State Consumer Disputes Redressal Commission
Manish Malhotra vs Altus Space Builders Pvt. Ltd. on 12 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 329 of 2017
Date of Institution : 05.05.2017
Date of Reserve : 18.01.2018
Date of Decision : 12.02.2018
1. Sh. Manish Malhotra s/o Sh. S.L. Malhotra, resident of House
No. 149, Sector 70, SAS Nagar (Mohali)
2. Sh. Sanjeev Malhotra s/o Sh. S.L. Malhotra, through Sh.
Manish Malhotra, his duly constituted and authorized Special
Power of Attorney, resident of House No. 149, Sector 70, SAS
Nagar (Mohali)
....Complainants
Versus
1. Altus Space Builders Private Limited, Registered Office at
SCF-22, 1st Floor, Phase 10, SAS Nagar, Mohali, through Mr.
Harpreet Singh its authorized signatory.
IInd Address
Altus Space Builders Private Limited, SCO 846, Sector 22-A,
Chandigarh
2. The Greater Punjab Officer's Co-operative House Building
Society, H. No. 175, Sector 11, Chandigarh, through its
President/Authorized Representative.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 329 of 2017 2
Present:-
For the complainants : Sh. Ramnik Gupta, Advocate
For the opposite parties: Sh. R.S. Pandher, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainants have filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) by Manish Malhotra on his behalf and on behalf of his brother Sanjeev Malhotra being Special Power of Attorney dated 3.1.2017. They came across widely publicity done by the Ops regarding their residential project known as Muir Woods Eco City in Mullanpur and one Sangeeta Verma wife of Dr. Arun Verma, resident of H. No. 299, Sector 21-A, Chandigarh was registered with Ops for purchase of a developed plot measuring 250 sq. yards vide provisional registration dated 1.10.2010 at basic sale price of Rs. 8150/- per sq. yards and Rs. 500/- towards CLU and EDC, IDC, License Fee Charges were payable over and above the BSP. The complainants purchased the allotment rights of the said unallotted developed plot from Sangeeta Verma vide agreement to sell dated 28.2.2011 and paid a sum of Rs. 10,00,000/- to her towards full and final payment against the aforesaid plot. After that the complainants started paying to the Ops the balance sale consideration. It is a case of utmost unfair trade practice and deficiency in service on the grounds that Ops conceived an idea of Consumer Complaint No. 329 of 2017 3 setting up Mega Residential Housing Project in the revenue estates of village Salamatpur, Dhodemajra & Saini Majra in Mullanpur Planning Area of GMADA. On the recommendation of the Screening Committee of the Empowered Committee, LOI dated 25.5.2011 was issued by the Chief Administrator, PUDA for 168.64 acres of land in the joint names of Ops and thereafter, CLU dated 17.11.2011 for 229.77 acres was issued. Then additional CLU dated 14.5.2012 for 26.41 acres was issued in the name of Ops. Another additional CLU dated 25.6.2013 for 23.75 acres was issued in favour of the parties. Then layout plan of 276.61 acres was approved by the Chief Town Planner, Mohali vide letter dated 8.5.2014. Then Punjab Government issued notification dated 6.8.2014 vide which Mega Housing Project of Ops having an area of 219.92 acres of land was exempted from the provisions of PAPRA, 1995 except Section 5(9), Section 6 to Section 20, Sector 32 and Sections 36 to 39. As per Clause 4(v) of the LOI dated 25.5.2011, Ops were specifically restrained from not advertising, launch and for collecting the money from the general public till layout plan is cleared by the Competent Authority and exemption under Section 44 of the PAPRA is issued. Similarly, in Clause 8 of the layout plan, Ops were directed that they shall develop the site, sell the plots only after obtaining exemption from PAPR Act. However, Ops in flagrant violation of aforesaid conditions did not wait either for issuance of LOI, CLU, approval of layout plan or exemption under Section 44 of the PAPRA and started to collect money from the public in the year 2010. Mrs. Sangeeta Verma had Consumer Complaint No. 329 of 2017 4 purchased the plot from the Ops with the promise that the possession of the plot would be given within 36 months of the application. As per terms of application dated 1.10.2010, the plot was situated in Phase II of the project, to be developed near Villages Salampur, Dhode Majra and Saini Majra of District SAS Nagar (Mohali) but Ops acting in dishonest and malafide intention have not defined 1st or 2nd phase of CLU in the said application, therefore, it is not known as to whether the aforesaid CLU relates to Phase I or Phase II. In furtherance of the agreement, the complainants paid the following amounts as under:-
Date Cheque No. Amount
13.10.2010 596761 4,00,000/-
14.10.2010 261405 1,00,000/-
18.11.2010 261408 5,00,000/-
10.3.2011 001657 3,00,000/-
9.9.2011 001478 3,75,000/-
7.5.2012 008711 2,37,500/-
12.3.2014 073127 1,75,000/-
24.4.2015 011609 28,090/-
27.8.2015 011622 1,25,900/-
27.8.2015 011623 1,05,000/-
28.12.2015 011629 1,05,000/-
21.5.2016 011638 1,05,000/-
Total 25,56,490/-
and its receipts were acknowledged by the Ops. After lapse of more than 5 years, Ops issued provisional plot allotment letter dated 30.8.2015 to the complainants, allotting plot No. 233 measuring 242 sq. yards without any description of the plot. The original allottee had paid Rs. 10 Lacs by by November, 2010 and after purchase of rights from said Sangeeta Verma, the complainants approached the Ops for assignment of the rights of the said unallotted plot in their favour but Ops refused to transfer in Consumer Complaint No. 329 of 2017 5 favour of the complainants till the plot buyer's agreement is executed with the said original applicant and advised the complainants to keep making the payments so that right of assignment remains intact. Since the complainants had already paid a sum of Rs. 10 Lacs to the said original applicant and there was no legal impediment for the Ops to assign the rights of the said plot in favour of the complainants, yet the Ops illegally refused to do so. Faced with the said situation, the complainants had to get General Power of Attorney from the said Sangeeta Verma and incurred a sum of Rs. 25,000/-. There was no agreement to pay social infrastructural fund in the said application, though Ops have demanded first installment towards social infrastructure fund without details regarding imposition of the social infrastructure fund by the Authorities. Since the complainants had already paid the substantial amount, therefore, no alternative but to pay a sum of Rs. 1,75,000/- to the Ops on 13.3.2014. Then original applicant and the complainants approached the Ops for the assignment of the said agreement on 23.4.2015 and paid a sum of Rs. 28,090/- towards transfer fee on 23.4.2015 and Ops stated that it will take 4- 5 weeks for verification and confirmation of the documents and accounts at their end for the purpose of said assignment. Thereafter on 2.6.2015, Ops give their acceptance on the said agreement on the standard format. Ops on 3.8.2015 informed the complainants that they have initiated the allotment of residential project at New Chandigarh. Thereafter, Ops vide provisional plot allotment letter dated 30.8.2015 informed the complainants that Consumer Complaint No. 329 of 2017 6 plot No. 233 has been provisionally allotted to the complainants. Ops vide their letter dated 10.12.2015 again misstated that construction work of their project is in full swing whereas on the contrary, even after lapse of more than 1 year, there was no development till date. They have not disclosed with regard to the approvals granted to them by various Authorities, which shows that they had not got approval and sanction of pollution clearance, service approvals, PSPCL approvals, clearance from Airport Authorities. Though Section 6 (2) of the PAPRA required that in the event of Developer cancel the buyers' agreement, then he is bound to refund 100% of the amount collected from the buyer alongwith interest. Yet in utter violation of Section 6(2) of the PAPRA and Condition No. 2.4 of the agreement, Ops shall forfeit earnest money of 15% of the total sale consideration amount as per terms and conditions No. 1.3 of the said agreement alongwith interest on installments. Section 6(1)(b) of the PAPRA requires specific date of possession in the buyer's agreement to be provided but no such specific date was provided except the open ended period because in the agreement, Ops reserve a period of 30 months plus 6 months to make efforts to deliver the possession only. The bare reading of the agreement reveal that it may or may not offer the possession of the plot even after 8 years of the date of booking. Further the price of the plot is required to be specifically mentioned but number of changes have been kept as the charges regarding electricity, water and sewerage connection, fire fighting etc. with specific rates have been proposed to be imposed. Section 6(1)(c) Consumer Complaint No. 329 of 2017 7 further requires annexing of certificate of attorney at law or advocate referred in Section 3(2)(a) of the PAPRA, certified copy of the revenue record showing the title of the promoter but no such documents was annexed by the Ops with such agreement. Further the standard internal development does not include the laying of electricity supply infrastructure, parks, community centre, club etc., which are essential basic amenities and charges were taken by the Ops from the complainants. There is no provision for construction of club in the definition of internal development yet the membership and payment of membership fee of Rs. 75,000/- thereof was made compulsory. Further Ops have not disclosed the rates of EDC, License Fee charges, CLU charges, Social infrastructure fund, urban development fund of Cess on PR-7, internal development charges and other Government charges but have been shown to be charged in the payment plan, therefore, the charges charging without disclosing the rates is another act of indulging into unfair trade practice. After execution of the plot buyer's agreement, complainants visited the site number of times and were shocked to see that there was no development at the site, therefore, hopes of the complainants to have independent residence with their family have been buried with the passage of time. The complainants number of times visited the office of Ops to know the status of their plot and various approvals and permissions, grant of CLU of Phase 2, commencement of the development of the project and delivery of the possession of the plot etc. but the Ops always avoided to give the factual reply, which they are bound to supply under the Consumer Complaint No. 329 of 2017 8 provisions of PAPRA. The complainants are victims of mis- representation and illegal acts and deeds of Ops. Alleging unfair trade practice and deficiency in service, this complaint has been filed by the complainants against the Ops seeking following directions:-
i) Refund of principal amount of Rs. 25,56,490/-
ii) Interest at the rate of 18% per annum, (which is also the rate of interest at which the Opposite Parties is to charge from the Complainants for the first month of delay and thereafter @ 21% p.a.) from the date of the respective deposits till the date of actual refund.
iii) Compensation of Rs. 7,50,000/- for causing, monetary, mental and physical harassment.
iv) Rs. 1,00,000/- towards costs of the litigation.
2. Upon notice, Ops appeared and filed their written reply. Op No. 1 in its written reply took the preliminary objections that no cause of action has accrued to the complainants to file this complaint as buyer's agreement dated 1.4.2015 provides to deliver the possession within 30 months with grace period of 6 months and that period has not expired, therefore, the complaint is premature. On merits, it was denied that there is any unfair trade practice or deficiency in services on the part of Ops. Provisional registration of plot submitted by Smt. Sangeeta Verma is a matter of record. It is also a matter of record that the complainants purchased the allotment rights of the said plot from Sangeeta Verma vide Consumer Complaint No. 329 of 2017 9 agreement to sell dated 28.2.2011 towards full and final payment and the complainants further agreed to pay the balance amount to the Ops but they continued to pay the installments in the name of Sangeeta Verma only. Thereafter, plot buyers agreement dated 1.4.2015 was executed by Sangeeta Verma with Op No. 1 and it was only on 23.4.2015 that the complainants submitted request for transfer of the plot in their favour. The complainants have not brought the said allotment of plot transferred in their names after 28.2.2011 till 23.4.2015 because of the reason that they are investors and they wanted to earn profit from the said plot by selling the same on the basis of general power of attorney executed by Smt. Sangeeta Verma in favour of the complainants. Since there is slump in the real estate sector for the last few years, therefore, they could not sell the said plot to earn huge profit and the plot was transferred in favour of the complainants on 23.4.2015, therefore, they are not consumers but investors and are not competent to invoke the jurisdiction of this Commission. It was denied that Ops indulged in unfair trade practice or are deficient in services. Payment of various amounts by the complainants is again a matter of record. It was further submitted that Op No. 2 Greater Punjab Officers Cooperative House Building Society has nothing to do with the booking of the plot in dispute. Op No. 2 is a Cooperative House Building Society and allotted plot only to its members. The agreement of Op Nos. 1 & 2 was regarding approval of the project. Therefore, Op No. 2 has no concern with regard to the plot sold by Op No. 1. Op No. 1 was fully competent to Consumer Complaint No. 329 of 2017 10 authorize to develop the land into residential plot and all the terms and conditions of the plot buyer's agreement are applicable to the complainants. There was no ambiguity with regard to delivery of the possession and in case of late delivery of possession, the complainants were entitled to penal charges @ Rs. 5/- per sq. yard per month. The project of the Ops is residential housing project duly approved by the Government and they have got CLU of the land and on the basis of draw of lots, plot has been allotted to the complainants and the possession is to be delivered to the complainants within 3 years from the date of execution of the agreement. There is no unfair trade practice and deficiency in services on the part of Op No. 1. Complaint is without merit and it be dismissed.
3. Op No. 2 in its reply took the preliminary objections that Op is a House Building Society and has nothing to do with the booking of the plot in dispute. It was booked by the complainants with Op No. 1. Op No. 2 allotted the plot only to its Members. Op No. 2 has a separate chunk of land from Op No. 1 and no land of Op No. 2 was developed by Op No. 1. It has been admitted by the complainants that his plot falls in Phase 2 of the project and Op No. 2 has nothing to do with Phase-II of the project and the agreement between Op No. 1 and Op No. 2 is related to Phase-I only and that the complaint is premature. On merits, the averments stated in the preliminary objections were again reiterated. It was again reiterated that this Op has nothing to do with the booking of the plot by the complainants with Op No. 1. There is no relationship of the project Consumer Complaint No. 329 of 2017 11 of Op No. 1 with Op No. 2 because they are separately developing their land. Other averments stated in the complaint were denied for want of knowledge.
4. The complainants filed rejoinder to the written statement filed by Op No. 1 in which it has been stated that the buyer's agreement is against the provisions of PAPRA, therefore, it is not a legal agreement in the eyes of law. It was denied that the complainants concealed any fact from the Ops. The averments stated in the preliminary objections were denied and that of the complaint were reiterated. It was also denied that Op No. 2 had nothing to do with the plot in question. It was further reiterated that no development work has been done by Op No. 1. It lacks from the following facilities:-
a) No access road and the access was only through a broken 8 ft. wide village road which also does not culminate at the site.
b) No proper entry to the site as number of openings through the aforesaid village road were there posing great security threat.
c) No internal roads were there except some patches were still under preliminary stage of construction.
d) Only electricity poles were there which neither have the junction box nor the wires which amply proves that the said poles have been erected just to befool the innocent allottees including the complainants.
e) There was no streetlights.
Consumer Complaint No. 329 of 2017 12
f) No electricity load distribution system including the
Transformers were found at the site.
g) There were no pipelines for supplying the water or
electricity.
h) Neither there was any overhead/under ground water
tank or any other water supply system and on enquiring from the official of Ops present at site, it transpired out that there is only one bore of 1000 feet deep, hence, the water of the said bore is not even fit for human consumption.
i) Neither there was any STP nor any septic tank nor the sewerage pipes.
j) There was even neither any provision for the supply of water by the authorities nor there was any infrastructure for connecting the internal Sewerage system with that of the authorities.
k) There was only a small piece of land which was alleged to be the area for plots, however, the said the small piece of land was just a raw piece of land having no leveling, no demarcation of plots, plot numbers except a small number plates mentioning plot numbers 198 to 2123, 271 to 288, 246 to 238, the said area was totally undeveloped having no approachable road, no water, Sewer or electricity pipes, no manholes were found for the said alleged plots.
l) The most shocking observation by the Complainant No. 1 was that the said alleged plotted area was 5 to 7 feet deep, which clearly indicates that the Ops acting under dishonest Consumer Complaint No. 329 of 2017 13 and malafide intentions have dug up that area and used the earth for laying the internal roads and hence an extra expenditure of Rs. 15 to 20 Lacs is required by the Complainants to get the said plot to the level of the road.
m) The site area was still under cultivation and the crops were standing.
n) High tension wires were still going through the said site posing great security threat to life and property.
o) Cremation ground and other hutments were still in existence.
p) The entire site was full of scattered pipes, heaps of broken bricks, sand, gravel and other construction material.
5. The parties were allowed to lead their respective evidence in support of their complaint. Complainants in their evidence have tendered affidavit of Manish Malhotra as Ex. C-A, special power of attorney Ex. C-1 and documents Exs. C-1 to C-42. On the other hand, Op has tendered affidavit of Narinder Singh Sidhu, G.M. as Ex. OP-A and documents EX. Op-1 to Op-3G and affdidavit of Partap Singh, Auth. Signatory as Ex. OP-B.
6. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
7. Preliminary objection has been taken by the Ops that the complaint filed by the complainants is premature on the basis of buyer's agreement dated 1.4.2015 in which period for delivery of possession was given within 30 months with an extended period of Consumer Complaint No. 329 of 2017 14 six months, which has not expired. It has been contended by the counsel for the complainants that the buyer's agreement of the Ops is against the provisions of PAPRA, therefore, it is to be dealt with in detail, how the agreement executed by Op No. 1 with the complainants is against the provisions of PAPRA, 1995. It is an admitted fact that this complaint has been filed by Manish Malhotra alongwith his brother on the basis of Power of Attorney executed by Sanjeev Malhotra Ex. C-1, which has not been challenged by the counsel for the Ops during the course of arguments. As per proposal form for provisional registration of Phase 2, which was filled in by Sangeeta Verma wife of Dr. Arun Verma on 1.10.2010 Ex. C-2 and residential plot of 250 sq. yards was booked with Op No. 1 and alongwith that two cheques, one cheque of Rs. 4 Lacs and other cheque of Rs. 1 Lac was attached. It gave the details of the payment schedule as under:-
"Details of Payment Schedule:
1) At the time of booking -:Rs. 2000/- per sq. yds.
(Upto 30th Oct 2010)
2) Within 10 days of Mega Project -: Rs. 2000/- per sq. yds.
approval
3) Within 75 days of Mega Project -: Rs. 1200/- per sq. yds.
Approval
4) ** Balance installments as per schedule as given below:
** Sr. Installment Schedule Amount
1. At the time of Application of CLU Rs. 1000/- per sq. yard plus Rs. 500/-sq. yds. CLU (Fixed) Consumer Complaint No. 329 of 2017 15
2. Within one month of CLU Rs. 750/- per sq. yard plus Applicable Licence Fee.
3. Within four months of CLU Rs. 750/- per sq. yard
4. At Possession Rs. 5450/- per sq. yard It is clear from the payment schedule that the Mega Project was not approved. Rs. 5 Lacs was to be paid for approval of Mega Project and the remaining Rs. 1200/- per sq. yard within 75 days of the Mega Project approval. It is also a fact that the complainants entered into an agreement with Sangeeta Verma. The said agreement is Ex. C-3 vide which the complainants had purchased the rights of Sangeeta Verma in 250 sq. yards. Phase 2 un-allotted plot with Op No. 1. Whereas LOI was issued by PUDA vide their letter No. PUDA/MHP/2011/1204 dated 25.5.2011. Then first CLU was issued by Chief Town Planner, Punjab, Chandigarh vide memo No. 8198 CTP(PB) SP-432 (M) dated 17.11.2011 of 229.77 acres. 2nd CLU of 26.41 acres was given vide memo No. 2042 CTP(PB) SP-432 (M) dated 14.5.2012. Another CLU of 23.75 acres was given to Ops vide No. 3480 CTP(Pb)/SP-432(M) dated 25.6.2013. Then layout plan was approved by Town and Country Planning Department vide letter No. 2624 CTP(PB)/MPM-141 dated 8.5.2014. Then Ops were exempted from PAPRA with respect to an area of 66.64 acres except Section 5(9), Sector 6 to Section 20, Section 32 and Section 36 to Section 39, therefore, exemption was not of the entire Act. Then these payments were made vide receipts Ex. C-13 to C-22. Ex. C-22/A is the ledger of Account of Ops of the account of Sangeeta transferred to Sanjeev Malhotra and Manish Malhotra from 1.4.2009 to 22.12.2015. Ex. Consumer Complaint No. 329 of 2017 16
C-30 is the letter issued by Op No. 1 to Sangeeta Verma giving intimation regarding approval of the layout plan by the competent authority. Then ultimately on 1.4.2015, plot buyer's agreement was executed between Sangeeta Verma and Op No. 1. Ex. C-30 is the letter addressed to the complainants by Op No. 1 vide which they have received the assignment documents from Sangeeta Verma and that it will take 4-5 weeks for verification and on 2.6.2015 transfer was accepted vide document Exs. C-30 to C-34. Then vide letter dated 3.8.2015, letter was issued to the complainants of execution of plot buyers agreement and payment of due BSP, EDC and other charges. Ex. C-23 is the letter dated 30.8.2015 vide which plot No. 233 in Phase 2 of the Muirwoods Ecocity was allotted to the complainants.
8. On the basis of documents referred above, the counsel for the complainants has referred to Section 6 of the PAPRA, 1995 to which Ops have no exemption. According to Section 6(1), the Promoter who intends to built apartment or sell a plot in a colony, shall, before he accept any sum of money as advance payment or deposit, which shall not be more than 25% of the sale price entered into a written agreement for sale with each of such persons, who intends to purchase the apartment/plot. The plot allotted to Sangeeta Verma is of 250 sq. yards and its BSP has been mentioned as Rs. 8150/- plus CLU Rs. 500/- per sq. yard, EDC, IDC, licence fee charges will be extra as per the rates of the Government, those were not fixed and 5% for PLC. It is not a case of the parties that it is a plot of PLC and in case we take the cost as Consumer Complaint No. 329 of 2017 17 mentioned in proposal form Ex. C-2, it comes to Rs. 21,62,500/- and its 25% will comes to Rs. 5,40,625/-. However, the payments made by the complainants have been referred in para No. 1 above. The agreement was executed in favour of Sangeeta Verma on 1.4.2015 and before that Sangeeta Verma/complainants have paid a sum of Rs. 20,87,500/- upto 12.3.2014, which comes to approximately 95% of the amount before execution of the agreement, which is clearly violation of Section 6(1) of the PAPRA.
9. The agreement to sell is against Section 6(2) of PAPRA because the agreement shall not be cancelled unilaterally and if the promoter has a sufficient cause to cancel it, he shall give due notice to the other party and tender a refund of the full amount collected together with interest at the rate as may be prescribed. In this regard, Clause No. 1.6 of the buyer's agreement is relevant, which reads as under:-
"1.6 The Purchaser agrees to pay the balance amount of the Consideration in accordance with the Table 2 to the Developer/Seller. In the event Purchaser fails to pay the Balance Amount/Consideration or in the event of any delay in payment of any installment and/or other charges, in accordance with the Table 2, the Purchaser shall be liable to pay interest calculated from the due date of outstanding amount @ 18% per annum for the first month and there after @ 21% on delayed payments upto next one month and thereafter action for Consumer Complaint No. 329 of 2017 18 cancellation of booked plot shall be initiated at the discretion of the Developer."
and similar provision has been made in Clause 2.4 wherein the entire discretion has been left to the promoter.
10. In the LOI dated 25.5.2011, the PUDA has contained Clause No. 4(v), which reads as under:-
"v) The project shall not be advertised/launched and no money will be collected from General Public for allotment of land/plot/flat/any space till such time the layout plans/Zoning plans are cleared by the Competent Authority and exemption u/s 44 of PAPRA is issued by the Govt."
Further in CLU dated 17.11.2011 Ex. C-5 Clause No. 1(iv) wherein similar provision has been referred:-
"iv) Promoter shall not undertake any development work at the site until layout plan is approved by the Competent Authority."
and similar provision has been made in other CLUs Ex. C-6 and Ex. C-7 and further in layout plan Ex. C-8. The LOI and CLUs were given in the year 2011, 2012 and 2013 whereas the Ops started to collect the money in 2010 got before the approval of the LOI, CLU and the layout plans. Therefore, the Ops again indulged in unfair trade practice against the sanctions issued by the Competent Authorities referred above.
Consumer Complaint No. 329 of 2017 19
11. There is violation of Section 6(3) (b) & (c) wherein particulars in the case of plot in a colony, it has been provided as under:-
"(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended and restriction on its use, if any;
(c) the copies of documents to be attached with the agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force."
No specific date has been given as to when the actual possession will be handed over. It does not mention that at the time of agreement, any certificate of attorney at law or advocate was attached, no certificate of the Revenue Authority was attached and plans and specifications of the plot were not attached, therefore, again the provisional allotment letter Ex. C-23 is violation of Section Consumer Complaint No. 329 of 2017 20 6(3) (b) & (c). Without any layout plan of the plot, it cannot be ascertained where is the location of the plot? Whether it is in Phase 2 of Muirwoods Ecocity? Its length and breadth has not been mentioned in the provisional allotment letter.
12. Now dealing with the objections raised by the counsel for the Ops that complaint is premature because there was no lapse after execution of the agreement. We have already referred to Clause 6(i) of the PAPRA that after getting 25%, the Ops were required to execute the buyer's agreement. More than 25% value of the plot was taken by the Ops in the year 2010. Whereas agreement to sell was executed in the year 2015, Ops have not been able to clear how they took 5 years to execute the agreement to sell in favour of the complainants after getting more than 25% of the money in the year 2010. The answer is 'No' because they wanted to pass the time and utilize the hard earned money of the complainants and similarly placed other persons. In case the agreement would have been executed in the year 2010 then normally 3 years period is taken and it would have been at the most 2013 or 2014. Therefore, in case the agreement has been executed in violation of PAPRA then the period fixed by the Ops could not be taken into consideration because it is one sided agreement because after paying more than 50% of the amount, the complainants cannot say not to execute the agreement i.e. the reason that after execution of the agreement to sell with Sangeeta Verma in the year 2011 when the complainants failed to get the transfer of the plot in their favour, they have to get the General Consumer Complaint No. 329 of 2017 21 Power of Attorney from Sangeeta Verma to protect their rights, otherwise, there was no reason for the complainants to get the General Power of Attorney from Sangeeta Verma. In view of reasons stated above, it cannot be said that the complaint is premature.
13. Another point raised by the complainants is that the complainants are not consumer because the property was purchased for resale purposes and on the basis of agreement to sell and General Power of Attorney (hereinafter referred as GPA) was for the sale of the property and as stated above, the GPA was taken by the complainants from Sangeeta Verma as Ops were not transferring the plot in favour of the complainants and the agreement to sell was executed by the Ops with Sangreeta Verma in April, 2015 and in August, 2015 transfer was ordered in favour of the complainants and in the meantime the validity of the agreement is 3 years and after that they could not seek specific performance of the agreement to sell from the date of its execution. No doubt that one document Ex. C-39 i.e. Plot No. 149, Phase 70 is in the name of complainants but to get their independent residence, both the brothers applied for this plot and in case this plot is taken then both the brothers can have one plot each to have their separate residence. No evidence has been placed on the record that the complainants were trading in real estate. Till such evidence is produced on the record by the Ops, no findings can be recorded that the plot was purchased for investment purposes only. In this regard, we are fortified by the judgment 2017(3) CLT 459 "Pranab Consumer Complaint No. 329 of 2017 22 Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate.
14. Then offer of possession was issued on 29.5.2017 but no completion certificate from the Competent Authority has been taken. The counsel for the Ops pleaded about exemption from the PAPRA as per notification dated 6.8.2014 Ex. C-9 but at the same time letter No. 18/34/2014-5Hg2/283215/1 dated 6.8.2014 was issued by Govt. of Punjab, Department of Housing and Urban Development (Housing II Branch) under that any Mega Housing Project has to get the completion certificate. Then under LOI number of conditions have been referred. Clause No. 5.1(iv) permission under the provisions of Punjab Mines and Mineral Act, permission under the Punjab State Tubewell Act, 1954 to dig tubewell(s) in the project area, certificate from the Punjab Pollution Control Board, electrification work to be carried as per design and specification approved by the PSPCL, NOC from Director General of Civil Aviation, Government of India. Similarly in the CLU, promoter shall obtain NOC from PPCB, PSPCLS, NOC from Forest Department but these approvals with sanctions has not been placed on the record by the Ops. Mere some photographs have been placed on the record and only on the basis of photographs, it Consumer Complaint No. 329 of 2017 23 cannot be said that all the amenities as required to be provided as per agreement and as per the provisions of the PAPRA have been completed. Therefore, offer of possession is just a paper formality and that was the reason that the complainants did not come forward to get the possession.
15. As per Section 9 of the PAPRA, every builder/developer is required to maintain a separate account in the scheduled bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any amount has been maintained by them in this respect. There is no evidence or pleadings on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA. Therefore, we are of the opinion that the Ops before offering the possession has failed to comply with the provisions of PAPRA applicable to the Ops, which clearly shows unfair trade practice on the part of Ops. Similar complaint against the Ops was filed by Sh. Ashish Jain i.e. Consumer Complaint No. 286 of 2015, allowed by the Principal Bench of this Commission on 10.5.2017 on the basis of unfair trade practice, for not complying with the PAPRA and refund order was passed and in Complaint Case No. 2 of 2017 "Sh. Gurmukh Singh Versus Altus Space Builders Pvt. Ltd. & Ors.", decided on 8.6.2017 by the U.T. State Commission, for not complying with the provisions of the PAPRA, refund order was passed.
16. Further under Rule 17 i.e. Rate of Interest on refund of Consumer Complaint No. 329 of 2017 24 advance money upon cancellation of agreement under Punjab Apartment and Property Regulation Rules, 1995, 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." In the above rule, it has been observed to refund the amount alongwith interest @ 12% p.a. Therefore, to be just and reasonable, the complainants will be entitled to interest @ 12% on the deposited amount.
17. Sequel to the above, we dispose of the complaint with the following directions:-
(i) to refund the amount of Rs. 25,56,490/- to the complainants alongwith interest @ 12% p.a. from the various dates of deposit till the date of payment.
(ii) to pay Rs. 2,00,000/- as compensation for the mental agony and harassment suffered by him; and
(iii) pay Rs. 21,000/- as litigation expenses.
The above directions be complied by Op No.1 within 45 days from the date of receiving of the copy of the order, failing which the complainants shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
Consumer Complaint No. 329 of 2017 25
18. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
19. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 12, 2018.
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