State Consumer Disputes Redressal Commission
Joginder Singh Minhas vs Pearls Infrastructure Projects Ltd. on 11 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No. 128 of 2016
Date of Institution : 22.04.2016
Order Reserved on : 09.01.2018
Date of Decision : 11.01.2018
1. Joginder Singh, Minhas s/o Sh. Dharam Singh, r/o J.P
Enterprises, Plot No. 153, Industrial Area, Phase-2,
Chandigarh.
2. Pushpa Minhas w/o Joginder Singh Minhas, r/o J.P
Enterprises, Plot No. 153, Industrial Area, Phase-2,
Chandigarh.
....Complainants
Versus
1. Pearls Infrastructure Projects Ltd., SCO 6, Sector 69, Mohali
through its Managing Director/Authorized Signatory.
2. Axis Bank Limited, SCO 134-135, Sector 34-A, Chandigarh,
through its Managing Director/Authorized Signatory.
...Opposite parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. S.S.Gill, Advocate For opposite party no.1 : Ex-parte For opposite party no.2 : Sh. Deepak Jain, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that they booked a residential plot for their Consumer Complaint No.128 of 2016 2 personal use measuring 320 sq. yards for basic sale price of Rs.76,80,000/- in Pearls City Sector 100 Mohali, the township of OP no.1. They paid Rs.7,68,000/-, as booking amount, vide receipt no. 13363 dated 08.03.2011 and thereafter OPs allotted plot no.1759 to them on 08.03.2011. Subsequently, another amount of Rs.7,68,000/- was paid to OP on 30.04.2011. The buyer's agreement was executed between the parties on 26.05.2011. The complainants paid the payments to OP no.1, as detailed in para no. 2 of the complaint. The complainants also took a loan of Rs.15,00,000/- from Axis Bank/OP no.2 for payment of the said plot and paying regular EMIs for repayment of the loan. As per clause 10 of the buyer's agreement, the OP was to deliver the possession of the plot within three years from the date of executing the buyer's agreement i.e. 26.05.2011. The complainants have made the payments of more than 95% amount towards the consideration of the said plot. The OP till date has not delivered the possession of the plot to them and there was delay of almost two years from the stipulated date for delivery of possession i.e. 26.05.2014. As per notification dated
02.09.2014, the developer can offer the possession only, if they have obtained partial/full completion certificate of the project. According to Section 14(ii) of PAPRA Act 1995, the promoter has to obtain a completion certificate of the colony from the competent authority. The said certificate can only be issued, if the developer has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, Consumer Complaint No.128 of 2016 3 roads etc. to the satisfaction of GMADA. The OP no.1 is still to get the completion certificate from the competent authority and it has not completed all the development work on the site. The complainants were promised to be provided the club facility in Sector 100 as per brochure, but OP no.1 has charged the club membership charges in advance, whereas according to Clause 18 of the agreement, it was sole discretion of the complainants to become member of the club and they were not given the option to exercise this discretion. Later on, it was told to them that Sector 100 and Sector 104 would have common club and said club was developed in Sector 104, which would also take time to be completely built. The club facility has still not been developed in Sector 104 as well. Moreover, later on the complainants were also told that the water tank supplying water to Sector 100 would be built in Sector 104 and it would be catering to Sector 100 and 104 respectively. Moreover, sewage treatment plant has not yet been started in Sector 100 Mohali by OP no.1. The promise of high tech 24x7-security promise, as per brochure was also not genuine. No water works arrangement has been constructed in Sector 100 Mohali. There were no transformers and feeders installed in the said township as well. The time given by PUDA to OP no.1 to complete the project has already elapsed six months ago. The OP no.1 charges 18% per annum on account of delay in making payments for the plot, but the buyers agreement does not contain a penalty clause in regard to handing over the possession of the plot. The possession of the plot has already been Consumer Complaint No.128 of 2016 4 delayed by almost two years and site of the project has not been developed, as per promises made by OP in their brochure. Therefore, they prayed that OP no.1 be directed to refund the total amount of Rs.73,34,605/- paid to OP no.1 by complainants along with interest @ 18% p.a. from the date of deposits till realization, Rs.3 lac as compensation for mental harassment and Rs.1,00,000/- as costs of litigation.
2. OP no.1 was set exparte by this Commission, vide order dated 21.07.2016.
3. Upon notice, OP no.2 appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is not maintainable. On merits, it was averred that the answering OP has prior right over the liquidity of the plot in question and complainant's can take any refund from OP no.1 only after clearing the loan account no. PHR004100367080 with OP no.2. Any deficiency in service was denied by OP no.2 on its part and it prayed for dismissal of the complaint.
4. The complainants tendered in evidence affidavit of Joginder Singh Minhas Ex.C-A, affidavit of Pushpa Minhas Ex.C-B along with copies of documents Ex.C-1 to Ex.C-7 and closed the evidence. OP no.1 has been set exparte in this case. As against it; OP no.2 tendered in evidence affidavit of Ms. Megha Ahluwalia Manager of M/s Axis Bank Limited Ex.OP-2/A along with copies of documents Ex.R-2/1 to Ex.R-2/5 and closed the evidence. Consumer Complaint No.128 of 2016 5
5. We have heard learned counsel for the parties, as OP no.1 is exparte in this case, and have also examined the pleadings and evidence of the parties on the record. The complainants seek refund of their deposited amounts with OP no.1 on the ground that they failed to carry out any development work in the project and thereby failed to deliver the possession of the allotted plot to them within scheduled time. OP no.1 is main contestant in this case and has been set exparte, whereas OP no.2 is only financer bank of the complainants in advancing loan to OP no.1 on behalf of the complainants. Considering the pleadings of the parties, we have examined the evidence on the record. Joginder Singh Minhas tendered in evidence his affidavit Ex.C-A and similarly complainant no.2 Pushpa Minhas tendered in evidence her affidavit Ex.C-B on the record. It has been proved by above witnesses in their testimonies that they booked plot with OP no.1 by paying booking amount of Rs. 7,68,000/-, vide receipt no. 13363 dated 08.03.2011. Plot no. 1759 was allotted to them on 08.03.2011 and allotment letter was also issued. It has also transpired in their testimonies that they deposited the amounts with OP no.1, as noted below :-
Sr.No. Receipt No. Date Amount (Rs.)
1 15973 17/06/2011 Rs.7,68,000/-
2. ---- 27/09/2011 Rs.5,76,000/-(paid by Axis Bank)
3. ---- 15/12/2011 Rs.5,76,000/-(paid by Axis Bank)
4. ---- 19/03/2012 Rs.2,73,000/-(paid by Axis Bank)
5. 21955 26/03/2012 Rs.3,41,605/-
6. 23829 26/06/2012 Rs.5,76,000/-
7. 25672 28/09/2012 Rs.3,84,000/-
8. 27216 18/12/2012 Rs.3,84,000/-
9. 28861 02/04/2013 Rs.3,84,000/-
10. 31265 09/10/2013 Rs.3,84,000/-
Consumer Complaint No.128 of 2016 6
11. 31725 20/11/2013 Rs.3,84,000/-
12. 32423 30/01/2014 Rs.3,84,000/-
13. 33325 15/04/2014 Rs.3,84,000/-
They have proved that they obtained loan from OP no.2/Bank for Rs.15 lac for its disbursement to OP no.1 on their behalf. As per Clause 10 of buyers agreement, the possession was agreed to be delivered within three years from the date of execution of agreement on 26.05.2011 to them. They further proved this fact in their respective testimonies that they paid more than 95% of the sale amount to OP No.1. OP No.1 builder has not obtained any completion certificate, as mandated by Section 14 (2) of PAPRA Act 1995 from the competent authority. The said certificate can only be issued, if the builder has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads etc to the satisfaction of GMADA. It has appeared in their evidence on the record that OP no.1 agreed to charge for club membership, as provided in the brochure and as per Clause 18, it was merely optional for complainants to become a member of the club. OP no.1 charged it compulsorily from complainants and failed to develop club in Sector 104. Only common club would be provided for both Sectors 100 and 104 by OP no.1 to the allottees against the commitment. Even water tank would be built in Sector 104, which would further cater to the requirements of residents of Sectors 100 and 104 jointly. Sewage treatment plant has not yet been operationlized in Sector 100 and only sewage treatment plant of Sector 104 has been catering to Sector 100, which is also in Consumer Complaint No.128 of 2016 7 a bad shape. OPs misrepresented in the brochure to provide high- tech 24x7 security promise to the people. The community center is also in a deplorable state, without any street light therein. Even transformer and feeders are not installed in the said township. Only powerhouse of Sector 104 is to cater to Sector 100 for the time being. OP no.1 has failed to complete the basic amenities in the project, as enumerated above. This fact has been proved on the record by above referred complainants in their respective affidavits on the record. Allotment letter is Ex.C-1 dated 08.03.2011 allotting plot no. 1759 of 320 sq. yards for basic sale price of Rs. 76,80,000/- to complainants. Buyer's agreement was executed between the parties on 26.05.2011. Scheduled period has already expired, as agreed upon between the parties to deliver the possession, but OP no.1 failed to deliver the possession complete in all respects to complainants. The complainants have made the payment of more than 95% to OP no1 out of the sale price, but OP no.1 has yet not obtained completion certificate as enjoined by Section 14 (2) of PAPRA Act 1995 for this project, which fact is proved on the record, vide information supplied under RTI Act pursuant to information sought by one Mohan Dutt with regard to Sector 100 Mohali. It is, thus, clear as per information no. 3229 dated 10.09.2015 that completion certificate has not yet been applied for by OP no.1 to the competent authority. Even no such completion certificate, as contemplated by Section 14 PAPRA Act of has been brought on record by OP no.1. It is, thus, clear from perusal of record that OP Consumer Complaint No.128 of 2016 8 no.1 received 95% consideration amount from the complainant for this project, which fact is evident from the receipts Ex.C-3 (colly) on the file. OP no.1 failed to develop the project by providing basic amenities, as evidence of the complainants on this point has gone un-rebutted on the record. OP no.2 is only financer of the complainant, which has financed loan of Rs.15 lac to complainants for its payment to OP no.1. This fact is evident from perusal of home loan agreement Ex.R-2/1 between complainants and OP no.2. Ex.R- 2/A is affidavit of Megha Ahluwalia Manager M/s Axis Bank Limited /OP no.2. Ex.R-2/2 is letter dated 26.09.2011 addressed to Axis Bank Ltd. Ex.R/3 is affidavit of Joginder Singh son of Sh. Dharam Singh. Ex.R/4 is statement of account for disbursement of loan amount and Ex.R/5 is foreclosure letter dated 08.07.2016. OP no.2 has, thus, first charge over the amounts advanced by it as loan to OP no.1 on behalf of the complainant.
6. From perusal of the buyer's agreement Ex.C-2 on the record, it is evident that PACL Ltd is also promoter of this project and has got an interest in the project. As per order of Hon'ble Apex Court in Civil Appeal no. 13301 of 2015 titled as Subrata Bhattacharya Vs. Securities & Exchange Board of India that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M Lodha, the former Chief Justice of India, has Consumer Complaint No.128 of 2016 9 been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the incharge of funds collected and shall have liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc, wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited herein this case, PACL Limited is also a party to buyers agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case, as per direction of the Hon'ble Supreme Court for recovery of the amounts or sale of property of PACL Ltd for satisfaction of the refund amounts.
7. As a result of our above discussion, on account of deficiency in service of OP no.1, the complaint is accepted exparte against OP no.1 and complainants are held entitled to refund of the amounts deposited by them with OP no.1 along with interest @ 12% p.a. from the date of deposits till their actual payment. The complainants are also held entitled to compensation of Rs.1,50,000/- for mental harassment and exemplary damages for unfair trade practice. The complainants are also awarded Rs.30,000/- as costs of litigation. Recovery shall be effected by complainants through SEBI Committee in case the interest of PACL Ltd in the property, if any, is Consumer Complaint No.128 of 2016 10 established. OP no.2 shall have first charge over the amounts for clearance of loan amount taken by complainants from it.
8. Arguments in this complaint were heard on 09.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 11, 2018 (ravi)