State Consumer Disputes Redressal Commission
Jasmeet Singh Kohli vs M/S Gee Bee Builtech on 27 October, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 75 of 2015
Date of Institution : 10.04.2015
Date of Reserve : 04.10.2017
Date of Decision : 27.10.2017
Jasmeet Singh Kohli S/o Sh. R.S. Kohli, R/o H. No. 2028, Sector
69, Mohali
....Complainant
Versus
1. M/s Bee Gee Builtech, NH 21, Entry from Paras Panorama,
Sector 126, Mohali through its Director/Authorised Signatory.
2. M/s Bee Gee Builtech, Admin Office, SCF 44-45, 1st Floor,
Sector 9, Panchkula through its Director/Authorized Signatory.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Munish Goel, Advocate
For the opposite parties: Sh. Deepak Aggarwal, Advocate
Consumer Complaint No. 75 of 2015 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that the complainant booked a flat with Ops by depositing a sum of Rs. 1,00,000/- on 23.6.2011 and further deposited Rs. 4,00,000/- on 30.6.2011. They further deposited a sum of Rs. 1,50,000/- and Rs. 5,00,000/- with Ops on 11.7.2011, totaling pay Rs. 11,50,000/- with Ops and then they issued allotment letter dated 2.8.2011 in which it was mentioned that basic sale price was fixed as Rs. 2300/- per sq. ft. in Tower-A and was allotted flat No. 501 on 5th Floor having super area of 2180 sq. ft. in their project Palm Village, Sector 126, Mohali. It further mentioned that PLC and other charges are to be evaluated before allotment. Floor plan and specifications as shown in the brochure with additional features 4 split AC, one car parking, 1 KVA Power backup and club membership. Then buyer's agreement was executed between the parties on 18.1.2012 under which the developer was to develop a total land measuring 55 Kanals 17 Marlas in Village Desumajra situated on NH-21, Sector 126, Chandigarh-Kharar Road, Mohali. It was further mentioned that the developer is in possession and has the title to the aforesaid land and got approved the project from the Chief Town Planner, Department of Local Bodies, Punjab through Executive Officer NAC, Kharar. The purchaser agreed to pay a sum of Rs. Consumer Complaint No. 75 of 2015 3 50,14,000/- towards sale consideration of the apartment including the external development charges, infrastructural development charges, preferential location charges, preferential floor charges, club membership, 1 KVA power back up, one covered car parking and 4 split Air Conditioners. Under Article 3, Clause (a), the purchaser agreed to enter into a separate maintenance agreement with the maintenance agency appointed or nominated by the developer for the maintenance of the common area of the complex and purchaser agreed to pay maintenance charges @ Rs. 1/- per sq. ft. approximately of the super area per month in advance for two years and refundable security of Rs. 50/- per sq. ft. of super area. Under Article 4, the developer was to deliver the possession of the flat on or before two years from the date of allotment/agreement with all basic amenities. On account of any default or negligence attributable to the purchaser, fulfillment of conditions of agreement shall be to the extent of 6 months. There was no fault on the part of the complainant in making payment to the Ops, therefore, Ops were required to deliver the possession by 6.9.2013. According to Clause 4(a)(iii), in case the developer committed any delay in handing over of the apartment beyond 2 years, it shall be bound to pay Rs. 5/- per sq. feet of the super area and in case there is further delay beyond 6 months, then developer shall be bound to pay Rs. 10/- per sq. ft. of the super area per month to the purchaser. According to Clause 4(a)(vii), the developer committed and confirmed that entire project shall be completed in all respects within a period of 5 years. In that way, the Consumer Complaint No. 75 of 2015 4 entire project was to be completed by 17.1.2017 but it has been able to develop only 2 towers out of 10 towers. In case the complainant takes possession of their flat and started living there, there will be construction activity in the area and noise pollution, therefore, the area will not be habitable. The developer was also required to give notice to the purchaser on which date the developer would be affecting the possession of the apartment, in case all the payments due from the purchaser have been received on time. The specifications were as per Annexure A-1 but the Ops failed to provide number of interior and exterior specifications as per Annexure A-1 like wooden flooring, texture surfaced finished, sanitary fittings, wood work, four ACs, kitchen chimney, mirrors in all bathrooms, toughened glass shower partition in bathrooms, construction of club house and green area has not even been started, no security system, no CCTV camera, no control room, no street lights, no parking lights etc. After giving the discount of Rs. 3,25,000/-, the total cost of the flat comes to Rs. 48,09,742/-. The payment plan adopted by the complainant was construction link. As and when the particular stage of the construction will be intimated, the complainant was required to make the payment. The Ops did not complete the construction as per agreement, therefore, they further gave discount of Rs. 2,55,000/- as per the payment plan and the total amount payable is Rs. 45,48,176/-. The complainant had made the payment of Rs. 11,50,000/- with Ops, so he had deposited excess payment of Rs. 12,956/- with Ops. Complainant further deposited Rs. 29,43,358/- on 13.3.2012 on completion of 1st Consumer Complaint No. 75 of 2015 5 roof slab. The complainant alongwith Pradeep Gupta and others had gone to the site on 5.7.2014 to review the progress of the project and had a meeting with Engineer Mr. Vikas Sharma. It was observed that wooden flooring was yet to be started. It was clarified that it would take 2-3 months to complete the wooden flooring. Then the complainant received the letter dated 15.7.2014 that flooring has been completed and put a demand of Rs. 2,28,552/-, which was deposited on 26.7.2014 and only balance payment of Rs. 2,27,409/- was due, which was to be paid on issuing of occupation certificate by the Ops. Further Ops without any reason raised illegal demand of Rs. 4,16,031/- on 30.12.2014.The complainant replied to said letter vide email dated 31.12.2014 stating that as per agreement, possession of the flat was to be handed over on or before 2 years from the date of allotment i.e. before 6.9.2013. The Ops illegally claimed maintenance charges @ Rs. 1.5/- per sq. ft. for per month for 2 years whereas in the agreement, it was mentioned as Rs. 1/- per sq. ft. per month and illegally claimed the said amount vide letter dated 30.12.2014. After receiving letter dated 30.12.2014, complainant went to the site and found that park, swimming pool, club house, roads in front of complainant tower, street lights and parking lights and security control room with CCTV cameras was yet to be started/provided. The complainant asked the Ops that the possession of the flat was to be handed over on or before 2 years from the date of allotment as per the agreement and asked the Ops to recalculate the amount as per agreement and withdraw the illegal demand raised vide Consumer Complaint No. 75 of 2015 6 letter dated 30.12.2014. The complainant asked the Ops to produce the completion certificate and also asked whether it will be safe to live there when the construction in the project is still going on. Having no other option, the complainant issued a legal notice to the Ops alongwith other consumers raising their grievances and its reply was received on 14.2.2015. Ops replied the legal notice that the complainant can visit the site or contact Ops for detailed information and accordingly, they had gone there and found that the work at the site was still going on. The employees at the site refused to show the construction at the site on the plea that they did not have the keys. However, the complainant made the following payments:-
(1) Draft of Rs. 2,26,266/- dt. 23.2.2015 having number 257497 of HDFC Bank, against 5% balance installment payable on the receipt of occupation certificate. (2) Draft of Rs. 2,285/- dt. 26.2.2015 having number 007032 of IDBI Bank, against 5% balance installment payable on the receipt of occupation certificate.
(3) Draft of Rs. 1,09,000/- dt. 19.2.2015 having number 006886 of IDBI Bank, against refundable security, Interest Free Maintenance Charges (IFMC).
(4) Draft of Rs. 78,840/- dt. 19.2.2015 having number 006885 of IDBI Bank, against maintenance charges in advance, for 2 years.
The complainant had made this payment under protest for not showing occupation certificate till date by the Ops and Ops are Consumer Complaint No. 75 of 2015 7 liable to pay penal cost as per agreement in delaying the possession. However, Ops failed to attach any completion certificate alongwith the reply. Alleging unfair trade practice and deficiency in service on the part of the Ops, this complaint has been filed by the complainants against the Ops seeking following directions:-
(A) To direct opposite parties to produce license duly issued by competent Authority like Chief Town Planner/GMADA in favour of opposite parties to show that they are authorized for development and construction of Palm Village at Sector 126, Mohali in the name of BEE GEE Buildtech.
(B) To direct opposite parties to produce documents to show that opposite parties are the actual owners of land on which they have constructed Palm Village, at Sector 126, Mohali (the land on which complainant has been allotted flat by opposite parties).
(C) To direct opposite parties to withdraw letter Dt.
30.12.2014 (Annexure C-16).
(D) To direct opposite parties to issue receipts for payments made by complainant alongwith Rejoinder Dt. 3.3.2015 (Annexure C-21) to reply of legal notice Dt. 14.2.2015 for payment send alongwith with rejoinder Dt. 3.3.2015 of Rs. 2,26,266/-, Rs. 2,285/-, Rs. 1,09,000/- and Rs. 78,480/-.
Consumer Complaint No. 75 of 2015 8(E) To direct opposite parties to complete construction inside and outside the flat as per agreement Dt. 18.1.2012 (Annexure C-7) and also to provide basic amenities at the site, (F) To direct opposite parties to issue NOC (as complainant had made complete payment to opposite parties and nothing is due towards complainant), (G) To direct opposite parties to produce and provide copy of completion certificate to the complainant as per Annexure A-2 of buyers agreement Dt. 18.1.2012, (H) To direct opposite parties to issue fresh letter of possession after calculating amount payable by opposite parties under Clause 4 (a)(iii) on account of delay in offering possession (only after producing occupation certificate) since 6.9.2013, (HH) To direct opposite parties to give physical possession of flat to the complainant.
(I) To direct opposite parties to charge maintenance charges (duly discounted) as mentioned as per clause 3(a) of the agreement Dt. 18.1.2012, (J) To direct opposite parties to pay Rs. 5 per sqft per month upto a delay of 6 months and further Rs. 10 per sqft per month after 6 months on account of delay in offering possession after two years from the date of allotment, as per clause 4(a)(iii) of the agreement Dt. 18.1.2012, Consumer Complaint No. 75 of 2015 9 (K) To direct opposite parties to pay 12% interest on total amount paid by complainant to the opposite parties till date from the date of their deposit till physical possession be delivered to the complainant (after producing occupation certificate), (L) To pay Rs. 5,00,000/- on account of compensation for causing mental tension, harassment and mental agony to the Complainant and further even after making full payment, the opposite parties has not provided physical possession of flat. The complainant is facing financial burden due to payment of loan every month, without getting physical possession of flat.
(M) To pay Rs. 33,000/- as cost of litigation.
(N) Any other relief that this Hon'ble Forum may deem
proper in the facts and circumstances of the case, may kindly be passed against the Opposite Parties, in the interest of justice.
2. Upon notice, Ops appeared and filed the written reply taking preliminary objections that the claim does not exceed more than Rs. 20,00,000/-, therefore, the complaint is not maintainable before this Commission for want of pecuniary jurisdiction; the Ops had already offered possession vide possession letter dated 30.12.2014, which has been admitted by the complainant in their legal notice dated 1.2.2015, that legal notice was sent on behalf of 9 allottees, out of that Pardeep Gupta, Amarpreet Singh, Anupam Gupta and Kishore Kumar have already taken the possession. As Consumer Complaint No. 75 of 2015 10 per Article 4 of the purchaser agreement dated 18.1.2012, the possession of the flat was to be handed over on or before 2 years from the date of allotment provided all the amounts due paid by the purchaser within the stipulated period. The construction of various towers was to be completed in phases. Agreement further provided that the entire project shall be completed within a period of 5 years, subject to force majeure as contained in Article 8(b) of the agreement; the complainant vide purchase agreement had committed to take the possession of the apartment within 30 days from the date of issuance of offer of possession, however, they have not come forward to take the possession. Originally, the project was subject to be developed by Dynasty Builwell Private Limited (in short referred as 'DBL'). DBL had entered into agreement with Ops vide agreement dated 21.9.2011 vide which absolute rights were granted to the Ops for development, construction and the rights to further sell individual flats to the prospective purchasers in respect of the property of project land measuring 52 Kanals, 1 Marla in village Desu Majra, Tehsil Kharar, District Mohali. Ops have completed 4 number of blocks, comprising 40 flats each, total 160 number and accordingly, DBL was requested to apply for partial completion of the said flats to the competent authority and application was moved to the Executive Officer, Municipal Council, Kharar vide diary No. 657 dated 11.9.2015 and the competent authority has not raised any objection till date, therefore, it will be considered as deemed completion and sincere efforts are being made to get the completion certificate. As Consumer Complaint No. 75 of 2015 11 per Article 6 (c) (i), in case any dispute arises out or touching upon or in relation to the terms of the agreement, the matter shall be referred to the Arbitrator under the Arbitration and Conciliation Act, 1996, therefore, this Commission does not have any jurisdiction to entertain this complaint. In preliminary submissions, the averments taken in the preliminary objections were reiterated. It was further stated that as per the agreement between Ops and DBL that any future project approval for entire project including PWD/NHAI, fresh permission, if required, shall be signed by DBL and BEEGEE for liaison with the department and follow up to take the approvals. Both the parties shall bear expenses of their share as FSI. Ops had floated an advertisement to sell residential flats in the project known as Palm Village and complainant applied for that and he was allotted an apartment in Tower A measuring 2180 sq. ft. and purchasers agreement was executed between the parties on 18.1.2012. In case the allottee does not deposit the installment within time then he is to pay penal interest @ 24% p.a. and that the complainant had no cause of action to invoke the jurisdiction of this Commission. In parawise reply, it was admitted that the complainant applied for an apartment with Ops on the basis of their advertisement for the allotment of flat in their project Palm Village in Sector 126, Mohali. After paying the basic amount, purchaser agreement was executed between the parties. Various clauses of the agreement have already been referred in preliminary objections and preliminary submissions. Various amounts were deposited by the complainant and that they were offered the possession of the Consumer Complaint No. 75 of 2015 12 flat vide their letter dated 30.12.2014. It was also stated that DBL had applied for getting partial completion certificate from the Municipal Council, Kharar. The project was delayed due to restriction of mining in various States including Punjab, therefore, delay was due to non-availability of sand, gravel etc. It was denied that there would be any noise pollution in case the complainant takes the possession of the flat. It was also denied that there will be risk for complainant or his family members. There are security guards and CCTV cameras got installed by the developer for the safety and security of the inhabitants and the families reside there have not made any type of complaint. It was denied that Ops have failed to provide the amenities as per the specifications. The flats are complete in all respects and already number of purchasers have taken the possession. It was denied that the complainant's alongwith Pradeep Gupta and another had come to inspect the site or that they met Er. Mr. Vikas Sharma. It was also denied that wooden flooring is yet to be started. It was denied that final payment of Rs. 2,27,409/- was to be made after receipt of occupation certificate as alleged by the complainant. It was denied that possession letter dated 30.12.2014 was illegally issued in favour of the complainant. It was also denied that Ops had illegally claimed maintenance charges @ Rs. 1.5/- per sq. ft. per month for 2 years. Rs. 1/- per sq. ft. per month was approximately, therefore, charging of Rs. 1.5/- per sq. ft. per month is not illegal. It was denied that there was any unfair trade practice or deficiency in Consumer Complaint No. 75 of 2015 13 service on the part of the Ops. Complaint is without merit, it be dismissed.
3. The parties led their respective evidence in the complaint.
4. Complainant in his evidence has tendered his affidavit as Ex. CA and documents Ex. C-1 to C-28. On the other hand, Ops had tendered into evidence affidavit of Surinder Kumar Bansal, Partner of M/s Bee Gee Buildtech Ex. R-A and documents Ex. RA- 1 and Ex. R-1 to R-14.
5. We have heard the learned counsel for the parties and have gone through the complaint file.
6. Before taking the contentions of the complainant, some preliminary objections with regard to maintainability of the complaint have been taken by the Ops. A plea has been taken that relief sought for by the complainant does not exceed Rs. 20 Lacs, therefore, it does not fall within the pecuniary jurisdiction of this Commission. Purchaser Agreement between the complainants and Ops is Ex. C-7 in which total consideration of the apartment has been mentioned as Rs. 50,14,000/-. The pecuniary jurisdiction of the Consumer Fora is determined according to Section 11(1), the value of the goods or services and the compensation, if any, claimed is to be taken. If the total sale consideration is more than Rs. 50 Lacs then we do not understand how this objection has been taken by the counsel for the Ops. He was unable to prove this fact on the record that the State Commission did not have the pecuniary jurisdiction to entertain this complaint. For the purpose of Consumer Complaint No. 75 of 2015 14 pecuniary jurisdiction, the jurisdiction of the State Commission is from Rs. 20 Lacs to Rs. 1 Crore and claim of the complainant is more than Rs. 20 Lacs, therefore, we are of the opinion that this complaint falls within the pecuniary jurisdiction of this Commission. With regard to Arbitration Clause, a separate application was also moved by the counsel for the Ops, referring the matter to the Arbitrator and that application was declined by this Commission vide its order dated 8.3.2017, therefore, now this point cannot be agitated by the counsel for the Ops.
7. As per the averments in the complaint, the complainant booked one 3 BHK apartment with Ops in their project Palm Village, Mohali, super area 2180 sq. ft. @ Rs. 2300/- per sq. ft. in Tower-A. A sum of Rs. 1 Lac was deposited by the complainant on 23.6.2011 vide receipt Ex. C-1 and Rs. 4 Lacs vide receipt dated 30.6.2011. Further a sum of Rs. 1,50,000/- was deposited by the complainant on 11.7.2011 vide receipt Ex. C-3 and Rs. 5 Lacs on 11.7.2011 Ex. C-4. On the basis of that apartment/flat No. A-501 on 5th Floor in Tower-A of 2180 sq. ft. (super area) at the basic price of Rs. 2300/- per sq. ft. was allotted to the complainant. The receipt of Rs. 11.50 Lacs has been accepted by the Ops in their letter dated 2.8.2011. The down payment plan was agreed by the complainant, according to the down payment plan, the payments were to be made as under:-
Payment Plan On Application for Booking Rs. 10% Consumer Complaint No. 75 of 2015 15 Within 30 days of allotment 85% of Sale Price (SP) (Discount as per Calculations) On receipt of Occupation 5% of Sale Price + IFMS + Certificate Registration Charges + stamp duty The complainant paid a sum of Rs. 29,43,358/- upto 29.2.2012 and receipt of the same is Ex. C-10. In the letter dated 29.2.2012, another demand of Rs. 11,50,000/- was called till 15.3.2012. A sum of Rs. 2,28,552/- was called for vide letter dated 15.7.2014, which was paid by the complainant vide receipt dated 26.7.2014 Ex. C-
14. Offer of possession letter dated 30.12.2014 Ex. C-16 was issued showing balance payment of Rs. 2,28,551/- and after adding the maintenance charges, a sum of Rs. 4,16,031/- was called for and in the rejoinder to legal notice dated 3.3.2015 (Ex. C-
21), in which it has been mentioned that his client prepared four drafts (Exs. C-22 to C-22C) to hand over the Ops and to allow him to inspect the flat but he was not allowed. In this way, the complainant paid a sum of Rs. 43,21,910/- as per letter of offer of possession dated 30.12.2014 and 5.0% payment was made at the time of receiving the occupation certificate from the Ops as per Payment Plan Annexure A-2, therefore, almost the entire payment from the side of the complainant stands paid to the Ops, which has also been admitted by the Ops.
8. The counsel for the complainant has argued that the Ops indulged in unfair trade practice because they do not have any Consumer Complaint No. 75 of 2015 16 licence and layout plan issued by the Competent Authority i.e. Chief Town Planner/GMADA in favour of the Ops to show that they are authorized to develop/construct the Palm Village. He has drawn the attention of this Commission towards Clause No. 4(b)(vi) of the agreement vide which Ops have agreed that apartment/building in which the apartment is shall be subject to the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short referred as PAPRA, 1995), therefore, PAPRA, 1995 is applicable to the project of the Ops. Before launching the project, the Ops are required to take various recourses, which can be referred as under:-
"3. General Liabilities of Promoter:- (1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develop a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section. (2) A promoter who develop a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) make full and true disclosure of all encumbrances Consumer Complaint No. 75 of 2015 17 on such land, including any right, title, interest or claim of any party in or over such land;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
xxxx xxxx xxxx (e) specify, in writing, the date by which possession of
the plot or apartment is to be handed over and he shall hand over such possession accordingly;Consumer Complaint No. 75 of 2015 18
xxxx xxxx xxxx
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:- (1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or Consumer Complaint No. 75 of 2015 19 publication.
(2) The advertisement or prospectus issued under sub- section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of the advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers Consumer Complaint No. 75 of 2015 20 of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor.
However, the Ops have placed on the record Ex. R-A/1, partnership deed between Rajinder Kumar Gulati and Surinder Kumar Bansal to run the Ops i.e. M/s BEE GEE Builtech. They have further placed on the record Promoters Certificate in favour of DBL Ex. R-1. The promoter certificate was issued to the Ops on 5.3.2012. Ex. R-2 is the agreement between DBL and BEE GEE Builtech whereby it had assigned its all development right in respect of land measuring 55 Kanals and 17 marlas, which was lateron amended as 52 Kanals and 17 marlas with FSI 5,64,806 sq. ft., which is being developed by BEE GEE Builtech under the name and style of Palm Village. It was also mentioned that BEE GEE Builtech had already obtained requisite approvals/sanctions and permissions relating to the said property, till the date of execution of MOU. Ex. R-3 is the application received in the office of Municipal Council, Kharar on 11.9.2015 for issuing the partial completion certificate. Exs. R-4, R-5, R-6 and R-7 are the documents relating to some other persons i.e. Pradeep Gupta, Amarpreet Singh, Anupam Gupta and Kishor Kumar. Ex. R-9 is the order dated 1.3.2017 of Hon'ble Punjab & Haryana High Court passed in CWP No. 4025 of 2017 filed by Ops against the State of Punjab with a direction to issue the partial completion certificate by Municipal Council, Kharar. Ex. R-10 is the letter dated 18.3.2017 issued to the Director, Town Planning, Local Self Government, Consumer Complaint No. 75 of 2015 21 Punjab, Sector 35, Chandigarh for grant of partial completion certificate. Ex. R-11 is the letter dated 3.4.2017 from Chief Town Planner to Municipal Council, Kharar and Ex. R-13 are the photographs of the flats. Ex. R-14 is the promoter certificate in favour of Ops BEE GEE Builtech. Firstly the promoter certificate was issued in favour of Ops on 5.3.2012, whereas Ops started booking of apartments in the year 2011. Complainant deposited first payment on 23.6.2011. In promoter certificate, it has been specifically mentioned that this certificate itself does not entitle the promoter to set up a colony without obtaining the requisite licence and layout plan as mandated under the PAPRA. The copy of the licence and layout plan in favour of the Ops has not been placed on the record obtained from the Competent Authority to set up Palm Village in Sector 126. There is just a reference in the MOU but no document to support it has been placed by Ops.
9. What is the effect of MOU between the Ops and the DBL? In case we go through the purchaser's agreement between the complainant and the Ops, there is no reference of MOU between the Ops and the DBL. However, it has been mentioned that developer is developing the land measuring 55 Kanals 17 marlas in Village Desu Majra, situated on NH-21, Sector 126, Mohali and has got approved the project from Chief Town Planner, Department of Local Bodies through Executive Officer, NAC Kharar in setting up a group housing scheme/complex vide revised letter No. CTP/2011/1113 dated 8.9.2011 but the said letter has not been placed on the record. Ops received the payment from the Consumer Complaint No. 75 of 2015 22 complainant vide receipt dated 23.6.2011 and 30.6.2011 and purchasers agreement on 18.1.2012. Therefore, at the time of taking the amount of Rs. 11,50,000/- in the months of June and July, 2011 from the complainant(s) and purchaser's agreement on 18.1.2012, Ops did not have even promoter's registration certificate on these date. Further no licence was obtained under PAPRA, 1995 to set-up the colony by DBL. Without any reference of MOU between the Ops and DBL in the purchaser's agreement, the complainant had no right to implead DBL as a party to the complaint.
10. Even the land of 52 Kanals 1 Marla with FSI 5,64,806 sq. ft. is not in the name of the Ops. It was in the name of DBL. Merely on the basis of MOU, it does not create any right, title or interest in favour of the Ops. It seems to have been done to bypass Registration Act and to cause loss to the Government Treasury. In case Ops do not have any title over this property, even if the apartments have been built by the Ops on the basis of MOU with DBL, it is difficult how they will execute the sale deed in favour of the complainant. Therefore, all these facts showed a flagrant unfair trade practice on the part of Ops by launching this project and received crores of rupees from various customers, therefore, the counsel for the Ops was unable to refer to any document in favour of the Ops except MOU between Ops and DBL and was unable to answer our query how the Ops will execute the sale deeds of the flats in case the land over which the flats have been built is not in the name of Ops. Therefore, we hold that Ops indulged in unfair Consumer Complaint No. 75 of 2015 23 trade practice by launching this project. In the complaint, in Clause A, the complainant has sought directions to produce licence to be issued by the Competent Authority i.e. Chief Town Planner/GMADA in favour of the Ops to develop this project and in view of our findings above, the Ops launched this project without basic documents and flagrant abuse of the PAPRA, therefore, in case no licence exist in favour of the Ops, as such, a direction cannot be issued in favour of the complainant and against the Ops, however, its effect will be kept under consideration while granting the other reliefs.
11. In Clause B, a prayer has been made by the complainant to direct Ops to place documents that they are actual owners of the land in which they have constructed Palm Village in Sector 126, Mohali. In view of our observations above, we have already observed that they are not owners of the land in which the project has been constructed. Basically the land vested with DBL and merely on the basis of MOU, immovable property cannot be transferred in favour of Ops. Therefore, we are of the opinion that Ops are not owners of the land over which they had raised the project Palm Village, Sector 126, Mohali.
12. In Clause C, the complainant has sought direction to withdraw letter dated 30.12.2014. This letter has been placed on the record as Ex. C-16 vide which offer of possession of Flat No. A- 501 has been offered to the complainant. In para No. 2, it has been mentioned that their Palm Village is near completion and the same is ready for possession in few months, therefore, the letter itself Consumer Complaint No. 75 of 2015 24 shows that on the date offer of possession was given to the complainant, the apartment was not complete, rather, it was nearing completion.
13. Then legal notice dated 1.2.2015 was issued by the complainant through their counsel Munish Goel, Advocate vide which it has been referred that Ops have not developed the park, swimming pool not ready, club house has not even started, roads in front of their tower not developed, street lights and parking lights not provided, no security control room with CCTV Cameras. Its reply was filed by the Ops on 14.2.2015 Ex. C-20 wherein the averments of the noticee were denied and it was simply stated that the apartment is ready for possession. However, to support this plea, no specific evidence has come on the record. In case the project is complete, partial completion certificate was applied for by the DBL in the year 2015 and till date no partial completion certificate has been given. In fact, no such application was moved by the Ops to give the partial completion certificate except the order passed by the Hon'ble High Court on 1.3.2017 i.e. Writ Petition filed by the Ops seeking directions against the Municipal Council, Kharar to issue the partial completion certificate but in case it has not been applied by the Ops then how the Ops can claim the partial completion certificate. The Ops cannot compel the complainant to get the possession without completion certificate. In this regard, a reference can be made to the judgment of the National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No. 417 of 2015 "Harinder Singh Versus Consumer Complaint No. 75 of 2015 25 M/s Unitech Limited" decided on 3.5.2016 wherein it was observed that serving notice of possession without having completion certificate is itself not only deficiency in service but also unfair trade practice. The complainant after receipt of the notice had pointed out the deficiencies in the completion of the apartment/project and no reply was given by the Ops whether these deficiencies have been completed or not. Therefore, offer of possession letter dated 30.12.2014 is liable to be withdrawn by Ops and to issue fresh letter after removal of deficiencies.
14. In Clause D, it has been requested that complainant has made payments through demand drafts of Rs. 2,26,266/-, Rs. 2,285/-, Rs. 1,09,000/- and Rs. 78,480/- to the Ops and Ops be directed to issue the receipts. Since these payments have been admitted by the Ops in their written reply filed by the Ops, they have given the evasive reply but during the course of arguments, it was admitted by the counsel for the Ops that these payments have been received by them, therefore, on the basis of admission, no separate receipt is required to which counsel for the complainant had also agreed.
15. In Clause (I), it has been requested by the complainants that the Ops be directed to charge maintenance charges as mentioned in Clause 3(a) of the agreement dated 18.1.2012. As per the agreement, maintenance charges mentioned @ Rs. 1/- per sq. ft. per month but it was approximately. Now in the demand notice, the charges were demanded @ Rs. 1.5/- per sq. ft. per month and that payment has already been made by the Consumer Complaint No. 75 of 2015 26 complainant without any objection, therefore, now no fresh direction can be issued to the Ops with regard to the maintenance charges.
16. In Clause (J), it has been requested by the complainant that penal charges be paid as per Clause 4(a)(iii) of the agreement dated 18.1.2012 in which the possession of the flat was to be handed over on or before 2 years from the date of allotment with reasonable extension and delivery of possession on account of any default or negligence attributable to the purchaser, therefore, 6 months extension will not be available to the Ops in this case. The letter of allotment was issued on 18.1.2012 and two years will be completed by 17.1.2014. According to Clause 4(a)(iii), in case of delay for the first 6 months, the penal charges will be @ Rs. 5/- per sq. ft. and after expiry of 6 months then @ Rs. 10/- per sq. ft. for the super area of the flat. Therefore, after 17.1.2014 for the first 6 months, Ops will pay penal charges @ Rs. 5/- per sq. ft. per month of the super area and after that @ Rs. 10/- per sq. ft. per month of the super area of the flat till the filing of the complaint.
17. In Clause (E), direction has been sought against the Ops to complete the construction, get completion certificate and direct them to give physical possession of the flat to the complainant alongwith interest @ 12% on the amount deposited. Counsel for the Ops has contended that the flat is complete. In case it is so then get the completion certificate and issue a fresh letter of offer of possession to the complainant. Consumer Complaint No. 75 of 2015 27
18. Sequel to the above, we accept the complaint and direct the Ops as under:-
"(i) to complete the construction inside and outside the flat as per the specifications given in the purchaser's agreement between the parties and brochure, get completion certificate from the Competent Authority then issue fresh offer of possession letter in favour of the complainant and deliver the possession within a period of two months from the date of receipt of the order passed by this Commission, otherwise, Ops will pay interest to the complainant @ 12% on the deposited amount with Ops from the date of filing the complaint till delivery of actual possession after making adjustment of the amount, if any, due from the complainant.
(ii) To deliver the possession of the apartment to the complainant. Ops will first get the property transferred in its favour from DBL and then execute the sale deed in favour of the complainant. Charges of sale deed to be borne by the complainant.
(iii) the Ops shall pay the penal charges for the first 6 months from 13.9.2013 @ Rs. 5/- per sq. ft. per month on the super area i.e. 2180 sq. ft. and after 6 months, pay the penal charges @ Rs. 10/- per sq. ft.
per month on the super area upto the date of filing the complaint.
Consumer Complaint No. 75 of 2015 28
(iv) pay Rs. 3,00,000/- as lumpsum compensation to the complainant on account of unfair trade practice, being not owners of the land on which the project was launched, no licence or layout plan was taken alongwith other necessary certificates by the Ops as required under PAPRA before launching the project and compensation for mental agony and harassment.
(v) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by the Ops within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
19. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
20. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER October 27, 2017.
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