State Consumer Disputes Redressal Commission
Sandeep Gupta vs M/S Premium Acres Infratech Pvt. Ltd. on 21 June, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 855 of 2016 Date of Institution 28.11.2016 Date of Decision 21.06.2017 Sandeep Gupta S/o Sh. Vidya Sagar, resident of Opposite State Bank of India, Bassi Pathana Road, Sirhind, Distt. Fatehgarh Sahib (Punjab). .......Complainant V E R S U S 1] M/s Premium Acres Infratech Pvt. Ltd., SCO No.56-57, 3rd Floor, Sector 17-C, Chandigarh, through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali), through its General Manager. 3] M/s Premium Acres Infratech Private Limited, (Regd. Office), 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi - 110005. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No. 1227, Sector 42-B, Chandigarh - 160036. Second Address :- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 5] Sanjay Jain (Director) Premium Acres Infratech Private Limited, r/o House No.2235, Sector 21, Chandigarh. 6] Dewan Housing Finance Corporation Ltd., SCO No.811-812, 2nd Floor, Sector 22-A, Chandigarh - 160022. ...... Opposite Parties Argued by: Mrs. Vertika H.Singh, Advocate for the complainant. Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 4. Opposite Party No.5 exparte vide order dated 20.04.2017. Er. Sandeep Suri, Advocate for Opposite Party No.6. Consumer Complaint No. 856 of 2016 Date of Institution 28.11.2016 Date of Decision 21.06.2017 Sandeep Gupta S/o Sh. Vidya Sagar, resident of Opposite State Bank of India, Bassi Pathana Road, Sirhind, Distt. Fatehgarh Sahib (Punjab). Aarti Gupta W/o Sandeep Gupta resident of Opposite State Bank of India, Bassi Pathana Road, Sirhind, Distt. Fatehgarh Sahib (Punjab). .......Complainants V E R S U S 1] M/s Premium Acres Infratech Pvt. Ltd., SCO No.56-57, 3rd Floor, Sector 17-C, Chandigarh, through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali), through its General Manager. 3] M/s Premium Acres Infratech Private Limited, (Regd. Office), 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi - 110005. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No. 1227, Sector 42-B, Chandigarh - 160036. Second Address :- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 5] Sanjay Jain (Director) Premium Acres Infratech Private Limited, r/o House No.2235, Sector 21, Chandigarh. 6] Dewan Housing Finance Corporation Ltd., SCO No.811-812, 2nd Floor, Sector 22-A, Chandigarh - 160022. ...... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Mrs. Vertika H.Singh, Advocate for the complainants.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 4.
Opposite Party No.5 exparte vide order dated 20.04.2017.
Er. Sandeep Suri, Advocate for Opposite Party No.6.
PER PADMA PANDEY, MEMBER By this order, we propose to dispose of, following cases:-
1.
CC/855/2016 Sandeep Gupta Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors..
2. CC/856/2016 Sandeep Gupta & Anr.
Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors..
2. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.
3. At the time of arguments, on 20.04.2017, it was agreed between Counsel for the parties, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.
4. Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 855 of 2016, titled as "Sandeep Gupta Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors.".
5. In brief, the facts of the case are that Opposite Parties No.1 to 4 i.e. Premium Acres Infratech Pvt. Ltd. (in short "the Company" only) launched the project of "TDI City" with great marketing and advertising all over Punjab and the complainant was allured by the Company, who depicted the magnanimous benefits of the said project. The complainant applied for a flat in the project of Opposite Parties No.1 to 4 (Company). The Company allotted unit/flat No.12301 having an approximate built up area of 1200 sq. ft. to the complainant vide allotment letter dated 12.05.2011 (Annexure C-1). Thereafter, Buyer Agreement was executed between the parties on 19.12.2011 (Annexure C-2). As per Clause 9 of the Agreement, possession of the unit was to be handed over within a period of 24 months from the date of the Agreement i.e. latest by 18.12.2013. It was further stated that the total consideration of the unit was Rs.37,51,800/- including basic sale price + EDC + PLC. The complainant opted Construction Linked Payment Plan. The complainant had made the initial payment of Rs.7 lacs before the execution of the Agreement. The complainant also took loan of Rs.21,06,384/- from Opposite Party No.6 and tripartite agreement dated 20.12.2011 was executed between the parties, at Chandigarh (Annexure C-3). Subsequently, the payments were made, as per the demand raised by the Company telephonically. It was further stated that the complainant made the total payment of Rs.28,27,654/- in respect of the unit, in question. After receipt of the payment from the complainant, the Company barely communicated to the complainant for the demand of next installment once or twice. However, no intimation was ever given regarding any progress in the construction work and no letter or email was ever received by the complainant intimating as to what is the stage of the construction work. The complainant enquired from the Company telephonically as well as on site visits on several occasions regarding the status of construction work of the unit but the Company every time evaded the queries of the complainant, despite receipt of the huge amount from him. It was further stated that the complainant visited the site and did not find any progress in the construction and till date, only a basic structure of the building is standing and no other work had been done in the said flat. The complainant got the said unit inspected by approved Civil Engineer, who gave report dated 20.04.2015, whereby, it clearly shows that till 20.04.2015 only the basic structure of the said unit was standing (Annexure C-4). The complainant also took recent photographs, which are annexed as Annexure C-5. It was further stated that the Company issued legal notice dated 22.08.2014 and demanded an amount of Rs.10,43,321.21 for the said unit. It was also falsely stated in the notice that the said unit was ready for possession and the Company shall hand over the possession within 90 days from the date of payment made by him. Even alongwith the legal notice, the Company levied Rs.6,70,000/- as restoration charges, despite the fact that the unit of the complainant was never cancelled till that particular date. It was further stated that the complainant was required to pay Rs.24,21,700/- till the start of brick work, whereas, the complainant has already paid an amount of Rs.28,27,684/- till 14.03.2014 and after making excess payment, no further demand was ever raised by the Company. It was further stated that prior to the issuance of legal notice dated 22.08.2014, the Company never sent any demand letter for the payment of next installment. The Company also intimated that some of the employees of the Company have been terminated, as they were involved in embezzlement and cheating with the Company in connivance with some customers. The complainant duly replied to the legal notice (Annexure C-7). It was further stated that immediately after issuing reply to the legal notice, the complainant received letter dated 06.10.2014, whereby, the Company had cancelled the allotment of flat of the complainant (Annexure C-8) arbitrarily without application of mind. It was further stated that there was no proper approach road to the said flat and no park & amenities in the surrounding area. The photographs clearly depicted that only a basic structure is standing without any plastering work or electrical or plumbing work being complete. The Company had abandoned the construction work of the said flat and there is a wild growth of jungle around the block, in which, the unit of the complainant existed. It was further stated that as per the Agreement, if the construction is delayed due to normal course, then the Company shall pay Rs.7000/- per month as delay charges for the period of delay but the Company failed to pay the same. It was further stated that the EDC charges have been paid by the complainant but there was no development in Sector 110-111. It was further stated that the complainant alongwith his wife Mrs. Aarti Gupta also purchased one more flat bearing No.12302 on the first floor of the same block in anticipation of expansion of family in future and both the flats were to be used by the complainant for his own residential purposes. It was further stated that the Company did not have the required sanctions/permissions for the development of the site. It was further stated that the Company has also not procured the necessary approvals from the necessary authority of Pollution Control Board, Forest Department and GMADA. Even the Company had not applied for the completion certificate of the said project. It was further stated that the complainant filed complaint case No.571 of 2015 before the District Forum, Chandigarh but the Forum vide order dated 03.10.2016 dismissed the complaint of the complainant with liberty to file a-fresh before the appropriate Court. Due to the aforesaid act and conduct of the Opposite Parties, they were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short "Act" only), was filed.
6. Opposite Parties No.1 to 4, in their joint written statement, have stated that the complainant has not come to this Commission with clean hands as he failed to mention about the criminal complaint filed by him before the JMIC Mohali, which was dismissed. It was further stated that the complainant has mentioned in his complaint that the notice dated 07.11.2014 (Annexure C-7) was immediately replied back by a cancellation notice dated 06.10.2014 (Annexure R-15), it is to be seen that how cancellation notice dated 06.10.2014 sent through registered post on 07.10.2014 could be sent after a notice dated 07.11.2014 and further the complainant has not attached any proof of the alleged notice. Thereafter, the complainant filed consumer complaint No.571 of 2015 before the District Forum, Chandigarh, which was dismissed as withdrawn with permission to file a-fresh one on the same cause of action (Annexure C-13) but in the complaint now the complainant sought refund plus compensation on the false, fabricated and non-existing ground, just to extort money from the replying Opposite Parties, which shows that he purchased the unit for earning profit. It was further stated that as per Annexure R-2, the complainant failed to pay full and complete amount in time and whatever amount is paid, that amount is also paid late and in actuality he paid only Rs.22,96,404/-, and he has not produced any receipt qua the alleged total payment of Rs.28,27,684/-. It was further stated that as per Clause 4(d) of the Agreement, in the event of non- payment, despite being given reminders, if the purchaser fails to pay the amount then as per that clause, the purchaser is only entitled for the refund after adjusting all the expenditures, which in this case as per the calculations mentioned in Annexure R-2, the returnable amount comes to the tune of Rs.3,43,548/- and being the signatory of the Agreement still the complainant filed forged and fabricated complaint, which is liable to be dismissed. It was further stated that the documents (Annexures C-1 & C-2) i.e. allotment letter and Buyer Agreement have not been issued by the authorized person but the terms and conditions of the said documents are same as of the standard allotment letter and Agreement of the replying Opposite Parties. It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 85% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of these persons are adamant of not making the payment, which they are legally liable to make. It was further stated that National Company Law Tribunal vide order dated 09.01.2017 (Annexure R-14) has dismissed Company Petition filed by Opposite Party No.5 against the replying Opposite Parties. It was further stated that the complainant has not purchased the property for residential purpose, as he is living in Fatehgarh Sahib and no evidence whatsoever has been attached with his complaint, which shows that the complainant or his family want to live in this flat at any point of time. Not only this, the complainant booked another flat on the first floor No.12302 alongwith his wife, which shows that the complainant purchased the property for further sale to earn further profits and, as such, he is not a consumer under the Consumer Protection Act, 1986 and the said property purchased by him is only for speculation purposes. It was further stated that the complaint is not maintainable on the ground of non joinder of necessary party i.e. Sh.Amit Jain because he signed the Buyer's Agreement. It was further stated that the allotment of flat already stood cancelled vide cancellation notice dated 06.10.2014 (Annexure R-15) because after issuing the legal notice dated 22.08.2014 (Annexure C-6) neither the reply has been filed nor the payment has been made, as per legal notice dated 22.08.2014 (Annexure C-6). It was further stated that the complaint is also liable to be dismissed on the point of limitation because the flat stood cancelled on 06.10.2014 (Annexure R-15) and, thereafter, the present complaint has been filed on 22.11.2016 meaning thereby that the complaint is beyond the two years period of limitation under the Consumer Protection Act. It was further stated that the complainant has not paid the dues, according to latest update summary calculation (Annexure R-2), vide which, an amount of Rs.43,22,403/- is pending against the complainant qua the flat, in question and the complainant in order to take possession of the flat, have to make that payment and possession could be handed over in another 90 days time from that date, as 75% work of the flat is complete since October, 2014. It was further stated that final notice for possession, as per the Agreement, is always issued in the end when the complete payment, as per the agreed plan, is made without any delay whatsoever and the intermediate letters are just to inform about the status. It was further stated that the complainant made the last payment on 14.03.2014 and, thereafter, no payment was made and, therefore, the question of handing over of possession without taking the complete payment is out of question because the payment being made by the complainant stopped in midway. It was admitted regarding booking of the flat by the complainant ; allotment of the unit and execution of the Agreement. It was further stated that the construction work suffered delay because of the fraud committed by the employees of the Company, which is mentioned in Annexures R-4 & R-5 and further stay orders passed from time to time by the Hon'ble High Court regarding the ban on sand mining and it was the duty of the complainant to make the payment in time as per the Agreement and Annexure R-2. It was denied the agreegate sale price of the flat is Rs.37,51,800/- because the other charges i.e. club charges, IFMS, sewerage, electricity etc. are to be included in the total product cost, which comes out to Rs.66,18,807/- and out of that Rs.22,96,404/- has been received and final amount to the tune of Rs.44,22,403/- is due, which is to be paid at the time of final possession and in this case since 14.03.2014, no payment is made by the complainant for the reasons best known to him and despite being given a reminder dated 22.08.2014 (Annexure C-6) that flat, in question, stood cancelled on 06.10.2014 (Annexure R-15) and in case, the complainant makes the balance payment, as per Annexure R-2, then possession could be handed over within a time period of 90 days from the date of complete payment. It was further stated that as per the Agreement, the duty is cast upon the complainant to come present at the site and check the construction work and make the payment but the complainant failed to do so. It was denied regarding receipt of Rs.28,27,684/- because the Company only received an amount of Rs.22,96,404/- only. It was further stated that if the complainant visited the site of flat number of times then he must be aware of the situations and why all these alleged objections were not raised by him there and then in writing. It was further stated that the work has been stopped at the site because further payment has not been received by the replying Opposite Parties. It was further denied that the evaluation report (Annexure C-4) annexed by the complainant is proper because it is not supported by the affidavit of the concerned person. It was also denied that the photographs (Annexure C-5) are correct because if the payment is not made, then the further work cannot be evaluated. It was further denied regarding receipt of legal notice dated 07.11.2014 (Annexure C-7). It was further stated that there was no delay from the side of replying Opposite Parties because the delay was from the side of the complainant because he failed to make the payment in time and further complete payment is not made, so the question of Rs.7000/- per month to the complainant is out of question. It was further denied that no roads and parks alongwith street lights have been developed and functional. The replying Opposite Parties also placed on record photographs (Annexure R-8) to prove the fact. It was further denied that the replying Opposite Parties cannot offer possession of the unit because of lack of approval from GMADA. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.
7. Opposite Party No.5 in his short reply, admitted that the complainant deposited an amount of Rs.28,27,684/- with Premium Acres Infratech Pvt. Ltd. It was stated that Sh. Parminder Singh Sehgal & Smt. Parminder Kaur Sehgal, alleged Directors - Premium Acres Infratech Pvt. Ltd. have not only defrauded the replying Opposite Party but also committed criminal breach of trust and several other frauds with the Company and, as such, he lodged an FIR (Annexure OP-5/1) against them and also attached copy of CFSL report (Annexure OP-5/2). It was further stated that due to the disputes between the Directors of the Company, the complainant should not be made to suffer. It was further stated that another FIR dated 13.04.2016 was registered against the captioned persons for cheating, fraud and breach of trust done by Mr. Kapil Aggarwal, Chartered Accountant C/o B.Aggarwal and Co. in criminal conspiracy with Mr.Parminder Singh Sehgal and his wife Smt. Parminder Kaur Sehgal and other associates (Annexure OP-5/5). It was further stated that Mrs. & Mr. P.S.Sehgal have left no stone unturned to harass all the allottees of the project of the Company by fabricating and manipulating the entire account statements of the allottees just to extort maximum money from the allottees. It was further stated that the letters have been issued by the Company on the instructions of Mr.P.S.Sehgal and the replying Opposite Party has been fraudulently disassociated by Mr.P.S.Sehgal since June, 2014 and hence the replying Opposite Party has not been dealing with the affairs of the Company since June, 2014. However, the dispute regarding the ownership and Directorship of the Company is pending before the Hon'ble Company Law Board, New Delhi. Hence, the replying Opposite Party could not be held liable for any kind of grievance of the complainant arising after June, 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor he indulged into unfair trade practice and prayed for dismissal of the complaint qua Opposite Party No.5.
8. Opposite Party No.6, in its reply, stated that the complaint was not maintainable against it because the replying Opposite Party is only a financer, who sanctioned loan to the complainant for the unit, in question and also executed tripartite agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor it indulged into unfair trade practice.
9. Initially Opposite Party No.5 appeared and filed reply but thereafter, he failed to appear and, as such, proceeded against exparte vide order dated 20.04.2017.
10. The complainant filed rejoinder to the written statement of Opposite Parties No.1 to 4, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 to 4.
11. The Parties led evidence, in support of their case.
12. We have heard the Counsel for the contesting parties and have gone through the evidence and record of the case, carefully.
13. The first question, that falls for consideration, is as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, Counsel for Opposite Parties No.1 to 4, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years, so, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of Counsel for Opposite Parties No.1 to 4, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. It is pertinent to note that Buyer Agreement which was executed between the parties, at Chandigarh, on 19.12.2011 vide Clause 36 of the Agreement, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause for coming to the conclusion, that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. Now the plea of Counsel for Opposite Parties No.1 to 4 that the Company office of Chandigarh has closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit by the complainant, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainant in dark since no such communication was ever sent to the complainant regarding closing down of the Chandigarh office. Moreover, the allotment letter (Annexure C-1) annexed by the complainant, issued by the Company from their Chandigarh office clearly shows the Chandigarh address of the Company on the aforesaid document. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 to 4, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
14. The objection taken by Opposite Parties No.1 to 4, to the effect that the complainant has not purchased the property for residential purpose, as he is living in Fatehgarh Sahib and no evidence whatsoever has been attached with his complaint, which shows that the complainant wanted to live in his flat at any point of time. He further submitted that the complainant booked another flat on the first floor No.12302 alongwith his wife, which shows that the complainant purchased the property for further sale to earn profits, as such, he cannot be termed as "Consumer" under the Consumer Protection Act, 1986. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 to 4, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. It is pertinent to note that the complainant in para No.13 of his complaint has specifically stated that " the complainant has bought the said flat for his own residential purpose since the complainant required a residential accommodation in Mohali as the complainant wanted to shift to Mohali for better education prospects for his son in the tricity. Moreover, the present flat is on ground floor and the complainant alongwith his wife Mrs. Aarti Gupta had also purchased one more flat bearing No.12302 on the first floor of the same block in anticipation of expansion of family in future. Both the flats were to be used by the complainant for his own residential purposes. Hence, the complainant had purchased both the flats No.12301 and 12302 keeping in view the planned future of his family." So, it is clearly proved from the afore-extracted para that the complainant purchased the said unit for residential purposes. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, fall within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 to 4, therefore, being devoid of merit, is rejected.
15. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Mr.Amit Jain, who has signed the Buyer's Agreement. It may be stated here that the complainant booked the unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and he did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the complainant and signed the Buyer Agreement, it was done by him being an employee, who could receive the said amount on behalf of the Company. In the present case, we do not feel that Mr.Amit Jain is the necessary party. So, the objection taken by Opposite Parties No.1 to 4 has no force, at all and the same stands rejected.
16. The next question that falls for consideration is whether Annexures C-1 & C-2 i.e. allotment letter and Buyer Agreement attached by the complainant alongwith his complaint are forged and fabricated documents. The Counsel for Opposite Parties No.1 to 4 submitted that the documents Annexures C-1 & C-2 are forged and fabricated documents but the terms and conditions are the same as of the standard allotment letter and Buyer Agreement of the replying Opposite Parties. He further submitted that these documents are created with the active connivance with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. He further submitted that Mr.Sanjay Jain (Opposite Party No.5) and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further submitted that Mr.Amit Jain, who was not even authorized to sign any document of the Company had issued allotment letter and also entered into a Buyer Agreement and signed on behalf of the Company. He further submitted that an FIR is registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainant submitted that the complainant was being victimized due to the internal disputes amongst the Directors of the Company. It is, no doubt, true that the complainant booked the unit, in question. A bare perusal of the allotment letter (Annexure C-1) clearly reveals that unit No.12301 (Ground Floor) was allotted in Sector 110, Mohali to the complainant. It is also the admitted fact that the complainant opted for Construction Linked Installment Plan, in which, Basic Sale Price of the unit is clearly mentioned as Rs.33,50,000/- (at page No.28 of the file) and the said allotment letter was duly signed by the complainant as well as Authorised Signatory of the Company. Thereafter, Buyer Agreement was executed between the parties at Chandigarh on 19.12.2011. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.33,50,000/- and the said Agreement was duly stamped and signed by the Authorised Signatory of the Company on each and every page of the Agreement. It is not understandable that when the Company admitted the booking of the unit, in question, then how could they deny the issuance of allotment letter and execution of Buyer Agreement ? It is admitted that the aforesaid disputed documents were signed by Mr.Amit Jain because he is on the reputed post of the Company. It is pertinent to note that the said unit was purchased by the complainant from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainant, the Company cannot be questioned regarding the authenticity of the documents. Mr.Amit Jain was one of the Directors of the Company, who had signed the allotment letter as well as Buyer Agreement on behalf of the Company. The allotment letter was issued by the Company on the letter head of the Company and bears the signatures of the former Director of the Company. It may be stated here that if Mr.Sanjay Jain and Mr.Amit Jain, appointed by the Company, played fraud with the Company then what was the fault of the complainant ? The said documents i.e. Annexure C-1 & C-2 issued by the aforesaid officials on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. So, the objection taken by Counsel for Opposite Parties No.1 to 4 regarding the authenticity of both the documents (Annexures C-1 & C-2) has no force, at all, and the same stands rejected.
17. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not. It is, no doubt, true that the complainant initially filed complaint bearing No.571 of 2015 on 26.08.2015 before the District Forum, UT, Chandigarh and the same was withdrawn by the complainant on 03.10.2016. Hence, the period of 14 months spent by the complainant before the Forum shall not be counted for calculating the limitation period of the present complaint. Moreover, Opposite Parties No.1 to 4 have failed to offer possession of the unit, and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in his favour, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for Opposite Parties No.1 to 4, in this regard, being devoid of merit, must fail, and the same stands rejected.
18. The next question, which falls for consideration, is, as to within which period delivery of possession of the unit, was to be given to the complainant. Clause 9 of the Buyer Agreement executed on 19.12.2011 (Annexure C-2), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Floor alottee within a period of 24 months (18 months plus 6 months grace) from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Floor Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charges @5/- per sq. ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.7,000/- per month as delay charges for the period of delay."
In the present case, Buyer Agreement was executed on 19.12.2011 and computing 24 months period (including grace period), Opposite Parties No.1 to 4 were required to handover possession to the complainant latest by 18.12.2013.
19. The next question, that falls for consideration before us is how much amount was deposited by the complainant in respect of the unit, in question. Counsel for the complainant submitted that the complainant paid the total amount of Rs.28,27,684/- in respect of the unit, in question. On the other hand, Counsel for Opposite Parties No.1 to 4 submitted that the complainant only paid an amount of Rs.22,96,404/- instead of Rs.28,27,684/-. At the time of arguments, Counsel for the complainant pointed out the legal notice dated 22.08.2014 (Annexure C-6), which was sent by the Company to the complainant, vide which, in para No.7 of legal notice, it was admitted by Opposite Parties No.1 to 4 that the complainant made the payment of Rs.28,27,654/-. Not only this, even the complainant sent a letter (Annexure C-15) to the Director, Premium Acres Infratech Pvt. Ltd., in which, the complainant mentioned that according to his record, the total payment of Rs.28,27,654/- in respect of the unit was made by him and the factum of receipt of the amount of Rs.28,27,654/- was confirmed by Authorized Signatory of Premium Acres Infratech Pvt. Ltd. which was duly stamped and signed by Authorized Signatory of the Company. Even copy of account statement (at page No.28) of the complainant's documents dated 09.04.2014, it is clearly revealed that the Company received an amount of Rs.28,27,654/- till 31.03.2014. So, in view of the aforesaid documents, it is clearly proved that the complainant paid the total amount of Rs.28,27,654/- in respect of the unit, in question.
20. The next question, that falls for consideration, is, as to whether, the construction of the unit of the complainant was complete and the same (unit, in question), was ready for delivery of possession to the complainant, by the stipulated date i.e. 18.12.2013, if yes, then whether Opposite Parties No.1 to 4 rightly cancelled the allotment of the unit of the complainant vide cancellation notice dated 06.10.2014 (Annexure C-8). It is, no doubt, true that as per the Agreement, possession of the unit was to be delivered within 24 months from the date of execution of the Agreement (19.12.2011) i.e. latest by 18.12.2013 but not even a single document has been placed on record by Opposite Parties No.1 to 4 that possession of the unit, in question, was offered/delivered to the complainant within the stipulated period i.e. by 18.12.2013. So, it is clearly proved that the Company failed to offer/deliver possession of the unit to the complainant within the stipulated period, as mentioned in the Agreement. Now, the plea of Counsel for Opposite Parties No.1 to 4 that Company issued legal notice dated 22.08.2014 (Annexure C-6) to the complainant and demanded an amount of Rs.10,43,332.21 within 30 days, failing which, the allotment should be cancelled but the complainant failed to pay the same, as such, the allotment of the flat of the complainant was cancelled vide letter dated 06.10.2014 (Annexure C-8). It is true that vide legal notice dated 22.08.2014 (Annexure C-6), the complainant was informed that the said unit was ready for possession and demanded an amount of Rs.10,43,332.21 from the complainant, within 30 days, failing which, the allotment should be cancelled. In the said legal notice, it was further stated that " My client will hand over the possession of the Villa/Unit within 90 days from the day you make the payment x x x x" Even for the sake of arguments, we believe that unit was ready for possession then why the Company sought 90 days more time for possession of the unit to the complainant. Not only this, even the summary (at page No.67 of the complainant's documents) was sent to the complainant, vide which, the Company levied Rs.6,70,000/- as cancellation fee, despite the fact that the unit was never cancelled till that particular date. According to the complainant, he was required to pay Rs.24,21,700/- till the start of brick work, whereas, the complainant has already paid an amount of Rs.28,27,654/- till 14.03.2014 and after making excess amount, no further demand was raised by the Company. It was further stated by the complainant that prior to the issuance of the legal notice dated 22.08.2014, the Company never sent any demand letter for the payment of next installment. Vide the said legal notice, the complainant was also informed that some of the employees of the Company have been terminated, as they were involved in embezzlement and cheating with the Company in connivance with some customers. The complainant duly replied to the legal notice i.e. vide letter dated 07.11.2014 (Annexure C-7). However, after immediately issuance of reply to the legal notice, the complainant received letter dated 06.10.2014, whereby, the Company had cancelled the allotment of flat of the complainant (Annexure R-8) arbitrarily, without application of mind. It was further stated that there was no proper approach road to the said flat, no park and amenities in the surrounding area. The photographs clearly depicted that only a basic structure is standing without any plastering work or electrical or plumbing work being complete. It was further stated that the Company abandoned the construction work of the said flat and there is a wild growth of jungle around the block, in which, the unit of the complainant existed. According to the Agreement, if the construction is delayed due to normal course then the Company shall pay Rs.7000/- per month as delay charges for the period of delay but the Company failed to pay the same. It was further stated by the complainant that the EDC charges have been paid by the complainant but there was no development in Sector 110-111. It was further stated that the Company did not have the required sanctions/permissions for the development of the site. The Company has also not procured the necessary approvals from the necessary authority of Pollution Control Board, Forest Department and GMADA. It was further stated that the Company have not applied for the completion certificate of the said project. From a bare perusal of the Construction Linked Installment Plan (at page No.45 of the file), it is clear that total consideration of the unit, in question, was Rs.37,51,800/- and the complainant already deposited the amount of Rs.28,27,654/-. Had the construction of unit and amenities promised, been complete, as per the Agreement (Annexure C-2), then certainly Opposite Parties No.1 to 4, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that unit was complete, in all respects. On the other hand, it has been baldly admitted by Opposite Parties No.1 to 4, in their written statement that 95% construction of the unit was complete. Even no evidence, in the shape of report(s) of the engineers/architects, was placed on record, to prove the completion of construction. No evidence was also produced on record, by Opposite Parties No.1 to 4, to prove that they had obtained completion and occupation certificates, in respect of the unit from the Competent Authorities. Thus, under these circumstances, it could very well be said that by the stipulated date, possession of the unit was not ready to be delivered to the complainant. Thus, it is held that the possession of unit, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, despite the fact that hard earned money of Rs.28,27,654/- was deposited by him. Under these circumstances, the cancellation of unit, in question, made by Opposite Parties No.1 to 4 vide cancellation notice dated 06.10.2014 (Annexure C-8), could be said to be illegal and arbitrary. The cancellation notice dated 06.10.2014 is, thus, liable to be set aside. The submission of the Counsel for Opposite Parties No.1 to 4 in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
21. The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.28,27,654/-, deposited by him. It may be stated here that the complainant sought refund of the amount of Rs.28,27,654/- but actually the complainant deposited the total amount of Rs.28,27,654/-, as is evident from the legal notice dated 22.08.2014. It is an admitted fact that the Company are unable to deliver possession of the unit, in question, for want of basic amenities etc., and firm date of delivery of possession of the unit, could not be given to him (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit purchased by him. The Company, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, Opposite Parties No.1 to 4 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.
22. The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. The amount of Rs.28,27,654/-, towards the entire sale consideration, was deposited by the complainant. The complainant was deprived of his hard earned money, to the tune of Rs.28,27,654/-, on the basis of misleading information, given by Opposite Parties No.1 to 4, that he would be handed over legal physical possession of unit, on or before the stipulated date i.e. 18.12.2013, but they failed to do so. The complainant was, thus, caused financial loss. Hard earned money, deposited by the complainant, towards unit, was utilized by Opposite Parties No.1 to 4, for a number of years. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. It is, therefore, held that Opposite Parties No.1 to 4, by neither delivering possession of the unit, by the stipulated date, nor refunding the amount to the complainant, were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant, is, thus, entitled to the refund of Rs.28,27,654/-, alongwith interest @12% P.A., from the respective dates of deposits.
23. Coming to the liability of Opposite Party No.5 i.e. Mr.Sanjay Jain (Director) Premium Acres Infratech Pvt. Limited, it may be stated here, that he cannot be held responsible for the acts of omission and commission of Opposite Parties No.1 to 4. The complaint against Opposite Party No.5 is liable to be dismissed.
24. Coming to the liability of Opposite Party No.6 (Dewan Housing Finance Corporation Ltd.), it may be stated here, that the Buyer Agreement (Annexure C-2) was executed between the complainant and Opposite Parties No.1 to 4. The only role of Opposite Party No.6 is to finance the amount, in respect of the unit, in question. Even Opposite Party No.6 has no role regarding delivery of possession of the unit, to the complainant. Hence, the complaint against Opposite Party No.6 is liable to be dismissed.
25. No other point, was urged, by the Counsel for the parties.
26. For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 to 4 are jointly and severally held liable, and directed as under:-
To refund the amount of Rs.28,27,654/-, to the complainant, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.2,00,000/-, for deficiency in rendering service, indulgence into unfair trade practice and causing mental agony and physical harassment, to the complainant, by them within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant.
The cancellation notice dated 06.10.2014 (Annexure C-8) issued by Opposite Parties No.1 to 4, being null and void, is set aside.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then they (Opposite Parties No.1 to 4), shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the date of default, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs of litigation.
Complaint Case No.856 of 2016 titled 'Sandeep Gupta & Anr. Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors.'
27. Similarly, in the present case, the complainants purchased unit in the project of M/s Premium Acres Infratech Pvt. Ltd. and unit No.12301 was allotted by the Company vide allotment letter dated 28.04.2011. Buyer Agreement was also executed between the parties on 19.12.2011 (Annexure C-2). As per Clause 9 of the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of Agreement i.e. latest by 18.12.2013. After receipt of the huge amount of Rs.23,00,404/- which was admitted by the Company vide legal notice dated 22.08.2014 (Annexure C-6), the Company failed to deliver possession of the same, which amounted to deficiency in service and indulgence into unfair trade practice. For the reasons recorded above, the complaint is also partly accepted, with costs. Opposite Parties No.1 to 4 are jointly and severally held liable, and directed as under:-
To refund the amount of Rs.23,00,404/-, to the complainants, alongwith interest @ 12% per annum, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order.
To pay compensation, in the sum of Rs.2,00,000/-, for deficiency in rendering service, indulgence into unfair trade practice and causing mental agony and physical harassment, to the complainants, by them within 45 days, from the date of receipt of a certified copy of this order.
To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants.
The cancellation notice dated 06.10.2014 (Annexure C-8) issued by Opposite Parties No.1 to 4, being null and void, is set aside.
In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then they (Opposite Parties No.1 to 4), shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the date of default, and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs of litigation.
28. Complaint qua Opposite Parties No.5 & 6, is dismissed, with no order as to costs.
29. However, it is made clear that, if the complainant(s), in both the aforesaid cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant(s).
30. Certified copy of this order be placed in Consumer Complaint No.856 of 2016.
31. Certified Copies of this order be sent to the parties, free of charge.
32. The file be consigned to Record Room, after completion.
Pronounced.
June 21, 2017.
[JUSTICE JASBIR SINGH (RETD.)] [PRESIDENT] [DEV RAJ] MEMBER (PADMA PANDEY) MEMBER rb STATE COMMISSION Consumer Complaint No. 855 of 2016 (Sandeep Gupta Vs. Premium Acre Infratech (P) Ltd. & Ors.) Argued by:
Mrs. Vertika H.Singh, Advocate for the complainant.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 4.
Opposite Party No.5 exparte vide order dated 20.04.2017.
Er. Sandeep Suri, Advocate for Opposite Party No.6.
Dated the 21st day of June, 2017
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Vide our detailed order of the even date recorded separately, the complaint has been partly accepted with costs.
[DEV RAJ] MEMBER [JUSTICE JASBIR SINGH (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb