State Consumer Disputes Redressal Commission
Arvinder Singh Grewal vs Mariners Builders India Ltd. on 17 May, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 140 of 2015
Date of institution: 30.6.2015
Date of Decision:17.5.2016
Mr. Arvinder Singh Grewal S/o Shamsher Singh Grewal, House No. 99,
New Officers Colony, Patiala - 147001, Punjab.
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 the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. Sandeep Bhardwaj, Advocate
For Op No.1&2 : Ex.-parte
For Op No. 3 : Not summoned.
Consumer Complaint No. 140 of 2015 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (for short 'Act') against opposite parties No. 1 & 2(hereinafter referred as Ops) on the averments that allured by the assurance/representation of Op Nos. 1 & 2, complainant booked one Villa for residential purposes with Op Nos. 1 & 2 vide application dated 15.12.2008 by paying Rs. 50,000/- and basic price of the Villa is Rs. 65 lacs. Complainant made request to Ops to inform the exact date of delivery of Villa and Ops vide email dated 18.9.2010 informed that they would give the possession from April, 2012 to August, 2012 by completing it in all respect. Complainant was asked to deposit second instalment of Rs. 5,50,000/- vide letter dated 21.9.2010, which he paid vide cheque No. 135601 dated 5.10.2010. Complainant sought information about the development of the project and Ops informed vide email dated 29.6.2011 that they have received sanctions and also assured that Villa would be handed over by the end of 2012. Then Op Nos. 1 & 2 intimated vide email dated 29.6.2011 intimated that they have joined hands with Bajwa Developers Pvt. Ltd. for providing gated community in Sector 123, Mohali, which was sanctioned by the Empowered Committed on 22.6.2011. Thereafter, complainant sent his representative to know the status of the project but Ops failed to give any satisfactory reply. Later vide email dated 22.12.2011 Ops apologized for their act of delay in informing the status of projects. Ops failed to start the construction of the Villa upto 1.4.2012. Vide Consumer Complaint No. 140 of 2015 3 email dated 5.2.2013, Op Nos. 1 & 2 informed that CLU in respect of Sector 123 has been granted by the Competent Authority. Op Nos. 1 & 2 vide letter dated 2.5.2013 informed that they are very shortly putting across the provisional/tentative layout plans on the website and demanded Rs. 5 lacs. Complainant asked from Op Nos. 1 & 2 that CLU was in the name of Bajwa Developers and not in the name of Op Nos. 1 & 2. Op No. 1 & 2 received Rs. 25,26,575/- from the complainant. Op Nos. 1 & 2 issued allotment letter dated 14.6.2013 to the complainant. It was intimated by Op Nos. 1 & 2 that Bhoomi Puja will take place in the month of May, 2014 and Villa complete in all respect will be delivered by September, 2015. Thereafter the complainant visited the site and saw that there was no development at the site. Thereafter, Op Nos. 1 & 2 stopped to respond to the queries of the complainant. Complainant had already paid a sum of Rs. 25,26,575/- to Op Nos. 1 & 2 but they failed to update the exact status with regard to the progress of the construction. Complainant observed that project of Op Nos. 1 & 2 is just a farce and there is no possibility of delivering of possession. Then the complainant obtained the information under RTI and he came to know that no permission was given to Op No. 1 by Punjab Town Planning and Development Authority, SAS Nagar, Mohali in their project "Mohali Oceanic" in Sector 123, Mohali. Information received from Town and Gram Planning Department of Punjab, PUDA, it was revealed that CLU has not been issued to Mariners Buildcon India Limited, Mohali Oceanic in Sector 123, Mohali. Further information taken from GMADA revealed that no licence has been issued to Marinders Buildcon India Consumer Complaint No. 140 of 2015 4 Limited to launch/set up any colony/project, namely, Mohali Oceanic in Sector 123, Mohali. They have not received any reference regarding launching/setting up of project Mariners Buildcon India Limited, Mohali Oceanic, Sector 123, Mohali nor any CLU has been granted in their favour. It is violation of provisions of PAPRA and unfair trade practice on the part of Ops. The complainant approached Op Nos. 1 & 2 for the refund of his amount of Rs. 25,26,575/- deposited with Op Nos. 1 & 2 but no refund was given by them. Legal notice dated 21.11.2014 was issued in this regard. For not refunding the amount and getting the money from the complainant without any approval to launch the project, amounted to deficiency in service and unfair trade practice on the part of Ops. Ops are Service Provider under Section 2(1)(o) of the Act and that the complainant is consumer. Complaint has been filed with the direction to Op for the refund of Rs. 25,26,575/- alongwith interest @ 15% p.a., compensation of Rs. 5 lacs and litigation expenses of Rs. 1 lac.
2. Notice of the complaint was issued to Op Nos. 1 & 2 whereas no notice was given to Op No. 3 as there was no privity of contract between the complainant and Op No. 3. In case there was any arrangement between Op Nos. 1, 2 & 3 for providing land, it was between them and not between the complainant and Op No. 3. Op Nos. 1 & 2 were not served despite sending various letters and letters received back with the report, no such firm or person is existing on the given address. Counsel for the complainant filed affidavit that he is not in the knowledge of any other address of Op Nos. 1 & 2 and accordingly, Op Nos. 1 & 2 were ordered to be served through Consumer Complaint No. 140 of 2015 5 publication in Times of India. Notice of publication was published in Times of India dated 13.2.2016 but none appeared on behalf of Op Nos. 1 & 2 on 1.3.2016, therefore, they both are proceeded ex-parte.
3. Counsel for the complainant in his ex-parte evidence tendered the following documents i.e. affidavit of Sh. Arvinder Singh Grewal complainant as Ex.CW-1/A i.e. photocopy of application forms dated 15.12.2008 and 8.7.2010 as Ex.C-1 & Ex.C-3, photocopy of emails dated 6.6.2010 (colly) as Ex.C-2, photocopy of email dated 18.9.2010, 30.12.2010, 29.6.2011, 22.12.2011, 5.2.2013, 20.3.2013, 7.5.2013, 10.5.2013, 11.5.2013, 28.3.2013, 16.5.2013, 16.5.2013, 17.5.2013, 9.6.2014, 11.7.2014, 5.1.2015, 5.2.2015 as Ex.C-5,Ex.C-9 to Ex.C-13, Ex.C-15 to Ex.C-21, Ex.C-25 & Ex.C-26, Ex.C-33 & Ex.C- 34, photocopy of receipt dated 9.7.2010 as Ex.C-4, photocopy of demand letter dated 21.9.2010 as Ex.C-6, photocopy of cheque dated 2.10.2010 as Ex.C-7, photocopy of receipt dated 5.10.2010 as Ex.C-8, photocopy of letter dated 2.5.2013 as Ex.C-14, photocopy of allotment letter dated 14.6.2013 as Ex.C-22, photocopy of receipts dated 15.7.2013 as Ex.C-23 & Ex.C-24, photocopy of legal notice dated 21.11.2014 as Ex.C-27, photocopy of RTI information dated 22.10.2014, 28.10.2014, 3.11.2014, 5.11.2014 as Ex.C-28 to Ex.C- 31, photographs as Ex.C-32 (colly).
4. We have heard the counsel for the complainant and have carefully gone through the averments made by the complainant in his complaint and evidence on the file.
5. Firstly it is to seen whether there is relationship of consumer and service provider. For that the counsel for the Consumer Complaint No. 140 of 2015 6 complainant has placed on the record application dated 15.12.2008(Ex. C-1), receipt No. 071 dated 15.5.2009 of Rs. 2,50,000/-, receipt No. 091 dated 21.7.2009 of Rs. 3,50,000/-, receipt No. 052 dated 7.4.2009 of Rs. 2,50,000/-, receipt No. 276 dated 9.7.2010 of Rs. 50,000/-, receipt No. 256 dated 5.10.2010 of Rs. 5,50,000/-, receipt No. MBIL/MOH/1314/17 dated 15.7.13 of Rs. 2,00,000/-(Ex. C-23) and receipt No. MBIL/MOH/1314/18 dated 15.7.13 of Rs. 2,00,000/-(Ex. C-24). Op Nos. 1 & 2 had assured the complainant and other applicants time and again that active planning is taking place to assure that the entire project will be delivered by August, 2012. Actual work will start from January, 2011 and they will start to deliver possession by April, 2012. Therefore, Op Nos. 1 & 2 had undertaken to provide the services of constructed Villas in favour of the complainant and received a total payment of Rs. 25,26,575/- from the complainant, therefore, there existed relationship of 'consumer' and 'service provider' between the parties. No allotment letter/buyers agreement was issued/got executed by Op Nos. 1 & 2 in favour of the complainant. However, there is lot of correspondence between the parties, which revealed that the tentative dates for completion of the project given by Op Nos. 1 & 2 were given but they did not stick to the dates given by them. Through email it was undertaken to deliver the possession by August, 2012. Vide email Ex. C-12, it was intimated that CLU is finally here and sanction of their project has been granted i.e. falls under Mega Project of M/s Bajwa Developers and they are now to allot the individual plot/villa Nos. It was also intimated that project will physically be handed over by end Consumer Complaint No. 140 of 2015 7 of 2012. It was intimated through emails that they have already got CLU. It was also intimated that provisional layouts have been taken and they are giving the allotment letters to their Members within a week. It was informed that allotment of individual Villas would be done by 15.4.2014 and they will hand over the completed Villas by September, 2015 but nothing was done, which is fortified from the information taken by the complainant under the RTI from the concerned Authorities. He has placed on the record a letter dated 22.10.2014(Ex. C-28) from PUDA in which it has been stated that no project in the name of Mohali Oceanic at Sector 123, Mohali has been approved by them. There is another letter dated 28.10.2014(Ex. C-29) received from Town and Gram Planning Department, Punjab vide which it has been stated that no CLU has been approved in favour of M/s Mariners Buildcon India Ltd., Sector 123, Mohali. Then there is another letter dated 3.11.2014 issued by GMADA (Ex. C-30) wherein it has been stated that no licence was issued in favour of M/s Mariners Buildcon India Ltd., Sector 123, Mohali to set up any colony. Then there is another letter dated 5.11.2014(Ex. C-31) from Town and Gram Planning Department, Punjab vide which it was intimated that no project in the name of M/s Mariners Buildcon India Ltd. was received in their office and no CLU was given by them. Therefore, the information delivered by Ops that they have taken the CLU in respect of 17 acres of land taken from M/s Bajwa Developers in Sector 123 is false one, which amounts to unfair trade practice on the part of Ops. In fact Op Nos. 1 & 2 have taken the huge amount of Rs. 25,26,575/- from the complainant and so many others but at the ground level, no Consumer Complaint No. 140 of 2015 8 permission, no licence and no CLU was taken by Op Nos. 1 & 2 to develop the project as alleged by them, which amounts to unfair trade practice. To support this plea, counsel for the complainant has referred to the judgment III (2007) CPJ 7 (NC) "Kamal Sood versus DLF Universal Ltd." and para No. 24 of the judgment, it has been mentioned that it was the duty of the DLF to plan in advance, obtain necessary permission and thereafter promise to deliver the possession of the flat/apartment within the stipulated time. It was further observed that delay in obtaining the permission would hardly be a ground for directing the consumer to suffer. He has referred to another judgment I(2009) CPJ 136 (NC) "Prasad Homes Private Limited versus E. Mahender Reddy & Ors." In that case, approved layout plan was not supplied. No development work was carried at the site. Payment of further instalment was stopped by the complainant. It was observed that developer cannot be allowed to take shelter under agreement clause to usurp money deposited. Agreement clause heavily loaded in favour of builder and against purchasers. Such agreement clearly amounts to unfair trade practice. State Commission ordered refund alongwith interest and revision petition before the Hon'ble National Commission was dismissed. He has also referred to Consumer Complaint No. 225 of 2014 "Sh. Kesar Singh versus M/s Bajwa Developers Ltd. & Anr." decided by the Hon'ble Principal Bench on 23.2.2016 in para No. 7 of the order, it was observed that evidence produced on the record by Ops proves that they never got approved the project and without getting approval of the project, they collected the amount money from the complainant Consumer Complaint No. 140 of 2015 9 and others. It amounts to unfair trade practice on the part of Ops. He has also referred to Consumer Complaint No. 33 of 2014 "Smt. Anju Mittal versus M/s Bajwa Developers Ltd." decided by this Bench on 1.4.2015. In that case also Ops called application without getting the project approved and after that he had written to the Chief Town Planner for approval of the layout plan. He had not placed any CLU from GMADA, NOC from Punjab State Pollution Control Board as required under Section 32 or in the alternative no exemption certificate under Section 44 of the PAPRA Act. Under Section 4(1) of the Act, it has been provided that no Promoter shall issue any advertisement offering for sale of any apartment or plot or to make advances or deposit unless the Promoters holds a certificate of registration as required under Sub-Section 2 of Section 21 of the Act. In this case also, no provision of the PAPRA has been complied with by Ops before calling for the applications and accepting the huge amount of Rs. 25,26,575/- from the complainant and others. Certainly, it amounts to unfair trade practice on the part of Ops.
6. Whether the complainant is entitled to refund? When the project of Ops was not insight then complainant sought for refund and the Op H.S. Anand vide email (Ex. C-33) informed about the time frame given to start the construction and also apologised for the delay but it was not paid, it amounts to deficiency in service. Since there is no agreement between the parties how much interest will be paid, in case the project is not completed as projected by Op Nos. 1 & 2, otherwise, 11% is the normal rate of interest and it seems to be reasonable.
Consumer Complaint No. 140 of 2015 10
7. In view of the above, we accept the complaint and direct Ops as under:-
(i) refund a sum of Rs. 25,26,575/- alongwith interest @ 11% 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
(iii) Rs. 21,000/- as litigation expenses.
8. The arguments in this consumer complaint were heard on 11.5.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
9. Consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 17, 2016. (Harcharan Singh Guram)
as Member
Consumer Complaint No. 140 of 2015 11