State Consumer Disputes Redressal Commission
Rakesh Rawat vs Emaar Mgf Land Private Limited on 13 July, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.944 of 2018
Date of institution : 03.12.2018
Reserved On : 08.07.2020
Date of decision : 13.07.2020
Rakesh Rawat S/o Sh. Mahatab Singh Rawat;
Correspondence Address:
House No.3455, Sai Enclave, Sector 49-D, Chandigarh.
....Complainant
Versus
1.M/s Emaar MGF Land Private Limited (Mohali Hills), Site Office:
Sector 105, Landran-Banur Road, opposite Reliance Petrol Pump, Mohali-1600061, through its Managing Director/Director/ Authorized Representative.
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Authorized Representative. E-mail ID:[email protected] ....Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:
For the complainant : Sh. Sandeep Bhardwaj, Advocate For the opposite parties: Sh. Ashim Aggarwal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties, seeking following directions to them: Consumer Complaint No.944 of 2018 2
i) to refund the amount of ₹17,25,000/-, deposited by the complainant, along with interest at the rate of 15% per annum from the respective dates of deposit till realization;
ii) to pay compensation of ₹2,00,000/-, on account of mental agony and harassment suffered by the complainant; and
iii) to pay ₹1,00,000/- towards litigation expenses.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that the complainant approached the opposite parties, with a view to purchase a residential plot for construction of house. They assured that they were having all the requisite approvals and sanctions for their project namely "Mohali Hills", situated in Sector 105, Mohali. Believing their assurances, the complainant applied for allotment of a plot in Sector 105, but the opposite parties allotted him a plot in Sector 109. He met Mr. Gupta and Ms. Sunaina, officials of the opposite parties, who agreed to relocate the plot in Sector 105. The opposite parties had received a sum of ₹10,35,000/- as registration charges on 06.09.2006. Provisional allotment letter dated 08.05.2007 Ex.C-1 was issued, whereby plot measuring 300 sq.yds. was allotted to the complainant in "Augusta Park" Sector 109 at the rate of ₹11,500/- per sq.yds. Basic sale price thereof was fixed as ₹34,50,000/-. In addition thereto, a sum of ₹1,69,104/- was payable as EDC. Thus, total sale price of the plot was fixed as ₹36,19,104/-. The opposite parties sent 'Plot Buyer's Agreement', Ex.C-2, pertaining to allotment of plot situated in Sector-
109. However, as the complainant was interested to have plot in Sector 105, so he refused to sign the said agreement and, after Consumer Complaint No.944 of 2018 3 retaining a copy thereof, returned the original agreement to the opposite parties. They agreed to allot a plot in Sector 105, with an assurance to send fresh allotment letter and agreement. The complainant further paid ₹1,72,500/- to the opposite parties, vide receipt dated 19.06.2017 Ex.C-3. The opposite parties sent a letter allotting plot No.411 in 'Augusta Greens' in Sector 109 to the complainant. He was asked to put signatures on provisional allotment letter, along with two copies of agreement and stamp papers. However, the complainant did not do so, as he was not interested in having plot in Sector 109. There was no payment plan/schedule agreed between the parties, but the opposite parties kept on demanding payment of instalments, in violation of provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). However, the complainant paid further instalment of ₹1,72,500/-, vide receipt dated 20.09.2007, Ex.C-4. The opposite parties further raised demand of ₹3,45,000/-; which was paid vide receipt dated 27.12.2007, Ex.C-5, after the assurance was given to allot plot in Sector 105. They again sent a demand letter dated 06.10.2018 along with payment schedule, ignoring the fact that no agreement had been executed between the parties. The complainant kept on approaching them time and again and after various meetings, the opposite parties sent a negotiable instrument amounting to ₹17,25,000/- in the name of the complainant, but the same was never received by him. The complainant sent detailed letter dated 06.10.2018, along with his wife Ranjana Rawat and her friend namely Rainoo Dhar and, who also purchased residential plots in the project of Consumer Complaint No.944 of 2018 4 the opposite parties. In that letter, the complainant again raised issue of allotment of plot in Sector 109, instead of Sector 105 and non- execution of agreement and requested them to restore the allotment and reallocate the plot. Meetings were held with Company officials, who assured the complainant about restoration of the plots subject to condition of depositing two cheques worth ₹25,00,000/- each on account of balance instalments. That letter was neither replied by the opposite parties, nor any agreement was executed qua allotment of plot in Sector 105. Later on, the complainant came to know from similarly situated allottees that entry points of Sector 109, in which the plot allotted to the complainant was situated, were sealed by the Forest Department of Govt. of Punjab; as per information obtained under RTI Act, vide letter dated 05.05.2019. This fact is also evident from letter dated 15.04.2015. Various other letters, supplying information obtained under RTI Act, have been mentioned in the complaint, which would be discussed in later part of the order. It was further pleaded that the opposite parties wrote letter dated 27.06.2012 to PUDA, stating that the work was not complete in Sector 109. Even no Completion Certificate has been obtained by the opposite parties. No approval was obtained by them for providing electricity till 26.02.2015. Thus, the opposite parties are not in a position to deliver physical possession of the plot, which was to be delivered latest by the year 2009/2010, as per the agreement. The aforesaid act and conduct of the opposite parties amount to deficiency in service. Hence, the present complaint.
Consumer Complaint No.944 of 2018 5Defence of the Opposite Parties
3. Upon notice, the opposite parties appeared through counsel, but failed to file reply to the complaint within the stipulated period of 45 days, as per provisions of the Act. Hence, right of the opposite parties to file reply was closed, vide order dated 07.05.2019. The opposite parties challenged that order before the Hon'ble National Commission, by way of First Appeal No.911 of 2019, in which operation of that order was stayed and the complaint was being adjourned for awaiting further orders of the Hon'ble National Commission. Ultimately, vide order dated 09.01.2020 passed in aforesaid appeal, the Hon'ble National Commission allowed the opposite parties to file reply to the complaint, subject to payment of ₹20,000/- to the complainant within 4 weeks. As per order dated 28.01.2020 passed by this Commission, the said amount was paid by the opposite parties to the complainant, by way of cheque dated 22.01.2020 and reply to the complaint was filed.
4. In the reply, the opposite parties raised preliminary submissions/objections that the complainant does not fall under the definition of 'consumer' as defined in Section 2 (d) of the Act, as the plot was purchased by him for commercial/speculative purposes. The wife of the complainant also purchased a plot from the opposite parties, for which another CC No.943 of 2018 has been filed. Hence, purchase of multiple plots is deemed to be for investment/speculative purpose. The complaint is time barred, having been filed beyond two years of alleged cause of action i.e. 08.05.2007 when the allotment was made and he did not raise any protest. This Commission has no Consumer Complaint No.944 of 2018 6 pecuniary jurisdiction to decide the complaint, as the claim amount together with interest and compensation exceeds ₹1 Crore. The territorial jurisdiction of this Commission is also barred, as the registered office of the opposite parties is situated at New Delhi. The complainant has approached this Commission with unclean hands, by not disclosing real facts and misrepresenting the material facts. Thus, he is guilty of suppressio veri and suggestio falsi. He has not concealed the fact that he did not pay remaining instalments nor executed the agreement despite repeated reminders. The complainant is habitual defaulter and a sum of ₹18,94,104/- is outstanding as per SOA dated 15.01.2019. In parawise reply, similar pleas, as raised in preliminary objections, were reiterated. It was further pleaded that the complainant agreed to purchase the plot from the opposite parties, after being satisfied and having read all the terms and conditions of allotment. It was denied that the complainant was assured of allotment in Sector 105, Mohali Hills or that the possession would be delivered within two years of the booking date. In fact, it was well within his knowledge that allotment had been made in Sector 109, Mohali, vide letter dated 08.05.2007, but no protest or grievance was ever raised by the complainant regarding allotment in Sector 109. Accordingly, the agreement regarding allotment of plot in that Sector was sent to the complainant. It was denied that any violation of provisions of PAPRA was ever committed, as the opposite parties are exempted from provisions of PAPRA, vide notification dated 22.12.2006, Ex.OP-3. No meetings were held with the complainant, nor any assurance was given regarding allotment of plot in Sector 105. The complainant failed Consumer Complaint No.944 of 2018 7 to show dates of alleged meeting or to whom he met. It was further pleaded that the payment plan was also sent, along with the allotment letter and the complainant made payments without lodging any kind of protest. This fact proves that he accepted the terms and conditions of allotment and now he is estopped from claiming to the contrary. The question of sealing has no relevance, as the complainant has not signed any agreement nor made further payments. Despite the fact that Forest Department had sealed certain entry points, there is still adequate access to the project and plot of the complainant through a motorable road. As on the date of filing reply, no case was pending in Civil Court, Kharar; as the Civil Court, vide its order dated 03.11.2016, discharged the Company and the case stands closed. Moreover, vide letter dated 16.01.2018, the Forest Department has clarified that they have no objection, if Emaar MGF Land Ltd. develops their project of Integrated Township Special Education Zone and Wellness Zone on this land (approach land). Thus, there is no issue of sealing, nor any such is pending anywhere. The opposite parties have all the requisite approvals and they have offered possession of plots to 1500 allottees upon completion of all amenities; who have also got registered their units. All the amenities at the site are complete and they have also obtained 'Partial Completion Certificate', Ex.OP/6, from the competent authority on 16.10.2015, which includes the area, where the plot of the complainant is located. The plot is possessionable, but since the complainant is a defaulter and has not signed the agreement, so possession has not been offered to him. Contents of Para-15 of the complaint, regarding sending negotiable instrument of ₹17,25,000/-, Consumer Complaint No.944 of 2018 8 were denied to be false and baseless. It was further pleaded that the information was illegally obtained by the complainant from Government Departments. The same has not been provided by the State Public Information Officer, as mandated by RTI Act. Thus, the same cannot be relied upon. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
5. Rejoinder to the reply was filed, in which averments of the complaint were reiterated and pleadings of the reply filed by the opposite parties were controverted.
Evidence of the Parties
6. To prove his claim, the complainant filed his own affidavit, along with copies of documents i.e. provisional allotment letter dated 08.05.2007 Ex.C-1, Plot Buyer's Agreement Ex.C-2, payment receipts/cheques Ex.C-3 to Ex.C-5, letter dated 06.10.2008 Ex.C-6 (colly.), letter posted on 06.10.2018 Ex.C-7, letter dated 01.04.2015 Ex.C-8 (colly.), letter dated 15.04.2015 Ex.C-9, letter dated 29.04.2014 Ex.C-10 (colly.), letter dated 11.03.2015 Ex.C-11 (colly.), letter dated 29.02.2008 Ex.C-12, letter dated 21.10.2011 Ex.C-13 (colly.), letter dated 13.02.2012 Ex.C-14 (colly.), letter dated 31.02.2013 Ex.C-15 (colly.), letter dated 24.12.2010 Ex.C-16(colly.), letter dated 27.06.2012 Ex.C-17 (colly.), letter dated 29.04.2015 Ex.C-18 (colly.), notification dated 02.09.2014 Ex.C-19, letter dated 30.06.2014 Ex.C- 20 (colly.), letter dated 16.09.2015 Ex.C-21 (colly.), letter dated 26.02.2015 Ex.C-22 (colly.), letter dated 11.03.2015 Ex.C-23 (colly.) and letter dated 14.12.2016 Ex.C-24.
Consumer Complaint No.944 of 2018 9
7. The opposite parties, in support of their defence, filed affidavit of Sh. Subrat K. Pradhan, along with copies of documents i.e. resolution dated 05.12.2017 Ex.OP/1, payment notices/reminders Ex.OP/2 (colly.), notification Ex.OP/3, order dated 03.11.2016 Ex.OP/4 (colly.) and letter dated 16.01.2018 Ex.OP/5 (colly.). Contentions of the Parties
8. I have heard learned counsel for the parties and have gone through written arguments submitted on their behalf as well as record carefully.
9. The written arguments submitted on behalf of the complainant are on the lines of the complaint. It was further contended that the complaint is within pecuniary and territorial jurisdiction of this Commission. The opposite parties allotted plot to the complainant in Sector 109, Mohali, whereas he intended and applied for allotment of plot in Sector 105. No agreement was executed by them, despite receipt of more than 25% of total sale price of the plot, which amounts to violation of provisions of PAPRA. No payment schedule was ever agreed between the parties. They several times sent copies of agreement to sign and execute the same, mentioning allotment of plot in Sector 109, but as the same was not suitable to the complainant, so he did not sign the same and returned it to them. The opposite parties informed the complainant about cancellation of the plot, despite there was no default on his part. Immediately, the complainant wrote letter dated 06.10.2018 Ex.C-6, requesting the opposite parties to restore the allotment of plot and he was ready to pay the balance payments without accumulated interest, but nothing was done. Thus, the Consumer Complaint No.944 of 2018 10 opposite parties are liable to pay interest on the deposited amount, as it was used by them for so many years. There was no default in making payment of price of the plot and cancellation of unit without giving any notice is also illegal. It was further contended that the requisite permissions and sanctions were not obtained by the opposite parties, before setting up the said project. As per information obtained under RTI, vide letter dated 29.04.2014, the opposite parties failed even to apply for water, sewerage, electricity etc. There is no connectivity of roads to main city; which is delayed due to Court case. No basic amenities have been obtained at the site and the opposite parties also failed to obtain Completion and Occupation Certificates. The final layout plan of the project of the opposite parties was approved only on 31.01.2013, whereas they collected huge amounts from various buyers much prior to that. The deficiency in service on the part of the opposite parties has been clearly proved and, as such, the complaint is entitled to all the reliefs, as prayed for in the complaint. In support of his contentions, learned counsel for the complainant relied upon following cases:
i) Karun Malhotra & Anr. v. M/s IREO Grace Realtech Pvt. Ltd.
CC No.220 of 2019, decided by the Hon'ble National Commission vide order dated 06.03.2020;
ii) Renu Khanna v. M/s Emaar MGF Land Private Limited CC No.73 of 2018 decided by State Commission, U.T. Chandigarh, vide order dated 24.09.2019;
iii) Kiran Joshi v. S.M.V. Agencies Pvt. Ltd. II (2019) CPJ 461 (NC);
iv) M/s TDI Infratech Ltd. v. Sundeep Singh Gulati F.A. No. 582 of 2019, decided by Hon'ble National Commission, vide order dated 08.07.2019;
Consumer Complaint No.944 of 2018 11
v) Kulwant Singh v. Emerging India Housing Corporation Pvt.
Ltd. CC No.765 of 2018, decide by this Commission, vide order dated 26.11.2019; and
vi) Abdul Hafiz v. Greater Mohali Area Development Authority CC No.1022 of 2018, decide this Commission, vide order dated 17.06.2020.
10. The written arguments submitted on behalf of the opposite parties are also on the lines of the reply filed by them. It was further contended that the complainant failed to execute the agreement, which was sent to him in the year 2007. He made payments in June, September and December, 2007 without lodging any protest for allotment of plot in Sector 109 and, as such, the grievance pertaining to year 2007 cannot be redressed by filing the complaint in the year 2018 and, as such, the complaint is time barred. No application has been filed by him for condonation of delay. It was further contended that the complainant failed to pay the due instalments, as demanded from time to time. All the amenities at the site are complete and the opposite parties have also obtained 'Partial Completion Certificate', Ex.OP/6, from the competent authority on 16.10.2015, which includes the area, where the plot of the complainant is located. The possession is ready, but since the complainant is a defaulter and has also not signed the agreement, so possession has not been offered to him. Thus, the complaint is liable to be dismissed for want of any cause of action and being barred by law.
Consideration of Contentions
11. I have given my thoughtful consideration to the respective contentions raised by the learned counsel for the parties. Consumer Complaint No.944 of 2018 12
12. First of all, I would like to deal with the objection of the opposite parties that the complainant purchased the plot, in question, for commercial purpose and, thus, he does not fall under the definition of 'consumer'.
13. In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties on record to prove that the complainant is indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale/purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale/purchase of properties and that he booked the plot, in question, for further sale or for earning profits. Accordingly, the above said Consumer Complaint No.944 of 2018 13 objection of the opposite parties is rejected and the complainant is held to be 'consumer', under the Act.
14. So far as the next objection of the opposite parties regarding territorial jurisdiction, is concerned, it needs to be mentioned that the project of the opposite parties, in which the plot, in question, is located, is situated in Sector 109, S.A.S. Nagar, Mohali (Punjab). Moreover, jurisdiction is conferred by the Statute and not by mutual arrangement by parties. Still further, Hon'ble National Commission (Polymech Plast Machines Ltd. and Anr. v. Apple Plast Pvt. Ltd.) IV (2006) CPJ 172(NC) held that any such clause restricting the jurisdiction to one of the District Forums/State Commissions is contrary to Section 11(2) of the Consumer Protection Act, 1986. Accordingly, the above said objection raised by opposite parties is also rejected, holding that this Commission has territorial jurisdiction to entertain and decide this complaint.
15. So far as the other objection of the opposite parties regarding pecuniary jurisdiction, is concerned, it is needs to be mentioned that the basic sale price of the plot, in question, is ₹36,19,104/-. The complainant has claimed refund of the amount of ₹17,25,000/-, along with interest at the rate of 15% per annum, besides compensation of ₹2,00,000/- and litigation expenses of ₹1,00,000/-. Therefore, entire relief claimed in the complaint does not exceed ₹1 Crore. Thus, in view of the ratio of the law laid down by the Hon'ble National Commission in I (2017) CPJ 1 (NC) (AMBRISH KUMAR SHUKLA & 21 ORS. v. FERROUS INFRASTRUCTURE PVT. LTD), the pecuniary jurisdiction of this Commission is not barred. Consumer Complaint No.944 of 2018 14 The objection raised by the opposite parties in this regard is baseless and the same is also rejected as such. So far as plea of opposite parties regarding limitation is concerned, since neither the possession of the plot has been delivered, nor the amount deposited by the complainant has been refunded, so there is continuous cause of action in favour of the complainant.
16. Now, coming to merits of the case, admittedly, the complainant applied for allotment of a residential plot in the above noted project of the opposite parties and, vide provisional allotment letter dated 08.05.2007, Ex.C-1, he was allotted plot No.411, having approximate area of 300 sq.yds. in Sector 109, Mohali, for total sale consideration of ₹34,50,000. In addition to it, ₹1,69,104/- were payable towards EDC. The opposite parties sent 'Plot Buyer's Agreement', Ex.C-2, to the complainant, but the complainant refused to sign/execute the same, on the ground that he had opted for allotment of plot in Sector 105, but the same was allotted in Sector 109 by the opposite parties, unilaterally. It is alleged that after retaining copy thereof, original agreement was returned to them. The complainant requested the opposite parties several times to allot plot in Sector 105, but to no effect. The complainant deposited a total sum of ₹17,25,000/- as is evident from Statement of Account, Ex.C-6 (colly.). It needs to be mentioned that no agreement has been executed in this case, despite receipt of more than 25% of the sale price of the plot. Section 6 (1) of PAPRA is reproduced as under:
6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are Consumer Complaint No.944 of 2018 15 to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five percent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908).
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots."
17. Perusal of above reproduced Section 6 (1) of PAPRA shows that before accepting 25% of the sale price, the builder/developer shall enter into a written agreement for sale of the property with the buyer. However, the opposite parties failed to enter into any agreement for sale of the plot, in question, with the complainant, despite receipt of huge amount of ₹17,25,000/- Thus, they committed violation of Section 6 (1) of PAPRA by receiving the above said huge amount from the complainant, without entering into any agreement for sale of the plot.
18. The opposite parties pleaded that the complainant defaulted in making due payments and various demand letters were sent to him in this regard. It needs to be mentioned that no specific agreement has been executed in this case and, as such, there are no certain terms and conditions of allotment. However, it is a matter of common knowledge that possession of the plot is required to be delivered within a reasonable period of three years from the date of allotment/agreement. In the present case, the provisional allotment letter, Ex.C1, was issued on 08.05.2007. Thus, the possession was to be delivered up to 08.05.2010. However, the opposite parties failed to Consumer Complaint No.944 of 2018 16 deliver possession of the plot, complete in all respects, with all the basic and agreed amenities within that period. The opposite parties alleged that possession is ready and all the amenities have been provided by them in the project, but since the complainant did not execute the agreement, nor paid remaining sale consideration despite sending demand letters, so the possession was not offered. However, the opposite parties have not led any cogent and convincing evidence to prove that the plot/project, in question, is complete in all respects, along with agreed basic amenities.
19. As per letter dated 05.05.2015, Ex.C-8 (colly.), information sought by one Sh. Baljit Singh under RTI Act was supplied to him by Deptt. of Forest and Wild Life Sanctuary, Punjab. From this letter, it is clear that the entry point of the project of M/s Emaar MGF Land Ltd. for Sectors 105, 108 and 109 had been closed by the Forest Department by thorny fencing wire and digging the trenches, as the user agency had not obtained the requisite permission from the Government of India for use of land of Forest Department under FCA 1980 for the paths. It is further mentioned therein that the case regarding paths in Sector 109 was pending adjudication since 03.07.2012 before the Civil Court, Kharar, for violation of IFA-1927 under Sections 29, 33 and 63 of IFA, 1927. As per letter dated 15.04.2015, Ex.C-9, it is clear that opposite parties sought permission from GMADA for completion of six approaches from Kharar-Banur- Tepla Road; which was not yet completed. Perusal of letter dated 29.04.2014, Ex.C-10, shows that the sewerage treatment plant, water supply commissioning certificate, electricity supply commissioning Consumer Complaint No.944 of 2018 17 certificate and electricity grid station commissioning certificate had not been applied by the opposite parties.
20. As per letter dated 11.03.2015, Ex.C-11, information under RTI Act was supplied by GMADA to Sh. Ajit Singh Yubi, stating that no Completion Certificate was applied by the promoter for Sectors 98, 99, 105 and 109. From the letters dated 21.10.2011, 13.02.2012 and 31.02.2013, Ex.C-13 to C-15 also, it is clear that approval for revised layout plan of the project of the opposite parties was given, subject to compliance of various terms and conditions mentioned therein, but there is no evidence produced by the opposite parties to prove that they have complied with those terms and conditions. Further, perusal of letter dated 24.12.2010, Ex.C-16, shows that the opposite parties sought renewal of NOC from Punjab Pollution Control Board. However, it is clear from this letter that the Sewerage Treatment Plant (STP) had not yet been installed. Further, perusal of letter dated 30.06.2014, Ex.C-20, shows that not even a single permanent domestic connection had been released in Sector 109 from the year 2007 to 2014, nor any amount had been deposited by the opposite parties for securing such connections. The total load of 21023 KW had been sanctioned in Sectors 105, 108 and 109, but since Emaar MGF had yet to deposit the amount of Bank Guarantee, so no such load had been released. Still further, as per letter dated 16.09.2015, Ex.C-21 (colly.), the opposite parties had applied for issuance of Completion Certificate; which was not issued and the same was under
consideration. Other documents produced by the complainant also Consumer Complaint No.944 of 2018 18 show that the project of the opposite parties was lacking in many respects.
21. From above discussed evidence, it is clear that the project of the opposite parties was not complete, in all respects even up to 16.09.2015 and, as such, the complainant was justified in withholding remaining instalments on account of non-development at the site. The opposite parties also failed to prove that the requisite approvals and sanctions have been obtained by them from the competent authorities from the competent authorities, before launching the project.
22. As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such project is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, they failed to comply with Section 3 of the PAPRA.
23. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such valid permission. So, they also violated Section 5 of PAPRA.Consumer Complaint No.944 of 2018 19
24. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/commercial space/unit, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
25. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
The Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite parties, with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that they made false statement of facts about the goods and services i.e. allotment of unit and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the Consumer Complaint No.944 of 2018 20 possession of the plot/unit/flat/space within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the unit booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus, by misrepresentation induced the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities.
26. The complainant alleged that the refund cheque of ₹17,25,000/- was sent by the opposite parties, but the same was never received by him. However, the opposite parties have specifically denied the averment of the complainant qua sending of refund cheque of said amount. In the absence of any evidence, it cannot be believed that refund cheque of that amount was ever sent to the complainant. Since it has been abundantly proved that the project of the opposite parties is not complete in all respects and even there is no passage and the same has been sealed by the Forest Department, so the Consumer Complaint No.944 of 2018 21 complainant is entitled to the refund of the amount deposited by him, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA. Besides this, the complainant is also entitled to suitable litigation costs and other expenses.
27. In view of my above discussion, the complaint is partly allowed and following directions are issued to the opposite parties:
i) to refund ₹17,25,000/- deposited by the complainant, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹11,000/- as litigation costs and other expenses.
28. The compliance of the order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order.
29. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases as well as stay granted by the Hon'ble National Commission in the above noted appeal filed by the opposite parties.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 13, 2020.
(Gurmeet S)