State Consumer Disputes Redressal Commission
Harjit Kaur Sidhu vs M/S Omaxe Chandigarh Extension ... on 9 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.496 of 2017
Date of institution : 15.06.2017
Date of decision : 09.02.2018
Mrs. Harjit Kaur Sidhu wife of Sh. Amarjit Singh Sidhu, 7, Jagdish
Enclave, Patiala, District Patiala.
....Complainant
Versus
1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. (formerly
M/s Golden Peak Township Private Limited), Omaxe City, 111th
Milestone, near Bad Ke Balaji Bus Stand, Jaimpur-Ajmer
Expressway, Jaipur, through its Managing Director/Authorized
Representative.
2. Krishan Kumar Aggarwal, Director, M/s Omaxe Chandigarh
Extension Developers Pvt. Ltd., India Trade Tower, 1st Floor,
Madhya Marg Extension Road, New Chandigarh, Mullanpur,
District SAS Nagar, Mohali.
3. Kamal Kishore Gupta, Director, M/s Omaxe Chandigarh
Extension Developers Pvt. Ltd., India Trade Tower, 1st Floor,
Madhya Marg Extension Road, New Chandigarh, Mullanpur,
District SAS Nagar, Mohali.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Mukand Gupta, Advocate For the opposite parties: Sh. M.S. Khillan, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), seeking following directions to the opposite parties: Consumer Complaint No.496 of 2017 2
i) to refund the amount of ₹46,06,845/-, along with interest at the rate of 12% per annum from the date of deposit till realization;
ii) to pay ₹10,00,000/-, as compensation for the mental agony and harassment suffered by her; and
iii) to pay ₹80,000/-, as litigation expenses.
Brief facts, as set out in the complaint, are that the opposite parties floated a mega residential housing project, known as "Omaxe Chandigarh Extension" (earlier known as M/s Golden Peak Township Private Limited) in revenue estate of various Villages i.e. Kansala, Parol, Kartarpur, Rani Majra, Takipur, Boothgarh, Dhode Majra, Rasoolpur and Bhagat Majra in Mullanpur L.P.A. (GMADA), District SAS Nagar (Punjab). Being in dire need of a residential house and being lured by the advertisement of the opposite parties, the complainant applied for allotment of a plot with them. Accordingly, vide allotment letter dated 19.04.2010, she was allotted plot No.643, measuring 297.04 sq.yds. in the above said project. The total price of the said plot was ₹46,24,717.42P, which included basic sale price, additional cost and maintenance security and the complainant opted for payment plan 'A'. She deposited a total sum of ₹46,06,845/- with the opposite parties towards the cost of the said plot, as per Table given in Para No.3 of the complaint. As per the payment plan and terms and conditions of the allotment letter, the opposite parties were required to complete the development of the plot and deliver its possession to her within 18 months or within six months extendable from the date of signing of the allotment letter; meaning thereby the Consumer Complaint No.496 of 2017 3 possession was to be delivered by 19.04.2012. However, the opposite parties failed to deliver possession of the plot, in question, to her within the stipulated period, despite receipt of 95% of the total cost thereof. As per terms and conditions entered into between the parties, the opposite parties were also required to develop the plot and to provide all the internal services; such as roads, footpath, underground cables, poles, electricity, streetlights, sewerage link, parks etc. The complainant sent e-mail to them on 20.09.2013 regarding delay in delivery of possession, followed by reminder dated 26.09.2013, but no satisfactory reply was ever given by the opposite parties. However, surprisingly, on 16.12.2015, instead of delivering possession of the plot, in question, the opposite parties unilaterally changed the plot and re-allotted some other plot (No.562/P-2) of a smaller size measuring 282.45 sq.yds. to the complainant, without her prior approval or consent. Without entering into any fresh agreement, the opposite parties demanded ₹2,09,073/- from the complainant, which was duly deposited by her on 06.01.2017. The opposite parties failed to give any explanation about charging of more amount, since she had already paid 95% of the price of plot earlier allotted and since the plot of smaller size was re-allotted to her. It was further averred that layout plans submitted by the opposite parties were approved by the competent authorities with effect from 09.07.2010 to 10.06.2014 and the zoning plans were approved between 05.08.2011 to 26.03.2015. Environment Clearance to the said project of the opposite parties was granted, vide letter dated 25.03.2015, subject to compliance of certain Consumer Complaint No.496 of 2017 4 terms and conditions. However, the opposite parties have not got any certificate from the Punjab Pollution Control Board with regard to installation of STP before the project was commissioned for operation. Even as on 24.09.2014, they did not have permanent electricity connection issued by the Punjab State Power Corporation Limited, as only temporary connection was issued to them on 24.09.2014. It was further averred that the total area of the said project was 592.463 acre, whereas GMADA has issued only Partial Completion Certificate dated 10.07.2015 with respect to selected area of 178.78 acre, which forms only 30% of the total area of the said project. The complainant even do not know, as to whether the earlier allotted plot or the re-allotted plot in her favour falls or does not fall within the land, for which Partial Completion Certificate has been issued. Accordingly, the complainant served legal notice upon the opposite parties on 20.05.2017, seeking refund of the amount deposited by her, along with interest and compensation, but no reply was given thereto. Hence, the present complaint.
Defence of the Opposite Parties
2. Upon notice, the opposite parties appeared and filed reply to the complaint, raising certain preliminary objections that the complainant has not come to this Commission, with clean hands. This Commission has no territorial jurisdiction to entertain the present complaint, because as per Clause 47 of the allotment letter, the Courts at Punjab and Delhi shall have the jurisdiction in all matters in connection with the allotment in this case. The complaint is barred by Consumer Complaint No.496 of 2017 5 limitation. The complainant does not fall within the definition of 'consumer', as provided in the Act; as she purchased the plot, in question, for commercial/speculation purpose. On merits, allotment of the plot, measuring 297.04 sq.yds., in favour of the complainant was admitted. It was pleaded that various approvals were obtained and/or applied for including the layout plans, zonal plans etc. and are/were duly complied with. It was further pleaded that the complainant paid an amount of ₹45,16,740.42P towards the price of the plot, in question. It was further pleaded that as per Clause 29 (a) of the allotment letter, the development of the plot/project was subject to various reasons, including subject to various plot allottee (s) making timely payment. However, many allottees have defaulted in making timely payments, which altogether affected the timely completion of the particular zone of the project. Moreover, in cases of sale of immovable property, time is never regarded as the essence of the contract. The complainant was also not serious in having possession of the plot, in question, as she never approached the opposite parties to enquire about the status of development of the project/plot. Earlier, plot No.643 was tentatively allotted to her, vide allotment letter dated 19.04.2010. Intimation was given to all the allottees of the Block for shifting them to different locations, which were in advanced developed stage and most of the allottees had accepted the change/re-allocation of plots. The complainant did not object to such change, which was intimated to her, vide letter dated 16.12.2015. Accordingly, she was re-allotted plot OCE/562/P-2, which was developed in all respects and Completion Consumer Complaint No.496 of 2017 6 Certificate dated 10.07.2015 was also granted for the land, upon which the said re-allotted plot falls. It was further pleaded that the said re- allotted plot is ready for possession. It was further pleaded that the complainant was already knowing that increase and decrease in the rates due to size, number, location etc. was also part of the terms of agreement dated 19.04.2010. Deposit of ₹2,09,073/- by the complainant, without any protest, is proof of the fact that re-allotment was not a surprise to her. It was further pleaded that qua the said project, all endeavours have been made and all the statutory approvals have been duly applied and all the conditions and norms of development and constructions are duly adhered to. All the basic facilities, amenities like water, electricity etc. have been provided at the site, upon which the re-allotted plot falls. No notice was ever received by the opposite parties. No delay can be attributed to the opposite parties, in view of the above facts and circumstances. Other allegations of the complainant were denied and it was prayed that the complaint be dismissed, with costs.
Evidence of the Parties
3. To prove her claim, the complainant tendered her own affidavit as Ex.CA, along with documents Ex.C-1 to Ex.C-20.
4. The opposite parties tendered affidavit of Sh. Deepanjit Singh, Authorized Representative, as Ex.OP-A, along with documents Ex.OP-1/1 and Ex.OP-1/2.
Consumer Complaint No.496 of 2017 7Contentions of the Parties
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that earlier plot No.643, measuring 297.04 sq.yds. was allotted in her favour and against the total sale consideration of that plot i.e. ₹46,24,717.42, she deposited a sum of ₹46,06,845/- (95%) with the opposite parties, without any default. However, the opposite parties failed to complete/develop the said plot, so as to deliver its possession within the stipulated period of 24 months from the date of allotment letter. They also failed to provide the basic amenities, as agreed, at the spot. Not only this, they also replaced the said plot and re-allotted a smaller sized plot No.562/P2, measuring 282.45 sq.yds., without consent of the complainant. The opposite parties further raised a demand ₹2,09,073/-, which was duly deposited by the complainant, but the opposite parties failed to give any reason for allotting other plot, which was of smaller size and for raising the above said additional demand. The opposite parties also failed to obtain the requisite approvals/sanctions/permissions for raising the said project from the competent authority. There is no likelihood of completion of the project and delivery of possession of the plot in near future and, as such, the complainant is entitled to the refund of the amount deposited by her, along with interest and compensation, as prayed for in the complaint.
7. Per contra, learned counsel for the opposite parties vehemently contended that the plot, in question, was purchased by the Consumer Complaint No.496 of 2017 8 complainant for commercial purpose, in order to earn profit by reselling the same. As per Clause 47 of the allotment letter, Ex.C-1, this Commission has no jurisdiction to deal with this complaint, as the courts at Punjab and Delhi are having the jurisdiction to decide this matter. It was further contended that the development of the project, in question, was based on timely payments made by the allottees, including the complainant. However, the complainant failed to pay the instalments regularly. The re-allotment of other plots to the allottees, including the complainant, was with a view to shift them to different locations, which were in advanced developed stage and most of the allottees had accepted the change/re-allocation of plots. The complainant also did not object to such change, which was intimated to her, vide letter dated 16.12.2015. The said plot is ready for possession. All the statutory approvals have been duly applied for and all the conditions and norms of development and constructions are duly adhered to. All the basic facilities, amenities like water, electricity etc. have been provided at the site, upon which the re-allotted plot falls. Thus, no delay in delivery of possession can be attributed to the opposite parties. The complainant is not entitled to the refund of the amount or any other relief, as sought in the complaint, and the complaint is liable to be dismissed.
Consideration of Contentions
8. We have given our thoughtful consideration to the respective contentions of the learned counsel for the parties. Consumer Complaint No.496 of 2017 9
9. Admittedly, plot No.643, measuring 297.04 was earlier allotted to the complainant, as per allotment letter dated 19.04.2010, Ex.C-1. The total cost of the said flat was ₹46,24,717.42. As per Clause 29 of the allotment letter, Ex.C-1, pertaining to earlier allotted plot, the Company was to complete the development of the plot/project within 18 months or within an extended period of six months from the date of signing the allotment letter, subject to force majeure circumstances. The said allotment letter was signed/executed on 19.04.2010 and it means that the development of the plot/project was to be completed by 19.04.2012. However, the opposite parties failed to complete the development work within that period, so as to deliver possession of the plot, in question, to the complainant. The re- allotment of another plot, vide letter dated 16.12.2015, Ex.C-5, was due to inability of the opposite parties to deliver possession of earlier allotted plot to the complainant. No prior consent was obtained from the complainant before doing that. Be that as it may, the fact remains that the opposite parties failed to deliver the possession of the said plot to the complainant within the stipulated period. Perusal of letter dated 10.07.2015, Ex.OP-1/2, issued by GMADA shows that only Partial Completion Certificate was issued in favour of the opposite parties. The opposite parties failed to produce any evidence on record that they have obtained all the necessary permissions/approvals from the competent authorities, before launching their above said project.
10. All the above facts and circumstances clearly prove that the opposite parties have not complied with the provisions of the Punjab Consumer Complaint No.496 of 2017 10 Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA.
11. As per section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission obtained from the competent authority. So, they also violated Section 5 of PAPRA.
12. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
Consumer Complaint No.496 of 2017 11
13. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant made payment of substantial amount to the opposite parties, with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of plot and development in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which she suffered mental agony and harassment. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, Consumer Complaint No.496 of 2017 12 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. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.
14. 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:-
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."
15. The complainant alleged that he deposited a total sum of ₹46,06,845/- towards the price of the said plot. It seems that all the receipts have not been produced by the complainant, as receipts Ex.C- 2 (colly.) show the deposit of only ₹30,34,358/-. However, the opposite parties have produced on record Statement of Account, Ex.OP-1/1, which pertains to re-allotted plot No.562/P2. The basic sale price of the said plot is mentioned therein as ₹43,21,485/- and after adding additional cost of ₹2,84,366.72P, net payable amount was shown as ₹46,05,851.72P. Against that amount, the cleared amount is shown as ₹45,16,740.42P and after adding Credit Note amount of ₹89,112/-, the total cleared amount is shown as ₹46,05,852.42P. A sum of ₹55/- has been shown towards Misc. Receipt. The total of all those amounts Consumer Complaint No.496 of 2017 13 comes to ₹46,05,907.42P. Thus, the complainant is entitled to the refund of this amount, along with interest and compensation.
16. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties:
i) to refund the amount of ₹46,05,907.42P, 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;
ii) to pay ₹50,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
17. The opposite parties shall comply with the order within 30 days of the receipt of the copy of the order.
18. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
19. 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 09, 2018.
(Gurmeet S)