State Consumer Disputes Redressal Commission
Surinder Pal Singh vs M/S Country Colonisers Pvt. Ltd. on 18 April, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 169 of 2016
Date of institution : 01.06.2016
Date of decision : 18.04.2017
1. Surinder Pal Singh s/o Sh. Harjeet Singh
2. Prerna Ganda w/o Sh. Surinder Pal Singh
Corresponding Address:- House No. 159, FF, Phase 70, Mohali.
....Complainants
Versus
1. M/s Country Colonizers Private Limited, Regd. Office P.O.
Rayon & Silk Mills, Adjoining Coca Cola Depot, G.T. Road,
Chheharta, Amritsar, Punjab through its Director/ Authorized
Representative.
2. M/s Country Colonizers Private Limited, Regd. Sector 85,
Mohali 160062 through its Director/Authorized Representative.
3. India Bulls Housing Finance Ltd., SCO No. 337-338, Sector
35-B, Chandigarh.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Consumer Complaint No. 169 of 2016 2
Present:-
For the complainants : Sh. Sandeep Bhardwaj, Advocate
For opposite parties No.1 & 2 : Sh. Jiteshwar Singh, Advocate for
Sh. Tejeshwar Singh, Advocate
For opposite party No.3: Sh. P.M. Goyal, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
Complainants have 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 Ops No. 1 & 2 had launched their integrated residential project under the name and style of Wave Gardens, Sector 85, SAS Nagar (Mohali). When complainant approached Op Nos. 1 & 2, they assured quality construction and handing over the possession of the unit in time. Ops allotted one apartment unit No. 3, Tower Daffodil, Ground Floor, Type 3 BHK + S having super area of Approx. 1990 Sq. Ft. and built up area 1700.8 sq. ft. Ops received a sum of Rs. 5,00,000/- as booking amount. The Plot Buyer's Agreement was executed between the complainants and Op Nos. 1 & 2 and total consideration of the apartment is Rs. 83,10,125/-. The documents asked for by the Ops were supplied to them as demanded. The complainants applied for home loan and Op No. 3 sanctioned a loan of Rs. 59,70,000/-. Complainants opted for subvention linked plan. The amount was to be released according to Annexure II attached with the agreement. It was further alleged that Ops did not adhere to the terms of the agreement. According to Clause 5.1, the possession was to be Consumer Complaint No. 169 of 2016 3 delivered within a period of 30 months alongwith an extended period of six months from the date of execution of the agreement, which was got executed on 10.12.2012, therefore, the possession was due on or before 9.12.2015. The complainants kept on paying the installments through Op No. 3. Op No. 3 issued loan sanctioning letter as per tripartite agreement dated 31.12.2012. The complainants were never a defaulter of Ops. Ops admitted of having received a sum of Rs. 75,65,543.45p from the complainants. Ops informed that development activity of the site given to Shapporji Pallonji & Co. Ltd. will be completed by October, 2014. After 26.06.2015, the complainants visited the site and was shocked to see that there was only structure and no construction was going on. When approached Op Nos. 1 & 2, no satisfactory response was given to him. Op Nos. 1 & 2 paid pre-EMI upto 31.12.2015. Due to non-handing over the possession, the complainant had to pay pre-EMI w.e.f. 1.1.2016. Alleging deficiency in service on the part of Ops, this complaint has been filed by the complainants with this Commission seeking directions against Ops as under:-
"(i) to refund the entire amount of Rs. 75,46,886.45p deposited by the complainants towards the unit, in question, along with interest from the respective dates of deposits till realization.
(ii) to refund Rs. 1,90,180/- towards the payment of EMI to Op No. 3 and further direction to Op Nos. 1 & 2 to pay the payment of future EMI.Consumer Complaint No. 169 of 2016 4
(iii) to pay compensation in the sum of Rs. 5 lacs on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss caused to the complainants.
(iv) to pay cost of litigation to the tune of Rs. 2 lac to the complainants.
(v) or any other directions which this Hon'ble Commission may deem fit in the facts and circumstances of the case.
2. Op Nos. 1 & 2 in their written reply took the preliminary submissions that this complaint is not maintainable as the complainants do not fall within the definition of consumer as defined under Section 2(1)(d) of the Act as the complainants had purchased the housing unit for commercial purposes and booked the same through M/s Monga Realtors Pvt. Ltd. and complainant No. 1 is proprietor of two real estate companies; there is arbitration clause in the allottees agreement, therefore, the matter is required to be referred to the Arbitrator; under subvention linked plan, the complainant paid only 15% of the basic sale price and then tripartite agreement was executed between the bank, complainants and the builder and amount under this plan becomes due in accordance with the stage of the construction and the bank paid the amount according to stage of the construction. EMI commenced from the month following the month in which loan is disbursed. Till such commencement, the complainants are liable to pay the Pre-EMI interest as agreed between the parties. Under Clause 4 of the tripartite agreement, the builder had agreed to pay Consumer Complaint No. 169 of 2016 5 pre-EMI amount for 24 months from the date of disbursement of first loan installment by the Bank, which was disbursed on 25.3.2013, therefore, Ops were liable to pay pre-EMI amount till 24.3.2015, however, as a goodwill gesture, Ops extended the period upto December, 2015. Till December, 2015, the complainants did not pay any amount. Complainants failed to pay the due amount in time. Op No. 1 paid Rs. 6,42,269/- on behalf of complainants to the Bank. With regard to non-completion of the project, there was no agreed time for mandatory completion of the project. In Clause No. 5.1, it was referred that the developer shall endeavour to complete the project as far as possible within 36 months. It was denied that the construction was not raised at the site. On merits, it was again reiterated that the unit was purchased for commercial purposes. It was also stated that in the agreement, the time agreed was not mandatory. It was only an endeavor on the part of the Ops to complete the project within the period as referred in Clause 5.1 of the agreement. It has been denied that the agreement is loaded in favour of Ops. Out of the amount paid by the bank, pre-EMI interest to the bank has been paid by Ops. Complaint is without merit. It be dismissed.
3. Op No. 3 in its reply took the preliminary objections that complaint against this Op is mis-conceive; as the dispute involved is between the complainants and Op Nos. 1 & 2 and this Op has been unnecessary impleaded; present complaint is abuse of process of law against this Op; complainants do not fall under the definition of consumer; the Commission has no pecuniary Consumer Complaint No. 169 of 2016 6 jurisdiction to entertain the complaint and that no cause of action has arisen to the complainants to file the complaint. On merits, it has been stated that the complainants had approached this Op for facility of home loan for a sum of Rs. 59,70,000/- for purchasing apartment No. 003, Ground Floor, Tower Daffodil, Wave Garden, Sector 85, Mohali and said loan facility was sanctioned in favour of the complainants and tripartite agreement was executed between the parties on 31.12.2012. According to that the loan was disbursed to Op Nos. 1 & 2 as per the stage of the construction under the subvention linked plan. Liability to pay the pre-EMI was on the complainants as well as Op Nos. 1 & 2 and the loan disbursed is still to be repaid to this Op. No merit in the complaint against this Op. It be dismissed.
4. To support his contentions, the parties led their respective evidence. Complainant in his evidence has tendered affidavit of Surinder Pal Singh as Ex. CW-1/A&C and affidavit of Mrs. Prerna Ganda as Ex. CW-1/B&D and documents Ex. C-1 to C-29. On the other hand, Op Nos. 1 & 2 had tendered documents Exs. Op-1 to Ex. Op-1/31. Op No. 3 had tendered affidavit of R.S.D. Uppal as Ex. Op-3/A and documents Exs. Op-3/1 & 2.
5. We have heard the counsel for the parties and have carefully gone through the averments made in the complaint, written reply filed by the Ops, evidence and documents on the record.
6. A plea has been taken by the counsel for the Ops that the unit purchased by the complainants is not for residential Consumer Complaint No. 169 of 2016 7 purposes but for the commercial purpose. In their reply, they have stated that the complainant booked the apartment through M/s Monga Realtors Pvt. Ltd. and complainant No. 1 is proprietor of two real estate companies, therefore, the present Unit has been purchased by them for commercial purposes. Mere mentioning of proprietor of two real estate companies does not mean that they had purchased the Units for sale and purchase. Ops have not placed on the document any record to support their contention. Real Estate may be the avocation of complainant No. 1 but he also needs now to live in. Further Ops have not placed on the record any document showing that the complainants earlier indulged in sale and purchase of the housing property. Therefore, without such type of evidence, the plea raised by the Ops that the unit was booked for commercial purposes cannot be accepted. In case the complainants had booked the Unit with the Ops, construction services offered by the Ops are covered under the service as defined under the Act and in case they did not deliver the services as per the agreed terms then it is a consumer dispute. Therefore, we do not agree with the plea raised by the counsel for the Ops that the complainants are not the consumers.
7. As per the averments on the record, the complainants had booked Apartment No. 3, Tower Daffodil, Ground Floor, Type 3 BHK + S, size 1990 Sq. Ft. with Ops. Vide receipt dated 21.5.2012 Ex. C-1, a sum of Rs. 5 Lacs was paid, vide receipt Ex. C-3 dated 6.9.2012 a sum of Rs. 6,60,000/- was paid, vide receipt Ex. C-6 dated 31.3.2013 a sum of Rs. 7,89,701/- was paid, vide receipt Ex. Consumer Complaint No. 169 of 2016 8 C-7 dated 31.3.2013 a sum of Rs. 6,78,962/- was paid, vide receipt Ex. C-8 dated 31.3.2013 a sum of Rs. 3,91,107/- was paid, vide receipt Ex. C-9 dated 23.7.2014 a sum of Rs. 16,66,491/- was paid, vide receipt Ex. C-10 dated 10.9.2014 a sum of Rs. 199134/- was paid, vide voucher dated 31.3.2015 a sum of Rs. 534357.45p was transferred to Ops No. 1 & 2 and another receipt dated 31.3.2015 of Rs. 19,214/-. Then there was tripartite agreement between the complainants, Op Nos. 1 & 2 and Op No. 3 i.e. Ex. C-5 vide which a sum of Rs. 59,70,000/- was sanctioned as a loan. According to this agreement, after disbursement of the loan for 24 months, pre- EMI interest was to be paid by Op Nos. 1 & 2. According to the written reply filed by Op No. 3, they have paid a sum of Rs. 55,91,020/- and amount was to be disbursed as per the stage of the construction. According to the buyer's agreement, the subvention scheme has been annexed to the agreement Ex. C-8, according to which the payment was to be paid as under:-
Payment Plan Subvention Linked Plan On Booking 3.0 Lacs for 2BHK, 5.0 Lacs for 3 BHK & 3+S BHK Within 45 days of booking 15% 15% of Sale Price less Booking Amt.
On start of 25% Construction/Excavation On completion of Sixth Floor roof 25% + 100% of PLC slab On completion of Super 25% Structure / Brick Work On completion of Internal + 100% of car Plastering parking On offer of Possession 10% + other applicable charges + Stamp Consumer Complaint No. 169 of 2016 9 Duty & Registration charges 100% Once there was tripartite agreement, on disbursement of loan in favour of the complainants then Op Nos. 1 & 2 were to intimate the stage of the construction to Op No. 3 to make further payments.
However, Op Nos. 1 & 2 have placed some letters Exs. Op-10, payment demand notices Exs. Op-14 & 16, service tax demand notice Ex. Op-15 in which some amount was demanded from the complainants. In case they had reached further stage of construction then they were required to make a reference to Op No. 3, who could have checked the stage of the construction and then they could disburse the balance amount. In case they have already paid a sum of Rs. 55,91,020/- then they could disburse the remaining payment also, in case they had completed the stage of the construction as per Annexure-II referred above. It seems that the stage of construction was not there, therefore, they did not refer the letter to Op No. 3 and accordingly, the payment was not made.
8. As per Clause 5.1 of the buyer's agreement Ex. C-4, it has been provided as under:-
"5.1 Subject to Clause 5.2 and further subject to all the Allottee(s) of the said "Apartment" in the "Said Project"
making timely payment, the Developer shall endeavor to complete the development of "Said Project" in general and the said "Apartment" in particular as far as possible within 30 Consumer Complaint No. 169 of 2016 10 (thirty) months along with an extended period of (6) six months from the date of execution of this Apartment Allottee(s) Arrangement and/or from the date of start of construction of Group Housing named as "Wave Gardens"
which is later."
This agreement was executed on 10.12.2012. In case the construction had started before the date of agreement then 36 months are to be counted from the date of construction. The counsel for the complainants has referred to Ex. C-2, the Board displayed by the Ops at the site in which date of construction has been referred as 16.10.2012 and date of completion as 15.10.2014. In case 16.10.2012 is taken as date of start of the construction then three years are to be counted and not two years, it will come to October, 2015 but the Ops failed to complete the construction by the said date. Counsel for the complainants have referred to the letter dated 4.8.2016 Ex. C-27 in which Op Nos. 1 & 2 have stated that they have extended the subvention period till 30.6.2018 and now they will further be liable to bear pre-EMI interest according on the outstanding amount till 30.6.2018 or offer of possession whichever is earlier, which clearly shows that the Ops had not sticked to the schedule given by them. Counsel for the complainants has made a reference to the judgment of the Hon'ble National Commission II (2014) CPJ 131 "PUDA versus Kanwalpreet Singh" that in case there is delay in handing over the possession, it amounts to deficiency in service and refund order can be passed. A reference has also been made to I (2017) CPJ Consumer Complaint No. 169 of 2016 11 513 (NC) "Neha Suri versus Unitech Reliable Project Pvt. Ltd." In that case, the possession of the flat was not given as agreed. It amounts to deficiency in service. Amount deposited alongwith interest was ordered to be refunded. Similar order was passed in I (2017) CPJ 113 "Vishal Issar v. Park Wood Developers Pvt. Ltd.". This Commission has already held in Consumer Complaint No. 164 of 2016 "Harmit Singh Arora versus M/s Country Colonisers Private Limited", decided on 2.2.2017 against the same opposite party that in case possession of the apartment has not been given as agreed then it amounts to deficiency in service and that the complainants are not bound to pay further payments when the project is not coming at the site and refund alongwith interest was ordered. The present complaint is also in the similar facts.
9. No other point was argued.
10. In view of the above, we accept the complaint and direct Ops No. 1 & 2 as under:-
(i) to refund the amount of Rs. 75,46,886.45p deposited by the complainants with Ops alongwith interest @ 12% minus pre-EMI interest already paid by Op Nos. 1 & 2 to Op No. 3.
(ii) out of the amount to be paid by Op Nos. 1 & 2, a sum of Rs. 55,91,020/- alongwith interest due will be paid to Op No. 3 and the balance amount will be paid to the complainants.
(iii) pay Rs. 2,00,000/- on account of compensation and mental tension; and Consumer Complaint No. 169 of 2016 12
(iv) Rs. 21,000/- as litigation expenses.
The above directions be complied within 45 days from the receipt of certified copy of the order.
11. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
12. Order be communicated to the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER April 18, 2017.
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