State Consumer Disputes Redressal Commission
Rachna Kapoor vs M/S Geetu Construction Pvt. Ltd. on 5 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.38 of 2016
Date of institution : 05.02.2016
Date of decision : 05.04.2017
1. Rachna Kapoor wife of Sh. Rajiv Kumar;
2. Anita Kapoor wife of Sh. Sandeep Kapoor;
Both residents of House No.28, Basant Avenue, Makbool Road,
Amritsar.
....Complainants
Versus
1. M/s Geetu Construction Pvt. Ltd., having its Office at # 1510,
Sector 22, Chandigarh, through its Managing Director/Principal
Officer.
2. M/s Nature Farms and Real Estates Private Limited, having its
office at Nature Height Infra Limited, B.O., 10, Deep Complex,
Court Road, Basement, opposite Dwaba Auto, A.G. Power,
Amritsar.
IInd Address:
Having its office at Street No.9, Sunder Nagri, Hanumangarh
Road, Abohar, Punjab, through partners/owners Neeraj and Dolly
and Doda Farm House, Ram Sarai, Abohar.
3. Anoop Sobti son of Vipan Kumar, resident of H.No.193, Gali
No.4, Nimla Avenue, Narayangarh Chhehratta, Amritsar.
4. Neeraj Kumar son of note known, partner/owner M/s Nature
Farms and Real Estates Private Limited, having its office at
Nature Height Infra Limited, B.O., 10, Deep Complex, Court
Road, Basement, opposite Dwaba Auto, A.G. Power, Amritsar.
IInd Address:
Doda Farm House, Ram Sarai, Abohar.
5. Dolly Arora wife of Neeraj Arora, Partner/Owner M/s Nature
Farms and Real Estates Private Limited, having its office at
Nature Height Infra Limited, B.O., 10, Deep Complex, Court
Road, Basement, opposite Dwaba Auto, A.G. Power, Amritsar.
IInd Address:
Doda Farm House, Ram Sarai, Abohar.
....Opposite Parties
Consumer Complaint No.38 of 2016 2
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the complainant : Ms. Rakhi Sharma, Advocate For opposite parties No.1,2,4 &5: Ex parte For opposite party No.3 : Sh. Anoop Sobti, in person. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986.
2. Brief facts, as set out in the complaint, are that in the year 2012-13, opposite party No.2 got published advertisement, offering plot for sale in Sector 113, Mohali under the name of "NHI Heritage". Being allured by the said advertisement, the complainants along with their husbands approached the office of opposite party No.1 and parted away with two cheques amounting to ₹5,20,000/- each, total amounting to ₹10,40,000/- in the name of opposite party No.2, Ex.C-1 and Ex.C-2. Opposite party No.2 issued confirmation letter dated 08.10.2012 in the form of booking intimation, along with receipt. Thereafter, the complainant another sum of ₹13,00,000/- by way of second instalment, which was deposited in the account of opposite party No.2 i.e. Punjab National Bank, Amritsar. Thereafter, opposite parties No.1 & 2 executed Agreement to Sell in favour of the complainants on 04.02.2013, for sale of plot no.77, measuring 1800 sq.ft. (200 sq.yds.) for a total sale consideration of ₹52,00,000/- at the rate of ₹2,888.89P per sq.ft. Few months back, when the complainants visited the opposite parties for taking possession of the plots, no Consumer Complaint No.38 of 2016 3 satisfactory reply was given by the opposite parties. On inquiry, the complainants came to know that the opposite parties have sold the land, where the above plot was promised to be delivered, to some other company. The complainants were dealt with by opposite parties No.1 & 2, through their Sales Manager, opposite party No.3-Anoop Sobti, who gave an affidavit dated 20.08.2014 to them, explaining all the circumstances. The officials of opposite parties No.1 & 2 told the complainants that the plot promised to be sold to them has already been sold and they can purchase any other plot. However, the property, which the opposite parties offered, was not worth purchasing or upto the mark and, as such, the complainants requested the opposite parties either to return their money or give the same plot, which was earlier promised, but they refused to so. The complainants have already filed a complaint under Section 156(3) Cr.P.C. against the opposite parties, for taking criminal action against them. The opposite parties have cheated a number of persons, including the complainants, as they grabbed huge amounts from the buyers, without bothering to deliver possession of the plots. In fact, they have no licence to promote or develop the colony, as per the advertisement. The Agreement to Sell, so executed between the parties, is not as per the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). The complainant also moved representation dated 01.8.2014 to SSP, SAS Nagar, Mohali to take legal action against the opposite parties, but no action was taken. As such, they were compelled to approach the Hon'ble Punjab & Haryana High Court in CRM-M-31610 of 2013 to issue directions to State to take Consumer Complaint No.38 of 2016 4 appropriate legal action against the opposite parties. However, the Hon'ble High Court, vide its order dated 29.05.2015, directed the complainants to approach the appropriate Court, by moving complaint under Section 156 (3) Cr.P.C. So, this complaint has been filed. The opposite parties are not owners of the land, where they agreed to sell the plot to the complainants and, thus, cheated them. The complainants served legal notice dated 04.01.2016 upon opposite parties No.1, 2, 3 and 4, requesting to refund the amount of ₹23,40,000/-, along with interest at the rate of 12% and compensation, but no reply has been received. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has sought following directions to them:
i) to refund ₹23,40,000/-, along with upto date interest at the rate of 12% per annum;
ii) to pay ₹5,00,000/-, as compensation on account of harassment, inconvenience and financial loss suffered by the complainants;
and
iii) to pay ₹33,000/-, as costs of litigation.
3. Upon notice, opposite parties No.1,2, 4 & 5 did not appear before this Commission, despite service and were proceeded against ex parte. Opposite party No.3 appeared in person, but he did not file any reply to the complaint.
4. To prove their claim, the complainants tendered their affidavits as Ex.C-A and Ex.C-B, as well as affidavit of Sh. Sandeep Kapoor Ex.C-C, along with documents Ex.C-1 to Ex.C-14. On the other hand, opposite party No.3 tendered his affidavit Ex.OP-A. Consumer Complaint No.38 of 2016 5
5. We have heard learned counsel for the complainants, opposite party No.3, in person, and have gone through the record carefully.
6. Learned counsel for the complainants vehemently contended that the opposite parties No.1 & 2 agreed to sell plot no.77, measuring 1800 sq.ft. to the complainants for ₹52,00,000/- and executed Buyer's Agreement dated 04.02.2013 Ex.C-7. The complainants deposited a sum of ₹23,40,000/- with them towards price of the plot. However, on visiting the site, the complainants came to know that another company has started its project on the land, in which the plot was promised to be sold by the opposite parties to them. In fact, the opposite parties have sold the aforesaid land to some other company. They offered some other plot, which was not worth purchasing and upto the mark. The complainants were being dealt by opposite parties No.1 & 2 through opposite party No.3. The opposite parties have neither delivered possession of the allotted plot nor refunded the money deposited by the complainants. Hence, they are entitled to the refund of the amount deposited by them, along with interest and suitable compensation.
7. Sh. Anoop Sobti, opposite party No.3, in person, contended that he is not at all responsible, as there is no deficiency in service on his part. He is working only as an employee of opposite party No.2 and was dealing with the complainants only on its behalf. All the payments were made by the complainants to opposite party No.2, who issued the receipts for the same. As soon as, opposite party No.3 came to know about the fraud committed by opposite parties No.2, he Consumer Complaint No.38 of 2016 6 immediately left its job. He prayed for dismissal of the complaint against him.
8. We have given thoughtful consideration to the contentions raised on behalf of the complainants and opposite party No.3.
9. Undisputedly, the complainants paid ₹10,40,000/-, by way of two cheques Ex.C-1 and Ex.C-2 each amounting to ₹5,20,000/- for purchasing plot No.77, measuring 1800 sq.ft., with opposite parties No.1 & 2 and Buyer's Agreement Ex.C-7 was executed on 04.02.2013 between the parties. The total sale consideration of the plot was ₹52,00,000/-, as per the Payment Chart Ex.C-5. They further deposited an amount of ₹13,00,000/- in the Bank account of the opposite party No.2, vide receipt dated 07.03.2013 Ex.C-6. Thus, in all they deposited ₹23,40,000/- with the opposite parties towards the sale price of the said plot. The complainants visited the site in question, but were shocked to find that some other company has started its project on the land, in which the plot was promised to be delivered to them. On inquiry, they came to know that opposite parties No.1 & 2 have sold the said land to some other company. On approaching opposite parties No.1 & 2, no satisfactory reply was received by the complainants. The opposite parties offered some other property, but the same was not worth purchasing and upto the mark. The complainants have produced affidavit of Anoop Sobti, opposite party No.3, Ex.C-8, in which it was specifically mentioned as under:
"4. That I have come to know that aforesaid firm has further sold the aforesaid plot for getting high valuable consideration without intimating to its owners named above to Consumer Complaint No.38 of 2016 7 which the Co. has got no right, title or interest to do so. The site plan provided by aforesaid concern is lying with the said Co. The vendors have got every right to get sale deed executed in their favour after making entire balance sale consideration."
Perusal of aforesaid affidavit of opposite party No.3, who was employees of opposite parties No.1 & 2, abundantly proves that opposite parties No.1 & 2 have sold the land, where the plot in question was allotted to the complainants, without giving any intimation to them. The complainants filed complaint under Section 156 (3) Cr.P.C. against the opposite parties before the Illaqa Magistrate, Mohali (Ex.C-13). They even sent complaint Ex.C-14 against the opposite parties to the SSP, SAS Nagar, Mohali for taking action against them.
10. It is pertinent to mention here that Sh. Anoop Sobti, opposite party No.3 has tendered his affidavit Ex.OP-A, in which he deposed that there is no deficiency in service on his part, as he was only an employee of opposite party No.2. He further deposed that all the payments, as mentioned in the complaint, were made in favour of opposite party No.2, who issued the receipts in his presence. He admitted that the deal, for purchase of the plot in question by the complainants from opposite parties No.1 & 2, was finalized through him and the complainants have deposited the amounts as mentioned in the complaint with opposite party No.2. He specifically deposed that the plot in question has been sold by opposite party No.2 to some other company. He also deposed that opposite party No.2 usually do Consumer Complaint No.38 of 2016 8 this practice with all the purchasers, which is only a method to cheat the innocent purchases by grabbing their hard earned money and due to that reason, he left the job of opposite party No.2.
11. We are of the view that opposite party No.3 was merely an agent of opposite parties No.1, 2, 4 & 5 and he is not responsible for the acts done by them. There is no deficiency in service on the part of opposite party No.3 and he cannot be held liable in any manner.
12. The case of the complainants has been sufficiently proved by way of aforesaid evidence produced on the record. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. In the present case, the opposite parties No.1,2, 4 & 5 have not appeared, despite service and were proceeded against ex parte. As such, the evidence adduced by the complainants remains unrebutted.
13. Keeping in view of the above circumstances, we hold that opposite parties No.1, 2, 4 & 5 have failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Consumer Complaint No.38 of 2016 9 Promoter) of the PAPRA, the opposite parties were required to 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, 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 colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with section 3 of the PAPRA.
14. As per section 5 (Development of land into Colony) of PAPRA, opposite parties No.1, 2, 4 & 5 were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission, as they were proceeded against ex parte. So, they also violated Section 5 of PAPRA.
15. 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, 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. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, opposite parties No.1, 2, 4 & 5 also violated Section 9 of the PAPRA.
16. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then Consumer Complaint No.38 of 2016 10 the builder is liable to refund the amount deposited by the buyer with interest.
17. 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."
18. Opposite parties No.1, 2, 4 & 5 had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. They are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. Opposite parties No.1, 2, 4 & 5 have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project.
19. The Consumer Protection 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 complainants have made payment of substantial amount to opposite parties No.1, 2, 4 & 5 with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that opposite parties No.1, 2, 4 Consumer Complaint No.38 of 2016 11 & 5 made false statement of facts about the goods and services i.e. allotment of plot and delivery of possession in a stipulated period. The act and conduct of opposite parties No.1, 2, 4 & 5 is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested his money with opposite parties No.1, 2, 4 & 5, they would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that opposite parties No.1, 2, 4 & 5 i.e. builder 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 complainants to book the plot, due to which the complainants have 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 amount paid by the complainants is a deposit held by opposite parties No.1, 2, 4 & 5 in trust of complainants and it should be used for the purpose of building the plots, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were Consumer Complaint No.38 of 2016 12 at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them, on account of the betrayal by the opposite parties in shattering his hope of getting the plot by waiting for all this period. In these circumstances, the complainants are entitled to the refund of the amount deposited by him, along with interest and suitable compensation, from opposite parties No.1, 2, 4 & 5.
20. In view of above discussion, the complaint is allowed against opposite parties No.1, 2, 4 & 5 and the complaint against opposite party No.3 is dismissed. The following directions are issued to opposite parties No.1, 2, 4 & 5:
i) to refund ₹23,40,000/- to the complainants, along with interest at the rate of 12% per annum from the respective dates of deposits, as per Rule 17 of PAPRA;
ii) to pay ₹2,00,000/-, as compensation for causing mental agony and harassment to the complainants; and
iii) to pay₹20,000/-, as litigation expenses.
Opposite parties No.1,2, 4 & 5 shall comply the order within 30 days of the receipt of certified copy of the order, failing which the compensation amount shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.38 of 2016 13
21. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April 05, 2017.
(Gurmeet S)