State Consumer Disputes Redressal Commission
Tarun Pahuja vs Country Colonisers Pvt. Ltd. on 16 May, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
Consumer Complaint No.739 of 2017
Date of Institution : 28.08.2017
Order Reserved on : 14.05.2018
Date of Decision : 16.05.2018
1. Tarun Pahuja s/o Sh. Ramesh Chander Pahuja r/o # 813,
Phase-10, Mohali.
2. Seema Pahuja w/o Tarun Pahuja r/o # 813, Phase 10, Mohali.
....Complainants
Versus
1. Country Colonizers Pvt. Ltd (Wave Group Company) through
its Chairman Sh. Rajidner Singh Chadha having their
registered office at PO Rayon and Silk Mills Adjoining Coca
Cola Depot, GT Road, Chheharta, Amritsar, Punjab 143105.
2. M/s Country Colonizers Pvt. Ltd. An Wave Infratech Venture
through its Vice Chairman/Director Sh. Manpreet Singh
Chadha having its office at Site Office at Sector 85, Mohali,
Punjab.
3. Rajinder Singh Chadha, Chairman of Country Colonizers Pvt.
Ltd., (Wave Group Company) through its Chairman Sh.
Rajinder Singh Chadha having their registered office at PO
Rayon and Silk Mills Adjoining Coca Cola Depot, GT Road,
Chheharta Amritsar, Punjab 143105.
4. Manpreet Singh Chadha, Vice Chairman/Director of Country
Colonizers Private Limited (Wave Group Company) having its
office at Site Office at Sector 85, Mohali, Punjab.
.... Opposite parties
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.Rajesh Bhatheja, Advocate Consumer Complaint No.739 of 2017 2 For opposite parties : Sh.Deepak Jain, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OP no.1 is a company incorporated and registered under Companies Act 1956 and OP no.2, OP no. 2 is the site officer and OPs no.3 and 4 are their Chairman and Vice-Chairman /Director respectively. Hence, they are liable for acts and conducts of OP no.1/Company. OP no.1/Company decided to develop the residential flats in the project under name and style of 'Wave Floor' situated in Sector 99 in SAS Nagar Mohali and published various web and news advertisements as well as visual advertisements to attract the public at large to purchase flats/independent floors in the said project. Originally, the independent residential floor bearing no. 7, 2nd floor was booked by Mr. Komal Kumar son of Hukam Chand, r/o # 5018 Sector 38 W Chandigarh and he paid an amount of Rs.309270/- to OPs (Rs.3,00,000/- as booking amount and Rs.9270/- as service tax). Thereafter, he paid another amount of Rs.309270/- to complete the 15% of basic price within 45 days of booking. The complainants purchased said residential floor no.7, 2nd floor from Mr. Komal Kumar and paid Rs.618540/- to him as initial payment made by him to OPs at the time of booking. Basic sale price of the said unit was Rs.40,00,000/- and thereafter the payment of Rs.618540/- (15% of basic sale price plus service tax) was made to OPs, buyers Consumer Complaint No.739 of 2017 3 agreement called "Independent Residential Floor" allottee(s) Arrangement was entered into with OPs, vide agreement dated 20.07.2013. As per clause 5.2 of the Agreement dated 20.07.2013, OPs promised to deliver the possession of the said unit within 24 months with further grace period of six months from the date of execution of above said agreement. Subject to Clause 5.2 and further subject to all the allottees of the said "Independent Residential Floor" making timely payments, the developer was to endeavor to complete the development of the said project and said 'Independent Residential Floor" in particular as far as possible within 24 months period and extended period of six months therefrom.
There was also clause 5.5 of the agreement, that in the event of willful delay in construction, the OPs should pay compensation @ Rs.5/- per sq. ft per month of the saleable area for such delay to allotee. In the month of November 2014, the representative of OPs approached the complainants and conveyed that due to some problems with the Punjab Government Authorities, the construction work could not be started and requested to start the construction work and to deliver the possession within time. The complainants met the representative of OPs, who gave assurances that their project was delayed so they would try to deliver the possession within 18 months, though the agreement was of 24 months and requested the complainant to enter into new agreement with them. The OPs prevailed upon the complainants and complainants entered into another agreement on 28.11.2014 with OPs on the assurance Consumer Complaint No.739 of 2017 4 given by Mr. Kavesh. OPs also offered and gave assurance that there will be no EMI till possession and after paying Rs.618540/- (i.e. 15% of the basic sale price plus service tax). The complainants chose to make balance payment and availed the subvention scheme and got approved a loan of Rs.30,00,000/- from Housing Development Finance Corporation Limited and Tripartite agreement was also executed between the parties in this regard. OPs started raising demands of the amounts from the complainants and HDFC Bank started releasing the amount of Rs.28 lac to OPs. The complainants have paid the amount of Rs.36,18,540/- to OPs as per account statement issued by OPs (Annexure C-5). The possession of the flat was not delivered to the complainants within the stipulated period. Even second agreement was entered into between the parties on 28.11.2014, whereby possession of the unit was to be given within 24 months uptil 28.11.2016. OPs failed to deliver the possession of the unit within 24 months from the date of this new agreement i.e. 28.11.2014. The complainants sent email to OPs that they were not interested in the unit and requested them for refund of their amounts, as they were bound to EMI for February 2017, but no reply was given to them. OPs have not completed the project and there weree no boundary walls, pucca roads and labour was still working in the most of the floors and there was no security check on the entry points of the township nor a proper entry gate with a clean approach road was available. HDFC Bank has started deducting pre-EMI of Rs.25800/- from the Bank account of the Consumer Complaint No.739 of 2017 5 complainant no.1 and complainants have to face financial problems. OPs have not provided for community hall, covered stilt parking, yoga centre, proper swimming pool, library, card/carom room and several such facilities /amenities as provided in the OPs brochure. Several other facilities have not been provided as promised by OPs initially. The current status of the facilities is as under :-
Sr. Facility Promised Current Status
No.
1. Beautifully master planned community Not Provided
inspired by Spanish architecture
2. Cohesive urban design-street furniture, Not Provided
signage and road lightening.
3. Integrated township will all convenience Not Provided.
and facilities to live, work and play.
4. Aesthetically designed landscaped Not Provided.
features and tree lined streets.
5. Acres of wide, landscaped internal roads. Not Provided.
6. Exclusive members only clubhouse with Not Provided modern amenities and recreational facilities, specially restaurant, health-club, swimming pool with splash pool and more.
7. Play areas and tot lots. Not Provided.
8. Meandering jogging and cycling tracks Not Provided.
with natural terrain.
9. A choice of nursery, primary and Not Provided.
secondary schools in the neighborhood.
10. Eco friendly and energy efficient systems Not Provided.
smart solar water heaters for select homes and solar street lighting in select zones.
11. Clubhouse facilities. Not Provided.
12. Restaurant, café and party hall. Not Provided.
13. Guest Rooms Not Provided
14. Card Room Not Provided
15. Library and reading room Not Provided Consumer Complaint No.739 of 2017 6
16. Billiard Room Not Provided
17. State of the art gymanasium with Not Provided
18. Aerobics centre Not Provided 19 Mediation and Yoga Centre Not Provided
20. Salon, spa, Jacuzzi and Massage Not Provided facilities.
21. Tennis and squash courts Not Provided
22. Swimming and Splash pool Not Provided
23. Children's play area Not Provided The construction started by OPs was of poor quality and most of the promised services/amenities are lacking. Roads as well as whole area is still under construction. The lighting of the said area and security measures are missing. Basic amenities have not been provided by OPs. The complainants filed complaint with below noted reliefs.
a) OPs be directed to refund an amount of Rs.36,18,540/- to complainants, which has been paid by them with interest @ 24% compounded quarterly from the date of deposit till refund of the entire amount.
b) OPs be directed to pay Rs.5,00,000/- to complainants on account of escalation of prices and construction material.
c) OPs be directed to pay Rs.55,000/- as costs of litigation.
2. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising preliminary Consumer Complaint No.739 of 2017 7 objections that the complainants have concealed the material facts in the complaint. The complainants purchased flat for commercial purposes, as they purchased it from the original allottee with the condition to further sell the apartment to any person and as such complainants are not consumers. The complainants have not quantified the interest claimed by them. The complaint is not maintainable being without cause of action. There is no fixed mandatory time for completion of the project under Allottee(s) Arrangement. Clause 5.1 of the Arrangement states that the developer shall endeavor to complete the development of the project, as far as possible within 30 months only. As per clause 5.5, if there is delay in construction of 'Independent Residential Floor' the OP no.1 shall liable to pay Rs.5/- per sq. ft per month of delay beyond this period. OPs were trying their best to complete the project, as per agreed time. Government of India suddenly announced demonetization of the currency, which delayed the project resulting in shifting of entire work force as constructions industry is totally dependent on work force. The work has been affected by implementation of GST also. These circumstances were beyond the control of OPs. Memorandum of understanding was entered into by OPs with Government of Punjab. As per Clause 5 (e) of the said agreement, State Government was to acquire the land under the provisions of the Land Acquisition Act 1894 and transfer the same to OPs for development. The State Government has failed to acquire any land for OPs. OPs have made several requests to Consumer Complaint No.739 of 2017 8 State Government to initiate the acquisition of the above-said critical areas and handover the possession to OPs to carry out development work on the same. GMADA was to provide external access roads to project upon execution of land use agreements with the local farmers, which GMADA has failed to do even till today. The delay is caused by State Government and GMADA. Under the Tripartite Agreement, the EMI commences from the month in which the loan disbursement is complete. Till such commencement, the complainant is liable to pay pre-EMI interest, which was the agreed simple interest charged on the loan amount disbursed. OPs further pleaded that the circumstances remained beyond the control of OPs which led to some delay in completing the project. OPs denied any deficiency in service on their part as alleged by complainant and prayed for dismissal of the complaint.
3. The complainant no.1 tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-9 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh. Amarjit Singh authorized signatory of OPs as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence.
4. We have heard learned counsel for the parties and have also examined the record of the case. The first point falling for consideration in this case, is whether complainants are consumer of OPs in this case or not. It is a residential floor, which has to be developed by OPs in this case. The complainants are husband and wife and member of the same family. There is nothing on the record Consumer Complaint No.739 of 2017 9 that complainants purchased this residential floor for resale purposes. The initial onus has been discharged by complainants and OPs failed to dislodge it by proving that complainants are property dealers and purchased this independent residential floor for the resale purposes for generating profits. We find no substance in the submission of OPs that complainants are not held to be consumers of OPs. The complainants are thus held to be the consumers of OPs because they purchased the service of OPs.
5. The core point for adjudication herein is whether OPs are deficient in service and guilty of unfair trade practice in this case, as pleaded by the complainants. The evidence on the record needs to be adverted to for adjudication of this matter. Tarun Pahuja complainant tendered in evidence his affidavit Ex.C-A on the record. He testified his case, as pleaded in the complaint. Brochure of the project is Ex.C-1, as published by OPs. The salient features of this project have been given in the brochure by OPs with specifications. Ex.C-2 is the "Independent Residential Floor" Alllotte(s) Arrangement entered into between the parties on 20.07.2013. The total sale price of this floor, as per this agreement is Rs.40 lac, as per clause 3.1. OPs agreed to deliver the possession within 24 months and further extended period of six months from the date of this arrangement, as per clause 5.2 of this arrangement. Somehow, the complainants entered into fresh independent residential floor allottee's arrangement with OPs on 28.11.2014, vide Ex.C-3. It is the fresh arrangement entered into between the parties on 28.11.2014, Consumer Complaint No.739 of 2017 10 which governs the relationship of the parties in this case. As per clause 5.1 of the new arrangement, OPs agreed to deliver the possession of the residential floor within 24 months and extended period of six months from the date of this new arrangement. The date of new arrangement is 28.11.2014 and period for delivery of possession has come to an end on 28.05.2017 even as per this fresh agreement. The grouse of the complainants is that OPs have not delivered the possession to them nor completed the project. Ex.C-4 is Tripartite Agreement entered into between the parties, whereby loan of Rs.30 lac was sanctioned to complainants for purchase of this residential apartment. The statement of account of OPs is Ex.C-5 on the record. The outstanding total amount is Rs.95,910/- only. The complainants have paid rest of the amounts to OPs, as sale price of this project. Ex.C-5 statement of account of OPs, has proved this fact on the record. E-mail sent by complainant to OPs is Ex.C-6 in this regard. Photographs of the residential floors have been placed on record by complainants, vide Ex.C-7, which shows that construction of independent floor was incomplete. The complainants sent request to OPs to refund the deposited amounts by them, vide Ex.C-8. Ex.C-9 is statement of account. As against it; OPs relied upon affidavit of Amarjit Singh authorized signatory of OPs as Ex.OP-A on the record. He proved agreement to sell dated 20.05.2013, bank statement, identity card of complainants Ex.OP-1 to Ex.OP-3. He further stated that there is no delay in the construction of independent floor by OPs and it is due to force Consumer Complaint No.739 of 2017 11 majeure circumstances on account of demonetization of the policy determined by Government of India. Due to implementation of demonetization and GST introduced by Government of India, the work of the project has also been affected. It has appeared in his statement that some of the land was to be acquired by State Government of Punjab for this project, which has not been done in this case, as per Clause 5 (e) of Memorandum of Agreement dated 03.02.2006. The area to be acquired by Punjab Government was 10% of total area of the project. The GMADA was to lay the basic amenities like construction of roads in the project, which has not been done by GMADA in this project. He has stated that letter was written to Land Acquisition Collector GAMDA in this regard to acquire the land to develop the project, but to no effect. Even main road could not be completed because Punjab Government has not acquired the land for this purpose in this project. Ex.OP-4 and Ex.OP-5 are photographs of the project on the record by OPs, it cannot be said these photographs pertain to independent residential floor allotted to complainants or not and on what date they have been taken, as do not depict any such material.
6. There is no completion certificate adduced on the record by OPs to prove that their project was completed within two years and six months from the date of new residential arrangement dated 28.11.2014 Ex.C-3. Even period of two years and six months for delivery of possession, as per new arrangement Ex.C-3 has already expired. Completion certificate or occupancy certificate have not Consumer Complaint No.739 of 2017 12 been produced by OPs in this regard. Even as per testimony of authorized signatory of OPs in Ex.OP-A, the Punjab Government has not acquired 10% of the area of this project. GMADA has not laid roads in the project. Temporary arrangement by OPs with the help of local farmers is not substitute therefor. The OPs have also shown the area to be acquired by Punjab Government for this project as critical area in the approved layout plan.
7. In the circumstances of the case, we have come to this conclusion that OPs have neither completed the project nor delivered the possession to complainants within agreed time despite receipt of consideration amount from them. Even this Commission has held in "Dr. Inderpal Singh Sahni and another versus Country Colonisers Private Limited and others" in CC No. 643 of 2017 decided on 18.01.2018 that OPs failed to deliver the possession by not completing the project to consumers, as such order to refund of the deposited amount. Similar, observation was recorded by this Commission in CC 404 of 2017 decided on 18.04.2018 titled as Mr.Satish Kumar Bagga versus M/s Country Colonisers Private Limited and others. National Commission also observed in "Ankur Goswami versus Supertech and another", reported in 2017(3) CLT 520 (NC) that clause of penalty would apply, where allottee seeks possession of the flat in the prayer clause in the complaint and not to cases, where allottee seeks refund of the amount. Herein, in this case the allottees are seeking refund of the amount for which they have already written to OPs. The Consumer Complaint No.739 of 2017 13 penalty clause given in the allottees arrangement would not debar the complainants from seeking refund of the amount.
8. As a result of our above discussion, we accept the complaint of the complainant. Below noted directions are given to OPs:-
i) OPs are directed to refund the entire deposited of Rs.36,18,540/- (thirty six lac eighteen hundred five hundred fourty rupees only) to complainants, which has been deposited by them to OPs with 12% interest from the date of their deposits till its realization.
iii) The complainants are held entitled to compensation of Rs.50,000/- for mental harassment and Rs.25,000/- as cost of litigation.
9. Arguments in this complaint were heard on 14.05.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
10. 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 May 16, 2018 (ravi)