State Consumer Disputes Redressal Commission
Gurbax Singh Bains vs Pearls Infrastructure Projects ... on 29 March, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 113 of 2013
Date of institution : 30.10.2013
Date of order reserved : 27.02.2017
Date of Decision: 29.03.2017
Gurbax Singh Bains aged 64 years son of Shiv Singh, resident of H.
No. 206, Phase 6, Mohali.
.......Complainant
Versus
1. Pearls Infrastructure Projects Limited, SCO 6, Sector 69, Mohali
through its Managing Director.
2. Government of Punjab through Chief Administrator, Punjab Urban
Development Authority (PUDA), PUDA Bhawan, Phase 9, Mohali.
......Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Kulwinder Singh, Advocate
For opposite party No.1 : None.
For opposite party No. 2 : Sh. Balwinder Singh, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Consumer Complaint No. 113 of 2013 2 Complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short 'the Act') against opposite parties (hereinafter referred as Ops) on the pleadings that he submitted an application to opposite party No.1 through an agent for allotment of Plot No. 1025, Pearls City, Sector 104, Mohali, measuring 320 square yards at the rate of Rs.14,500/- per square yard and paid a sum of Rs. 6,96,000/-; being 15% of the earnest money. At the time of booking of the plot, it was presented to him that opposite party No.1 had already obtained the requisite licences/approvals/exemptions from opposite party No.2 and the project management agreement had already been executed with one PACL India Limited on 11.7.2006 for the development and construction of the Township and that the possession of the plot shall be delivered within 3 years from the date of commencement of the development and the construction on the said township. The development work is going on since July 2006. As per the terms and conditions specified in the application, it was stipulated that no interest free maintenance security would be payable and that the price of the plot included external development charges and he was liable to pay only the stamp duty and the registration charges, in addition to the settled price, which was payable in instalments, which were to be completed within a period of 24 months. It was also stipulated that he would be required to sign buyer's agreement after the acceptance of the application within 30 days. He paid Rs.4,64,000/- on 7.6.2010 being 10% of the cost of the plot. It was after repeated reminders sent by him that the provisional allotment Consumer Complaint No. 113 of 2013 3 letter of the plot was issued by Op No. 1 on 27.7.2010 and the buyer's agreement signed by opposite party No.1 was received on 19.12.2010. Then he paid 95% of the total sale price to the tune of Rs.44,47,326/-, the opposite party invented a new scheme in order to exploit him economically. He was directed to take possession of the plot after making 5% payment within 30 days failing which he was asked to pay the holding charges at the rate of Rs.50/- per square yard per month till the taking of the possession. The external development charges, other charges to be levied by GMADA and the Town and Country Planning Department were also included in the basic price. The water and electricity connections were not obtained and opposite party No.1 agreed to supply the same from its own source for which he was asked to pay the charges on actual basis. Rs.1,07,865/- was demanded as electrification charges without disclosing the manner in which those exorbitant charges were demanded. The administrative charges of Rs.16,854/-, replacement/sinking fund of Rs.1,13,258/-, interest free maintenance security of Rs.32,000/- and club membership of Rs.39,326/- were demanded unreasonably and unfairly over and above the settled price. The failure of opposite party No.1 to hand over the possession of the plot after receiving more than 95% of the price and the consequent delay would result in cost escalations in the construction of the house by him. All these acts of opposite party No.1 amounted to deficiency in service and unfair trade practice on its part. It was asked to hand over the possession without claiming any such charges from him as the same were not covered by the conditions of Consumer Complaint No. 113 of 2013 4 allotment but it insisted to recover the same before handing over the possession of the plot. On the basis of all these facts, he filed the complaint against Ops and seeking directions not to charge interest of Rs. 9.11 Lacs; to complete the development work immediately and to hand over the possession; to pay interest @ 18% p.a. on the amount received in advance; pay compensation of Rs. 2 Lacs; Rs. 51,000/- as litigation expenses and Rs. 2,25,000/- on account of cost in escalation of construction cost.
2. Vide order dated 8.11.2013, it was observed by the State Commission that complainant was asked to deposit the various charges before taking delivery of possession of the plot as per the terms and conditions of the agreement, but he failed to pay the same, in these circumstances, it cannot be said that Op No. 1 was deficient in service by not giving the possession to the complainant. Accordingly, the complaint so filed by the complainant was dismissed in limine.
3. First Appeal No. 871 of 2013 was preferred by the complainant before the Hon'ble National Commission and the Hon'ble National Commission in its order dated 23.7.2015 observed that dispute between the parties is with regard to the development at the site and to pay the charges by the complainant to the Ops, in these circumstances, it was not appropriate for the State Commission to dismiss the complaint at the admission stage, accordingly, the order dated 8.11.2013 passed by the State Commission was set-aside and complaint was remitted to the State Commission to admit the Consumer Complaint No. 113 of 2013 5 complaint and direct the Ops to file their written reply and then to decide the complaint in accordance with law.
4. Counsel for the complainant as well as counsel for Op No. 1 appeared before the State Commission on 26.8.2015. The complaint was contested by the Op. Op No. 1in its reply took the preliminary objections that the complainant has approached this Commission with malafide and mischievous intentions to coerce OP No. 1 to give the interest accumulated on account of delayed payment, the complaint is bad for non-joinder of PACL Limited known as owner of the township, namely, Pearls City situated in Sector 100 & 104, Mohali, Punjab. Owner of the land had entered into project management agreement dated 11.7.2006 with Op No. 1 for providing the project management and supervision of the development of the Township, therefore, Op No. 1 is just a Company providing marketing services. The complainant had moved an application for allotment of residential plot on 5.1.2010 and plot No. B-1025 in Pearl City, Sector 104, Mohali measuring 320 Sq. yards was allotted vide letter dated 14.1.2010 and Buyer's Agreement (in short to be referred as BA) was executed on 14.1.2010 without any protest and complainant accepted the terms and conditions thereof. According to Clause 1 of BA, allottee was to comply its terms and conditions to complete various formalities from time to time and timely payments; there is no deficiency in service on the part of Op No. 1 as Op No. 1 had already obtained the requisite licence approval exemptions from Op No. 2. The application for allotment of plot dated 5.1.2010 was superseded by Clause No. 31 of the BA. According to Clause No. 29, it was Consumer Complaint No. 113 of 2013 6 provided that in case any dispute arises of this agreement between the parties then the matter shall be referred to Arbitrator under Arbitration and Conciliation Act, 1996, therefore, the Commission did not have any jurisdiction to entertain this complaint. The complainant was issued letter dated 18.7.2012 i.e. offer of possession and to pay the outstanding amount and thereafter reminders were issued on 20.11.2012 and 30.6.2013 and finally on 9.9.2013 to take the possession on the payment of outstanding amounts. According to Clause 11 of the BA, the buyer is to take possession of the plot within 30 days from the date of intimation, failing which he will be liable to pay the holding charges as determined by Op No. 1. In case the complainant himself is defaulter then his complaint is liable to be dismissed. On merits, averments stated in the preliminary objections were reiterated. Booking of the plot is admitted. Possession was offered to the complainant on 18.7.2012 on payment of the balance amount but the complainant failed to pay the balance amount as referred in the statement attached with offer of possession letter. Therefore, the complainant himself is deficient and he cannot raise the objection about deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
5. Op No. 2 did not file the written reply. They had moved an application for permission to file the short reply, however, the Commission vide its order dated 3.3.2016 had dismissed the application for extension of time to file the written reply relying upon the judgment of the Hon'ble Supreme Court in "New India Assurance Consumer Complaint No. 113 of 2013 7 Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.", 2015 (6) R.A.J.
551.
6. The parties were allowed to lead their respective evidence in support of their pleas.
7. Complainant in his evidence has tendered the affidavit of the complainant Gurbaksh Singh Bains Ex. C-A, cheques Ex. C-1 & C-2, receipts Ex. C-3 & C-4, plot buyer agreement Ex. C-5, application for allotment Ex. C-6, schedule of payment Ex. C-7, letter dt. 31.5.10 Ex. C-8, letter dt. 31.7.10 Ex. C-9, allotment letter Ex. C- 10, receipt Ex. C-11, receipt Ex. C-12, letter dt. 14.7.10 Ex. C-13, letter dt. 12.8.10 Ex. C-14, detail of payment Ex. C-15, letter dt. 18.7.12 Ex. C-16, letter dt. 21.7.12 Ex. C-17, agreement Ex. C-18, letter dt. 22.6.15 Ex. C-19, letter dt. 19.9.2012 Ex. C-20, letter dt. 7.9.13 Ex. C-21, letter dt. 11.8.12 Ex. C-22, letter dt. 111.12.12 Ex. C- 23, letter dt. 10.10.13 Ex. C-24, notice dt. 28.9.13 Ex. C-25. On the other hand, Op No. 2 tendered affidavit of Gurpinder Brar, Sr. Manager Ex. Opo-1/A, Maintenance Agreement Ex. Op-1/1, Customer Ledger cum Payment Schedule Ex. Op-1/2, Buyer's Agreement Ex. Op-1/3.
8. We have heard the learned counsel for the complainant Sh. Kulwinder Singh, Advocate and learned counsel for OP No. 2 Sh. Balwinder Singh, Advocate as none had appeared on behalf of Op No. 1.
9. Before taking the complaint on merits, some preliminary objections have been taken by Op No. 1 in its written reply, therefore, it is appropriate to dispose of those preliminary objections. It has Consumer Complaint No. 113 of 2013 8 been stated that the complaint is bad for non-joinder of PACL Ltd. owner of the land of the township Pearl City and that the said Company has entered into an agreement dated 11.7.2006 with Op No. 1 for project management. Complainant has filed this complaint against Pearl Infrastructure Projects Ltd., Mohali. Applications were invited by Op No. 1 Pearl Infrastructure Projects Ltd. as is clear from the application Ex. C-3. Then Buyer's Agreement was also executed between Op No. 1 and the complainant. Neither in the application nor in the Buyer's Agreement it has been referred that owner of the land is PACL and that Op No. 1 has entered into project management agreement dated 11.7.2006. Even in the evidence, no such agreement has been placed on the record by Op No. 1 because except affidavit of Gurpinder Brar, Senior Manager, Marketing, Pearl Infrastructure Projects Ltd., no other evidence has been tendered by the OP. Further Op No. 2 in the affidavit of Seet Singh, Senior Town Planner, PUDA has referred that the licences/approvals/exemptions were given to Op No. 1, therefore, the counsel for OP No. 1 has not been able to prove on the record how the project is connected with PACL when the applications were invited by Op No. 1, sanctions were taken by Op No. 1, buyer's agreement was executed with Op No. 1, therefore, the complaint has been rightly filed against Op No. 1.
10. It has been further stated that according to Section 21, in case there is any dispute between the parties then the matter is required to be referred to the Arbitrator. This plea of Op was disposed Consumer Complaint No. 113 of 2013 9 of by the Commission vide order dated 7.12.2015, therefore, no further findings are required.
11. As per the averments in the complaint and written reply filed by Op No. 1, the complainant moved an application on 5.1.2010 (Ex. C-6) for allotment of a plot and buyer's agreement was executed on 4.3.2010 (Ex. C-5) vide which plot No. B-1025, approximately 320 sq. yards situated in Sector 104, SAS Nagar (Mohali) was allotted with a basic price of Rs. 46,40,000/-, calculated @ Rs. 14,500/- per sq. yards. It has been further provided in Clause 1(a) that basic sale price of the plot covers development of internal services i.e. roads, laying of water lines, laying of sewer lines. PLC charges will be different, cost of electricity lines is not included in the aforesaid basic sale price and shall be payable by the allottee in addition to the price of the plot. 15% of the cost was stated to be the earnest money. EDC or other charges levied by the office of PUDA, Town and Country Planning Department, Punjab is not included in the basic sale price. In case the amount of external development charges is increased, the same shall be borne by the allottees on pro rata share. According to Clause 10, the promoter shall endeavour to hand over the possession of the plots within 3 years from the date of commencement of development and construction of the said township after obtaining requisite permissions/approvals from the concerned Authorities and according to Clause 11, the allottee is required to take over the possession within 30 days from the date of intimation by the Promoter, failing which the allottee may be liable to pay holding Consumer Complaint No. 113 of 2013 10 charges as determined by the Promoter in the payment plan so attached with the agreement as Annexure-A, which reads as under:-
"Interest Free Installment Plan
(a) Rs. 696000 (Rupees Six lac ninety six thousand) as earnest money paid at the time of booking/Allotment on 14.1.2010.
(b) Rs. 464000 (Rupees Four lac sixty four thousand) of BSP + 50% of PLC Nil to be paid on or before 28.2.2010.
(c) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP + 50% of PLC Nil to be paid on or before 14.4.2010.
(d) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP + Club Charges 35000 to be paid on or before 14.7.2010.
(e) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP to be paid on or before 14.10.2010.
(f) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP to be paid on or before 14.1.2011.
(g) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP to be paid on or before 14.4.2011.
(h) Rs. 464000 (Rupees Four Lac sixty four thousand) of BSP to be paid on or before 14.7.2011.
(i) Rs. 232000 (Rupees Two Lac Thirty Two thousand) of BSP to be paid on or before 14.10.2011.
(j) Rs. 232000 (Rupees Two lac thirty two thousand) of BSP to be paid on or before 14.1.2012.
(k) Rs. 232000 (Rupees Two lac thirty two thousand) balance BSP + other charges to be paid at the time of offer of possession."Consumer Complaint No. 113 of 2013 11
According to this payment plan, the payments were to be paid by 14.1.2012 and the remaining amount of Rs. 2,32,000/- was to be paid at the time of offer of possession.
12. Offer of possession letter was issued by the OP vide letter dated 18.7.2012(Ex. C-16) alongwith that the statement of account was submitted. According to that the balance sale price was Rs. 2,32,000/-. Further interest on account of delayed payment of Rs. 8,35,015.89p has been claimed. Further administrative charges of Rs. 15,000/- alongwith service tax and replacement/sinking fund @ Rs. 63/- sq. yard for 5 years equal to Rs. 1,00,800/- and interest free maintenance security @ Rs. 100/- sq. yards was demanded as Rs. 32,000/- and in all a sum of Rs. 12,16,669.89p was demanded from the complainant. However, in the reminder dated 9.9.2013 interest amount has been referred as Rs. 9,11,000/-. There is a provision in Clause 5 of the Buyer's Agreement wherein 18% interest is to be charged upto 90 days and thereafter 24% on all outstanding amount. The details of payment have been given in document Ex. C-15 wherein period of delay and advance payment has been referred by the complainant, which has not been rebutted by the counsel for the Op. In case there is delay in giving the instalments, Ops will be entitled to charge interest @ 18% p.a. and similarly, in case any amount has been paid or taken in advance then similar interest shall be paid by the OP.
13. The next question is whether the offer of possession was genuine and that development of allotted plot was complete on the date, offer of possession was given. As per Clause No. 1(a), the Ops Consumer Complaint No. 113 of 2013 12 was to cover development of internal services such as laying of roads, laying of water lines, laying of sewer lines within the peripheral limits of the township. The complainant had issued letter dated 11.8.2012 (Ex. C-22) in which he had stated to arrange supply of electricity and water as per the agreement and then hand over the complete possession of the plot in terms of the provisions of the agreement. Against this notice, no reply has been filed by the Op in their evidence. They have not placed on the record any document showing that electricity, water facility has been provided as internal development works. According to Section 14(1)(ii), in case of a colony, to obtain a completion certificate from the competent authority to the effect that the development works have been completed in all respects, as per the terms and conditions of the licence, granted to him under Section 5 but no such certificate has been placed on the record issued by the Competent Authority to the effect that entire development work has been completed at the spot. A reference can be made to IV (2016) CPJ 196 (NC) "Jayshree Padmakar Bhat and others versus Vinayak Purushottam Dube & Ors.". In that case, there was housing development agreement. It was observed that State Commission rightly directed developer to hand over completion certificate to the complainants and also to execute conveyance deed. In another judgment, II (2014) CPJ 540 (NC) "Country Club (India) Ltd. & Ors. Versus Nirmal Kumar Pandey". In that case, entire sale consideration was deposited. Deficiency was pleaded. District Forum partly allowed the complaint and directed Ops to complete entire venture named as 'Gold Village' and register plots by collecting Consumer Complaint No. 113 of 2013 13 development charges or alternatively pay Rs. 12,00,000/- as liquidated damages.
14. Without development of internal development works, the offer of possession is not a genuine offer of possession as contemplated under PAPRA and in view of the judgments referred above, therefore, it will not be a valid offer of possession. The development work was not completed even after sending of letter dated 11.8.2012 (Ex. C-22) by the complainant to Op and still the complainant has not been able to get actual possession with complete development works, therefore, the complainant will be entitled to interest @ 12% on delayed delivery of possession by not completing the development works from 11.8.2012 till actual delivery of possession after complete development works.
15. No other point was argued.
16. Sequel to the above, we allow the complaint and direct the Ops:-
(i) to charge the interest @ 18% only for the delayed period as referred in Ex. C-15 in case any payment has been taken by him in advance then Op will also pay the similar rate of interest for the advance period to the complainant.
(ii) offer of possession was not a valid offer of possession as development work at the site is not complete, therefore, Op No. 1 will pay interest @ 12% p.a. on the deposited amount w.e.f. 1.8.2012 till completion certificate is taken from the competent authority with regard to internal development work and after that fresh offer of possession will be issued. Consumer Complaint No. 113 of 2013 14
(iii) pay Rs. 50,000/- as compensation on account of mental and physical harassment.
(iv) Rs. 21,000/- as litigation expenses.
The amount to be paid by the parties can be adjusted at the time of giving effective offer of possession.
17. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
18. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
March 29, 2017. (Surinder Pal Kaur)
as Member