State Consumer Disputes Redressal Commission
Jaspreet Singh Chhabra vs Atm Estates Pvt. Ltd. on 17 February, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 391of 2019
Date of Institution : 10.05.2019
Date of Reserve : 21.01.2020
Date of Decision : 17.02.2020
1. Jaspreet Singh Chhabra son of Sh.Surinder Singh
2. Manpreet Kaur wife of Jaspreet Singh Chhabra
Both residents of 21, GovindVihar, RB Duni Chand Road,
Amritsar.
.....Complainants
Versus
1. ATM Estates Pvt. Ltd., through its Director / Authorized
Signatory having its registered office as 2nd Floor, 8/33, WEA
Carol Bagh, New Delhi (mail:[email protected])
2. ATM Estates Pvt. Ltd., having its local office at Shubham
Enclave, NH-1, GT Road, Daburji, Amritsar through its
Chairman Inderjit Sachdeva (mail:[email protected])
....Opposite parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection
Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliawal, President
Mr.Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member Present:-
For the complainant : Sh.Akhilesh Vyas, Advocate For the opposite parties : Ex-parte Consumer Complaint No.391 of 2019 2 RAJINDER KUMAR GOYAL, MEMBER The complainants have filed this complaint, under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short 'the Act') seeking following directions to the opposite parties:
i) to give the possession of Unit No.H-601, 6th Floor, H Building, Group Housing Complex, Amritsar One at Shubham Enclave, GT Road, Amritsar along with all the basic amenities as per their commitment; OR
ii) to refund the entire deposited amount of Rs.20,66,000/- along with interest at the rate of 18% per annum from the respective dates of deposit till realization;
iii) To pay Rs.2,00,000/- as compensation as agony and harassment suffered by the complainants and Rs.50,000/- as litigation charges;
iv) Opposite parties be directed to produce all the original documents and specifically Buyer's Agreement pertaining to the Unit No.H-601, bearing area of 1650 sq. ft. in the name of the complainant as per allotment letter;
v) to pay Rs.1,00,000/- as compensation for unfair trade practice adopted by the opposite parties, which causes mental harassment and mental agony; and
vi) any other order/direction which this Commission may deem fit.Consumer Complaint No.391 of 2019 3
Facts of the Complaint
2. Brief facts, as averred in the complaint are that the complainants purchased an apartment bearing No.H-601, 6th Floor, H-Building in a Group Housing Complex known as 'Amritsar One' at Shubham Enclave at GT Road, Amritsar, measuring 1650 sq.ft. at the rate of Rs.2750/- per sq.ft. Further averred that the flat was purchased for the brother of complainant No.1 keeping in mind that after studying from Canada he will reside in the new flat. The opposite parties assured the complainants that the residential project of the opposite parties will be a huge success and will provide prestigious gated community characterized by outstanding levels of comfort convenience and security. In the brochure / advertisement the opposite parties enumerated that the project will have various features like walking parks, tennis courts, swimming pools, party hall etc. and there will be 100% power back up, 24 hours water supply and 3 tiers security system. The allotment letter dated 08.10.2012 was issued in favour of the complainants. The total sale consideration of the flat was fixed as Rs.45,37,500/-. Against the total sale consideration, the complainant paid a sum of Rs.20,66,000/- on different dates. The opposite parties assured the complainants that exact time for handing over the possession will be disclosed in the Flat Buyer's Agreement. The complainants came to know that as per other Flat Buyer's Agreement executed with the other similar situated persons that the possession of the flat was to be handed over within 24 months from the date of booking. However, the opposite parties failed to offer the Consumer Complaint No.391 of 2019 4 possession to the complainants. The complainants on visit to the site found no progress at site. Even the necessary approvals/ permissions were not granted by the competent authorities to the opposite parties and the project of the opposite parties was lying in lurch as there were no chances of completing the project in the forthcoming months as well. The opposite parties have also not obtained any Completion Certificate for the project. The opposite parties have violated the provisions of Punjab Apartment and Property Regulation Act, 1995 (PAPRA) and rules framed there- under. The complainants time and again approached the opposite parties by way of letters and reminders but no reply was received. The complainant also visited the office of the opposite parties on 12.07.2018 but found no positive response. Alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainants filed the complaint seeking the above mentioned reliefs.
Defence of the Opposite Parties
3. Upon notice, the opposite parties did not appear despite their service and they were proceeded ex-parte vide order dated 27.08.2019.
Evidence of the Parties
4. To prove their claim, the complainants have filed their affidavits along with documents as copy of brochure dated NIL as Ex.C-1, copy of allotment letter dated 08.10.2012 as Ex.C-2, copy of receipts as Ex.C-3(colly), copy of letter and e-mails as Ex.C- Consumer Complaint No.391 of 2019 5 4(colly), copy of calculation sheet as Ex.C-5, copy of order as Ex.C-6.
Contentions of the Parties
5. We have heard the learned counsel for the parties and have carefully gone through the record.
6. It has been vehemently argued by the learned counsel for the complainants that the complainants purchased one flat for their own family purpose in the project of the opposite parties. The opposite parties assured to provide various amenities in their project and they further assured the complainants that they will be given possession within the stipulated period. It has been argued that no agreement was executed between the parties. Despite of the fact, the opposite parties received a huge part of amount of the total sale consideration. There is no progress at the site, in question. Even the opposite parties have failed to obtain the necessary permission/ approvals from the competent authorities. Not only this, the basic amenities have also not completed at the site, which shows that there is no hope that the project will be completed in near future. The complainants tried to contact the opposite parties number of times with regard to the possession of the flat but no satisfactory response was given to them. The opposite parties have violated the provisions of PAPRA, 1995 and rules framed there-under. This act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice. It is prayed to allow the complaint by giving all the reliefs as claimed. Consumer Complaint No.391 of 2019 6 Consideration of the Contentions
7. We have given my thoughtful consideration to the respective contentions raised by the learned counsel for both the parties.
8. 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. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. At the sake of repetition, it is relevant to mention that in the present case, opposite parties failed to appear and were declared ex-parte vide order dated 27.08.2019. Thus, the evidence adduced by the complainant remains unrebutted. In view of this, all the averments made in the complaint are deemed to have been admitted by opposite parties and an adverse inference is to be drawn against it. It is, therefore, held that the opposite parties is deficient in rendering service to the complainant.
9. Undisputedly, the complainants purchased a flat bearing Unit No.H-601, 6th Floor, Group Housing Complex in the project 'Amritsar One' at Shubham Enclave, G.T. Road, Amritsar, having super area approx. 1650 sq.ft. The Allotment Letter dated 08.10.2012, Ex.C-2 was issued to the complainants. As per the pleadings of the complainants, the total sale consideration of the Consumer Complaint No.391 of 2019 7 flat was fixed as Rs.45,37,500/- at the rate of Rs.2,750/- per sq.ft., against which the complainants have deposited Rs.20,66,000/- as per Ex.C-3 (colly) to the opposite parties. The complainants proved on record various e-mails and letters vide Ex.C-4(colly) showing that the complainants approached the opposite parties number of times with the prayer to get the refund of their amount. However, no reply has been received. Moreover, the opposite parties have not got executed any agreement to sell after receiving the substantial amount from the complainants. The opposite parties have been proceeded ex-parte and did not come forward to put their defence, which shows that there is deficiency on their part by not handing over the possession to the complainants after receiving the substantial amount. Moreover, there is no outer date mentioned in the allotment letter and brochure which was published by the opposite parties that when the possession would be handed over. We are of the view that in case no outer date is given in the allotment letter then it could be taken as a reasonable time, which can be 3 years and in case opposite parties have issued allotment letter in the year Oct. 2012 then the unit should have been developed and its possession should have been offered to the complainant within a period of 3 years complete in all respects i.e. by Oct.2015 along with basic amenities, whereas the complainant has been depositing the payment from September, 2012 onwards and since then they are looking towards the opposite parties to deliver the possession but with no result. The opposite parties did not come to prove their bona fide that the basic amenities as Consumer Complaint No.391 of 2019 8 promised by them have been provided at the site and obtained the necessary approvals and permissions. The complainants cannot be made to wait for an indefinite period for delivery of possession of the flat in question in-spite of payment of substantial amount towards the price of the flat. The opposite parties received the amount more than 40% of sale price from the complainants without entering into a written agreement for sale which is complete violation of 6(1) of PAPRA as under:
"Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908."
10. Furthermore, in the present case, the agreement has not executed the parties. On other hand, the opposite parties have not committed any specific date of delivery of possession of the unit(s) in the allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots / unit(s) to the allottees / purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Consumer Complaint No.391 of 2019 9 Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-
"Merely making endeavour to deliver possession by a particular date will also not meet the requirement of law and the promoter is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer".
In view of above, the plea of opposite parties in this regard also stands rejected. It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. It is not in dispute that huge amount was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by opposite parties for their own benefit.
11. Section 14 of PAPRA deals with responsibility of the promoter to obtain 'Completion and Occupation Certificate' from the competent Authority, which reads as under:
"14. It is the responsibility of the promoter- (i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and (ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub- section (1) shall, after satisfying itself about the Consumer Complaint No.391 of 2019 10 agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
12. Further, Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing), which is applicable to the properties falling within the Municipal Limits, provides as under:
"No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
13. The C.P. Act came into being in the year 1986. It is one of 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. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have booked the flat with the opposite parties with the hope to get the possession of the same in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof in a stipulated period and ultimate delivery of possession. The act and Consumer Complaint No.391 of 2019 11 conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite party, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainants have suffered loss, as discussed above. 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 there under and would not be able to construct the flat in question and deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the flat, 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 amount paid by the complainants is a deposit held by the opposite parties in trust of complainants and it should be used for the purpose of developing the project, as mentioned in Section 9 of PAPRA. 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 such Consumer Complaint No.391 of 2019 12 circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In these circumstances, the complainants are entitled to the refund of the amount deposited by them 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 subsection (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. In view of our above discussion, this complaint is allowed and following directions are issued to the opposite parties:-
i) to deliver the possession of Unit No.H-601, measuring 1650 sq.ft. at 6th Floor, in Group Housing Complex as 'Amritsar One' at Shubham Enclave, G.T. Road, Amritsar complete in all respects after obtaining Occupation Certificate as well as Completion Certificate, subject to payment of balance sale consideration by the complainant, without interest or penalty within a period of two months.
ii) to pay interest at the rate of 12% per annum from the stipulated date of possession i.e. October, 2015 Consumer Complaint No.391 of 2019 13 onwards till the handing over of possession as per relief
(i).
It is made clear that the opposite parties may adjust the interest amount against the dues pending towards the complainant, if any.
iii) to pay Rs.33,000/- as compensation on account of mental agony and harassment as well as litigation expenses.
In case opposite parties fail to deliver the possession within two months, as ordered above, then in the alternative:
i) to refund a sum of Rs.20,66,000/- along with interest at the rate of 12% per annum from the respective dates of deposit till realization.
ii) to pay Rs.33,000/- as compensation on account of mental agony and harassment as well as litigation expenses.
16. This complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER February 17, 2020 parmod