State Consumer Disputes Redressal Commission
Rakesh Surendra Jain vs Country Colonisers Pvt. Ltd. on 22 March, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.129 of 2017 Date of Institution : 06.03.2017 Order Reserved on : 20.03.2018 Date of Decision : 22.03.2018 1. Rakesh Surendra Jain son of Surendra Kumar Jain, 2. Ruchi Rakesh Kumar Jain wife of Sh. Rakesh Surendra Jain, Both r/o Flat No. 1-34, Uppar Marble Arch, Manimajra, U.T Chandigarh. ....Complainants Versus 1. Country Colonisers Private Limited, through its Director, having Registered office at P.O Rayon and Silk Mills Adjoining Coca Cola Depot, G.T. Road, Chheharta, Amritsar (Pb.) 2. Authorized Official of Country Colonisers Private Limited, having site office at Sector 85, SAS Nagar (Mohali) Punjab. Opposite parties 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 complainants : Sh. P.M Goyal, Advocate For opposite parties : Sh. Tejeshwar Singh, Advocate
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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 OPs on the averments that they were in requirement of flat for themselves and for their son nearer to Chandigarh and they were contacted by sale staff of OPs in this regard by giving assurances of sufficient accommodation with requisite infrastructure. They booked flat with OPs and made payment of amount of Rs. 5 lac as booking amount. Demand notice was received by complainant from OPs for an amount of Rs.6,53,964/-, which was paid, vide receipts dated 10.07.2012. Apartment allottee arrangement was entered into between the parties with regard to apartment no. 902 Tower Daffodils 9th Floor, Type III BHK in Group Housing Development Scheme namely Wage Garden SAS Nagar Sectors 85 and 89 Mohali. Super area thereof was 1990 sq. ft and built up area was 1708 sq. ft and sale consideration of the flat was Rs.81,60,125/-. The possession was to be offered within 30 months from the date of agreement, which expired on March 2016. The complainants have paid the amount of Rs. 65,49,531/- to OPs. The complainants visited the spot and found that project was nowhere near completion and this fact was also confirmed by Ritu and Abhishek Tandon executives of OPs to the effect that possession would be delivered on June 2018. The complainants have alleged deficiency in service and unfair trade practice on the part of OPs in mis-utilizing their hard earned money by not delivering the possession of the flat in a complete condition to them within the scheduled time. The complainants seeks below noted direction against OPs :-
i) to pay Rs.65,49,531/- which was deposited by complainants. ii) to pay interest @ 12% upon the amount of Rs.23,15,577/- iii) to pay compensation of Rs.2,00,000/- for mental harassment and Rs.50,000/- as costs of litigation.
2. Upon notice, OPs appeared and field written reply by raising preliminary objections that complaint is not maintainable because the complainants are not consumers of OPs, as per Section 2(i)(d) of Consumer Protection Act 1986. The complainants already own bigger residential unit at Chandigarh i.e. Flat no. 1-34 third floor, Tower 1. This address has also been recorded even in the Aadhar Cards of the complainants and in the passports. Even letter issued by Municipal Corporation Chandigarh indicated that complainants are owners of above-mentioned residential unit. Even this address has also been recorded in the payment receipts, account statement and notices. Apartment allottees arrangement was executed between the parties. The complainants also own another residential unit and another residential unit in Chandigarh i.e. House No. 503 Ist Floor Sector 8-B Chandigarh, which address is mentioned in letter issued by Municipal Corporation Chandigarh and as such complainants are not in bonafide need of any residence for their self-use and hence they are not consumers. The complainants instituted this complaint on account of slump in the real estate business. It is further averred that this complaint is not maintainable and this Commission is not competent to try the complaint. The complainants have not made the payments within time to OPs, as reflected below :-
Sr.No. Particulars Amount Due Date Paid on Delay
1.
Within 90 days of Booking 7,69,310/-
24.08.12 27.06.13 10 months
2. Commencement of Construction 7,69,312/-
10.09.13 13.01.14 4 months
3. 4th Floor Roof 5,76,980/-
22.05.14 15.07.14 2 months The payment demand notices were issued to complainants on 06.08,12, 24.08.13, 01.05.2014 and calling upon the complainants to pay due instalments. There was no mandatory requirement to deliver the possession within a period of 36 months in the apartment allottee arrangement and it was only endeavour, which was to be made by OPs to complete the project, as per requirement of Clause 5.1. of the apartment allottee agreement. Clause 5.1 specifically states that the said period is subject to the allottee's making timely payments. Time is not essence of the contract of immoveable properties, as settled by catena of authorities by the higher courts. OP no.1 entered into a memorandum of agreement dated 03.02.2006 with State Government of Punjab and as per Clause 5(e) of MOA, the State Government shall acquire land under the provisions of the Land Acquisition Act 1894 and thereafter transfer it to OPs for development. As per clause 5(e) of the said MOA, the State Government may acquire land, as per provisions of the Land Acquisition Act 1894 on request made by the company, subject to the condition that such acquisition shall be limited to only 10% of total area of the project scope. As per the said MOA dated 03.02.2006, a request was moved to Land Acquisition Collector Greater Mohali, vide letter dated 19.01.2012 requesting the State Government to acquire 23.21 acres of land, which fell within the master plan of the project. The complainants made many requests to OPs to initiate the acquisition of the above-said critical areas and handover possession thereof to OPs for carrying out the development work on the same. A copy of letter dated 19.01.2012 sent to Land Acquisition Collector is in this regard. Greater Mohali Area Development Authority (GMADA) was to provide external access roads to the project upon execution of land use agreement with the local farmers, which GMADA has failed to do even uptil this time. OP no.1 has managed to enter into a land use agreement with the local farmer from whose land, an access road has been laid for proper access to the project. Due to inaction of GMADA in providing proper external access roads to the project, the trucks carrying raw material for construction faced several roads blocks from the local farmers, which further caused delays in the development of the project. The land use agreement dated 14.06.2012 was entered into with OPs. The circumstances were beyond the control of OPs and due to this reason, the above referred delay took place. OPs controverted the averments of the complainants on the above referred grounds and prayed for dismissal of the complaint.
3. The complainant no.1 tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-19 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh.Amarjit Singh Authorized Signatory of OPs Ex.OP-1/A along with copies of documents Ex.OP-1/1 to Ex.OP-1/15 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case. The first point falling for adjudication in this case before us is whether the complainants are consumers of OPs or not. On this point, the counsel for OPs contented that complainants booked the flat in question for the purpose of commercial purposes to generate profits and as such they are not consumers. It was argued that complainants already owned houses in Chandigarh and hence they have no genuine need to own any such residential project and hence it has been purchased for the purpose of generating profits only. Our attention has been drawn by the counsel for OPs to copies of Aadhar Card of Rakesh Surendra Jain son of Surendra Kumar Jain as Ex.OP-1/2 and copy of Aadhar Card of Ruchi Rakesh Kumar Jain asEx.OP-1/3. Copy of passport of Ruchi Rakesh Kumar Jain as Ex.OP-1/4 and letter dated 25.02.2011 issued by Municipal Corporation Chandigarh Ex.OP-1/5 addressed to Rakesh Jain at address i.e. H.No. 503, Ist Floor, Sector 8-B Chandigarh. On the basis of these documents, the forceful argument of counsel for OPs is that the complainants own other houses and as such they are not genuine consumers of OPs. This contention has been dispelled by counsel for complainants by contending that there is nothing therein that they are owners of any such houses, where they reside. We find favour with the submissions of counsel for complainants because a person may be residing in some accommodation as a tenant, as a licensee or in permissive possession or in adverse possession and it cannot be said that he is owner of the same. There is no document on the file to prove their ownership over the above properties. After all, one has to reside somewhere, till he finds the appropriate roost to settle down. Consequently, we find no force in the submission of counsel for OPs that the complainants own other houses and as such need not to own this flat. Everybody wishes to have his own house for independent living and on the basis of above documents. We cannot raise this inference that complainants are their owners. There is no such title deed in their favour of the above properties. The complainants have pleaded and stated that they wanted to settle and purchased this residential project due to that purpose to settle with their family. Initial onus to prove this fact has been discharged by the complainants and it is now for OPs to prove the same. The onus of proof is not static and it continues to shift. There is nothing on the record adduced by OPs that complainants purchased these properties for resale purposes or they have purchased these properties for generating profits only. The contention of OPs is repelled by us and complainants are held to be consumers.
5. The next submission of counsel for OPs is that the reliefs claimed by complainants exceed Rs.1 crore, which is beyond the pecuniary jurisdiction of this Commission and as such, this Commission has no jurisdiction to decide this complaint. Much emphasis has been laid on this point by counsel for OPs. The counsel for OPs contended that interest components has to be calculated in computing the valuation in the complaint. The relief of the complainants is with regard to refund of the deposited amounts. The complainants stated that they deposited an amount of Rs.65,49,531/-whereas OPs submitted that it is in fact Rs.59,99,030/- and due to this clerical error, it has been recorded as Rs.65,49,531/-. Whatever the case may be, the complainants claimed interest @ 12% per annum thereupon as well. The interest is to be awardable at the most from the date after scheduled date of delivery of possession provided there is no fault on the complainants in making payments. Similarly, complainants also claimed the amount of Rs. 2 lac as compensation. From considering the rate of interest, after expiry of scheduled period of delivery of possession the pecuniary jurisdiction, would not exceed the valuation in the complaint and would not exceed rupees one crore so as to take this compliant out of the jurisdiction of this Forum. As such, this Commission is competent to entertain the complaint, where the valuation of service or goods or any claim does not exceed Rs.1 crore. This point is decided in favour of the complainants, by holding that this Commission is competent to decide this complaint because the valuation of services in this case does not exceed rupees one crore.
6. Now, we touch the most significant aspect of this case, as to whether the OPs completed the apartment/flat for its delivery to alltotees/complainants within the scheduled time or not or as to whether complainants committed any default in making payment of due amounts to OPs. This controversy can be resolved with the aid of Apartment allottee arrangement dated 06.09.2013, which is Ex.C-6 on the record. This instrument has proved this fact that parties entered into this arrangement on 06.09.2013, whereby complainants agreed to purchase the flat with OPs for sale consideration of Rs. 74,62,500/- , as basic sale price including development charges. Clause 4 of this arrangement further lays down that the BSP along with payments of other charges in the apartment allottee arrangement along with interest, if any thereon as agreed hereto and due and payable in respect of the said 'apartment' is to be paid by the allotees to the developer, as mentioned in payment plan opted by the allottees. The complainants opted for construction-linked plan in this case. The complainants have paid the amount of Rs.59,99,030/- to OPs so far and this fact is evident by the receipts Ex.C-7 to Ex.C-18 on the record. The complainants have paid substantial basic sale consideration amount to OPs uptil 15.06.2015, vide receipts Ex.C-17 and Ex.C-18. Now, we come to Apartment allottee arrangement with regard to time of delivery of possession of the allotted unit after completing the project, where the apartment is located by OPs in this case. Clause 5.1 of Apartment allottee arrangement is reproduced as under :-
5 Possession of Apartment 5.1 Subject to Clause 5.2 and further subject to all the allottees of the said 'Apartment' in the said Project making timely payment, the developer shall endeavor to complete the development of "said project" in general and the said "Apartment" in particular as far as possible within 30 months along with an extended period of six months from the date of execution of this Apartment Allotee(s) Arrangement and/or from the date of start of construction of Group Housing named as 'Wave Gardens' whichever is later. Apartment allottee arrangement is dated 06.09.2013 and possession was required to be delivered within 3 It is, thus, plain from perusal of Clause 5.1 that developer shall try to complete the development of "said project" in general and the said "Apartment" in particular as far as possible within 30 months along with an extended period of six months from the date of execution of this Apartment Allotee(s) Arrangement and/or from the date of start of construction of Group Housing named as 'Wave Gardens' whichever is later. This Apartment Arrangement is dated 06.09.2013 and the possession was required to be delivered within three years period inclusive six months grace period by 06.09.2016 by OPs to complainants. The complainants have paid the most of the basic sale price to OPs and we have to further see as to whether OPs completed their part in development this project or not. OPs have not led any evidence on the record that they have developed the project including this apartment. There are no certificate by Sewerage Authorities, Electricity Department, Pollution Control Board, Fire Safety Service and so on to prove this fact that as OPs have completed this project. Even occupancy certificate has not been obtained by OPs, as yet of this project. Even from perusal of layout plan coupled with written reply of OPs and affidavit of Amarjit Singh Authorized Signatory of OPs as Ex.OP-A, it is established that OPs could not complete this project because government has not acquired the land as yet for them, which was to be transferred to them for development. Similarly, GMADA has not laid the roads and other amenities for its development as admitted by OPs. Even , OPs mis-utilized the hard earned money of the allottees/complainants for an indefinite period. OPs have not invested this amount received from the complainants in a separate account in a Nationalized Bank under Section 9 of the PAPRA Act. OPs have received the amounts from the complainants largely, but the project has not been completed by them and due to this reason, GMADA has not laid pipes and roads in the developed project and there are critical area shown in the approved plan of this project. The inference is clear that OPs have not completed the project despite receiving the money from the complainants. OPs cannot find fault on the part of the complainants for delayed payment, when they have not developed the project at their end. This is settled law by National Commission in many authorities that when the developer could not offer the possession of the apartment or allotted plot within the scheduled time despite receipt of large amount of money, it is deficiency in service and developer cannot sit over the hard-earned money of the complainants for a long period. We, thus, hold that OPs are deficient in service in this case justifying the refund of the deposited amounts by complainants with interest thereupon.
7. As a result of our above discussion, we accept the complaint of the complainants and issue the below noted directions to OPs:-
i) OPs are directed to refund the entire deposited amounts to complainant with interest @ 12% per annum from the date of their respective deposits till actual payment under Section 12 and Rule 17 of PAPRA Act 1995.
ii) OPs are further directed to pay Rs.75,000/- as compensation for mental harassment and Rs.25,000/- as costs of litigation.
Compliance of the order be made within 45 days from receipt of certified copy of this order.
8. Arguments in this complaint were heard on 20.03.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
9. 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 March 22, 2018 (ravi)