State Consumer Disputes Redressal Commission
Rakender Kumar And Another vs Sanskriti Golden Oak Real Estate Pvt. ... on 12 March, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.702 of 2018
Date of institution : 30.08.2018
Date of Reserved : 25.02.2019
Date of decision : 12.03.2019
1. Sh. Rakender Kumar son of Sh. Prithi Chand.
2. Mrs. Reeta Devi, wife of Sh. Rakender Kumar.
Both residents of House No.2492A, Sector 28C, Chandigarh.
....Complainants.
Versus
1. Sanskriti Golden Oak Real Estate Pvt. Limited, Registered
Office at House No.639, Sector 11-B, Chandigarh-160011,
Mobile No.09501254111 through its Managing
Director/Director/Authorized Signatory.
Email: [email protected].
2nd Address:-
Sanskriti Golden Oak Real Estate Pvt. Limited, House
No.405, IV Floor, Tower No.18, Royale Estate, Zirakpur,
Punjab.
Email: [email protected]
2. Sh. Parminder Singh and Sh. Ravi Garg, Directors, Sanskriti
Golden Oak Real Estate Pvt. Limited, DLF, Pocket R2, New
Chandigarh, Mullanpur, S.A.S. Nagar, Punjab.
Email:[email protected].
....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 complainants : Sh. Deepak Aggarwal, Advocate For the opposite parties : Ex-parte MRS.KIRAN SIBAL, MEMBER M.A. No.1955 of 2018 (Joint Complaint) Heard.
The complainants being joint owners of the flat, in question, the application is allowed.
Main Complaint
2. The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986, (in short "C.P. Act") seeking following directions to the opposite parties (in short "OPs"):-
i) to refund the amount of Rs.1,75,000/- alongwith interest @ 18% p.a. from the respective dates of deposits till realization.
ii) to pay compensation of Rs.1 lac on account of mental agony, physical harassment, financial loss caused to the complainants.
iii) to pay Rs.50,000/- as costs of litigation.
iii) Any other relief, which this Commission may deem fit.
3. Brief facts, as set out in the complaint, are that complainants booked a flat bearing No.SA/GF/D-108, measuring 1420 square feet for a total sale consideration of Rs.36,06,000/- in the Mega Housing Project namely "Sanskriti Homes" of OPs by paying Rs.5000/- towards booking amount vide receipt dated 13.02.2017. Thereafter, they deposited Rs.1,70,000/-, vide receipt ID No.1325 dated 07.04.2017 with OPs on their demand. After making above total payment of Rs.1,75,000/-, they observed that OPs have stopped raising further demands towards price of the said flat from them and also no agreement was sent for their signature to them by the OPs. It has come to their knowledge that OPs have not obtained necessary permissions/sanctions to launch their above project and OPs lost their interest in the said project in the very beginning due to some inter-se family dispute. Complainants approached Chandigarh office of OPs to know about the status of the project, but did not get any satisfactory reply. Instead of apprising them about the status of the project, the OPs raised further demand of Rs.6,77,625/-, vide letter dated 20.12.2017, which was opposed by complainants on account of above reasons. The complainants wrote letter dated 21.04.2018 to OPs with a request to refund the amount paid with interest, on account of the reasons mentioned above. The same was accepted by OPs and they refunded the amount of Rs.1,75,000/- to them through cheques dated 07.06.2018 and 25.06.2018 after receiving pre- printed affidavit-cum-undertaking from them, but OPs have failed to pay interest on the above deposited amounts of complainants to them. When complainants tried to encash the above cheques, the same have been dishonoured by the Bank for the reason "payment stopped by drawer", vide vouchers dated 07.07.2018 and 09.07.2018. The complainants have made many requests vide email and also sent notice to OPs with regard to refund of their amounts, but to no effect. In this manner, the OPs failed to perform their part intentionally and deliberately, despite repeated requests and communications and even the request for amicable settlement in the matter had been brushed aside by the OPs. The OPs were never serious to launch and develop the said project rather had usurped the hard earned money of the complainants and other allottees on false and misleading information regarding the project in question. Even as on today, there is only a jungle and the project site is not visible. Therefore, the OPs are not in a position to deliver possession of the unit in question as they have abandoned the project which fact is also evident from the photographs clicked by the complainants on 04.08.2018. As such, the complainants are also entitled to compensation for mental agony, physical harassment and financial loss. The complainants have alleged deficiency in service not completing the project in time and unfair trade practice for not refunding the above amounts with interest. Hence this complaint.
4. Notices were sent to the opposite parties through registered post A.D. OP No.2 refused to accept the notice/RC and did not appear on the date fixed. Hence, they were proceeded against ex parte vide order dated 22.10.2018. Whereas, OP No.1 was served through publication in the Tribune dated 17.01.2019, but it also did not put in appearance and was proceeded against ex parte vide order dated 06.02.2019.
Evidence of the Parties
5. To prove their complaint, the complainants filed, along with the complaint, their self attested affidavits and documents Ex.C-1 to Ex.C-16(colly), including Ex.C-2(colly), Ex.C-13(colly), Ex.C- 15(colly).
Contentions of the Parties
6. We have heard learned counsel for the complainants and have gone through the record carefully.
7. Learned counsel for the complainants vehemently argued that the OPs-company have failed to complete the project and have not handed over the said unit to the complainants. It appears that the project has been abandoned before launch itself. The complainants were seeking refund of an amount of Rs.1,75,000/- and the OPs issued cheques for refund after receiving pre-printed affidavit-cum-undertaking from them, but OPs have failed to pay interest on the above deposited amounts of complainants to them. When the complainants tried to encash the above cheques, the same had been dishonoured by the Bank for the reason "payment stopped by drawer", vide vouchers dated 07.07.2018 and 09.07.2018. Alleging deficiency in service and averring on similar lines as stated in the complaint, counsel for the complainants prayed for allowing the complaint.
Consideration of Contentions
8. We have considered the respective contentions raised by the learned counsel for the complainants and have carefully gone through the record.
9. The admitted facts of the case are that complainants booked a flat bearing No.SA/GF/D-108, measuring 1420 square feet for a total sale consideration of Rs.36,06,000/- in the Mega Housing Project namely "Sanskriti Homes" of OPs by paying Rs.5000/- towards booking amount vide receipt Ex.C-2(colly). Payment plan opted for was construction linked plan. The complainants deposited an amount of Rs.1,70,000/- on 07.04.2017 vide receipt Ex.C-3 upon demand raised by the OPs. Thereafter the OPs stopped making further demands towards the price of the said flat and it has been alleged by the complainants that no agreement was sent for their signatures. There is no agreement on record. The complainants have averred in the complaint that they made various communications and requests to the OPs to handover the possession but there was no response from the OPs. Finally, a request for refund of Rs.1,75,000/- vide letter, Ex.C-5 was made by the complainants to the OPs which was accepted. The OPs handed over cheque nos.458564 dated 07.06.2018 for Rs.1 lac Ex.C-7 and cheque no.458565 dated 25.06.2018 for a sum of Rs.75,000/- Ex.C-8 both drawn on YES Bank. However, both the cheques were dishonoured twice when presented before the bank concerned, on account of the reason "Payment Stopped by Drawer" vide vouchers dated 14.06.2018, 26.06.2018, 07.07.2018 and 09.07.2018 Ex.C-9 to Ex.C-12 respectively. A legal notice through registered post dated 01.08.2018 Ex.C-14 but the Directors of the Company refused to accept the same as is evident from documents/envelop dated 02.08.2018 Ex.C-15(colly). The OPs are not in a position to deliver the possession of the unit, in question as there is no progress/development at the project site. The same is evident from the perusal of photographs Ex.C- 16(colly) clicked by the complainants on 04.08.2018. This itself shows that the OPs with the malafide intention had deliberately stopped the payment of the said cheques and are thus deficient in service and have adopted unfair trade practices.
10. 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 agree 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. In the present case, the OPs No.1 & 2 have not come present despite service, therefore, they were proceeded against ex-parte vide order dated 22.10.2018 and 06.02.2019 respectively. As such, the evidence adduced by the complainants remains unrebutted.
11. Keeping in view the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the 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 its title to the land, on which such project 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. It was 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 project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with Section 3 of the 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/Space, but no evidence has been led on the record by the opposite parties to prove that any such account has been maintained by it in this respect. As such, it also violated Section 9 of the PAPRA.
13. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment/shop by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
14. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the 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 opposite parties had been collecting huge amounts from the buyers for the development of the project. 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 also to be bound by the reciprocal promises of performing its part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop its project. Thus, the delay in not delivering the possession of flat/apartment, in question, within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainants are to be suitably compensated.
16. The 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 complainants have made payment of substantial amount to the opposite parties, with the hope to get the possession of the flat/apartment 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 flat/apartment and delivery of possession thereof in a 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 complainants not invested their money with opposite parties, they 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/shop within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the flat/apartment 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 it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainants to book the flat/apartment, due to which the complainants have 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 builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In these circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and suitable compensation.
17. Perusal of receipts Ex.C-2(colly) and Ex.C-3 shows that a sum of Rs.1,75,000/- was deposited by the complainants with the OPs on different dates, towards the price of the said unit. However, as mentioned above, the OPs failed to deliver the possession of the unit, in question, to the complainants within the stipulated period, without any sufficient cause and, thus, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.
18. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund the amount of Rs.1,75,000/- along with interest at the rate of 12% per annum from the respective dates of their deposits till realization, as per Rule 17 of PAPRA.
ii) to pay Rs.20,000/- as lumpsum compensation for the mental agony and harassment suffered by the complainants towards litigation expenses.
19. Compliance of the order passed in the complaint shall be made by the opposite parties within 30 days of the receipt of certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 12, 2019.
SK/-