State Consumer Disputes Redressal Commission
Rajinder Singh Bawa vs M/S Pearls Infrastructure Projects ... on 30 June, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.368 of 2018
Date of institution : 08.05.2018
Date of decision : 30.06.2020
Rajinder Singh Bawa son of Sh. Charanjit Singh Bawa, C/o Golden
Bells Public School, Sector 77, Mohali.
....Complainant
Versus
1.M/s Pearls Infrastructure Projects Ltd., 2nd Floor, 'A' Wing Statesman House, Barakhamba Road, Connaught Place, New Delhi-110001, through its Managing Director/CEO/Authorized Signatory/Office Incharge/Director.
2. M/s PACL India Limited, 22, 3rd Floor, Amber Tower, Sansar Chand Road, Jaipur, Rajasthan, having Corporate Office at 7th Floor, Gopaldas Bhavan, 28, Barakhamba Road, New Delhi- 110001, through its Managing Director/CEO/Authorized Signatory/Office Incharge/Director.
3. M/s Pearls Infrastructure Projects Ltd., Pearls City, SAS Nagar, Mohali, through its Managing Director/CEO/Authorized Signatory/Office Incharge/Director.
....Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1. Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether judgment should be reported in the Digest? Yes/No Argued By:
For the complainant : Ms. Tanya Malik, Advocate For the opposite parties: Ex parte.Consumer Complaint No.368 of 2018 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT Case taken up today, as there was no sitting of this Commission on 30.04.2020, due to pandemic of Novel Coronavirus, as per administrative order dated 14.04.2020 and the case was adjourned for today.
2 The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties, seeking following directions to them:
i) to refund the amount of ₹57,36,326/-, out of total basic sale price and other expenses i.e. ₹60,35,000/-, deposited by the complainant with them, along with interest at the rate of 18% per annum from 01.05.2012;
ii) to pay interest at the rate of 18% per annum on the deposited amount for the period it remained with them, as they failed to deliver possession of the plot;
iii) to pay compensation of ₹10,00,000/-, on account of mental agony, harassment and financial loss suffered by the complainant;
iv) to pay ₹1,00,000/- towards litigation expenses; and
v) to pay compensation under Section 14 of the Act for adopting unfair trade practice,.
vi) It has also been prayed that any other relief, as may be deemed fit in view of the facts and circumstances of the case, may also be awarded.Consumer Complaint No.368 of 2018 3
Facts of the Complaint
3. Brief facts, as set out in the complaint, are that the opposite parties are engaged in the business of developing and selling housing projects/flats. They published/advertised widely to attract the general public to purchase plots in their project namely "Pearls City", situated in Sector-100, Mohali, stating that they have been issued a licence by the Government of Punjab, Department of Housing and Urban Development, for setting up the said project. Believing their assurance, the complainant applied for allotment of a plot in that project, vide Application Form dated 24.03.2011 Annexure C-1, along with cheque No.246733 dated 24.03.2011 for ₹6,00,000/-. Thereafter, the opposite parties issued allotment letter dated 25.03.2011, Annexure C-2; vide which residential plot No.1950, measuring 250 sq.yds. (approximately) was allotted to the complainant at basic sale price of ₹60,00,000/-. The complainant deposited a total sum of ₹57,36,326/- with the opposite parties towards the price of the plot on various dates, as per details given below:
Receipt No. Dated Amount Annexure
Initial Deposit Cheque ₹6,00,000/- C-3
No.246733
dated
24.03.2011
15166 20.05.2011 ₹6,00,000/- C-4
16801 30.07.2011 ₹6,00,000/- C-5
18583 04.10.2011 ₹4,50,000/- C-6
20575 19.01.2012 ₹4,50,000/- C-7
22456 26.04.2012 ₹4,50,000/- C-8
Consumer Complaint No.368 of 2018 4
24353 31.07.2012 ₹4,50,000/- C-9
27000 07.12.2012 ₹3,00,000/- C-10
27486 08.01.2013 ₹3,00,000/- C-11
27521 10.01.2013 ₹39,326/- C-12
28832 01.04.2013 ₹3,00,000/- C-13
30165 06.07.2013 ₹3,00,000/- C-14
31226 04.10.2013 ₹3,00,000/- C-15
32128 02.01.2014 ₹2,91,000/- C-16
33179 28.03.2014 ₹9,000/- C-17
33274 05.04.2014 ₹2,97,000/- C-18
TOTAL ₹57,36,326/-
Plot Buyer's Agreement Annexure C-19 was executed between the parties on 01.08.2014. As per Clause-10 thereof, possession of the plot was to be delivered within three years from the date of official launch of Sector-100 of said township or from the date of signing the agreement, whichever was later. The complainant had already deposited 95% of the basic sale price of the plot and only 5% and other charges were pending. Seven long years had elapsed at the time of filing the complaint from the issuance of allotment letter dated 25.03.2011. However, the opposite parties failed to offer the possession of the plot, along with agreed amenities, within the stipulated period despite repeated requests of the complainant. The complainant also visited their offices personally, but no satisfactory reply was ever given. The opposite parties made false promises, just to extract money from the public. The complainant has been deprived Consumer Complaint No.368 of 2018 5 of the plot, which was purchased by him for residential purposes and due to non-delivery of possession, all his dreams have been shattered. The aforesaid act and conduct of the opposite parties amount to deficiency in service and unfair trade practice. Hence, the present complaint.
4. Upon notice, the opposite parties did not appear before this Commission, despite service and were proceeded against ex parte, vide orders dated 04.07.2018 and 20.03.2019.
Evidence of the Complainant
5. To prove his claim, the complainant filed his own affidavit, along with copies of documents i.e. Application Form dated 24.03.2011 Annexure C-1, allotment letter dated 25.03.2011 Annexure C-2, cheque dated 24.03.2011 Annexure C-3, receipts Annexure C-4 to Annexure C-18 and Plot Buyer's Agreement dated 01.08.2014 Annexure C-19.
Contentions of the Parties
6. I have heard learned counsel for the complainant and have gone through the record carefully.
7. Learned counsel for the complainant has argued on the similar lines of the averments, as mentioned in the complaint. It has been further contended that the opposite parties failed to complete/develop their project within the stipulated period, despite receiving 95% amount towards the basic price of the plot from the complainant. The remaining 5% amount was to be paid at the time of delivery of possession. They also failed to obtain the requisite permissions/approvals/sanctions before launching their project. Even Consumer Complaint No.368 of 2018 6 there are no basic amenities provided at the site. The opposite parties kept on utilizing the amount deposited by the buyers, including the complainant, for their own cause without bothering to develop the project. Due to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant is entitled to all the reliefs, as prayed for in the complaint.
Consideration of Contentions
8. I have given my thoughtful consideration to the contentions raised by the learned counsel for the complainant.
9. At the outset, it needs to be mentioned that identical matters have already been decided by this Commission in the following cases:
i) Consumer Complaint No.253 of 2018 (Sarbjit Singh v. Pearl Infrastructure Projects Limited), decided vide order dated 05.04.2019;
ii) Consumer Complaint No.561 of 2017 (Mrs. Shweta Bhandari v.
Pearl Infrastructure Projects Limited & Ors.), decided vide order dated 06.12.2017; and
iii) Consumer Complaint No.382 of 2016 (Devendra Kumar Goel & Anr. v. Pearl Infrastructure Projects Limited & Ors.), decided vide order dated 26.09.2017.
Matter involved in this complaint is squarely covered by the orders passed in aforesaid cases, so I proceed to decide the present complaint, in view of orders passed in above said cases. Consumer Complaint No.368 of 2018 7
10. Undisputedly, the complainant applied for allotment of a residential plot in the above noted project of the opposite parties, vide Application Form dated 24.03.2011, Annexure C-1, and submitted cheque dated 24.03.2011 for ₹6,00,000/-, Annexure C-3, being 10% of basic sale price. He was allotted plot No.1950, admeasuring 250 sq.yds. for basic sale price of ₹60,00,000/-, vide allotment letter dated 25.03.2011, Annexure C-2. 'Plot Buyer's Agreement" Annexure C-19 was executed between the parties on 01.8.2014. As per Clause-10 of the said agreement, possession of the plot, in question, was to be delivered within three years from the date of official launch of Sector- 100 of the said Township or from the date of signing the agreement, whichever was later, subject to force majeure circumstances. Thus, the possession of the plot, complete in all respects, along with agreed facilities, was to be delivered up to 31.07.2017. The complainant deposited a total sum of ₹57,36,326/- i.e. 95% of basic sale price of the plot with the opposite parties, vide cheque/receipts Annexure C-3 to Annexure C-18, as per terms and conditions of the allotment letter/agreement and there is no default on his part. The remaining 5% amount along with other charges was payable at the time of delivery of possession. However, the opposite parties failed to deliver possession of the plot within the aforesaid period. As per Clause-9 of the agreement, the allottee was to start and complete the construction of the house with due sanction of the competent authority within a period of 36 months from the date of offer of possession, failing which the promoter was entitled to resume the plot without paying any compensation to the allottee and to allot the same to somebody else. It Consumer Complaint No.368 of 2018 8 needs to be emphasized that the stipulated period for completing the construction over the plot, in question, would expire only after 36 months from the date of offer of possession, which has not yet been made. At the sake of repetition, the stipulated period for delivery of possession of the plot expired on 31.07.2017 and the possession has not been delivered up that date and even after expiry of further three years therefrom. Limitation for seeking refund of the amount deposited towards the price of the plot is two years after the stipulated period fixed for delivery of possession. The present complaint was filed on 08.05.2018 i.e. well within the limitation period of two years from the agreed date for delivery of possession. Even otherwise, it is well settled that the allottees have right to ask for refund, if the legal possession is inordinately delayed and particularly beyond one year after stipulated period, as has been held by the Hon'ble National Commission in Consumer Case No.1702 of 2016 (Shalabh Nigam v. ORRIS Infrastructure Pvt. Ltd. & Anr.) decided vide order dated 06.05.2019.
11. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. For the sake of repetition, it is relevant to mention that the opposite parties did not appear despite service and were proceeded against ex parte. Thus, all the averments made in the complaint are deemed to have Consumer Complaint No.368 of 2018 9 been admitted and the evidence led by the complainant stands un- rebutted; for which an adverse inference is to be drawn against the opposite parties. Thus, no evidence has come on record, whether the opposite parties had obtained the requisite approvals and permissions from the competent authorities, before launching the said project. Keeping in view the above circumstances, I hold that the opposite parties have failed to comply with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA).
12. As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their 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 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.
13. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they violated Section 5 of PAPRA.
14. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the Consumer Complaint No.368 of 2018 10 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. As such, they also violated Section 9 of the PAPRA.
15. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-
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."
16. The Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant made payment of substantial amount to the opposite parties, with the hope to get the possession of the plot within a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made Consumer Complaint No.368 of 2018 11 out that the opposite parties, i.e. builders, knew from the very beginning that they had not complied with various provisions of the PAPRA and the Rules framed thereunder and could not deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities.
17. In view of my above discussion, the complainant is entitled to the refund of the entire amount deposited by him towards the price of the plot with the opposite parties, along with compensation for causing financial loss and depriving the complainants of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA. Besides this, the complainant is also entitled to suitable litigation costs and other expenses.
18. Accordingly, the complaint is disposed of and following directions are issued to the opposite parties:- Consumer Complaint No.368 of 2018 12
i) refund the amount deposited by the complainant i.e. ₹57,36,326/-, along with compensation for causing financial loss and depriving him of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹60,000/- as litigation costs and other expenses.
19. The compliance of this order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order.
20. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT June 30, 2020.
(Gurmeet S)