State Consumer Disputes Redressal Commission
Atul Pasricha vs Pearls Infrastructure Projects Ltd. on 22 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.292 of 2016
Date of Institution : 12.09.2016
Order reserved on: 18.01.2018
Date of Decision : 22.01.2018
1. Mr. Atul Pasricha,
2. Mr. Mohit Pasricha,
both sons of Sh. M.L. Pasricha, R/o H.No.384, Sector-21,
Panchkula, Haryana.
.....Complainants
Versus
1. Pearls Infrastructure Projects Ltd., through its General
Manager, Office: SCO 76, Phase 9, Industrial Area Mohali,
Punjab.
2. The Managing Director, Pearls Infrastructure Projects Ltd.,
Corporate Office: "A Wing, 2nd floor, Statesman House,
Barakhamba Road, Connaught Place, New Delhi-110001.
3. M/s India Bulls Housing Finance Limited, India Bulls House,
448-451, Udyog Vihar, Phase-5, Gurgaon-122016 Haryana,
through its Authorised Officer/General Manager.
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Pardeep Sharma, Advocate For opposite parties no.1&2 : Ex-parte For opposite party no.3 : Sh. P.M. Goyal, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that the buyer's agreement Consumer Complaint No.292 of 2016 2 was executed between complainants and OPs on 03.08.2011 with regard to purchase of plot bearing no.270, Sector 100 Mohali, measuring 200 square yards for their residential purpose only. The basic sale price of the plot was fixed at Rs.46,00,000/- (Rs.23,000/- per square yard), which covered the development of internal services such as laying of roads, laying of water lines, sewer lines etc. They obtained loan from financial institutions namely M/s DHFL and M/s India Bulls Housing Finance Limited for making the payments to OP nos.1 and 2 for purchasing the above plot. They have already paid Rs.44,94,000/- till date out of total agreed sale price of the plot including club membership, vide receipts Annexure C-3 to C-5, but OP nos.1 and 2 did not fulfill their contractual obligation, as till date, neither the possession of plot in question has been delivered to them nor registered in their names. It is further averred that as per clause 10 of the Buyers Agreement, the possession of the said plot was likely to be delivered within three years from the date of official launch of Sector 100 of the said township or date of signing of flat buyers agreement, whichever was later. As per clause 8 of buyer agreement dated 03.08.2011, sale deed/conveyance for the said plot was supposed to be executed and got registered in favour of complainant within a reasonable time period after final demarcation. As per clause 6 of the buyer agreement dated 03.08.2011, if the said plot is not developed for any reason beyond the control of OP nos.1 and 2, being promoter, the complainants would be entitled to refund of money, as per terms and Consumer Complaint No.292 of 2016 3 conditions of the said agreement. Without developing the project, OP nos.1 and 2 kept on asking for payments of next installments from complainants. They visited the office of OPs a number of times and asked them for refund of amount by them, as they showed their inability to deliver the possession of plot, to execute and register the sale deed. They issued legal notice dated 20.07.2016 to OPs, but to no effect. They have alleged deficiency in service and unfair trade practice on the part of OPs and prayed that OPs be directed to refund the deposited amount of Rs.44,94,000/- on account of non fulfillment of contractual obligations with interest @18% per annum from the date of agreement i.e. 03.08.2011 till realization; further to pay Rs.10,00,000/- as compensation for mental harassment; and to pay Rs.1,00,000/- as litigation expenses.
2. Upon notice, OP nos.1 and 2 have appeared and filed written reply by raising preliminary objections that complainants have not impleaded M/s PACL India Ltd., which is the owner of the project and which has acquired, purchased and obtained CLU, requisite licenses, approvals/permissions etc. from the government authorities, regarding land in the Pearls City, Mohali. M/s Pearls Infrastructure Projects Limited is not the owner of land in the Pearls City, it has been just looking after the marketing and sales of residential/commercial units in the Pearls City and has been authorised to supervise work in the Pearls city, Mohali. The present complaint is not maintainable, as clause no.29 of buyers agreement contains Arbitration Clause for resolution of the disputes. The Consumer Complaint No.292 of 2016 4 complainants are not consumers of OPs, as they purchased the said plot for earning profits only. The complaint was contested by OP nos.1 and 2 even on merits by averring that basic sale price of the plot was fixed at Rs.46,00,000/- being matter of record and the preferential charges, cost of electrification, EDC and IDC are not included in the basic sale price of the plot. It is averred that development has taken place in Sector 100, Pearl City, Mohali, Road work, sewerage, water supply etc. is already complete. The significant development has already been done in Setor-100, Pearl City, S.A.S. Nagar (Mohali), where the plot of complainants is situated and road work, sewerage, water supply etc. is already complete. The legal notice was never delivered at the correct address by complainants and it was wrongly addressed to Sh.N.S. Bhangu, Chairman-cum-Managing Director Pearls Infrastructure Projects Ltd., whereas the said person never remained CMD of the Pearls Infrastructure Projects Ltd., hence the said notice was returned. It is denied that there is any deficiency in service and unfair trade practice on the part of answering OPs. They have controverted the other averments of the complainants and prayed for dismissal of the complaint.
3. OP no.3 filed its separate written reply and contested the complaint of the complainants vehemently. It is averred in preliminary objections that complaint is misconceived, without any merits and as such deserve outright rejection. The complainants have no cause of action to file the present complaint. The present Consumer Complaint No.292 of 2016 5 complaint is an abuse of process of law. The complainants have not claimed any relief against OP no.3. The complainants alongwith other borrowers/co-borrowers approached OP no.3 for the purpose of purchasing the above said plot and it advanced loan of Rs.32,00,000/- to complainants. The said loan facility was availed against the equitable mortgage of the aforesaid residential plot. The rate of interest was 10.75%, which was floating in nature and the tenure of the loan was 180 months. Since, the rate of interest being floating in nature, therefore, rate of interest was liable to be changed which in turn would lead to change in amount of instalments or tenure of repayment of loan facility. The tripartite agreement was also entered into between the parties on 21.11.2012, which specifically provided that it is incumbent upon the complainants to pay the EMIs without any default, irrespective of the stage of the development and construction by the builder/developer. The complainants are not covered under the definition of consumer as contained in the Consumer Protection Act, 1986. On merits, OP no.3 has controverted the other averments of the complainants and prayed for dismissal of the complaint.
4. The complainants tendered in evidence their affidavits Ex.C-A and C-B alongwith copies of documents Ex.C-1 to C-17 and closed the evidence. As against it, OP no.3 tendered in evidence affidavit of Sanjeev Kumar authorized officer Ex.OP3/A alongwith documents Ex.OP3/1 to Ex.OP3/4 and closed the evidence. Consumer Complaint No.292 of 2016 6
5. We have heard the learned counsel for the parties and have also examined the record of the case because OP nos.1 and 2 have been set ex-parte in this case, as non appeared on their behalf. Pleadings and evidence on the record has been carefully perused by us with the able assistance of counsel for the parties. Complainants entered into buyers agreement on 03.08.2011 vide Ex.C-1 on the record. It was executed between the complainants and OP nos.1 and 2. PACL India Limited has acquired and purchased the land admeasuring 500 acres in Sector 100 and 104, SAS Nagar (Mohali) for the development and construction of the integrated township to be known as "Pearls City, Mohali" and it is also signatory to plot buyers agreement Ex.C-1. The parties are bound by the plot buyers agreement Ex.C-1 between them. Annexure A is the schedule of payment, which formed the part of this buyer agreement. 5% of basic sale price and other charges were to be paid at the time of offer of possession and the dates fixed for payment of installments have been enumerated in it. The complainants obtained loan from Indiabulls Housing Finance Limited by executing loan agreement Ex.C-2 in this regard. The terms and conditions of the loan agreement between the complainants and India bulls Housing Finance Limited OP no.3 are incorporated in the loan agreement Ex.C-2. The complainants paid the amounts to OP nos.1 and 2 by installments and this fact is reflected on the record by virtue of receipts Ex.C-3 and C-4. Even the statement of account of complainants issued by OP no.3 Indiabulls Ex.C-5 has further Consumer Complaint No.292 of 2016 7 mirrored this fact of payment of amount of Rs.43,65,432/- towards installments paid by complainants to OP nos.1 and 2. Even the statement of account issued by OP nos.1 and 2 is Ex.C-6 and C-7 have proved this fact that complainants have paid the amount of Rs.41,75,000/- to them, as reflected in Ex.C-7. The grievance of the complainants is that neither any development has been made by OP nos.1 and 2 in the project nor they have delivered the possession of the project despite fixation of time therefor. The complainants seek refund of the deposited amounts with interest from OP nos.1 and 2. Legal notice served by the complainant upon OP nos.1 and 2 is Ex.C-8 on the record supported by postal receipts Ex.C-9 to C-11 including detailed track events. Ex.C-12 to C-17 are the certificates issued by Indiabulls Home Loans to complainants for claiming deduction. Affidavit of Atul Pasricha complainant no.1 is Ex.C-A and Ex.C-B is the affidavit of Mohit Pasricha complainant no.2 are on the record in support of their versions.
6. To counter this evidence, OP nos.1 and 2 failed to conclude any evidence despite opportunities granted to them and they were set exparte eventually. Evidence was given by OP no.3, which is the financer of this loan to complainant for payment of installments to OP nos.1 and 2. Affidavit of Sanjeev Kumar, authorized officer of OP no.3 is Ex.OP3/A on the record. He testified that complainants took loan of Rs.32,00,000/- from OP no.3 with rate of interest being floating in nature. The rate of interest was liable to be changed which in turn would lead to change in amount of Consumer Complaint No.292 of 2016 8 installments or tenure of repayment of loan facility. He proved copy of loan sanction letter Ex.OP3/1 dated 27.08.2012 on the record. No objection certificate for permission to mortgage issued by OP nos.1 and 2 in favour of OP no.3 is Ex.OP3/4. The tripartite agreement is Ex.OP3/3 on the record.
7. From hearing the respective submissions of counsel for parties and from examination of evidence on the record, we are of this view that clause 10 of plot buyers agreement is the relevant provision of law, which is reproduced as under:-
"10: Possession of the said plot is likely to be delivered within(3) three years, from the date of official launch of Sector- 100 of the said township or from the date of signing of flat buyers agreement, which ever is later, subject however to force majeure circumstances, regular and timely payments by the allottees and obtaining requisite permissions/approvals from the concerned authorities. However, if delay in handing over possession of plots within aforestated time is attributable to any force majeure circumstances, which interalia, includes but not limited to war, enemy action, earthquake, act of God, delay in certain decisions/clearances or it non-delivery of possession is as a result of any notice, order, rules, notification of any government or public authority or for any reason beyond the control of the promoter, the promoter shall be entitled to a reasonable corresponding extension of time for delivery of the said plot."Consumer Complaint No.292 of 2016 9
It is, thus, clear that possession of the said plot was agreed to be delivered within three years from the date of official launch of Sector 100 of said township or from the date of signing of plot buyers agreement. Ex.C-1 was executed between the parties on 03.08.2011 and we can safely presume that agreed date for delivery of possession was 03.08.2014 by OP nos.1 and 2 to the complainants. It is subject to force majeure circumstances. OP nos.1 and 2 have not pleaded and proved on record the existence of any force majeure circumstances justifying the extension of time to them for delivery of possession to complainants. There is no presumption of force majeure circumstances in favour of any party and they have to be pleaded and proved on the record. Consequently, for want of any pleadings and proof, we take that they remained unsubstantiated on record by OP nos.1 and 2. They failed to rebut the evidence of the complainants. It is, thus, clear that the agreed date of delivery of possession was 31.08.2014, but the year 2018 has started running and there is no chance of delivery of possession to complainants, even in the coming time. OP nos.1 and 2 have utilized the hard earned money of the complainants without performing their corresponding duty in this regard. Clause 6 of plot buyers agreement Ex.C-1 is also quite material in this case, which lays down that if the said plot agreed to be sold is not developed for any reason beyond the control of promoter, the allottee would be entitled to refund of money, as per terms and conditions of the agreement. Even clause 6 authorizes the refund of money, where the project has not been Consumer Complaint No.292 of 2016 10 developed by OP nos.1 and 2. There is no evidence by OP nos.1 and 2 on the record to rebut the evidence of the complainants. The complainants have paid the entire amounts to OP nos.1 and 2, but they failed in their contractual duty to deliver the possession of developed plot to complainants supported by occupancy certificate. There is no completion certificate on the record by OP nos.1 and 2, as mandated by Section 14 of PAPRA Act, 1995. OP no.3 has only charge over the plot, because it has financed the loan of Rs.32,00,000/- to complainants, which was paid by complainants to OP nos.1 and 2. In the circumstances of the case, we find that OP nos.1 and 2 utilized the hard earned money of the complainants without delivering the possession of the developed plot to complainants within agreed time. This is unfair trade practice on the part of OP nos.1 and 2 in our view, justifying the refund of the deposited amounts with interest to the complainants.
8. As a result of our above discussion, we accept the complaint of the complainants against OP nos.1 and 2 exparte and direct them to refund the entire deposited amounts by complainants with interest @12% per annum from the date of their deposits till actual payment. We also award the compensation of Rs.1,50,000/- for mental harassments and Rs.30,000/- as cost of litigation to the complainants. It is held that OP no.3 has first charge over the money to be refunded by OP nos.1 and 2 to the complainants, as it advanced loan to them for purchase of above plot. In case, the amount is required to be paid by PACL due to its control over the Consumer Complaint No.292 of 2016 11 project, then in that eventuality, the recovery shall be effected by complainants through the instrumentality of SEBI Committee constituted by Hon'ble Supreme Court in Civil Appeal no.13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India". Top Court has passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the Incharge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc., wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited. Herein this case, PACL Limited is also a party to buyers agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case for recovery of refund amounts, as per direction of the Hon'ble Supreme Court.
Consumer Complaint No.292 of 2016 12
9. Arguments in this complaint were heard on 18.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per 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 January 22, 2018.
(MM)