State Consumer Disputes Redressal Commission
Gurvinder Singh vs M/S Country Colonisers Pvt. Ltd. on 6 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Consumer Complaint No.658 of 2017
Date of institution : 04.08.2017
Date of decision : 06.02.2018
Sh. Gurvinder Singh, aged about 43 years, S/o Sh. Badev Singh, R/o
H.No.2545/A, Sector 47-C, U.T., Chandigarh.
....Complainant
Versus
1. M/s Country Colonizers Private Limited, through its Authorized
Signatory C/o Wave Estate, Sector 85 & 99, Mohali, District SAS
Nagar, Punjab.
2. I.P. Singh, C.E.O., Founder, Director, Abode Relator, S.C.O.
No.673, 2nd and 3rd Floor, Sector 70, Mohali, District SAS Nagar,
Punjab.
....Opposite Parties
2) Consumer Complaint No.819 of 2017
Date of institution : 15.09.2017
Date of decision : 06.02.2018
Sh. Rajesh Saini, aged 44 years, Son of Sh. Mangal Saini, presently
resident of House No.278, Sector 7-A, Chandigarh.
....Complainant
Versus
1. M/s Country Colonisers Private Limited, through its Director,
having its Registered Office at P.O. Rayon and Silk Mills,
Adjoining Coca Cola Depot, G.T. Road, Chheharta, Amritsar,
Punjab-143105.
2. M/s Country Colonisers Private Limited, through its Authorized
Signatory, Corporate Office at C-1, Sector-3, Noida, Uttar
Pradesh-201301.
....Opposite Parties
3) Consumer Complaint No.837 of 2017
Date of institution : 22.09.2017
Date of decision : 06.02.2018
Consumer Complaint No.658 of 2017 2
Sh. Abhishek Diwan S/o Durga Prasad Diwan R/o Flat No.B211,
IttinaAbha Apartment, Munnekollala Village Marathahalli Post
Bangalore-560037, Karnataka.
....Complainant
Versus
1. M/s Country Colonisers Private Limited, through its Managing
Director, having its Registered Office at P.O. Rayon and Silk
Mills, Adjoining Coca Cola Depot, G.T. Road, Chheharta,
Amritsar, Punjab-143105.
2. M/s Country Colonisers Private Limited, Site Office, Sector 85,
Mohali-160062, through its Managing Director/Director/
Authorized Signatory.
3. Rajinder Singh Chadha, Chairman, Country Colonisers Private
Limited, Regd. Office C-1, Sector 3, Noida-201301, Uttar
Pradesh.
4. Housing Development Finance Corporation Limited (HDFC),
Regd. Office at Raman House 169, Backbay, Reclamation,
Mumbai-400200, through its Managing Director.
....Opposite Parties
4) Consumer Complaint No.838 of 2017
Date of institution : 22.09.2017
Date of decision : 06.02.2018
Sh. Abhijit Mondal son of late Sh. Chitta Ranjan Mandal, Resident of
H.No.4715, First Floor, MIG Independent Floor, Sec.70, SAS Nagar
(Mohali), Punjab, now residing at F-11, Srinivasa Apartment,
Moolakulam, Puducherry, Pin-605 010.
....Complainant
Versus
1. M/s Country Colonisers Pvt. Ltd., having its Regd. Office
at P.O. Rayon and Silk Mills, Adjoining Coca Cola Depot, G.T.
Road, Chheharta, Amritsar, Punjab-143105, through its
Authorized Signatory/Manager/Office Incharge/Director Sales &
Marketing/M.D.
2. M/s Country Colonisers Pvt. Ltd. Corporate Office at C-1, Sector-
3, Noida, Uttar Pradesh-201301, through its Authorized
Signatory/Manager/Office Incharge/Director Sales &
Marketing/M.D.
....Opposite Parties
5) Misc. Application No.138 of 2018
In/and
Consumer Complaint No.658 of 2017 3
Consumer Complaint No.890 of 2017
Date of institution : 15.10.2017
Date of decision : 06.02.2018
Mrs. Kiranjeet Hansra wife of Sh. Arvind Singh Hansara, 12-Napton
Close, Hayes Middlesex (UK), through her duly Authorized General
Power of Attorney and brother Sh. Karamjeet Singh.
....Complainant
Versus
1. Country Colonizers Pvt. Ltd., 60, Friends Colony East, New
Delhi-110025, through its Managing Director.
2. Incharge, Site Office, Country Colonizers Private Ltd., Sector 99,
SAS Nagar,Mohali.
....Opposite Parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present (Consumer Complaint No.658 of 2017):-
For the complainant : Sh. Gurvinder Singh, in Person For OP No.1 : Sh. Tejeshwar Singh, Advocate For OP No.2 : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This order will dispose of above mentioned five (5) Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in all these complaints are the same and all the complaints have been filed against the same opposite Consumer Complaint No.658 of 2017 4 parties/party by the complainants. The facts are taken from Consumer Complaint No.658 of 2017.
Consumer Complaint No.658 of 2017 The complainant has filed this complaint, under Section 17 of the Act, 1986, seeking following directions to the opposite parties:
i) to refund ₹9,31,200/-, received from him, as booking amount;
ii) to pay interest at the rate of 24% or commercial rate on the above said amount from the date of deposit till realization;
iii) to pay cost of legal notice i.e. ₹10,000/-;
iv) to pay ₹5,00,000/- on account of physical and mental harassment besides pecuniary loss suffered by him, along with interest at the rate of 24% per annum from the date of filing of the complaint till realization; and
v) to pay ₹50,000/-, as litigation expenses, along with interest at the rate of 24% per annum from the date of filing of the complaint till realization along with cost of complaint.
Brief facts, as set out in the complaint, are that the complainant, who was looking for a residential accommodation, was approached by opposite party No.2, who introduced himself as a reputed property dealer. He insisted the complainant to book floor measuring 250 sq.yds. in the project "Wave City", Sector 85, Mohali, which was launched by opposite party No.1. The opposite parties assured to deliver the possession of the floor by October, 2015, but they avoided to arrange the visit of the complainant to the site, on the pretext of construction being in progress. On inquiry about the final price of the Consumer Complaint No.658 of 2017 5 floor, opposite party No.2 told that it would be finalized at/or around the execution of provisional allotment with opposite party No.1. Accordingly, on 26.02.2015, the complainant visited the office of opposite party No.2, along with cheque of ₹5,00,000/- dated 27.01.2015 in favour of opposite party No.1 and handed over the same to opposite party No.2. The opposite parties informed that the total sale price of the floor shall be settled by opposite party No.1, subject to payment of ₹9,00,000/- being 15% plus booking amount. Accordingly, the complainant gave another sum of ₹4,31,000/-, vide cheque dated 01.04.2015 in favour of opposite party No.1. Thereafter, representative of opposite party No.1 disclosed that the total sum of the floor is ₹64,13,500/- and that opposite party No.2 has taken commission of ₹1,00,000/- for having brought the complainant at the door of opposite party No.1 and making him to deposit ₹9,31,200/- with opposite party No.1. The complainant reached the site of the project, but was shocked to see that the material used in the construction was sub- standard. The complainant then approached opposite party No.2 and narrated him about the said sub-standard material used in the construction, but he, on one pretext or the other, started avoiding the complainant and even was not taking up his calls. On approaching opposite party No.1, it was told that the possession would be delivered after two years, which shattered the hopes of the complainant to get possession of the floor in October, 2015. Thereafter, he again visited office of opposite party No.2 and confronted him with his said non- keeping of promises, but he used foul and filthy language towards the Consumer Complaint No.658 of 2017 6 complainant and his security guard even removed the complainant from his office. Then the complainant requested opposite party No.1 to refund his amount of ₹9,31,200/-, which he flatly refused. The complainant then served legal notice dated 07.09.2015 upon the opposite parties, through counsel, seeking refund of the amount deposited by him, along with interest, but to no effect. Earlier, the complainant filed complaint with District Forum, Mohali, which was ordered to be returned, vide order dated 24.04.2017, for want of pecuniary jurisdiction with the District Forum. Hence, the present complaint.
Defence of the Opposite Parties
2. Upon notice, opposite party No.1 appeared and filed reply to the complaint. However, opposite party No.2 did not appear despite his service and was proceeded against ex parte, vide order dated 22.09.2017.
3. Opposite party No.1, in its reply, raised certain preliminary objections that the complainant does not fall under the definition of 'consumer', under the Act, as he sought to buy the said housing unit, in question, for commercial purpose; because he already owns and resides in two residential units i.e. House No.2545/A, Sector 47-C, Chandigarh and at Village Dhurali, near Gurudwara Sahib, SAS Nagar, Mohali. The address of his second premises is also mentioned in his Aadhaar Card. Due to slump in the real estate market, he is no longer interested in retaining the said unit and is asking for refund of the amount. The complaint is devoid of any cause of action. This Consumer Complaint No.658 of 2017 7 Commission has no pecuniary jurisdiction to decide this complaint, as the relief claimed therein exceeds ₹1 Crore. There was no time fixed for mandatory completion of construction. However, as per Clause 30 of the terms and conditions of Application Form, which was duly signed by the complainant, the developer was to endeavour to complete the development within 30 months from the date of execution of "Independent Residential Floor Allottee(s) Arrangement". Thus, the complaint is premature, as the said stipulated period has not yet expired. The answering opposite party has never failed to perform its part of the agreement and has delivered on all its promises. In fact, the complainant, who himself is a defaulter, has failed to execute the "Independent Residential Floor Allottee(s) Arrangement", which was drawn by this opposite party on 12.03.2015 and was handed over the same to the complainant on the same day for singing, but he failed to sign the same, despite various reminders and requests. In the absence of that agreement, there is no right or interest in favour of the complainant, pertaining to the unit, in question and there exist no relationship of consumer-service provider between the parties. A sum of ₹39,91,824/- is still outstanding against the complainant, but he failed to pay the same, despite issuance of demand notice in that regard. Thus, he is not entitled to the refund of the amount deposited by him; which is liable to be forfeited, as per Clause 26 of the Application Form. After discount, the BSP of the unit, in question, was settled as ₹62,08,000/- and the amount of ₹9,31,200/- forms 15% of the same. It was further pleaded that opposite party No.1 entered into Consumer Complaint No.658 of 2017 8 a Memorandum of Agreement dated 03.02.2006 (MoA) with the Government of Punjab, as per clause 5 (e) of which, the State Government shall acquire land under the provisions of the Land Acquisition Act, 1894 and transfer the same to opposite party No.1 for development. However, the State Government failed to acquire any land for it and, as such, the approved plan of the entire project also shows certain "Critical Area' i.e. the lands, which are not in its possession, due to failure of the State Government. The lands, which are not available with it form 10% of the total land required for the project, due to which laying of lines for basic services is not complete. The request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, requesting the State Government to acquire 23.21 acres of land, which falls within the master plan of the project, but without any result. However, opposite party No.1 managed to enter into a Land Use Agreement dated 14.06.2012 with the local farmer, from whose land an access road has been laid for proper access to the project. Thus, the delay, if any, in the completion of the project is due to inaction on the part of GMADA. It was further pleaded that the complaint is liable to be dismissed being barred by time, as the booking was done on 26.02.2015 and last payment was made on 08.04.2015, whereas the complaint has been filed beyond the period of two years thereafter. On merits, booking of the flat, in question, was admitted. It was pleaded that the complainant himself inspected the unit and was satisfied with the same in all respects and had raised no objection before booking the flat, in question. Deposit of ₹9,31,200/- by Consumer Complaint No.658 of 2017 9 the complainant was admitted. Similar other pleas, as raised in preliminary objections, were reiterated and denying other allegations of the complaint, it was prayed that the complaint be dismissed. Evidence of the Parties
4. To prove his claim, the complainant tendered in evidence his own affidavit as Ex.C/A, along with documents Ex.C-1 to Ex.C-13 and Ex.C3/A.
5. Opposite party No.1 tendered affidavit of Sh. Amarjit Singh, Authorized Signatory, as Ex.OP1/A, along with documents Ex.OP1/1 to Ex.OP1/15.
Contentions of the Parties
6. We have heard learned the complainant, in person and learned counsel for opposite party No.1, as opposite party No.2 has been proceeded against ex parte. We have also gone through the record carefully.
7. The complainant, in person, vehemently contended that there is no progress at the site of the project and the opposite parties kept on unnecessarily delaying construction. As per Clause 30 of the terms and conditions Ex.C3/A, the development was to be completed within a period of 24 months, with grace period of 6 months from the execution of the agreement, but opposite party No.1 failed to execute any agreement. It failed to carry out any construction/development at the spot, despite receipt of substantial amount from the complainant towards the price of the flat, in question. There is no likelihood of completion of the project in near future and the opposite parties are Consumer Complaint No.658 of 2017 10 liable to refund the amount deposited by the complainant, along with interest at the rate of 24% per annum from the date of deposit till realization. The opposite parties failed to prove by leading cogent and convincing evidence that they were justified in delaying the project for any sufficient reason. There is deficiency in service and unfair trade practice on their part. Thus, all the directions, as prayed for in the complaint, are liable to be issued to the opposite parties.
8. Per contra, learned counsel for opposite party No.1 vehemently contended that this Commission has no pecuniary jurisdiction to decide this complaint, as the amount involved in this case is more than ₹1 Crore. It was further contended that the complainant is already having two houses, out of which one is situated in Chandigarh second in S.A.S. Nagar, Mohali and, thus, he is not a 'consumer'. It was further contended that there was no specific period mentioned in the agreement for delivery of possession. Opposite party No.1 was just to make endeavour to deliver the possession of the unit, in question, within 24 months, with an extended period of 6 months from the date of agreement, but the complainant failed to execute the agreement, by returning the same after signing the same. Moreover, the complainant cannot allege any delay on its part, as he himself failed to pay the due amounts regularly on time. It was further contended that the delay, if any, in completing the project was on the part of GMADA, who failed to acquire the land required for its project, as per MoA dated 03.02.2006. Even a request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, to Consumer Complaint No.658 of 2017 11 acquire 23.21 acres of land, which falls within the master plan of the project, but to no effect. In these circumstances, no liability can be fastened upon it. There is no deficiency in service on the part of opposite party No.1 and the complaint is liable to be dismissed against it.
Consideration of Contentions
9. We have considered the respective contentions raised by the parties.
10. So far as the objection of opposite party No.1 that the complainant has purchased the unit, in question, for commercial purpose, as he is owner of two other units and he is not a 'consumer' under the Act, is concerned, it is relevant to mention opposite party No.1 failed to prove that the complainant indulged in sale purchase of units for commercial purpose. 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 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 Consumer Complaint No.658 of 2017 12 subsequent date for profit. In the case in hand also, there is no evidence led by opposite party No.1 to prove that the complainant indulged in commercial activities to earn profits and that he has purchased the unit, in question, for further commercial purpose to gain profits. Therefore, the said objection of opposite party No.1 is rejected.
11. With regard to other objection raised by opposite party No.1 regarding pecuniary jurisdiction of this Commission, it is relevant to mention that the complainant has sought refund of the amount deposited by him i.e. ₹9,31,200/-, along with interest and compensation of ₹5,00,000/-. As per opposite party No.1, the BSP of the unit, in question, after discount was ₹62,08,000/-. So, after counting all the relief claimed by the complainant, we find that the same does not exceed ₹1 Crore. Therefore, the said objection of opposite party No.1 is declined accordingly.
12. With regard to other objection of opposite party No.1 that the complaint is time barred, it is pertinent to mention here that opposite party No.1 itself failed to complete the project, to enable it to deliver the possession of the unit, in question, within the stipulated period. Therefore, there is continuous cause of action in favour of the complainant. Accordingly, this objection of opposite party No.1 is also rejected.
13. Now, coming to merits of the case, admittedly, the complainant booked the unit, in question, by paying booking amount of ₹5,00,000/-, as per letter dated 26.02.2015, Ex.C/1 and he further deposited ₹4,31,200/-, vide receipt dated 08.04.2015, Ex.C/2. Thus, he Consumer Complaint No.658 of 2017 13 deposited a total amount of ₹9,31,200/- with opposite party No.1. As per Clause 30 of the terms and conditions Ex.C3/A, the development was to be completed within a period of 24 months, with grace period of 6 months from the execution of the agreement, but opposite party No.1 failed to execute any agreement. It failed to complete the construction/development at the spot, despite receipt of substantial amount from the complainant towards the price of the flat, in question. Photographs Ex.C/10 and Ex.C/11 duly prove this fact. Opposite party No.1 also failed to lead any cogent evidence to show that any plausible reason prevented it to complete the project within the stipulated period or that it has obtained necessary approvals/permissions/licenses for setting up the said project.
14. Opposite party No.1 has also raised the plea that due to force majeure circumstances, it failed to complete the project because as per the Memorandum of Agreement dated 03.02.2006 (in short 'MoA'), which is annexed with letter Ex.OP-1/9, the State Government was to acquire the land but State Government failed to acquire land for them in terms of MoA. As per Clause 5(e) of the MoA, State Government was to acquire the land under the provisions of Land Acquisition Act, 1894. Opposite party No.1 further pleaded that it made several requests to the State Government to initiate the acquisition and handover the possession to them to carry out development work on the same and GMADA was to provide external access roads to the project, who have failed to do so.
Consumer Complaint No.658 of 2017 14
15. The aforesaid plea of opposite party no.1 is not tenable, because according to provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), it was its duty to supply the information with regard to their ownership, permissions from PUDA/GMADA, licenses and 'Change of Land Use' etc. The non- supply of this vital information to the complainants is against the provisions of PAPRA.
16. In Section 3 of PAPRA, 'General liabilities of the promoter' have been explained, which are as under:-
"3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops 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 develops 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 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-Consumer Complaint No.658 of 2017 15
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;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) 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;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of Consumer Complaint No.658 of 2017 16 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.
Further Section 4 of PAPRA provides as follows:
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 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 Consumer Complaint No.658 of 2017 17 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 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. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true."
Opposite party No.1 has not produced any evidence to prove that it has complied with the aforesaid provisions of Sections 3 and 4 of PAPRA in letter and spirit, by making full and true disclosure of the nature of their title to the land on which such colony is developed or such building is constructed. There is also no evidence on record to prove that, before allotment of the plot, in question, to the complainant, he was made aware about the execution of the above MoA between it and the State Government; which might have effected the decision of the complainant for purchasing the plot, in question, from it in those Consumer Complaint No.658 of 2017 18 circumstances. By not complying with the above said provisions of PAPRA, opposite party No.1 is certainly guilty of rendering deficient services and adopting unfair trade practice.
17. Further, 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 opposite party No.1 to prove that any account has been maintained by them in this respect. As such, it also violated Section 9 of the PAPRA.
18. It stands proved that opposite party No.1 failed to hand over the possession of the flat, in question, to the complainants within the stipulated period, without any sufficient reason. The amount paid by the complainant was a deposit held by opposite party No.1, in trust of complainant and it was to be used for the purpose of building the plots/flats, as mentioned in Section 9 of PAPRA. 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.
19. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-
Consumer Complaint No.658 of 2017 19
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."
20. In such circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.
21. Opposite party No.2 is the property dealer and the complainant has specifically mentioned in the complaint that he arranged the meetings between the complainant and opposite party No.1 and all the transactions with opposite party No.1 was done through him and he also obtained commission from those transactions. Opposite party No.2 has chosen not to contest the complaint and was proceeded ex parte. As such, all the allegations of the complaint against him stand unrebutted. Hence, both the parties are jointly and severally liable for the deficiency in service committed by them and both are liable to refund the amount deposited by the complainant, along with interest and compensation.
22. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties: Consumer Complaint No.658 of 2017 20
i) to refund the amount of ₹9,31,200/-, along with interest at the rate of 12% per annum from the respective dates of payment till realization, as per Rule 17 of PAPRA;
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
Consumer Complaint No.819 of 2017
23. Similarly, in Consumer Complaint No.819 of 2017 (Sh. Rajesh Saini v. M/s Country Colonisers Private Limited & Anr.), the complainant purchased unit No.16, 1st Floor, Sector-G (measuring 1060 sq.ft. in the project of the opposite parties namely "Wave Estate", situated in Sectors 85 & 99, District Mohali, Punjab, by paying ₹3,00,000/- as booking amount. "Independent Residential Floor Allottee(s) Arrangement" (hereinafter to be referred as "agreement"), Ex.C-1, was executed between the parties on 14.09.2013. He opted for "Construction Linked Plan", in which the basic sale price of the unit was mentioned as ₹40,00,000/-. The complainant deposited a total sum of ₹30,99,300/- with the opposite parties, towards the price of the unit, in question, as per Statement of Account Ex.OP-1/3. As per Clause 5.1 of the agreement, the possession of the unit, in question, was to be delivered within 24 months, with an extended period of 6 months, from the date of execution of agreement or from the date of start of construction at the said project, whichever was earlier. As per Clause 5.5 of the agreement, in case of delay in construction of the unit, the delay charges at the rate of ₹5/- per sq.ft.(saleable area) per Consumer Complaint No.658 of 2017 21 month were payable to the complainant. However, the opposite parties failed to complete/develop the project, so as to deliver possession of the unit, in question, to the complainant within the stipulated period. Hence, the complainant sought following directions to the opposite parties:
i) to refund the amount of ₹30,99,300/-, along with interest at the rate of 15% per annum from the respective dates of deposit till realization;
ii) to pay ₹3,00,000/-, as compensation on account of mental agony, harassment and financial loss suffered by him; and
iii) to pay ₹1,00,000/-, towards litigation expenses.
24. The opposite parties filed reply, on the similar lines of reply filed by them in Consumer Complaint No.658 of 2017.
25. To prove his claim, the complainant tendered in evidence his own affidavit as Ex.CA, along with documents Ex.C-1 and Ex.C-2/A to Ex.C-2/K.
26. The opposite parties tendered in evidence affidavit of Sh. Amarjit Singh, their Authorized Signatory, as Ex.OP1/A, along with documents Ex.OP1/1 to Ex.OP1/11.
27. In view of the reasons and discussion held in Consumer Complaint No.658 of 2017, this complaint is allowed and following directions are issued to the opposite parties:
i) to refund the amount of ₹30,99,300/-, along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA; Consumer Complaint No.658 of 2017 22
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
Consumer Complaint No.837 of 2017
28. Similarly, in Consumer Complaint No.837 of 2017 (Sh. Abhishek Diwan v. M/s Country Colonisers Private Limited & Ors.), the complainant purchased 2 BHK flat No.703, in Tower COSMOS, 7th Floor (measuring 1380 sq.ft.) in the project of opposite parties No.1 to 3, namely "Wave Garden", situated in Sectors 85 & 99, District Mohali, Punjab, by paying ₹3,00,000/- as booking amount.
"Apartment Allottee(s) Arrangement" (hereinafter to be referred as "agreement"), Ex.C-3, was executed between them on 06.10.2012. He opted for "Subvention Linked Plan". Basic sale price of the unit was ₹51,75,000/-, along with PLC charges of ₹1,29,375/-, car parking charges of ₹1,50,000/-, club membership charges of ₹75,000/- and IFMS charges of ₹69,000/-. As per Clause 5.1 of the agreement, the possession of the unit, in question, was to be delivered within 24 months, with an extended period of 6 months, from the date of execution of agreement or from the date of start of construction at the said project, whichever was earlier. As per Clause 5.5 of the agreement, in case of delay in construction of the unit, the delay charges at the rate of ₹5/- per sq.ft.(super area) per month were payable to the complainant. However, those opposite parties failed to complete/develop the project, so as to deliver possession of the unit, in question, to the complainant within the stipulated period. The Consumer Complaint No.658 of 2017 23 complainant got approved loan from opposite party No.4 to the tune of ₹41,40,000/-, as per letter dated 17.08.2012, Ex.C-4, and Tripartite Agreement, Ex.OP4/3, was executed between the parties on 26.12.2012. Thus, the complainant deposited a total sum of ₹49,52,088/- with opposite parties No.1 to 3 towards the price of the flat, in question, vide receipts Ex.C-6 to Ex.C-16. Hence, the complainant sought following directions to opposite parties:
i) to refund the amount of ₹49,52,088/-, along with interest at the rate of 18% per annum from the respective dates of deposit till realization;
ii) to pay ₹5,00,000/-, as compensation on account of mental agony and harassment suffered by him;
iii) to pay ₹55,000/-, towards litigation expenses;
iv) it was also prayed that any other relief, which may be deemed fit, may also be granted.
29. Opposite parties No.1 to 3 filed reply, on the similar lines of reply filed by them in Consumer Complaint No.658 of 2017.
30. Opposite party No.4, in its reply, raised preliminary objections that the rights of the parties to the present lis are governed by the loan agreement dated 21.01.2013 and Tripartite Agreement dated 26.12.2012. In case of cancellation of the unit or in the contingency of termination of the Apartment Allottee(s) Arrangement, opposite party No.4 has the first charge/right to seek apportionment of its dues. As on 03.10.2017, an amount of ₹39,06,695/- is pending towards the total loan amount. On merits, it was pleaded that the Consumer Complaint No.658 of 2017 24 complainant availed disbursement of ₹38,80,488/- out of the sanctioned loan amount of ₹41,40,000/- from it. Dismissal of the complaint qua opposite party No.4 was prayed.
31. To prove his claim, the complainant tendered in evidence his own affidavit as Ex.CA, along with documents Ex.C-1 to Ex.C-19.
32. Opposite parties No.1 to 3 tendered in evidence affidavit of Sh. Amarjit Singh, their Authorized Signatory, as Ex.OP1/A, along with documents Ex.OP1/1 to Ex.OP1/12.
33. Opposite party No.4 tendered affidavit of Sh. Nandan Singh Rawat, Manager, as Ex.OP4/A, along with documents Ex.OP4/1 to Ex.OP4/4.
34. Receipts Ex.C-6 to Ex.C-16 prove that a total sum of ₹49,52,088/- was deposited with opposite parties No.1 to 3 towards the price of the flat, in question. As per letter dated 06.04.2015, opposite parties No.1 to 3 admitted to bear Pre-EMI interest on the loan amount till December, 2015 under Subvention Scheme, which was further extended to 30.06.2018, as per letter dated 04.08.2016, Ex.C-18. Hence, opposite parties No.1 to 3 are liable to bear Pre-EMI interest with effect from 26.12.2012 (date of execution of Tripartite Agreement) till the refund of the entire amount to the Bank/complainant. If any amount has been paid by opposite parties No.1 to 3 as Pre-EMI interest, the same would be adjusted accordingly.
35. In view of above discussion as well as the reasons and discussion held in Consumer Complaint No.658 of 2017, this complaint is allowed against opposite party No.1 to 3 and the same is dismissed Consumer Complaint No.658 of 2017 25 against opposite party No.4. Following directions are issued to opposite parties No.1 to 3:
i) to refund the amount of ₹49,52,088/-, along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA;
It is made clear that opposite parties No.1 to 3 shall also bear the Pre-EMI interest accrued on the loan amount obtained by the complainant from the Bank, from 26.12.2012 (date of execution of Tripartite Agreement) till the refund of the entire amount to the Bank/complainant. If any amount has been paid by opposite parties No.1 to 3 as Pre-EMI interest, the same would be adjusted accordingly.
It is also made clear that, first of all, opposite parties No.1 to 3 shall pay the outstanding amount to opposite party No.4-Bank towards the loan advanced by it to the complainant and, thereafter, the remaining amount, if any, shall be paid to the complainant; and
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
Consumer Complaint No.838 of 2017
36. Similarly, in Consumer Complaint No.838 of 2017 (Sh. Abhijit Mondal v. M/s Country Colonisers Pvt. Ltd. & Anr.), the complainant purchased a floor bearing No.11/SF (approx. 167.224 sq.mts./200 sq.yds.), 2nd Floor in the project of the opposite parties, Consumer Complaint No.658 of 2017 26 namely "Wave Estate, Sector 99, Mohali, for a total consideration of ₹43,00,000/-, including PLC, EDC, under Subvention Scheme. 'Independent Residential Floor Allottee(s) Arrangement', Ex.C-1, was executed between them on 28.11.2014. The complainant borrowed loan from India Bulls Housing Finance Limited, under Subvention Scheme, worth ₹34,40,000/- and Tripartite Agreement, Ex.C-2, was executed between the parties on 03.12.2014. The opposite parties agreed to pay Pre-EMI interest on the said loan till offer of possession. The complainant paid a total sum of ₹39,08,695/- to the opposite parties towards the cost of the said flat. As per Clause 5.1 of the agreement, the possession of the unit, in question, was to be delivered within 24 months, with an extended period of 6 months, from the date of execution of agreement or from the date of start of construction at the said project, whichever was earlier. As per Clause 5.5 of the agreement, in case of delay in construction of the unit, the delay charges at the rate of ₹5/- per sq.ft.(saleable area) per month were payable to the complainant. However, the opposite parties failed to complete/develop the project, so as to deliver possession of the unit, in question, to the complainant within the stipulated period. Hence, the complainant sought following directions to the opposite parties:
i) to refund the amount of ₹39,08,695/-, along with interest at the rate of 18% per annum from the respective dates of deposit till realization;
ii) to pay ₹10,00,000/-, as compensation on account of mental agony and harassment suffered by him;Consumer Complaint No.658 of 2017 27
iii) to pay ₹50,000/-, towards litigation expenses;
iv) it was also prayed that any other relief, which may be deemed fit, may also be granted.
37. The opposite parties filed reply, on the similar lines of their reply, as given in Consumer Complaint No.658 of 2017.
38. To prove his claim, the complainant tendered in evidence his own affidavit as Ex.CA, along with documents Ex.C-1 to Ex.C-12.
39. Opposite parties No.1 & 2 tendered in evidence affidavit of Sh. Amarjit Singh, their Authorized Signatory, as Ex.OP1/A, along with documents Ex.OP1/1 to Ex.OP1/16.
40. The complainant alleged that he deposited ₹39,08,695/- with the opposite parties towards the price of the flat, in question. However, receipts Ex.C-3 to Ex.C-5 and Statements of Account Ex.C-6 and Ex.C-11 prove that a total sum of ₹38,89,930/- was deposited with the opposite parties towards the price of the flat, in question. As Tripartite Agreement, Ex.C-2, the opposite parties admitted to bear Pre-EMI interest on the loan amount availed by the complainant from the Bank under Subvention Scheme. As per Statements of Account Ex.OP1/8 to Ex.OP1/10, the total amount of ₹4,91,512/- was deducted by Indiabulls under subvention scheme, while making payment of loan amount to the opposite parties till 18.03.2016. However, the possession of the unit has not been delivered by the opposite parties to the complainant and there is continuous liability of the opposite parties to pay Pre-EMI interest under the said scheme till the refund of entire amount to the Bank/complainant.
Consumer Complaint No.658 of 2017 28
41. In view of above discussion as well as the reasons and discussion held in Consumer Complaint No.658 of 2017, this complaint is allowed and following directions are issued to the opposite parties:
i) to refund the amount of ₹38,89,930/-, along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA;
It is also made clear that, first of all, the opposite parties shall pay the outstanding amount to Indiabulls Housing Finance Limited, as per Tripartite Agreement, Ex.C-2, towards the loan advanced by it to the complainant and, thereafter, the remaining amount, if any, shall be paid to the complainant.
It is made clear that the opposite parties shall also bear the Pre-EMI interest accrued on the loan amount obtained by the complainant from the Bank, from 03.12.2014 (date of execution of Tripartite Agreement, Ex.C-2) till the refund of the entire amount to the Bank/complainant. The amount paid by the opposite parties as Pre-EMI interest, if any, would be adjusted accordingly.
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
Consumer Complaint No.890 of 2017
42. Similarly, in Consumer Complaint No.890 of 2017 (Mrs. Kiranjeet Hansra v. Country Colonizers Private Ltd. & Anr.), the complainant, who is resident of UK and has filed the complaint through Consumer Complaint No.658 of 2017 29 her attorney Sh. Karamjeet Singh, booked residential unit No.37/SF, measuring 1060 sq.ft. in the project of the opposite parties, vide Application Form, Ex.C-1, by paying the amount of ₹6,18,555/-, vide Ex.C-2 and Ex.C-3. The Basic Sale Price of the said flat was ₹40,00,000/-. It was assured by the opposite parties that the construction at site would be started in the year 2014, but the same had not been started by then. They even failed to complete/develop the project within 24 months of the date of booking. By seeing no development at the site, the complainant decided not to raise any loan from the Bank for making payment of instalments. She sent legal notice dated 04.11.2015 to the opposite parties, demanding refund of the amount deposited by her, along with interest, but to no effect. Hence, the complainant sought following directions to the opposite parties:
i) to refund ₹6,18,555/-, along with interest at the rate of 18% per annum from the date of deposit till realization;
ii) to pay ₹3,00,000/-, as compensation on account of mental agony and harassment suffered by her; and
iii) to pay ₹40,000/-, as litigation expenses.
43. The opposite parties filed reply, on the similar lines of their reply, as given in Consumer Complaint No.658 of 2017.
44. To prove her claim, the complainant tendered in evidence affidavit of Sh. Karamjeet Singh, as Ex.CA, along with documents Ex.C-1 to Ex.C-6, Ex.C-4A and Mark X. Consumer Complaint No.658 of 2017 30
45. The opposite parties tendered in evidence affidavit of Sh. Amarjit Singh, their Authorized Signatory, as Ex.OP1/A, along with documents Ex.OP1/1 to Ex.OP1/11.
46. During the pendency of the complaint on 29.01.2018, the opposite parties also filed Misc. Application No.138 of 2018, seeking dismissal of the complaint, on the ground that the total relief claimed in the complaint comes to ₹14,33,363/-, which includes deposited amount of ₹6,18,555/- along with interest and compensation, and, thus, the complaint is not within the pecuniary jurisdiction of this Commission.
47. In this regard, it is relevant to mention that the basic sale price of the flat, in question, was ₹40,00,000/-, as per Application Form Ex.C-2. No doubt, the complainant has claimed refund of deposited amount of ₹6,18,555/-, along with interest and compensation, but we are of the view that since the subject matter of the complaint is the flat, in question, whose basic price is ₹40,00,000/-, therefore, it cannot be said this matter is outside the purview of pecuniary jurisdiction of this Commission. Accordingly, the above said application filed by the opposite parties is rejected.
48. In view of the reasons and discussion held in Consumer Complaint No.658 of 2017, this complaint is allowed and following directions are issued to the opposite parties:
i) to refund the amount of ₹6,18,555/-, along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA; and Consumer Complaint No.658 of 2017 31
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
49. Compliance of the orders passed in all the complaints shall be made by the opposite parties within 30 days of the receipt of certified copy of the order.
50. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
51. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it would be the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER February 06, 2018.
(Gurmeet S)