State Consumer Disputes Redressal Commission
Gurinder Pal Singh vs Preet Land Promoters & Developers Pvt. ... on 1 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.111 of 2017
Date of institution : 27.02.2017
Date of decision : 01.09.2017
Gurinder Pal Singh S/o Jarnail Singh, R/o H.No.2738, Phase-7,
Mohali.
....Complainant
Versus
1. Preet Land Promoters & Developers Pvt. Ltd., through its
Managing Director, Regd. Office: Site Office Sector 86, SAS
Nagar, Mohali (Punjab).
2. A.B. Apartments Pvt. Ltd., through its Managing Director,
Kanwaljit Singh, Regd. Office: SCO 80, 81-82, 1st Floor, Sector
34-A, Chandigarh-160035.
3. Kanwaljit Singh, Director, Preet Land Promoters & Developers
Pvt. Ltd. R/o H.No.1568, Sector 34-D, Chandigarh.
4. Charan Singh Saini, Director, Preet Land Promoters &
Developers Pvt. Ltd., R/o H.No. 159-B, Sunny Enclave, Kharar
PIN-140301.
....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 complainant : Sh. Abhinashi Singh, Advocate For the opposite parties: Sh. K.S. Lang, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties, seeking issuance of following directions to them: Consumer Complaint No.111 of 2016 2
i) to deliver possession of the plot, in question, at the earliest;
Or In the Alternative
i) to pay ₹50,96,881/-, (total amount deposited by the complainant) along with interest at the rate of 18% with effect from the respective dates of payments upto 21.09.2016, along with further interest at the rate of 18% till realization;
ii) to pay ₹3,00,000/-, as damages on account of physical/mental harassment and pain caused to the complainant; and
iii) to pay ₹50,000/-, as litigation expenses.
Brief facts, as set out in the complaint, are that on 21.04.2010, the complainant purchased 250 sq.yds. plot, vide registration No.R-1268, from A.B. Apartments Pvt. Ltd.. for his own use and occupation. The price of the plot was fixed as ₹26,25,000/-, out of which on 21.4.2010, complainant paid a sum of ₹ 17,87,500/- i.e. ₹13,12,500/- towards 50% of the land cost + ₹4,75,000/- as 100% development charges. Vide letter dated 02.04.2012, the complainant was also intimated that opposite party No.2 entered into an agreement with opposite party No.1 and the entire project was taken over by opposite party No.1 and that further payments should be made to the opposite party No.1, who would be allotting plots booked with A.B. Apartments. Thus, opposite party No.1 stepped into the shoes of opposite party No.2 for all intents and purposes and it is responsible for all the allotments/agreements/commitments made by opposite party No.2. Accordingly, the complainant was issued fresh receipts by opposite party No.1. In para No. 6 of the allotment letter dated 19.7.2010, the Consumer Complaint No.111 of 2016 3 opposite parties promised that the allottees would be offered possession of their respective plots within approximately 2-3 years, but even after 6 years of receiving the payment and issuance of allotment letter, there was no development at the site. The opposite parties issued another allotment letter dated 27.04.2012, demanding another sum of ₹10,50,000/-, so as to make total amount paid as 90% of the total sale consideration. The complainant paid another sum of ₹1,50,000/- on 09.07.2012 towards the initial land cost, as per the demand of the opposite parties. The opposite parties further issued letter dated 09.12.2013, asking him to pay ₹9,00,000/-, so as to make the total amount received by the builder as 90% of the entire sale consideration of the land. He wrote a registered letter dated 30.12.2013 to them stating that he was ready to pay the entire amount demanded within one month, provided the developer informs the time within which the possession of the plot would be delivered. However, again the said demand of ₹9,00,000/- was raised and they also threatened the complainant to cancel the plot, in case of non-payment thereof and that the amount paid would be returned without interest. Thus, the complainant paid ₹4,75,000/- towards the entire (100%) development charges, as per the demand of the opposite parties from time to time. In this way, he paid a sum of ₹22,37,500/- towards the sale consideration of the plot and ₹ 4,75,000/- towards the development charges. Despite taking full development charges of ₹4,75,000/- in 2010, the project was yet to start, as about 70% area was still being used for cultivation. There were no decent roads, no Consumer Complaint No.111 of 2016 4 sewer connection and no electric connection. Even the persons, who have taken the possession, have been forced to use septic tank, as the sewer line coming from the residential houses was not connected with the main sewer line provided by GMADA. Information provided by GMADA under RTI made it clear that opposite parties had not provided any proper sewerage line or sewer arrangement. None of the allottees had yet received the occupation certificate. Although the opposite parties received the entire EDC from the complainant and others, but they were still in arrears of ₹681.55 lacs, payable to GMADA. They were also in default of licence fee due towards GMADA to the tune of ₹124.84 lacs as on 01.06.2016. The opposite parties allotted about 1100 plots, whereas the total number of approved plots was just 431. Other 398 plots have been kept ousted from the scheme by GMADA and about 48 plots were lying hypothecated with GMADA. Being fed up with the false assurances and unprofessional attitude of the opposite parties, the complainant sent legal notice dated 27.09.2016, seeking refund of the deposited amount i.e. ₹27,12,500/-, along with interest at the rate of 18% upto 21.09.2016 and ₹ 3,00,000/- as compensation for harassment and mental tension; totaling ₹54,07,881/-. The opposite parties, vide their reply dated 03.10.2016, cleverly tried to wash their hands of their responsibility and stated that since the payment was not made by the complainant as per the schedule given in the allotment letter, so he could not be allotted the plot. The above said act and conduct of the opposite parties caused mental agony and harassment to the complainant. Hence, the complaint.
Consumer Complaint No.111 of 2016 5Defence of the Opposite Parties
2. Upon notice, the opposite parties appeared and filed reply to the complaint, raising certain preliminary objections that the complaint in this form is not maintainable. The same is barred by limitation. The complainant concealed the material facts and no cause of action had arisen in favour of the complainant to file this complaint. On merits, it was pleaded that the complainant had not booked/purchased the plot for its own use but purchased it for selling the same to gain profit. The complainant purchased the registration number of the plot from Pooja w/o Gagandeep r/o Kanshi Nagri, Street No.3, Ferozepur City, Punjab and amount of ₹6,00,000/- paid by the said seller was transferred to the account of the complainant. In the allotment letter dated 19.7.2010 in Clause No. 3, it was clearly stated that balance amount of the land cost and development charges of the plot would be paid in three equal half yearly instalments. In Clause No. 5 thereof, it was mentioned that no separate notice would be sent for payment. In Clause No. 6, it was mentioned that on payment of entire consideration together with interest due, the allottee would execute the Deed of Conveyance in the prescribed form. The allottee would be offered to take the possession of the site after the development, which may take approximately 2/3 years. However, since the complainant failed to pay the remaining payment in time, so he cannot take the benefit of his own wrongs. The sewerage, water, electricity line and roads are already lying in the sector of the opposite parties. The Consumer Complaint No.111 of 2016 6 demand of the remaining amount raised, vide letter dated 27.04.2012, was as per the terms and conditions of the allotment letter. It was clearly stated in letters dated 9.12.2013 and 13.3.2014 that in case the complainant refused/neglected or failed to make due payment as stipulated above, the handing over possession of the plot to him was liable to be shifted to the second phase/cancelled, as the circumstances may warrant. However, the complainant never complied the same. No threat was ever given to him. The complainant himself requested the opposite party to accept ₹7,75,000/- and gave undertaking dated 07.04.2015 that he would have no objection, if his name was placed on the waiting list and he would wait for his turn. The opposite parties have developed the project, as per the norms of GMADA, in view of the layout plan approved by it. The customers, who have already paid all the instalments, have got the possession of their plots and some of them have also constructed their house over there. The averments made in para No.10 of the complaint were denied. It was further pleaded that the opposite parties are ready to give possession of the plot, after completing the development of the remaining purchased land in the sector, along with completing other formalities. If the complainant is not interested to remain with his investment in the plot with the opposite parties, then the opposite parties are ready and willing to refund his amount, but the complainant is adamant to get double of the amount deposited by him. Thus, the complainant is not entitled to any relief. All other allegations of the Consumer Complaint No.111 of 2016 7 complainant were denied and it was prayed that the complaint be dismissed, with heavy costs.
Evidence of the Parties
3. To prove his claim, the complainant tendered his own affidavit as Ex.C-A, along with documents Ex.C-1 to Ex.C-21.
4. The opposite parties tendered affidavit of Sh. Charan Singh Saini, Director, as Ex.OP-A, along with documents Ex.OP-1 to Ex.OP7. Contentions of the Parties
5. We have heard learned counsel for the parties and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that the opposite parties failed to complete/develop their project within the stipulated period, despite receiving substantial amount from the complainant. The photographs Ex.C-11A, Ex.C-11B, Ex.C-12A, Ex.C-12B, Ex.C-13A and Ex.C-13B clearly proves that there is no development at the site and the opposite parties are not in a position to deliver the possession of the plot allotted to the complainant. The complainant deposited the total amount of ₹27,12,500/- with the opposite parties, against the total sale consideration of the plot in question. The complainant is entitled to the refund of that amount, along with interest. For the mental agony and harassment suffered by the complainant, he is also entitled to suitable compensation.
7. Per contra, learned counsel for the opposite parties vehemently contended that the complaint is time barred and the Consumer Complaint No.111 of 2016 8 complainant is not a consumer, as he purchased the plot, in question for resale purpose, to earn profit therefrom. It was further contended that the complainant himself default in making the payments towards the price of the plot regularly. Several reminders were issued to him in this regard from time to time, but he failed to pay the remaining amount. It was further contended that the project of the opposite party is developed and sewer, water and electricity connections are installed therein. The roads are also built properly and many customers, who have paid the entire sale consideration, have already taken the possession and have constructed their houses. The opposite parties are ready and willing to deliver possession of the plot to the complainant, subject to payment of the remaining amount. In case, the complainant wants refund of the amount deposited by him, then the same can be refunded without any interest. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
Consideration of Contentions
8. We have given our thoughtful consideration to the arguments raised by both the learned counsel for the parties.
9. The first contention raised by the learned counsel for the opposite parties is that the complaint is barred by limitation. Vide allotment letter dated 19.07.2010, the plot, in question, was allotted to the complainant. As per clause-6 of this letter, the possession was to be offered after development of the whole sector, which might take approximately 2-3 years. However, till today the opposite parties have Consumer Complaint No.111 of 2016 9 failed to develop/complete the project, as is evident from photographs Ex.C-11A, Ex.C-11B, Ex.C-12A, Ex.C-12B, Ex.C-13A and Ex.C-13B, despite receipt of substantial amount from the complainants and others. When no offer of possession has been given, then there will be a recurring cause of action and we are of the opinion that the complaint filed by the complainant is not barred by limitation. As such, there is continuous cause of action in favour of the complainant and the complaint cannot be said to be barred by limitation.
10. The other contention of the opposite parties is that the plot, in question, was purchased by the complainant for reselling purpose, in order to earn profit and he is not a 'consumer' under the Act. It is relevant to mention that the opposite parties have failed to produce any evidence to prove this fact. Mere averment, in the absence of any cogent evidence, in this regard will not sufficient to prove this fact. A reference can be made to the judgment of the Hon'ble National Commission reported in II (2017) CPJ 25 (NC) Dr. Poonam Aggarwal versus Gujral Associates & Anr. wherein it was observed that unless there is evidence on record that complainant was engaged in business of selling and purchasing of properties on regular basis, it would not be proper to classify such acquisition as commercial activity merely on the basis of number of units booked by such person. The Hon'ble National Commission in III (2015) CPJ 63 (NC) Beatty Tony versus Prestige Estate Projects Pvt. Ltd., held that merely on booking of the flat/plot it cannot be presumed that it is booked for 'commercial purpose' and the complainant was considered as a 'consumer'. Therefore, the above Consumer Complaint No.111 of 2016 10 said contention of the learned counsel for the opposite parties is also rejected, holding that the complainant is a 'consumer, under the Act.
11. Now coming to the merits of the case, admittedly the complainant purchased the plot, in question, from one Pooja W/o Gagandeep in the project of the opposite parties. The opposite parties transferred the amount of ₹6,00,000/- paid by earlier allottee in the account of the complainant. Allotment letter dated 19.07.2010 Ex.C-6 was issued in favour of the complainant, allotting the plot in question. As per clause-6 thereof, the allottee was to be offered possession of the site after development of the whole section which might take approximately 2-3 years. The opposite parties kept on raising demand of various amounts and the complainant paid those amounts regularly to them and paid a total sum of ₹27,12,500/- with them, vide receipts Ex.C-4, Ex.C-5, Ex.C-8 and Ex.C-10. However, the opposite parties failed to develop/complete its project, in which the plot, in question, is situated. This fact is proved from the photographs, Ex.C-11A, Ex.C- 11B, Ex.C-12A, Ex.C-12B, Ex.C-13A and Ex.C-13B. Perusal of these photographs shows that there exists only the agricultural land and there is no sign of any development at the site. The complainant produced on record letter dated 17.06.2016, Ex.C-14, issued by GMADA, in which it has been specifically mentioned that opposite party No.1 has not been issued the sewerage connection, as the colonizer has to make the arrangement for disposal of sewerage at its own level. Further perusal of letter dated 03.11.2016, Ex.C-15, which has been issued by the PSPCL, shows that no electricity connection Consumer Complaint No.111 of 2016 11 has been granted by the PSPCL to the residents of Sector 86. Letter dated 08.03.2017, Ex.C-16, produced by the complainant, further shows that the developer has only been issued the temporary connection for construction and no individual connection has been released to the residents of Sector 86 by the PSPCL. There is another letter dated 03.11.2016, Ex.C-17, issued by GMADA, which clearly shows that opposite party No.1 has not issued occupation certificate to any plot holder in Sector 86. Still further, letter dated 01.06.2016, Ex.C- 18, issued by GMADA shows that a sum of ₹124.84 lacs is due towards opposite party No.1 towards GMADA.
12. The above referred evidence clearly shows that opposite parties have not obtained requisite permissions/licenses for their project, in view of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"). The opposite parties have not led any cogent and convincing evidence to rebut the above referred elaborate evidence produced by the complainant.
13. All the above facts and circumstances clearly prove that the opposite parties have not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "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 his title to the land, on which such colony 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. They were also Consumer Complaint No.111 of 2016 12 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.
14. 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 obtained from the competent authority. So, they also violated Section 5 of PAPRA.
15. 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, 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.
16. 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 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."
Consumer Complaint No.111 of 2016 13
17. From the above facts and circumstances of the case, it is clear that there is no development at the site, nor the opposite parties have obtained the requisite approvals from the competent authorities to develop/complete their project. As such, no useful purpose would be served by directing the opposite parties to deliver the possession of the plot, in question. In such circumstances, the complainant is entitled to refund of the amount deposited by him, along with interest and compensation.
18. The complainant has claimed refund of ₹27,12,500/- along with interest at the rate of 18% totaling ₹50,96,881/-, along with further interest at the rate of 18% per annum. As per Para No.17 of the complaint, the complainant deposited the total sum of ₹27,12,500/- with the opposite parties. Receipts Ex.C-4, Ex.C-5, Ex.C-8 and Ex.C- 10 duly prove this fact. 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 as Rule 17 of PAPRA, the complainant is entitled to the refund of ₹27,12,500/-, along with interest at the rate of 12% per annum.
19. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties: Consumer Complaint No.111 of 2016 14
i) to refund ₹27,12,500/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
ii) to pay ₹1,50,000/-, as compensation for the mental tension and harassment suffered by the complainant; and
iii) to pay ₹21,000/-, as litigation expenses.
20. The opposite parties shall comply the order within 30 days of the receipt of certified copy of the order, failing which the compensation amount shall also carry interest at the rate of 12% from the date of this order till realization.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 01, 2017.
(Gurmeet S)