State Consumer Disputes Redressal Commission
Rajinder Sharma vs Eldeco Infrastructure And Properties ... on 8 June, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Misc. Application No.3136 of 2015
In/and
Consumer Complaint No.104 of 2015
Date of institution : 05.05.2015
Reserved on : 01.06.2017
Date of decision : 08.06.2017
Rajinder Sharma s/o Karam Chand, r/o tenant at B-1, 638/2, New
Kundan Puri, near Shiv Mandir, Binderaban Road, Ludhiana.
.......Complainant
Versus
1. Eldeco Infrastructure & Properties Ltd., 4th & 7th, 5th Floor
Carnival Shopping Centre, Mall Road, Ludhiana (Punjab)
through authorized signatory.
2. Eldeco Infrastructure & Properties Ltd., 201-202, 2nd Floor,
Splendor Forum, District Center, Jasola, New Delhi-110 025
through authorized signatory.
3. Dewan Housing Finance Corporation Ltd. (DHFL), # 401-402,
IVth Floor, Lodhi Complex, Mall Road, Ludhiana-141 001
through authorized signatory.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Shri Munish Goel, Advocate. For opposite parties No.1&2: Shri Rajiv Bhatia, Advocate. For opposite party No.3 : Ms. Neeru Sharma, Advocate for : Shri Puneet Tuli, Advocate.Consumer Complaint No.104 of 2015 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Rajinder Sharma, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short "the C.P. Act") for the issuance of following directions to opposite parties Nos.1 and 2:-
i) to give physical possession qua independent floor Unit No.279 measuring 260 square yards at second floor in Eldeco Estate One situated in Ludhiana without any further delay and without any additional cost/extra charges/penalty/interest;
ii) to execute sale deed of the aforesaid Unit without any extra/illegal charges;
iii) to refund or adjust the excess amount of ₹2,45,683/- or its parts as the case may be along with interest at the rate of 12% p.a. till realization;
iv) to provide all necessary documents to show that their project is cleared from all concerned Departments and they have got necessary sanction/approval for construction and are in a position to give physical possession of flats to allottees;
v) to pay interest at the rate of 12% on the amount of ₹30,58,165/- (on account of deposit by the complainant for the Flat) from the date of deposit till date of actual delivery of possession of the above mentioned Flat; Consumer Complaint No.104 of 2015 3
vi) to pay the amount of ₹2,04,370/- as rent paid by the complainant plus future rent till possession of the said Flat;
vii) to pay interest on the amount of ₹3,79,915/- as paid to the financier-opposite party No.3 for the period from 06/2013 to 31/03/2015 plus future interest till the date of possession;
viii) to adjust the sum of ₹87,304/- as deducted being service tax against the basic cost of the said Unit/Flat;
ix) not to claim the sum of ₹91,000/- as EDC against the said Flat/Unit and to quash the said demand;
x) to pay ₹5,00,000/-, on account of increase in cost of construction in last three years;
xi) to pay ₹5,00,000/- on account of compensation for causing mental tension, harassment and mental agony to the complainant; and
xii) to pay ₹33,000/-, as cost of litigation.
2. Brief facts of the case are that on 19.10.2012 opposite parties Nos.1 and 2 entered into an agreement with the complainant for sale of independent floor Unit No.279 measuring 260 square yards at Second Floor in Eldeco Estate One situated in Ludhiana at Ludhiana-Jalandhar Road against the basic price of ₹30,71,040/- and the details of structure, external finishes, flooring, ceiling, internal finishes, doors and windows etc. are duly mentioned in the specifications attached with the agreement. The complainant deposited booking amount of ₹1,45,504/- on 27.9.2012 against Consumer Complaint No.104 of 2015 4 payment receipt No.2231 dated 27.9.2012 duly disclosed in the said Agreement. The complainant paid the amount of ₹30,58,165/- during the period from 27.9.2012 to 8.6.2013 after availing loan of ₹18 lakhs from opposite party No.3 and the details of the payment are as under:-
Sr. No. Date of Payment Total Amount in ₹
1. 27.09.2012 1,45,504/-
2. 18.08.2012 2,98,850/-
3. 27.09.2012 1,50,000/-
4. 27.09.2012 1,50,000/-
5. 29.01.2013 1,100/-
6. 06/06/2013 5,00,000/-
7. 07/06/2013 13,811/-
8. 08/06/2013 18,00,000/-
Total Amount Paid ₹30,58,165/-
The physical possession of the said Unit/Flat was to be provided by opposite parties Nos.1 and 2 after 18 months of the receipt of the entire basic price as per specifications and details provided in the allotment/agreement dated 19.10.2012. The complainant paid the total amount of ₹30,58,165/- towards the said Unit/Flat by 8.6.2013. However, the possession of the said Unit/Flat has not been provided by opposite parties Nos.1 and 2 till the date of filing of the complaint i.e. upto 5.5.2015. Even basic amenities have not been provided by opposite parties Nos.1 and 2 at the site. It is further averred that Consumer Complaint No.104 of 2015 5 opposite parties Nos.1 and 2 deliberately and intentionally wrote the total cost of the Flat/Unit as ₹30,71,400/- and succeeded in getting tripartite agreement with opposite party No.3 on the said amount. It has now come to the knowledge of the complainant from page No.2/16 of the Agreement that in fact the total cost of the Flat/Unit comes to ₹28,25,357/- under the Down Payment Plan Plan-B after considering discount of ₹2,45,683/-. The complainant approached opposite parties Nos.1 and 2 on 23.3.2013 and requested to clarify the total amount of the Flat/Unit. They issued details dated 23.3.2013 and admitted discount of ₹2,45,683/-. In this way, excess amount of ₹2,32,808/- is lying with them. It is further averred that in the said details dated 23.3.2013 opposite parties Nos.1 and 2 disclosed deduction of service tax @ 3.09% amounting to ₹87,304/-, whereas in the agreement dated 19.10.2012 there is no such clause. As such, it is presumed that said service tax if any applicable is included in the basic price and the complainant is not liable to pay said amount of ₹87,304/-. Opposite parties have illegally deducted the same by using illegal tactic and, as such, the complainant is entitled to the refund of the said amount of ₹87,304/-. However, even if said amount of ₹87,304/- is to be considered paid apart from the total cost of ₹ 28,25,357/-, even then excess amount of ₹1,45,504/- is still lying with opposite parties Nos.1 and 2. Opposite parties Nos.1 and 2, vide details dated 23.3.2013 also claimed EDC of ₹91,000/- whereas in the Agreement dated 19.10.2012 there is no such clause for claiming or paying EDC by the complainant and as such, the EDC is liable to be payable by opposite parties Nos.1 & 2. Consumer Complaint No.104 of 2015 6 It is further averred that the complainant duly went to opposite parties Nos.1 and 2 in the month of October and December 2014 and enquired about giving of physical possession of the Flat/Unit. He also enquired about having sanctions/clearance of layout plan and completion certificate along with other formalities from the Government but no reply was given to the same. The complainant is living in rented house and is paying the rent at the rate of ₹9,500/- per month. As such, the complainant is entitled to ₹2,04,370/- as the amount of rent paid by him till the date of filing of the complaint along with future rent till possession. The complainant is also paying the instalment of finance availed by him and as such, opposite parties Nos.1 and 2 are liable to bear interest @ 11.10% equal to interest as paid to opposite party No.3 on the amount of ₹18 lakhs. As per bank statement for the period from 06/2013 to 31.03.2014 and 1.4.2014 to 31.3.2015 interest as stood paid comes to ₹3,79,915/-. The complainant is also entitled to the said amount of ₹3,79,915/- on account of interest paid by him to opposite party No.3 along with future interest till the offer of possession. It is further averred that opposite party No.3 charged insurance premium of ₹99,983/- from the complainant in order to indemnify its losses for the tenure period of 20 years but without possession, the said amount is not payable by the complainant. Therefore, opposite parties Nos.1 and 2 are liable to share such losses for the period, possession is not delivered. In addition to this, opposite parties Nos.1 and 2 also failed to provide basic amenities like electricity, water, sanitation, roads, park, school, swimming pool etc. as Consumer Complaint No.104 of 2015 7 promised to the complainant as per the advertisement. Even the material used in the construction of the said Flat/Unit by opposite parties Nos.1 and 2 is of lower quality and standard against the commitment made in the Agreement dated 19.10.2012. It is further averred that the complainant purchased two flats consisting two bedrooms etc. for his personal use/self-living as well as for family members consisting daughter, son and for old aged mother 68 years and father 70 years. The complainant is suffering loss on account of non-delivery of physical possession of the said Unit/Flat by opposite parties and this action of opposite parties Nos.1 and 2 not only amounts to deficiency in service but also adoption of unfair trade practice for which the complainant is entitled to compensation for mental tension, harassment and agony along with interest and litigation costs etc.
4. No written statement has been filed by the opposite parties despite availing numerous opportunities and as such, the defence of the opposite parties was struck off, vide order dated 7.4.2016.
5. To succeed in the complaint, the complainant proved on record his affidavit as Ex. C-A and tendered in evidence documents Ex.C-1 to Ex.C-32. On the other hand, opposite parties Nos.1 and 2 tendered in evidence the affidavit of Jagtar Thakur, their Authorised Signatory as Ex.OP1&2A and the documents Ex.OP1-2/1 to Ex.OP1-2/26. Opposite party No.3 closed its evidence without tendering any document.
6. We have heard learned counsel for the parties and have carefully gone through the averments of the parties and the evidence Consumer Complaint No.104 of 2015 8 produced in support of their respective averments. We have also carefully gone through the written arguments submitted by the complainant and opposite parties Nos.1 and 2.
7. Learned counsel for the complainant has vehemently contended that the complainant was allotted the Flat/Unit in question and Agreement in respect of the same was executed between him and opposite parties Nos.1 and 2 on 19.10.2012, Ex.C-1 and the complainant paid the total cost of the said Unit/Flat amounting to ₹30,58,165/-, the details of which are mentioned in para no.4 of the complaint. The possession of the Unit/Flat, complete in all respects, was to be delivered by opposite parties Nos.1 and 2 to him after 18 months of the receipt of the entire basic price as per the specification and details provided in the said Agreement. The complainant paid the entire basic price of the Flat/Unit by 8.6.2013 and, as such, the possession of the Flat/Unit was to be delivered by opposite parties Nos.1 and 2 upto 8.12.2014. However, the same has not been delivered till today even after the lapse of more than two and half years. Even the basic amenities have not been provided in the said Flat/Unit and the material used is also not of good quality and the standard as specified in the Agreement. It was further argued that opposite parties Nos.1 and 2 deliberately and intentionally wrote the total cost of the Flat/Unit as ₹30,71,400/- in the tripartite agreement with opposite party No.3, whereas as per the Agreement in fact the total cost of the Flat/Unit is ₹28,25,357/- under Plan-B i.e. the Down Payment Plan after deducting the discount of ₹2,45,683/-. As such excess amount of ₹2,32,808/- is still lying with them. It was further Consumer Complaint No.104 of 2015 9 argued that opposite parties Nos.1 and 2 illegally charged service tax @ 3.09% amounting to ₹87,304/- as there is no such clause in the Agreement Ex.C-1. Similarly opposite parties Nos.1 and 2 charged ₹91,000/- on account of EDC, whereas there is no clause in the Agreement dated 19.10.2012 Ex.C-1. It was further argued that opposite parties failed to give any reply to the enquiry made by the complainant regarding sanctions/clearance of layout plan and completion certificate etc. The complainant is paying rent at the rate of ₹9,500/- per month and, as such, he is entitled to ₹2,04,370/- as the amount of rent paid by him till the date of filing of the complaint along with future rent till possession. He is also paying the instalments of the finance/loan availed by him from opposite party No.3 on the amount of ₹18 lakhs and as such, he is also entitled to ₹3,79,915/- on account of interest paid till the date of filing of the complaint as also future interest till the date of delivery of possession. It was further argued that opposite party No.3 charged insurance premium of ₹99,983/- from the complainant in order to indemnify its losses for the tenure period of 20 years but without possession, the said amount is not payable by the complainant. Therefore, opposite parties Nos.1 and 2 are liable to share such losses for the period possession is not delivered. It was further argued that the complainant purchased two flats for his personal use/self-living as well as for family members and there is no bar for purchasing more than one flat. The non-delivery of possession of the Flat/Unit complete in all respects in-spite of payment of entire sale price caused a great mental tension, harassment and mental Consumer Complaint No.104 of 2015 10 agony to the complainant for which he is entitled to compensation also. Opposite parties Nos.1 and 2 are utilizing the amount deposited by the complainant without bothering to hand over the possession of the Unit/Flat They are deficient in rendering service and as such, the complainant is entitled to the interest at the rate of 12% per annum on the amount of ₹30,58,165/- from the date of deposit till date of actual delivery of possession besides the other reliefs claimed in the prayer clause.
8. Per contra, it was argued by learned counsel for opposite parties Nos.1 and 2 that the complaint is not maintainable as the complainant is not a consumer as defined under the C.P. Act. The complainant has suppressed the material facts and has misled this Commission. The complainant purchased another Flat No.40 in the same township and he filed a civil suit for Specific Performance before the Civil Judge Junior Division, Ludhiana, with regard to that Flat. The suit filed by the complainant was dismissed, vide judgment dated 28.9.2016, Ex.OP1-2/2. The complainant also got booked two Flats bearing No.267-SF and 278-SF in the same township of opposite parties Nos.1 and 2. Thus, the complainant is neither a consumer nor the end user of the Flats and the same have been booked by him for commercial purpose. He cited judgments of Hon'ble National Commission in case "Chillukuri Adarsh v. ESS ESS VEE Constructions" reported in III(2012) CPJ 315 (NC) and in the case titled "Jagmohan Chhabra & Anr. v. DLF Universal Ltd." reported in IV(2007) CPJ 199 (NC). It was further argued that the allegation of the complainant regarding the excess payment made by Consumer Complaint No.104 of 2015 11 him or that no receipt is issued by opposite parties is totally vague. In fact the complainant has added the amount of ₹1,50,000/- twice while calculating the total amount in this complaint. Receipt No.2231 was duly issued and the same is already enclosed on record as Ex.C-4. Nothing beyond the terms of Agreement, Ex.C-1, has been charged and each penny demanded by the opposite parties is justified as per the terms of the Agreement. In fact a sum of ₹3,39,070/- as on 11.9.2015 (except interest till date) is payable by the complainant to opposite parties Nos.1 and 2. The possession of the Flat/Unit has already been offered to the complainant, vide letter dated 11.9.2015, however, the complainant has not performed his part of the contract by remitting the balance charges as specified in Final Demand letter dated 11.9.2015. The Flat/Unit in question is complete and developed in all respects and the basic amenities like electricity, water, sewerage etc. have also been provided. Opposite parties Nos.1 and 2 are still ready and willing to perform their part of the contract. So far as the charging of service tax and EDC are concerned, the complainant undertook to pay the same as per clause L Sub-Clause (9) and Clause F sub clause (1) of the Agreement. Denying any deficiency in service or adoption of unfair trade practice a prayer for dismissal of the complaint was made.
9. However, it was argued by learned counsel for opposite party No.3 that opposite party No.3 has no role in the delivery of possession of the Unit/Flat in question. It had only provided finance to the complainants for purchasing the Unit/Flat in question. Even Consumer Complaint No.104 of 2015 12 no relief has been claimed against opposite party No.3. He prayed that the complaint qua opposite party No.3 may be dismissed.
10. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties and perused the records of the case.
11. So far as the contention of the learned counsel for opposite parties Nos.1 and 2 that the complainant has purchased two Flats in the same Township and, as such, he has purchased the Unit/Flat for commercial purpose and he does not fall within the definition of 'consumer', is concerned, there is nothing on record that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis, and as such, the flat in question was purchased by him for commercial purpose. Thus, in the absence of any cogent evidence in support of the objection raised by the learned counsel for opposite parties Nos.1 and 2, mere bald assertion i.e. simply saying that the complainant is neither a consumer nor the end user of the Flats and same have been booked by him for commercial purpose, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Consumer Complaint No.104 of 2015 13 Gupta, 2016 (2) CPJ 316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The judgments cited by the learned counsel for opposite parties Nos.1 and 2 are prior to the above mentioned judgments and, therefore, cannot be made applicable in Consumer Complaint No.104 of 2015 14 this case. Moreover, the complainant himself has stated in para no. 23 of the complaint that he purchased two flats for his personal use/self-living as well as for family members consisting daughter, son and for his old parents aged 68 years and 70 years. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by learned counsel for opposite parties Nos.1 and 2, therefore, being devoid of merit, is rejected.
12. Now, coming to the deficiency in service and adoption of unfair trade practice by the opposite parties. Admittedly the Flat/Unit measuring 260 square yards in the project of opposite parties Nos.1 and 2 was purchased by the complainant and Agreement dated 19.10.2012 was executed between him and opposite parties Nos.1 and 2 for the same. A copy of the same is placed on the record of this complaint as Ex.C-1 by the complainant himself. A perusal of the same would reveal that the total cost of the Flat/Unit is mentioned as ₹30,71,040/- and under the Down Payment Plan-Plan B, a discount of 8% i.e. ₹2,45,683/- was to be given to the complainant. Admittedly the complainant opted for Down Payment Plan and was also given the discount of ₹2,45,683/- by opposite parties Nos.1 and 2. Therefore, the net price of the Flat/Unit comes to ₹28,25,357/- (₹30,71,040/- minus ₹2,45,683/-). A sum of ₹87,304/- was charged as Service Tax @ 3.09% and a sum of ₹91,000/- was charged as EDC. By adding both these amounts the total cost of the Flat/Unit comes to ₹30,03,661/-. As per the List Receipts Ex.C-2/Ex.C-3, the complainant paid the total payment of Consumer Complaint No.104 of 2015 15 ₹30,58,165/- by 8.6.2013. Therefore, the complainant has paid ₹54,504/- in excess to opposite parties Nos.1 and 2. The possession of the Flat/Unit was to be delivered to him after 18 months of the payment of entire basic price i.e. upto 8.12.2014. Opposite parties Nos.1 and 2 did not deliver the possession of the Flat/Unit to the complainant till today i.e. after about more than two and a half years.
13. Opposite parties Nos.1 and 2 are relying upon Final Demand Letter dated 11.9.2015, Ex.OP1-2/12, in which Offer of Possession of the Flat/Unit was given to the complainant subject to the payment of ₹3,39,070/-. This offer of possession seems to have been sent by opposite parties Nos.1 and 2 in order to cover up its own lapse. Opposite parties Nos.1 and 2 themselves have proved on record Occupation Certificate dated 30.6.2016 Ex.OP1-2/15 and a perusal of the same would reveal that the building was completed in June 2016. When the building itself was completed in June 2016, the issuance of letter of Offer of Possession on 11.9.2015 is meaningless. The possession can only be offered after completion of the project and after getting the occupation certificate from the competent authority.
14. So far as the plea of the complainant that he is not liable to pay ₹87,304/- on account of service tax is concerned, as per Sub-Clause (9) of Clause L of the Agreement Ex.C-1 he himself undertook to pay the applicable service tax on the said Flat/Unit over and above the basic price as may be intimated/demanded by the Company. Therefore, it is held that the complainant is not entitled to this Consumer Complaint No.104 of 2015 16 amount of ₹87,304/-. Similarly the complainant is also not entitled to ₹91,000/- as EDC because the complainant also agreed to pay the said charges as per Sub-Clause (1) of Clause F of the Agreement Ex.C-1.
15. However, so far as the demand of ₹2,88,000/- as PLC (Preferential Location Charges) in the Final Demand Notice dated 11.9.2015 (Ex.OP1-2/12) is concerned, there is no averment in any of the documents proved on record by the opposite parties that the Unit/Flat is preferentially located. Therefore, the complainant is not liable to pay the amount of ₹2,88,000/- on account of PLC. Similarly the complainant is also not liable to pay Maintenance Charges since the possession of the Unit/Flat has not yet been delivered to him. So far as the amount of ₹1,99,168/- on account of Reimbursements is concerned, the same is also not payable by the complainant as the possession of the Unit/Flat has not been delivered to him. Therefore, the Final Demand Notice, Ex.OP1-2/12 is an afterthought to put pressure on the complainant and is sent by the opposite parties to cover up their own misdeeds.
16. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and Consumer Complaint No.104 of 2015 17 set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. In the present case, the opposite parties Nos.1 and 2 have failed to file written reply within the specified period. As such, the evidence adduced by the complainant remains unrebutted.
17. In similar circumstances the Hon'ble National Commission in "Nitin Gupta & Anr. v. Eldeco Infrastructure & Properties Limited" reported in 2017(2) CLT 296 (NC) has ordered the refund of the amount along with 18% per annum interest.
18. The consumers are not to suffer at the hands of such like developers and the Foras under the Act are to come to their rescue. The bona fides of the parties are also to be seen. The payment of entire basic price of the Flat/Unit in time shows that the complainant bona fidely required the Flat/Unit for his use and was interested in getting the possession thereof. In all these circumstances, he is entitled to interest on the amount so deposited by him from the date of deposit till the date of delivery of possession , as he had been deprived of that amount for all this period.
19. This act on the part of the opposite parties in collecting huge amounts from the prospective buyers under the guise of raising multi-storey structure and to give the possession of the apartments/flats therein by the stipulated date and not raising those structures at all and to use the huge money, so collected by them, clearly amounts to unfair trade practice. On account of that unfair trade practice, the complainant has certainly faced harassment and Consumer Complaint No.104 of 2015 18 agony, as his hope to have a flat stood shattered. Had the opposite parties not adopted such an unfair trade practice, he might have invested this money with some other developer and might have got the apartment/flat by now.
20. As per section 3 (General Liabilities of Promoter) of the Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), the opposite parties were required to make full and true disclosure of the nature of their title to the land, on which such colony is to be 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.
21. 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. So, they also violated Section 5 of PAPRA.
22. 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 apartments/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by Consumer Complaint No.104 of 2015 19 them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
23. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of Unit/Flat within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.
24. 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 has made payment of substantial amount to the opposite parties with the hope to get the possession of the Unit/Flat 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 Unit/Flat and delivery of possession in a Consumer Complaint No.104 of 2015 20 stipulated period. 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 his money with the opposite parties, he 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/apartment within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the Unit/Flat 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 framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the Unit/Flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of building the Apartments/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 Consumer Complaint No.104 of 2015 21 battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering his hope of getting the Unit/Flat by waiting for all this period. Therefore, the non-delivery of possession of the Flat/Unit in question in-spite of the payment of full amount by the complainant not only amounts to deficiency in service but also adoption of unfair trade practice on the part of opposite parties Nos.1 and 2. Hence, the complainant is entitled to possession of the Flat/Unit as also interest on the amount of ₹30,58,165/- from 8.12.2014 till the date of delivery of possession along with compensation and costs from opposite parties Nos.1 & 2. However, the complaint against opposite party No.3, which is a Financing Company and provided housing loan to the complainant, is dismissed.
M.A. No.3136 of 2015:
25. This application is dismissed in view of the discussion held above as the averments made in the application have already been discussed in the foregoing paras.
26. The original record from the office of Sub-Divisional Engineer (B&E), GLADA, Ludhiana, was summoned in order to ascertain the authenticity of the Completion Certificate issued by it to the opposite Consumer Complaint No.104 of 2015 22 parties, vide letter No.EO-GLADA-LDH-3392 dated 30.6.2016, vide order dated 10.5.2017. In pursuance of the order dated 10.5.2017 Shri Santosh Kumar Bains, SDE, appeared along with the original record on 1.6.2017. After perusing the same and retaining the photocopy of the report dated 30.6.2016 the record was returned to him. A perusal of the report reveals that the site of Plot No.279 was inspected and it was found that the opposite parties have constructed Ist, 2nd and 3rd floors as per the approved plans. A further perusal of the same reveals that the OC shall be issued after depositing the sum of ₹19,176/- as compounding fee.
27. In view of above discussion, this complaint is allowed and the following directions are issued to the opposite parties Nos.1 and 2:
i) to deliver the possession of the Unit/Flat in question, complete in all respects along with all the agreed basic amenities to the complainant within two months from the date of receipt of copy of this order;
ii) to pay interest on the amount of ₹30,58,165/- at the rate of 9% per annum from 8.12.2014 till the date of delivery of actual possession;
iii) to refund ₹54,504/- to the complainant on account of excess payment towards the price of the Unit/Flat;
iv) to pay ₹3,00,000/- as compensation, on account of mental
tension, mental agony and harassment; and
v) to pay ₹30,000/- as litigation expenses.
28. The opposite parties Nos.1 and 2 shall comply with the order within two months of the receipt of certified copy thereof, failing Consumer Complaint No.104 of 2015 23 which the compensation amount shall also carry interest at the rate of 9% per annum from the date of this order till realization.
29. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER June 08, 2017 Bansal