party is directed as under:-
i) to deliver actual physical possession of the plot bearing No.282, measuring 256 Sq.yard in Gateway city, Sector 118-119, SAS Nagar Mohali as per allotment letter, with developed roads, sewer, water and electricity lines etc. complete in all respect.
It is made clear that in case the OP is unable to deliver possession of the above said plot due to alleged pending Civil Litigation, then the OP shall deliver the possession of an alternate plot of a similar size i.e. 256 Sq.yard approximately in the same locality, as per the rates of plot in question, with developed roads, sewer, water and electricity lines etc. complete in all respect.
ii) to pay interest at the rate of 6% p.a. on the total deposited amount on account of delayed possession from the stipulated date of possession i.e. 20.03.2018 till handing over the possession as per relief (i)
iii) To pay Rs.40,000/- as compensation on account of mental agony and harassment as well as litigation expenses.
16. The compliance of the above part of the order shall be made by the OP within a period of three months from the receipt of certified copy of the order. In case the OP fails to comply aforesaid directions within the said period, then in the alternative OP is directed:
i) to refund the entire deposited amount by the complainants with the OP(as per the ledger record of the said unit) along with interest at the rate of 9% p.a. from the respective dates of deposit till realization.
ii) to pay Rs.40,000/- as compensation on account of CC No.4 of 2022 -12- mental agony and harassment as well as litigation expenses.
The compliance of this part of the order shall be made by the Opposite party within a period of 45 days after the expiry of above said period of three months.
17. The complaint could not be decided within the stipulated period due to heavy pendency of Court cases.
(H.P.S.MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER April 25th, 2023 dv