State Consumer Disputes Redressal Commission
Sukhvinder Singh vs M/S Shivalik Infrastructures And ... on 19 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.32 of 2015
Date of institution : 16.02.2015
Date of decision : 19.05.2017
Sukhvinder Singh S/o Joginder Singh, # 73-E, Haritage Drive,
Mountain House, Tracy-CA-95391 (USA)
....Complainant
Versus
1. M/s Shivalik Infrastructures and Developers Pvt. Ltd. having its
registered office at SCO 510, Sector 70, Mohali, Punjab.
2. Managing Director, M/s Shivalik Infrastructure and Developers
Pvt. Ltd. having its registered office at SCO 510, Sector 70,
Mohali, Punjab.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. Vivek Aggarwal, Advocate For opposite party No.1: Sh.Munish Kapila, Advocate For opposite party No.2: None JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant, Sukhvinder Singh, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short. "the Act") for the issuance of following directions to the opposite parties:-
i. to hand over physical possession of the flat duly completed or to return the principal amount of Rs.21,00,000/- along with 18% interest from the date of payment till realization;Consumer Complaint No.32 of 2015 2
ii. to pay compensation on account of non giving of the possession within the stipulated period as per Agreement;
iii. to pay Rs.2,00,000/- as the losses suffered by the complainant along with 18% interest from the date of loss, till realization;
iv. to pay Rs.5,00,000/- as compensation on account of
harassment and wastage of time in pursuing the
matter; and
v. to pay Rs.33,000/- as costs of proceedings.
3. Brief facts, as set out in the complaint, are that the complainant was approached by the opposite parties with a pre-launch scheme for their Project "Paradise Apartments" and under the influence of the opposite parties he applied for allotment of apartment/flat for the total sale consideration of Rs.30,25,000/-. The complainant was allotted apartment/flat No.E-46, 1st Floor in the aforesaid Project of the opposite parties and the possession thereof was promised to be delivered to him till 31.12.2009. An agreement was executed between the parties on 21.04.2008 and the complainant paid an amount of Rs.1,50,000/- as earnest money to the opposite parties on that day itself. On 01.06.2008, he paid another amount of Rs.3,00,000/- and thereafter on 01.07.2008 he paid another amount of Rs.2,60,000/- to the opposite parties. He further averred that his relatives had also entered into agreements with the opposite parties for purchase of flats.
His relatives; namely, Ajit Singh Nival and Gurpreet Singh Bahara, had made the payment of Rs.11,90,000/- for their respective flats. The Consumer Complaint No.32 of 2015 3 opposite parties failed to make the construction of the respective flats. The relatives of the complainant surrendered their flats to the opposite parties and got transferred their respective payments in the name of the complainant on 03.12.2010. The said surrender and transfer of the payment made by the relatives of the complainant were accepted by the opposite parties. A letter dated 04.12.2010 was issued by the opposite parties to the complainant regarding the closing balance in respect of his flat by adjusting the amount transferred by Ajit Singh Nival and Gurpreet Singh Bahara. The opposite parties issued a letter to Ajit Singh Nival and confirmation to that effect has been made to him. As per the agreement entered into between the parties, the possession of the flat was to be delivered by 31.12.2009 but still no possession has been delivered to him. On assurance of the opposite parties that the possession would be delivered by 31.12.2013, complainant deposited another amount of Rs.2,00,000/- on 06.07.2013 to the opposite parties. The complainant stopped making payments to the opposite parties after seeing that the construction work of the flat has not been completed and requested them to complete the construction of the flat and assured them that he would make complete payment only on getting the possession of his flat. A number of visits were made by the complainant and his father to the office of the opposite parties to know the status of the delivery of the flat, however, no satisfactory reply was given by them. On visiting the site it was noticed that the construction of the flat/project has not been completed till the date of filing of the complaint in the year 2015 even after the lapse of more than 6 years from the promised date of delivery of the Consumer Complaint No.32 of 2015 4 possession of the flat. This act of the opposite parties in not delivering the possession of the flat complete in all respects amounts to deficiency in service and adoption of unfair trade practice on their part.
4. Upon notice, opposite parties appeared and filed reply raising preliminary objections that the complainant had only paid a sum of Rs.21,00,000/- and had willfully defaulted in not making the payment despite their requests to remit the instalments. Thus, the complainant breached the terms and conditions of the agreement. The complaint is also barred by limitation as the agreement was entered into between the complainant and opposite party No.1 in the year 2008 and the complaint was filed by the complainant in the year 2015. The present complaint was filed just to harass and blackmail the opposite parties, whereas the complainant himself had breached the terms and conditions of the agreement by not paying the instalments within the prescribed time period. The complaint is bad for mis-joinder and non- joinder of necessary parties. There was no one holding post of Manager as on date in the office of opposite party who has been impleaded as a party and prayed that opposite party No.2 be deleted from the array of parties. The complainant had never visited their office, however, the construction work was in progress. They requested the complainant to visit the site but he failed to do so. The complainant has not approached the Commission with clean hands. The present complaint is not maintainable before this Commission as the complainant himself had not fulfilled his part to make the payment. It is averred that the complainant failed to make payment of the balance amount and despite calling upon him or his representative to Consumer Complaint No.32 of 2015 5 visit the opposite parties, he did not turn up. Even a public notice was published in the newspaper calling upon him to visit the opposite parties and to make the payment. It was also stated in the public notice in case the complainant did not come and make the payment, the allotment of the flat shall be cancelled. However, neither he nor his representative visited the opposite parties. Therefore, as per the agreement his agreement is deemed to have been cancelled. Now, when the agreement has been cancelled the complainant is raising a plea that he is ready to deposit the remaining amount. The complainant is not entitled to any relief after the cancellation of the agreement and prayed that this complaint be dismissed on this ground only. They denied all other averments and prayed that the present complaint be dismissed with costs.
5. To prove his case, the complainant tendered in evidence the affidavit of Joginder Singh, his power of attorney holder, as Ex.C-A and documents Ex.C-1 to Ex.C-10. He also tendered a copy of his power of attorney as Ex.CX. On the other hand, the opposite parties tendered affidavit of their Managing Director; namely, Ghansham Sharma as Ex.OP-A and documents Ex.OP-1 to Ex.OP-3.
6. We have heard learned counsel for both the sides and have gone through the record carefully.
7. Learned counsel for the complainant has vehemently contended that the complainant was allotted the apartment/flat in question and Buyer's Agreement in respect of the same was executed between him and the opposite parties on 21.4.2008, Ex.C-1. The possession of the said apartment/flat was to be delivered to the complainant till Consumer Complaint No.32 of 2015 6 31.12.2009. The complainant paid the amount of Rs.21,00,000/- approximately 70% of the total cost of the apartment/flat. However, despite the payment of such a huge amount there was no progress in the construction of the apartments/flats at the site. Since there was no likelihood of completion of the Project in near future, therefore, the complainant stopped making the payment of the instalments. The complainant and his father made a number of visits to the office of the opposite parties to know the status of the delivery of the apartment/flat but no positive response was given to them. The opposite parties neither delivered the possession of the apartment/flat to the complainant nor returned the amount paid by him. Issuance of public notice in the newspaper is an eyewash and is just to grab the amount deposited by the complainant with them. The complaint is within limitation as the cause of action is a continuous cause of action till the possession of the apartment/flat is delivered or the amount deposited by the complainant is returned along with interest, compensation and costs. This action of the opposite parties caused a great mental tension and harassment to the complainant for which he is entitled to compensation also. The opposite parties are utilizing the amount deposited by the complainant without bothering to hand over the possession of the apartment/flat. They are deficient in rendering service and as such, the complainant is entitled to the refund of the amount deposited by him along with interest, compensation and costs.
8. Per contra, learned counsel for the opposite parties has vehemently argued that the complainant willfully defaulted in not making the complete payment and only paid Rs.21,00,000/- in respect Consumer Complaint No.32 of 2015 7 of the flat/ apartment in question. The complainant was approached through e-mails, telephones, letters etc. but the complainant neither made the balance payment nor appeared. Vide Ex. OP-2 & Ex.OP-3, public notices were got published in the newspaper whereby the complainant was asked to appear within a period of thirty days, failing which the agreement would be presumed to have been cancelled, but neither the complainant nor any representative appeared on behalf of the complainant and instead of paying the dues, he filed the present complaint just to harass and humiliate the opposite parties. The complainant himself had breached the terms and conditions of agreement Ex.C-1 and it did not lie in his mouth to allege that the company is guilty of unfair trade practice and deficiency in service. He argued that the construction work of the flats was in progress and the complainant himself did not make the remaining payment, resultantly the allotment of the flat in question was cancelled. The complainant is not entitled to any relief and the complaint is liable to be dismissed.
9. We have given thoughtful consideration to the arguments raised by learned counsel for both the sides and perused the record carefully.
10. So far as the objection regarding the limitation is concerned, it is now well settled that in such matters there is a continuous cause of action till the possession of the apartment/flat complete in all respects is delivered or the amount deposited is refunded along with interest etc. So, it is held that this complaint is within time as stipulated under the Act.
11. Now, coming to the deficiency in service and adoption of unfair trade practice by the opposite parties. Admittedly, the complainant Consumer Complaint No.32 of 2015 8 entered into an agreement for purchase of the apartment/flat in question, vide agreement dated 21.04.2008, Ex.C-1, in which the total cost of the apartment/flat is mentioned as Rs.29,90,000/- plus Rs.35,000/- as parking fees. Payment schedule is also annexed with this agreement, according to which the sum of Rs.21,00,000/- in total was received by the opposite parties from the complainant. As per version of the complainant, the possession of the apartment/flat was promised and assured to be delivered by 31.12.2009, as per the terms and conditions of the agreement. Opposite parties pleaded in their reply that the offer of possession was subject to the conditions, as stipulated in the Buyer's Agreement, subject to clearance of due payment by the complainant. As per clause 10.1 thereof, the construction was to be completed within a period of 20 months from the date of execution of the said agreement. As per clause 10.2 of the agreement, the opposite parties were to offer the allottee to take over, occupy and use the said apartment, after obtaining certificate for occupation and use from the competent authority, within 30 days of the date of issue of such notice. As per Clause-3 of the agreement Ex.C-1, the complainant paid Rs.1,50,000/- towards price of the said apartment at the time of booking. Vide statement of account Ex.C-5, a sum of Rs.11,90,000/- was debited from the account of the Sh. Ajit Singh Nival and Sh.Gurpreet Singh Bahara, who had surrendered their flats to the opposite parties to complainant for making payment of the price of the apartment/flat. Thus, in all the complainant deposited Rs.21,00,000/- with the opposite parties towards the cost of the apartment/flat. The complainant is claiming interest on the amount of Rs.21,00,000/- from Consumer Complaint No.32 of 2015 9 the actual date of delivery of possession. The complainant entered into the agreement for the purchase of apartment in question, vide allotment letter dated 21.04.2008 Ex.C-1. More than 9 years have passed, but the opposite parties failed to deliver possession of the apartment in question to the complainant. Besides suffering mental tension and harassment, the complainant is also suffering financial loss. The opposite parties by publishing a public notice in the newspapers vide Ex.OP-2 & Ex.OP-3 asked the complainant to appear within 30 days, otherwise the agreement for allotment of the apartment in question would be cancelled. These public notices were issued by them to the complainant on 06.11.2014 & 07.11.2014 i.e. after about 6 years after the agreement was entered into between the parties. Moreover, the issuance of public notices is an eyewash and the opposite parties cannot be absolved of their liability by simply issuing such notices in the newspapers. The complainant was making the payment of the instalments of the apartment/flat regularly to the opposite parties. However, when he found that there was no progress at the site and there was no possibility of delivery of possession of apartment/flat, complete in all respects, to the complainant, he stopped making payment and he has rightly done so. There is no fun in first depositing the amount with the opposite parties and thereafter to file such complaint for the refund of the same.
12. 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 Rs.21,00,000/- which is about 70% of the total cost of the Consumer Complaint No.32 of 2015 10 apartment/flat in time shows that the complainant bona fidely required the apartment/flat for his use and was interested in getting the possession thereof. As stated above, when it became clear to him that there was no possibility of the completion of the construction and to give the possession of the apartment/flat, he stopped making the payment of instalments. In all these circumstances, he is entitled to interest on the amount so deposited by him, as he had been deprived of that amount for all this period.
13. 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 agony, as his hope to have a flat near Chandigarh 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.
14. 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 Consumer Complaint No.32 of 2015 11 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.
15. 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.
16. 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 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.
17. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the apartment/flat by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
18. 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:-
Consumer Complaint No.32 of 2015 12
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."
19. 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 flat/apartment 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.
20. 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 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 in a stipulated period. The Consumer Complaint No.32 of 2015 13 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 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 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 flat/apartment, 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 battle. As such, the complainant was at Consumer Complaint No.32 of 2015 14 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 flat/apartment by waiting for all this period. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and suitable compensation.
21. The complainant has claimed possession of the apartment/flat or in the alternative the refund of ₹21,00,000/- along with interest at the rate of 18% per annum. Since there is no possibility of the completion of the apartment/flat in near future, therefore, no useful purpose would be served in ordering delivery of possession of the apartment/flat to the complainant. Therefore, we deem it just and proper to order the opposite parties to refund the amount deposited by the complainant along with interest. Hon'ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. In view of the above authority as well Consumer Complaint No.32 of 2015 15 as Rule 17 of PAPRA, the complainant is entitled to the refund of his deposited amount, along with interest at the rate of 12% per annum.
22. In view of above discussion, this complaint is allowed and the following directions are issued to the opposite parties:
i) to refund ₹21,00,000/-, to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposits till realization, as per Rule 17 of PAPRA;
ii) to pay ₹2,00,000/-, as compensation for the mental agony and harassment suffered by him; and
iii) to pay ₹50,000/-, as litigation costs, out of which ₹25,000/- shall be deposited by the opposite parties in the 'Consumer Legal Aid Account' of this Commission and the remaining ₹25,000/- shall be paid to the complainant.
23. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount shall also carry interest at the rate of 12% per annum from the date of this order till realization.
24. 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 May 19, 2017.
Bansal