State Consumer Disputes Redressal Commission
Sukh Nandan Kaur Sabharwal vs Taneja Developers & Infrastructure ... on 3 February, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.78 of 2015
Date of institution : 13.04.2015
Date of decision : 03.02.2016
Sukh Nandan Kaur Sabharwal w/o Shri Gurinder Singh Sabharwal,
resident of House No.3292, Sector 71, Mohali.
.......Complainant
Versus
1. M/s TDI (Taneja Developers & Infrastructure Ltd.) City, Sector
110 and 111, Mohali, Punjab, through its Director.
2. Director of Taneja Developers & Infrastructure Ltd., Sector 110
and 111, Mohali, Punjab.
3. Taneja Developers & Infrastructure Ltd., Registered Office: 9
Kasturba Gandhi Marg, New Delhi-110 001, Regional
Manager.
4. Taneja Developers & Infrastructure Ltd., Regional Office, SCO
1098-99, First Floor, Sector 22-B, Chandigarh, at present at
Sector 118, Mohali.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Shri Upjeet Singh Brar, Member Present:-
For the complainant : Shri Sanjeev Maini, Advocate. For the opposite parties: Shri S.K. Monga, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant 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 issue allotment letter of Plot No.640, TDI City, Sector 110-111, Mohali and to hand over the possession of the Consumer Complaint No.78 of 2015 2 plot after executing the sale deed in his favour after receiving the balance amount or in the alternative to refund Rs.26,50,000/-;
(ii) to pay Rs.2,50,000/-, as compensation for the unnecessary harassment, mental tension, physical and financial loss caused to him;
(iii) to pay Rs.25,000/-, as litigation expenses; and
(iv) to pay interest at the rate of 24% per annum on the total amount of Rs.29,25,000/- from the date of payment till the date of realization.
The complainant alleged, in the complaint, that in pursuance of the advertisement and invitation of offer of residential plots by the opposite parties, she gave an offer for the purchase of one residential plot of 250 square yards at the rate of Rs.11,000/-; which was accepted by them and in token of that acceptance receipt No.MP2-010114 dated 27.2.2008 was issued for an amount of Rs.6,87,500/-. At that time she was assured by the authorized person of the opposite parties for issuance of detailed letter of allotment at the time of future project. In-spite of many visits no such letter of allotment was issued for the reasons best known to them. A demand of Rs.2,75,000/- was raised, vide letter dated 18.9.2008 to give priority to her at the time of allotment and accordingly she paid that amount, vide Demand Draft dated 3.10.2008, in respect of which the receipt was issued. In January 2009 she went to their Office in Sector 22, Chandigarh and met the concerned Manager, who gave assurance of early allotment of the plot as well as the issuance of Consumer Complaint No.78 of 2015 3 allotment letter. She was directed to deposit additional amount of Rs.1,03,125/- which was deposited by her, vide cheque No.469700 and in token of the receipt thereof, receipt was issued on 22.1.2009. Provisional allotment letter dated 2.2.2009 was issued to her in respect of Plot No.640. No Schedule of Payment was given as the allotment was provisional and layout plan was tentative. Further demand of Rs.3,78,125/- was raised by the opposite parties, vide letter dated 14.10.2009. In reply to that letter, she made the following queries, vide her letter dated 28.10.2009:-
i) Whether the land in the said Sectors had been acquired or not?
ii) Exact location of Plot No.640;
iii) Hadbast and Khasra no. in which that plot falls; and
iv) Tentative date of possession.
No reply was given to those queries and she again sought reply to those queries, vide her letter dated 3.2.2010 and made it clear that she would pay the demanded amount only after complete satisfaction regarding the reply to those queries. The opposite parties replied that everything was approved by the competent authority and that the development was in full swing and possession would be delivered soon. It was also assured that the entire record was available at Delhi Office and at Chandigarh Branch Office.
Thereafter she visited Chandigarh Office as well as the site at Mohali but there was no development. No record was shown to her by the Chandigarh Branch. She was assured that everything had been approved and after few months record would be available for Consumer Complaint No.78 of 2015 4 inspection. The money was again demanded by the opposite parties, vide letter dated 19.2.2010. Immediately thereafter she visited the office at Chandigarh but no record was made available to her nor any satisfactory answer was given. She made it clear, vide her letter dated 24.4.2010, that she would pay the amount only after her satisfaction about the development work and the queries. The opposite parties made a further demand of Rs.10,31,250/-, vide letter dated 17.6.2010. She met the concerned Manager of the Office at Chandigarh and she was assured that the said Manager would talk to the Directors on the deposit of the said amount. In view of that assurance of the Manager, she deposited Rs.2,00,000/-, vide receipt dated 15.7.2010 and the pending amount through cheque. A further demand of Rs.8,31,250/- was raised by means of another letter. That amount had already been deposited, vide receipt dated 15.7.2010. The opposite parties raised another demand of Rs.3,78,125/-, vide letter dated 21.10.2010. Vide letter dated 10.3.2011 they demanded a sum of Rs.6,53,125/-; out of which she had already paid Rs.3,78,125/- and Rs.25,000/-. Against the total amount only a sum of Rs.2,75,000/- was pending. It was only on a number of visits to the opposite parties that Buyer's Agreement was given to her on 22.3.2011 and assurance for the issuance of allotment letter was given; which was never issued. Without opting to answer the queries, so raised by her, the opposite parties again demanded Rs.2,80,379/-, vide letter dated 25.4.2011. On the assurance given by the Manager she made part payment of Rs.1,50,000/- through cheque, regarding which the receipt was Consumer Complaint No.78 of 2015 5 issued. Thereafter she had been running from pillar to post and meeting different employees of the opposite parties for the satisfaction of her queries and for the allotment letter but the same was not done. Thereafter she wrote a letter to the opposite parties either to hand over the possession of the plot as soon as possible or to refund her money along with interest at the rate of 18% per annum. In-spite of the writing of the letter no action was taken by them. In case the opposite parties are not in a position to transfer the ownership rights of Plot No.640, then she is entitled to refund of her amount along with interest at the rate of 24% per annum. She sent a legal notice to them on 27.2.2015 through her counsel but to no effect.
2. The complaint was contested by the opposite parties, who filed joint written reply. In the written reply they admitted that in pursuance of the application of the complainant, Plot No.640 was allotted to her, vide allotment letter dated 2.2.2009, which was accepted by her. They did not dispute that the letters were written by them to the complainant demanding different amounts and that the amounts, so mentioned in the complaint, were deposited by the complainant. While denying the other allegations made in the complaint, they averred that the Government of Punjab with a view to attract new investments in the State formulated Industrial Policy 2003. Housing and Urban Development were also made subject of that Policy. In view of that Policy, opposite party No.1-Company submitted its proposal for setting up Mega Housing Project in Village Bhagomajra and Village Behrampur (Mohali) to the Directorate of Consumer Complaint No.78 of 2015 6 Industries and Commerce, Punjab, with an investment of over Rs.310.57 Crores. That proposal was accepted and letter of intent was issued on 31.8.2006. The Government of Punjab, apart from laying down certain conditions in the letter of intent, recorded various concessions to the Company subject to the conditions that the residential project at the location specified must be of Rs.100 Crore or more at a single geographical location and shall be developed in contiguity. The Government of Punjab agreed to make the acquisition of the land under the provisions of the Land Acquisition Act, 1894 for the Company to the extent of 10% of the total area of the Project in order to enable the Company to make development in contiguity and to fill-up the 'Critical Gap' of the land. In pursuance of the said letter of intent, an Agreement was executed between the Company and the Government of Punjab on 21.9.2006. In pursuance of that Agreement the Government of Punjab gave its approval for the Change of Land Use. The Punjab Government also worked out the Critical Gaps and determined the land to be acquired for the Company and that land also included the land situated in the revenue estate of Village Behrampur comprising of Rect. No.29, 17/2(02K-02M). Plot No.640, so allotted to the complainant, fell in Khasra No.17/2. Notification was issued for the acquiring of the land; which included that khasra number but that notification was challenged before the Hon'ble High Court in CWP No.28125 of 2013, in which the status-quo was ordered to be maintained by the parties. In these circumstances the Company was not having any other option but to make an offer of alternative plot to the complainant and Consumer Complaint No.78 of 2015 7 in that regard letter dated 20.3.2015 was written to her. In case that alternative plot is not acceptable to the complainant, then she is to wait for the outcome of the said Writ Petition; as the possession of the plot can be delivered to her only after the decision thereof. Baseless allegations have been levelled by the complainant that there is no development of the Mega Housing Project. A Local Commissioner was appointed in another case titled "Taneja Developers & Infrastructure Limited v. Shashi B. Sud" by this Commission in order to know the development activities and the making available of the basic amenities like road, electricity, streetlight, water and sewerage. It has already been reported by that Local Commissioner, vide his report dated 20.11.2012, that all the basic amenities are available in the Project and that 144 Flats have already been constructed; out of which 40 had been occupied and that the Commercial Complex known as 'Connaught Place' is nearing completion. The complainant is not a 'Potential User' of the plot in question and, as such, she cannot be termed as a 'consumer'. She is only an investor, who invested the money for getting herself registered for allotment of a residential plot. Thus, she cannot be termed as a 'consumer' within the meaning of Section 2(1)(d) of the Act. They prayed for the dismissal of the complaint with costs; being wholly misconceived.
3. For proving the allegations made in the complaint, the complainant proved on record her affidavit Ex.CA and documents Ex.C-1 to Ex.C-40. On the other hand, the opposite parties proved Consumer Complaint No.78 of 2015 8 on record the affidavit of Deepak Nayyar, Authorised Signatory Ex.OP-A and documents Ex.OP-1 to Ex.OP-9.
4. We have carefully gone through the averments of the parties, evidence produced by them in support of their respective averments and have also heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that after the written reply was filed by the opposite parties and evidence was produced in support of the averments made therein, it came to the knowledge of the complainant that the opposite parties could not have allotted the plot to the complainant and collected the price of the plot without obtaining the licence which was granted, vide letter dated 13.2.2009, Ex.OP-3. In view of that the complainant is not pressing her prayer made in the complaint for the issuance of the allotment letter in respect of the plot in dispute and handing over the possession thereof and is confining her prayer to the refund of the amount so deposited by her. It stands proved from the evidence that the opposite parties adopted unfair trade practice by allotting the plots and collecting the money from the consumers without having the licence to develop the colony; which amounts to unfair trade practice and the complainant is entitled to the refund of the amount along with interest and compensation only on that ground. Otherwise also, there was deficiency in service on the part of the opposite parties, who had been collecting different amounts from the complainant, from time to time, knowing fully that they were not in a position to deliver the possession of the plot, in dispute and ultimately offered an alternative plot, to which the complainant had Consumer Complaint No.78 of 2015 9 never agreed to. The opposite parties utilized the money of the complainant for all this period and she was deprived of the use thereof. Therefore, she is entitled to the interest on that amount and for the mental harassment and agony caused to her, on account of deficiency in service and on account of adoption of unfair trade practice by the opposite parties, she is entitled to the compensation also.
6. On the other hand, it was submitted by the learned counsel for the opposite parties that there was no such deficiency in service on the part of the opposite parties nor they adopted any unfair trade practice. They had the requisite approval of the competent authorities for the development of the project and for allotment of the plots to the consumers. From the evidence produced by the opposite parties, it stands proved that when they found that they were not in a position to hand over the possession of the plot in dispute, they offered the alternative plot to the complainant and as per the terms and conditions agreed upon by the complainant, the opposite parties could have offered an alternative plot. From the evidence, which includes the report of the Local Commission, Ex.OP-9, it stands proved that the project has been fully developed and the opposite parties are in a position to hand over the possession of the alternative plot to the complainant regarding which letter dated 20.3.20155 Ex.OP-8 was issued. In these circumstances the complainant is not entitled to the refund of her amount nor she is entitled to any interest on that amount nor she is entitled to any compensation.
Consumer Complaint No.78 of 2015 10
7. From the evidence produced on the record, it stands proved that the opposite parties adopted unfair trade practice. They themselves proved on record the letter dated 13.2.2009, Ex.OP-3, which was issued to the opposite party-Company by Chief Town Planner, Punjab, Chandigarh. It was for the first time that the Change of Land Use for 115.79 acres of land for Mega Housing Project in Sector 110-111, Mohali for residential purpose was allotted to the Company. It is mentioned in clause (xxiii) of that letter that the Company would not launch booking of plots and issue any advertisement in that regard unless the final approval is obtained from the Competent Authority. The other document, which has been relied upon by the opposite parties, is the letter dated 31.8.2006 issued by Chief Administrator, Punjab Urban Planning and Development Authority,Ex.OP-1, which is a Letter of Intent. No documentary evidence has been produced by the opposite parties that after the Change of Land Use the permission of the competent authority was obtained for the allotment of plots. Even before that letter was received the provisional letter of allotment dated 2.2.2009, Ex.C-5, was issued allotting plot No.640 to the complainant and in pursuance of that letter different amounts were demanded from the complainant and were received by the opposite parties. This clearly amounts to the adoption of unfair trade practice.
8. It was for the first time that in the year 2015 the letter Ex.OP-8 was written by the Company to the complainant intimating her the change of the residential plot from Plot No.640 to Plot No.99. Learned counsel for the opposite parties has tried to take refuge Consumer Complaint No.78 of 2015 11 under the terms and conditions, which according to them form part of the provisional allotment letter Ex.OP-5. According to him, those terms and conditions were signed by the complainant and he has drawn out attention towards the photostat copies of those terms and conditions. It is very much clear from the provisional letter of allotment, which has also been relied upon by the complainant and proved as Ex.C-5 that the said terms and conditions were printed on the back of that letter itself. Those terms and conditions do not bear the signature of the complainant. A perusal of the alleged signature of the complainant on the photostat copy of the terms and conditions at page 107 makes it clear that the same are forged signatures. So many signatures of the complainant are available on the record; complaint; affidavit of the complainant; letters written by her and the cheques; which were so issued by her to the Company and placed on record by the opposite parties themselves. The disputed signature on the terms and conditions is totally different from those signatures and there is not even one similarity and there are 100% dissimilarities. It appears that the signature of the complainant has been forged on those terms and conditions in order to make a justification for the change of the plot.
9. The other fact which proves the unfair trade practice on the part of the opposite parties is that in-spite of the fact that it was not in a position to give possession of the plot in dispute still it had been collecting the money from the complainant by writing letters to her. They themselves have averred in their written reply that the Punjab Government had issued the notification under Section 4 of the Land Consumer Complaint No.78 of 2015 12 Acquisition Act for acquiring the land detailed in para no.7 of the Preliminary Objections to make out the critical gap in the land acquired by the Company and that the plot in dispute was in that land itself. They have also averred that Civil Writ Petition No.28125 of 2013 was filed, in which order dated 19.12.2013 was passed directing the parties to maintain status-quo. Thus, it was very much in the knowledge of the opposite parties in the year 2013 itself that they were not in a position to deliver possession of the plot in dispute still they kept on collecting the money by mentioning in the letters of demand the plot in dispute and ultimately to wriggle out of their liability they changed that plot. If the critical gap itself in the land so purchased by the Company was left, then how it was possible for them to develop that Mega Project. We are not going to conclude on the basis of the report of the Local Commissioner Ex.OP-9 that the development has been made in the Project; as that report was made by the Local Commissioner in some other case and that report never becomes a public document, to be admissible in the other cases.
10. When it stands proved on the record that the opposite parties were never in a position to deliver the possession of the plot to the complainant and that they adopted unfair trade practice by allotting that plot and collecting the money, the complainant is entitled to the refund of the amount so deposited by her. For having retained that money the opposite parties are liable to pay interest on the said amount. It is a case where it can easily be inferred that the complainant suffered harassment and mental agony at the hands of the opposite parties, who had been collecting different amounts from Consumer Complaint No.78 of 2015 13 her knowing fully well that they were not in a position to hand over the possession of the plot to her and forged her signature on the terms and conditions in order to justify their act in making change in the plot.
11. In view of above discussion, the complaint is allowed and following directions are issued to the opposite parties:-
i) to refund the amount of Rs.26,50,000/-, along with interest at the rate of 12% per annum from the date of different deposits till the payment of that amount;
ii) to pay Rs.1,50,000/-, as compensation, for mental tension and harassment suffered by the complainant;
and
iii) to pay Rs.11,000/-, as costs of litigation cost. They are directed to pay all these amounts within 30 days of the receipt of the certified copy of the order.
12. The arguments in this case were heard on 25.1.2016 and the order was reserved. Now, the order be communicated to the parties.
13. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (UPJEET SINGH BRAR) MEMBER February 03 , 2016 Bansal