State Consumer Disputes Redressal Commission
Vijay Kumar vs Pearls Infrastructure Projects Ltd. on 1 February, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.371 of 2016
Date of Institution: 02.12.2016
Order reserved on: 25.01.2018
Date of Decision : 01.02.2018
Vijay Kumar S/o Mr. Ram Chand, resident of main bazaar, kunihar,
District Solan.
.....Complainant
Versus
1. Pearls Infrastructure Project Ltd., Sector-100, SAS Nagar,
Mohali through its authorized signatory.
2. SCO No.6, Sector 69, Smart Phone Mohali through its owner.
3. Pearls Infrastructure Projects Ltd., registered office at 2-3rd
floor, A-wing, Statesman House, Barakhamba Road New
Delhi-110001 through its authorized signatory
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Ms. Meena Bansal, Advocate For opposite parties no.1&3 : Ex-parte For opposite party no.2 : Service dispensed with, vide order dated 06.11.2017 .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (in short as OPs) on the averments that he Consumer Complaint No.371 of 2016 2 booked with OPs a plot bearing no.23 measuring 250 square yards situated at Sector 100 Pearl City Mohali. The total price of the said plot was Rs.57,50,000/- (Rs.23,000/- per square yard), which included development of internal services such as laying of roads, laying of water lines, laying of sewer lines within the peripheral limits of the township. The payment plan was for three years and complainant made the payments to OPs as follows:-
Payment Schedule Payment Date Amount (Rs.) Booking amount 09.02.2011 5,75,000/- 45 days from the date of booking 26.03.2011 5,75,000/- 3 months from the date of booking 09.05.2011 5,75,000/- 6 months from the date of booking 09.08.2011 4,31,250/- 9 months from the date of booking 09.11.2011 4,31,250/- 12 months from the date of 09.02.2012 4,31,250/- booking 15 months from the date of 09.05.2012 4,31,250/- booking 18 months from the date of 09.08.2012 2,87,500/- booking 21 months from the date of 09.11.2012 2,87,500/- booking 24 months from the date of 09.02.2013 2,87,500/- booking 27 months from the date of 09.05.2013 2,87,500/- booking 30 months from the date of 09.08.2013 2,87,500/- booking 33 months from the date of 09.11.2013 2,87,500/- booking 36 months from the date of 09.02.2014 2,87,500/- booking 12 months from the date of 09.02.2012 35,000/- booking
The complainant had paid whole payment, as per schedule given by OPs. Despite making the above payments in time, the possession Consumer Complaint No.371 of 2016 3 has not been given of the above plot to him, as per agreement. As per clause 10 of agreement, OPs was to deliver the possession of the plot within three years from the date of official launch of Sector 100, Mohali from the township or from the date of signing of buyers agreement, whichever was later, but OPs failed to deliver the possession of the said plot to him. The date of buyers agreement was 23.12.2011, but till date, he has not received any communication from OPs nor they informed him about any progress of the project. The complainant served legal notice dated 13.07.2016 upon OPs for refund of his deposited amounts of Rs.54,97,500/- alongwith interest 18% per annum, but to no effect. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed that they be directed to refund the entire deposited amounts of Rs.54,97,500/- alongwith interest @10% per annum from the date of their deposits till realization of the amount; further to pay Rs.3,00,000/- as compensation for mental harassment; and to pay Rs.50,000/- as cost of litigation.
2. Upon notice, OP nos.1 and 3 failed to appear before this Commission pursuant to notice and hence they were proceeded against exparte vide order dated 19.05.2017. The service of OP no.2 was ordered to be dispensed with and its name was struck off from the array of parties of the complaint, vide order dated 06.11.2017.
3. The complainant tendered in exparte evidence his affidavit Ex.C-A on the record alongwith documents Ex.C-1 to C-4 and closed the exparte evidence.
Consumer Complaint No.371 of 2016 4
4. We have heard the learned counsel for the complainant and also examined the exparte evidence on the record. The pleadings of the complainant have been carefully weighed by us with the able assistance of counsel for the complainant. Evidence on the record is required to be alluded to for proper adjudication of the matter. Buyers agreement was executed between the parties on 23.12.2011, vide Ex.C-1 on the record. As per clause 10 of buyers agreement, the OPs were bound to deliver the possession of the plot within three years from the date of official launch of Sector 100 of the said township or from the date of signing of flat buyers agreement, which ever was later. The flat buyers agreement was executed between the parties on 23.12.2011 and the scheduled date of delivery of possession was 22.12.2014. The terms and conditions have been incorporated in buyers agreement Ex.C-1 between the parties, which are required to be fulfilled by them. Ex.C-2 is the copy of Annexure A, the payment schedule, being part of buyers agreement on the record. The payment was required to be paid by the complainant to OPs, as per payment schedule fixed in Ex.C-2. Ex.C-3 is the letter of OPs, proving this fact that they have received the amount of Rs.54,97,500/- from the complainant and the balance has been shown as nil. It is, thus, clear from perusal of Ex.C-3 that complainant has paid the amounts, as agreed upon towards sale consideration to OPs, but they have not delivered the possession of the plot to the complainant despite receipt of money. Legal notice Ex.C-4 was sent by complainant to OPs in this regard. Affidavit of Consumer Complaint No.371 of 2016 5 Vijay Kumar complainant is Ex.C-A on the record. He has proved this fact that he booked a plot bearing no.23 measuring 250 square yards situated at Sector 100 Pearl City Mohali. The total price of the said plot was Rs.57,50,000/- (Rs.23,000/- per square yard), which included the development of internal services, such as laying of roads, laying of water lines, laying of sewer lines within the peripheral limits of the township. This witness has further deposed that he paid the amount of Rs.54,97,500/- to OPs, but they failed to deliver possession of the plot to him within three years. This evidence has been adduced on record by complainant in exparte manner against OPs.
5. The above referred exparte evidence led by the complainant has gone unrebutted on the record. The irrefutable exparte evidence of the complainant has proved the case of the complainant in this exparte complaint. The complainant has paid the substantial amounts of consideration to OPs to the extent of Rs.54,97,500/-, vide Ex.C-3. The OPs were bound to deliver the possession within three years, as per clause 10 of buyers agreement Ex.C-1 from the date of its execution to him. The year 2018 has started running, but still there is no sign of delivery of possession of the plot by OPs to complainant. This is sheer unfair trade practice on the part of OPs. They have utilized the hard earned money of the complainant without performing their contractual duty of developing the project and to deliver the possession thereof to the consumers within the stipulated period. This is a case of complete violation of Consumer Complaint No.371 of 2016 6 PAPRA Act, 1995 by OPs. The OPs have not deposited the amount in the separate account in scheduled bank received from the complainant and thereby violated Section 9 of PAPRA Act 1995 as well. The cause of action is continuing one in this case. The OPs cannot be allowed to swallow the hard earned money of the complainant. Consequently, it is a fit case where the refund of the deposited amount with interest should be ordered. The exparte claim of the complainant is established against OPs on the record.
6. As a result of our above discussion, we exparte accept the complaint of the complainant and direct OPs to refund the entire deposited amounts of the complainant alongwith interest @10% interest from the date of their deposits till actual payments, as prayed for in the complaint. The complainant is also awarded compensation of Rs.1,00,000/- for mental harassment and Rs.30,000/- as cost of litigation in this exparte order. The above amounts shall be payable by OPs to complainant within two months from the date of receipt of certified copy of the order. In case, the amount is required to be paid by PACL due to its control over the project, then in that eventuality, the recovery shall be effected by complainants through the instrumentality of SEBI Committee constituted by Hon'ble Supreme Court in Civil Appeal no.13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India". Top Court has passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the Consumer Complaint No.371 of 2016 7 sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the Incharge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc., wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited. Herein this case, PACL Limited is also a party to buyers agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case for recovery of refund amounts, as per direction of the Hon'ble Supreme Court.
7. Arguments in this complaint were heard on 25.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER Consumer Complaint No.371 of 2016 8 February 01, 2018.
(MM)