State Consumer Disputes Redressal Commission
Neelam Khurana vs Unitech Ltd. on 6 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. Consumer Complaint No.234 of 2015
Date of institution : 11.09.2015
Date of decision : 06.03.2017
Mrs. Neelam Khurana wife of Shri R.C. Khurana, resident of
H.No.3235, Sector 44-D, Chandigarh.
.......Complainant
Versus
1. Unitech Limited, Real Estate Division, 5th Floor, Tower-A,
Signature Towers, South City, NH-8, Gurgaon, through its
Managing Director.
2. Unitech Limited, Branch Office, SCO No.189-90-91, Sector
17C, Chandigarh through its Branch Manager.
3. Alice Developers Private Limited, registered office at Basement
6, Community Centre, Saket, New Delhi, through its Managing
Director.
........Opposite Parties
2. Consumer Complaint No.26 of 2016
Date of institution : 29.01.2016
Date of decision : 06.03.2017
1. Sachin Sharma s/o Shri V.K. Sharma,
2. Komal Sharma w/o Shri Sachin Sharma, both residents of 21,
Tilak Road, Dehradun, Uttarakhand-248 001, currently residing
in 806, TAMPICO, Walnut Creek, CA, U.S.A.-94598, through
their Attorney holder Smt. Usha Sharma w/o Shri Satish
Sharma r/o Flat No.43B, Spangle Heights, Dhakoli, Zirakpur.
.......Complainants
Consumer Complaint No.234 of 2015 2
Versus
1. Unitech Limited, having its office at Sector-107, Mohali through
its Managing Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Managing Director/Authorized Signatory.
3. Alice Developers Private Limited having its office at Basement,
6, Community Centre, Saket, New Delhi-110 017.
........Opposite Parties
3. Consumer Complaint No.60 of 2016
Date of institution : 24.02.2016
Date of decision : 06.03.2017
1. Satish Kumar Sood s/o Late Shri Roshan Lal Sood,
2. Sangeeta Sood w/o Shri Satish Kumar Sood, both residents of
D-304, Multi Storeyed Apartment, Nivedita Kunj, Sector 10,
R.K. Puram, New Delhi-110 022.
.......Complainants
Versus
1. Unitech Limited, having its office at Sector-107, Mohali through
its Managing Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Managing Director/Authorized Signatory.
3. State Bank of India, Sector 12, R.K. Puram, New Delhi-110
022 through its Managing Director/Authorized Signatory.
4. Alice Developers Private Limited having its office at Basement,
6, Community Centre, Saket, New Delhi-110 017 through its
Managing Director/Authorised Signatory.
........Opposite Parties
Consumer Complaint No.234 of 2015 3
4. Consumer Complaint No.92 of 2016
Date of institution : 22.03.2016
Date of decision : 06.03.2017
1. Mr. Mandeep Singh s/o S. Sarabjeet Singh, R/o House
No.135, First Floor, Sector 70, Mohali, at present residing at #
2A FF Astha Enclave II, Gillco Valley, Kharar-140 301.
2. Mrs. Manmeet Kaur w/o Mandeep Singh R/o House No.135,
First Floor, Sector 70, Mohali, at present residing at # 2A FF
Astha Enclave II, Gillco Valley, Kharar-140 301.
.......Complainants
Versus
1. Unitech Limited, having its Marketing Office at SCO 189-191,
Sector 17-C, Chandigarh through its Managing
Director/Authorized Signatory.
2. Unitech Limited having its Marketing Office at 6, Community
Centre, Saket, New Delhi, through its Managing Director.
3. Alice Developer's Pvt. Ltd., Registered Office at Basement 6,
Community Centre, Saket, New Delhi-110 017 through its
Managing Director/Authorised Signatory.
........Opposite Parties
5. Consumer Complaint No.110 of 2016
Date of institution : 11.04.2016
Date of decision : 06.03.2017
1. Rajan Singla son of Kasturi Lal Singla;
2. Usha Kumari wife of Rajinder Kumar Gupta;
Both c/o Rajan Hospital & Heart Centre, Faridkot Road,
Kotkapura, District Faridkot.
.......Complainants
Consumer Complaint No.234 of 2015 4
Versus
1. Unitech Limited through its Director, having its Marketing Office
at SCO No.189-190-191, Sector 17-C, Chandigarh and its
Registered Office at 6, Community Centre, Saket, New Delhi-
110 017.
2. Alice Developers Pvt. Ltd., through its Managing Director,
Regd. Office at Basement 6, Community Centre, Saket, New
Delhi-110 017.
........Opposite Parties
6. Consumer Complaint No.126 of 2016
Date of institution : 22.04.2016
Date of decision : 06.03.2017
1. Shitij Koshal s/o Shri Rakesh Koshal, r/o F-502, Rishi
Apartments, Sector-70, Mohali.
2. Varun Koshal s/o Shri Rakesh Koshal, r/o F-502, Rishi
Apartments, Sector-70, Mohali.
.......Complainants
Versus
1. Unitech Limited, having its registered office at 6, Community
Centre, Saket, New Delhi through its Managing
Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Managing Director/Authorized Signatory.
3. Indiabulls Housing Finance Limited, F-60, Malhotra Building,
Connaught Place, New Delhi-110 001 through its Managing
Director/Authorized Signatory (Performa Party).
........Opposite Parties
Consumer Complaint No.234 of 2015 5
7. Consumer Complaint No.210 of 2016
Date of institution : 08.07.2016
Date of decision : 06.03.2017
1. Tanu Gupta w/o Shri Kamal Kishore,
2. Kamal Kishore s/o Shri Raghu Ram Gupta, both residents of
2026/2, Sector 47-C, Chandigarh, currently residing in B-1
12A-06, Putra Palace Condominium, 118-Persiaran, Bayan
Indah, 11900, Bayan Lepas, Penang, Malaysia through their
General Power of Attorney holder, Shri Arvind Kumar Mahajan
s/o Shri Duni Chand Mahajan, r/o 2026/2, Sector 47-C,
Chandigarh.
.......Complainants
Versus
1. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Managing Director/Authorized Signatory.
2. Unitech Limited having its Marketing Office at 6, Community
Centre, Saket, New Delhi-110 017, through its Managing
Director/Authorized Signatory.
3. Alice Developers Private Limited, having its office at Basement
6, Community Centre, Saket, New Delhi-110 017.
........Opposite Parties
8. Consumer Complaint No.243 of 2016
Date of institution : 03.08.2016
Date of decision : 06.03.2017
Sudhir Kumar s/o Shri Ram Avtar, r/o WZ-723, Palam Village, New
Delhi-110 045.
.......Complainant
Consumer Complaint No.234 of 2015 6
Versus
1. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Managing Director/Authorized Signatory.
2. Unitech Limited having its Marketing Office at 6, Community
Centre, Saket, New Delhi-110 017, through its Managing
Director/Authorized Signatory.
3. Alice Developers Private Limited, having its office at Basement
6, Community Centre, Saket, New Delhi-110 017 through its
Managing Director/Authorised Signatory.
........Opposite Parties
9. Consumer Complaint No.271 of 2016
Date of institution : 30.08.2016
Date of decision : 06.03.2017
Maya Sharma w/o Shri Sanjay Sharma, r/o Aayush Lodge, Sector-3,
New Shimla-171 009.
.......Complainant
Versus
1. Unitech Limited having its Registered Office at 6, Community
Centre, Saket, New Delhi-110 017, through its Managing
Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh
through its Regional Head/Authorized Signatory, Shri Rakesh
Chhabra.
3. Alice Developers Private Limited, having its office at Basement
6, Community Centre, Saket, New Delhi-110 017 through its
Managing Director/Authorised Signatory.
........Opposite Parties
Consumer Complaint No.234 of 2015 7
Consumer Complaints under Section 17
(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Shri Sudesh Sahi, Advocate. For opposite parties No.1&2: Ms. Vertika H. Singh, Advocate.
For opposite party No.3 : Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
All the above referred Consumer Complaints are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these complaints. The facts are taken from Consumer Complaint No.234 of 2015.
2. The complainant, Neelam Khurana, 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 refund the amount of ₹26,05,804/- along with interest at the rate of 18% from the last date of payment made to the opposite parties till the same is refunded;
ii) to pay compensation of ₹3,00,000/- on account of excess payment made to bank as interest on home loan,
iii) to pay damages to the tune of ₹1,00,000/-, on account of mental and physical harassment;
iv) to award costs of litigation and expenses.Consumer Complaint No.234 of 2015 8
3. The complainant alleged, in her complaint, that the opposite parties issued advertisement inviting people to buy flats to be constructed in SAS Nagar, Mohali. It was stated in the advertisement that opposite parties were going to setup a Mega township on the project land known as "Uniworld City" which comprised of Plots, Villas, Multistorey Group, Housing, Commercial Complexes and Independent Floors. After seeing the said advertisement and being convinced by the name and reputation of the opposite parties-Company, the complainant purchased Flat No.0004 in Block No.B at Ground Floor in Sector 107, SAS Nagar, Mohali for the total consideration of ₹27,00,000/-, vide allotment letter dated 20.10.2009. Thereafter Agreement dated 9.12.2009 was executed between the parties and as per the same the possession of the said flat was to be given within 36 months of the date of agreement. The complainant paid the amount of ₹26,05,804/-, from time to time, through various cheques on various dates and the details of the same are given in para no.6 of the complaint. The complainant had to take home loan of ₹12,00,000/- from the Bank. The complainant had to pay about ₹3,00,000/- as interest. In case the allotment of the flat had been carried out in time by the opposite parties, the complainant would have earned rent by letting out the same. The complainant has already made more than 90% of the payment of the flat. The possession of the flat was to be delivered in December 2012 or January 2013, but the same was never delivered till the date of filing of the complaint which was filed on 11.9.2015. Consumer Complaint No.234 of 2015 9 Though the structures of flats have been raised but till the date of filing there were no signs of flats being completed in near future. She even served a legal notice dated 28.5.2015 on the opposite parties but they did not pay any heed. These acts and conduct on their part amount to deficiency in service and unfair trade practice and as a result thereof she suffered mental and physical harassment.
3. The complaint was contested by the opposite parties. Initially, they filed joint written reply, in which they did not dispute the purchase of the flat by the complainant in the manner stated in the complaint. They also did not dispute that the complainant paid the amount of ₹26,05,804/-, the details of which have been given in para no.6 of the complaint and that the possession of the flat has not been handed over to her so far. They denied the other allegations made in the complaint and averred that the Alice Developers Ltd. i.e. opposite party No.3 is a concern of Unitech Limited and hence the reply of opposite parties No.1 and 2 is being adopted by opposite party No.3 and Lalit Gupta is fully authorized to represent opposite party No.3 as well. While denying the other allegations made in the complaint, they averred that the period of 36 months, so mentioned in the Agreement, was the tentative time period for the delivery of possession and was subject to force majeure circumstances. No date was ever committed by them for the delivery of possession of the flat. The Company could not hand over the possession due to reasons of Global meltdown of the economy worldwide wherein the Consumer Complaint No.234 of 2015 10 foreign investors, as anticipated by them, refrained from any kind of investment in India and there was a total cash crunch throughout. They are facing extreme financial hardship due to recession in the realty market and all those circumstances were beyond their control. They are also facing problems with regard to providing electricity in the said area as P.S.P.C.L. (in short, "Power Corporation") has been raising objections on one pretext or the other. They were to provide electricity Sub Station of 66 KV. On account of the possession of some of the flats and plots already given by them, they made a request to the Power Corporation to provide at least 1 MW connection to the Project in the year 2010 but it kept on raising objections regarding the compliance of various formalities and those were duly complied with by the Company. It further imposed the condition of Bank guarantee for providing of 1 MW connection, vide its letters dated 19.12.2014 and 2.3.2015. On account of the non- providing of that connection the rest of the development work and the amenities have been delayed. They are dependent on Power Corporation for the supply of electricity and other amenities in the Project. Despite all the odd conditions they are making every endeavour to complete the development work at the site and are making sincere efforts to hand over the possession of the flat to the complainant. The construction work is in full swing and the possession shall be shortly handed over to her. As per clause 4(c) of the Agreement, they have made themselves liable to pay charges at the rate of Rs.5/- per square foot per month of the area of the flat Consumer Complaint No.234 of 2015 11 for the period of delay in offering the possession beyond the period of 36 months but the payment of those charges are subject to any reason beyond their control and those are to be adjusted at the time of issuance of final notice of possession. The complainant is merely an investor, who had invested in the flat for resale purposes. She could not resell the said property due to slump in the real estate market and, as such, she has frivolously sought this legal remedy before this Commission. As she had purchased the said flat for commercial purposes, so she does not fall within the ambit of the definition of the 'consumer' as per the Act. No cause of action has accrued to her to file the complaint and the same is not maintainable under the provisions of the Act. No deficiency in service can be attributed to them, as throughout they discharged all their services to the complainant in a bona fide manner. They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 9.12.2009 was executed at New Delhi and the demand for the payment had been raised from their Gurgaon Office, which has not been impleaded as a party. Even the payments were made by the complainant through cheques; which were payable at New Delhi and were deposited in their Bank account at that place itself. The facts, as narrated in the complaint, do not constitute "consumer dispute' as defined in Section 2(1) (e) of the Act. The complainant is seeking relief, which is not covered under the definition of "consumer dispute". She raised issues relating to contractual matter arising out of the terms and conditions of the Consumer Complaint No.234 of 2015 12 Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. As per clause 8(b) of the Buyer's Agreement they are entitled to reasonable extension of time in handing over the possession in case of force majeure circumstances. They prayed for the dismissal of the complaint with heavy costs; being false, frivolous and vexatious.
4. Opposite party Nos. 1 & 2 moved an application (M.A. No.999 of 2016), seeking permission to amend the written reply. That application was allowed, vide order dated 12.07.2016, and thereafter the amended written reply was filed by these opposite parties. In that written reply, they diverted from their earlier stand that they and opposite party No.3 were sailing in the same boat. In the amended written reply, they averred that it was opposite party No.3, who was solely responsible for the construction of the Flat and the complainant was well aware of that fact, as it was so mutually agreed at the time the Buyer's Agreement was executed. It was opposite party No.3, who had agreed to sell to the complainant the Flat and that opposite party was given the discretion to forfeit the booking/registration amount or the earnest money, as the case may be, in case the complainant sought cancellation of the allotment or refund of the amount. It was opposite party No.3, who was liable to pay the charges on account of the delay in delivery of possession of the Flat. All the terms and conditions of the Buyer's Agreement related to that opposite party and opposite party No.1-Company was only the Confirming Party and had no role in the construction work or Consumer Complaint No.234 of 2015 13 the possession of the Flat. It had entered into a Development Agreement dated 01.12.2008 with opposite party No.3, vide which the development rights were given to that opposite party, with respect to 33.2438 acres of land and such additional land of the project, allocated vide notifications and amendments to the Development Agreement. Opposite party No.3 was to construct and complete multi storey group housing complex to be known as 'Gardens' on a part of the said land approximately 8.17 acres. That opposite party was authorized to use opposite party No.1-Company Trademark and Logo for various purposes; such as, promotional, marketing, advertisements, brochures, hoardings etc. The payments were received by them on behalf of opposite party No.3 and that fact was very much in the knowledge of the complainant. In all these circumstances, the complaint is not maintainable against them. The demands for payment were raised by them on behalf of opposite party No.3 and the receipts were also issued by them on behalf of that opposite party. The payments, so received, were deposited in the Bank account of that opposite party. All other averments, as made in the joint written reply, were reiterated in the amended written reply.
5. For proving the allegations made in the complaint, the complainant proved on record her affidavit Ex.CW1 and documents Ex.C-1 to Ex.C-18. She also filed her affidavits dated 3.2.2016 and 2.10.2016 as Ex.CW/A. On the other hand, opposite party Nos.1 & 2 proved on record the affidavit of their Authorized Representative, Consumer Complaint No.234 of 2015 14 Lalit Gupta, Ex.OP-1/A, and documents, Ex.OP-1/1 and Ex.OP-1/2. When the complaint was fixed for the evidence of opposite party No.3, it absented itself from the Commission and was ordered to be proceeded against ex parte.
6. We have carefully gone through the averments of both the sides, evidence produced by them in support of their respective averments and have heard learned counsel on their behalf.
7. It was submitted by the learned counsel for the complainant that by virtue of the facts, proved on the record by the oral and documentary evidence of the complainant, she is entitled to the refund of the amount, so paid by her for purchasing the Flat, from the opposite parties and they are also liable to pay interest on that amount; besides the compensation for the mental agony, harassment and financial loss suffered by her on account of the acts on their part as detailed in the complaint and in collecting the huge amount, without developing the project and having failed to deliver the possession of the Flat within the stipulated period of 36 months.
8. On the other hand, it was submitted by the learned counsel for opposite parties No.1 and 2 that the deficiency in service, if any, can be said to be only on the part of opposite party No.3; as, by virtue of the agreement so executed between the parties, it was that opposite party, which had sold the Flat to the complainant and received the amount, as mentioned in the complaint, towards the consideration of that Flat and it was for that opposite party itself to deliver the Consumer Complaint No.234 of 2015 15 possession. Opposite parties No.1 & 2 were only a "Confirming Party" and, as such, no liability can be fastened to them.
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
10. At the outset it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:
i) Consumer Complaint No.327 of 2015 (Balwinder Singh and another v. Unitech Limited and others) decided on 20.9.2016.
ii) Consumer Complaint No.122 of 2015 (Sh. Puneet Chugh Vs. Unitech Limited & Ors), decided on 12.09.2016;
iii) Consumer Complaint No.233 of 2015 (Naresh Kumar Vs. Unitech Limited & Ors), decided on 08.09.2016; and
iv) Consumer Complaint No.197 of 2015 (Vineet Sood vs. Unitech Limited & others) decided on 10.11.2016.
11. The matter in the present complaints is squarely covered by the orders passed in above said complaints, so we intend to decide the present complaints in view of orders passed in above said complaints.
12. At the time of arguments it was not disputed that the amount, as mentioned in the complaint, was paid by the complainant towards the price of the Flat. The Payment Plan was annexed with the Agreement Ex.C-3 as Annexure-A. It was not denied by the opposite parties that the payments were made as per that Payment Plan. Thus, the complainant performed her part of the contract and Consumer Complaint No.234 of 2015 16 became entitled to the possession of the Flat. As per clause 4(a) of the Agreement, the same was to be delivered to her within 36 months of the signing of the Agreement subject to force majeure circumstances. It is an admitted fact that the same was not delivered to her within that period and it had not even been delivered till the filing of the complaint; which was filed in the year 2015. Opposite parties No.1 and 2 have tried to take plea in their written reply that there were force majeure circumstances for delay in delivery of possession. No evidence has been adduced by the opposite parties for proving any such circumstance, which can be held to be a force majeure circumstance in order to justify the delay in delivery of possession and for extension of the period so mentioned in the Agreement.
13. The present case, in view of the averments of the opposite parties, involves the determination of their inter-se dispute; as to what were the respective rights and liabilities of the opposite parties under the agreement; who was liable to deliver the possession to the complainant; and who is liable to refund the amount, in dispute, and pay the compensation etc.? The determination of those questions involves interpretation of the Buyer's Agreement, Ex.C-3. In the agreement, opposite parties No.1 and 2 have been described as the "Confirming Party", whereas opposite party No.3 has been described as the "Developer". As per Clause 3 at Page No.2 of the agreement, opposite parties No.1 and 2 had assigned to opposite party No.3 Consumer Complaint No.234 of 2015 17 rights with respect to 33.2438 acres of land. The most important Clauses for determining that relationship are reproduced below:
"AND WHEREAS on a part of the Said Land, the Developer shall construct and complete independent Floors on plots of various sizes, each Plot having 3 floors and the Complex area earmarked for construction of independent floors to be known as "Unihomes" each floor being independent and constituting a separate Unit.
AND WHEREAS in terms of Clause 4.2.2 of the said Development Agreement, Unitech has agreed to join the Developer as a confirming party in the transfer/allotment and assignment of rights in the Developed Units to the prospective purchasers of the Developed Units and also to execute the Conveyance Deeds for such Developed Units in favour of such Purchasers.
AND WHEREAS the Developer has also authorized Unitech to market, sell either itself or through its channel partners, the built-up/developed areas/Flats on its behalf including deposit of collected monies of marketed areas/sold units in the designated Account of the Developer.
2.m. Design and specifications:
(i) That at the time of taking over the possession of the Floor, the Purchaser(s) shall satisfy himself about the design, specifications etc. of the Floor. The Consumer Complaint No.234 of 2015 18 Purchaser (s) after taking possession of the Floor shall have no claim against Unitech or the Developer in respect of any item of construction or work in the Floor, which may be said not to have been done or carried out or completed or for any alleged non-
compliance of design, specification, building material etc.
4.a Delivery of Possession:
(i) That the possession of the Floor is proposed to be offered to the Purchaser(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Purchaser (s) under this Agreement have been paid within the stipulated period. It is, however, understood between the parties that various Floors shall be ready and shall be completed in phases and handed over to the Purchaser (s) accordingly.
8.b Force Majeure:
That, however, if the handing over of possession of the Floor is delayed for reasons of "Force Majeure"
or circumstances beyond the control of the Developer or because of any notice or order of the Government, including slow down strike, civil commotion or by reason of war, enemy or terrorist Consumer Complaint No.234 of 2015 19 action or an act of God, delay in the grant of completion/occupation certificate by the Government and/or any act of public or competent authority, the Developer shall be entitled to a reasonable extension of time in the agreed date for delivery of possession of the Floor."
A minute perusal of these Clauses makes it clear that the delivery of possession of the Flat was not the exclusive liability of opposite party No.3, but all the opposite parties were liable, jointly and severally.
However, as per clause 4.c. (ii) of the Agreement, Ex.C3, the compensation at the rate of Rs.5/- per square foot per month of the super area of the Flat for the period of delay in offering the possession beyond the period of 36 months was to be paid by opposite party No.3. Opposite parties No.1 and 2 have pleaded in para no.4 on merits of their amended written reply that the entire amount paid by the complainant was deposited in the designated account of opposite party No.3. That fact was duly proved by Lalit Gupta by making a deposition to that effect in his affidavit Ex.OP1/A. Such a fact was required to be proved by documentary evidence but no such document was proved on the record and in the absence of any document and merely on the basis of the statement of Lalit Gupta it cannot be concluded that the amounts so paid by the complainant were passed over to opposite party No.3. Hence all the opposite parties are jointly and severally liable.Consumer Complaint No.234 of 2015 20
14. It would be apposite to refer to the relevant provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), which are as follows:
3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section.
(2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) 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;
(c) give inspection on seven days, notice or demand,-
(i) 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; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) Consumer Complaint No.234 of 2015 21 and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments Consumer Complaint No.234 of 2015 22 proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:-
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.
(2) The advertisement or prospectus issued under sub-
section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of
the advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or Consumer Complaint No.234 of 2015 23
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true.
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony.
(2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from Consumer Complaint No.234 of 2015 24 year to year on payment of prescribed fee.
(5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force. (8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit. (9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution. (11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority.
(12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being Consumer Complaint No.234 of 2015 25 heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue.
(14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them. (16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to the promoter.
6. Contents of Agreement of Sale:-
(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale Consumer Complaint No.234 of 2015 26 price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause (b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause (c),-
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be Consumer Complaint No.234 of 2015 27 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.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the Consumer Complaint No.234 of 2015 28 sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
15. Thereafter, Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 thereof, it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub- section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
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 opposite parties had been collecting huge amounts from the buyers for the development of the Project. The amount received Consumer Complaint No.234 of 2015 29 from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement.
17. So far as the contention of the learned counsel for the opposite parties that the complainant has herself mentioned in her complaint that in case the allotment of the flat had been carried out in time, the complainant would have earned rent by letting out this flat and as such, she is not a 'consumer' is concerned, the same is not acceptable as there is no question of letting out of the flat on rent without possession of the same having been delivered by the opposite parties to the complainant.
18. The complainant in her complaint has prayed for issuance of the directions to the opposite parties to refund the sum of ₹26,05,804/-. According to opposite parties No.1 and 2 the Flat was to be constructed and all the facilities were to be provided by opposite party No.3. However, opposite party No.3 did not produce any evidence in support of the allegations made in the joint written reply and absented itself from this Commission. The complainant is not to wait for indefinite period for the possession of the Flat. The non-delivery of possession of the Flat within the agreed period amounts to deficiency in service on the part of the opposite parties Consumer Complaint No.234 of 2015 30 and collecting of huge amount without the intention to give the possession of the Flat amounts to adoption of unfair trade practice.
19. The Consumer Protection Act came into being in the year 1986. It is one of the benevolent piece 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. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in 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 the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint and the reply of the opposite parties, it is clearly made out that the opposite Consumer Complaint No.234 of 2015 31 parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the flat, 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 amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. 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. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that she is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite parties in shattering her hope of getting the flat by waiting for all this period.
Consumer Complaint No.234 of 2015 32
20. It stands proved in the present case that the construction/development work has been totally stopped by the opposite parties and there is no possibility of the delivery of possession of flat to the complainant in near future. In these circumstances when the opposite parties are not in a position to fulfil their part of the agreement, they cannot retain the amount so deposited by the complainant and liable for refund of the same along with interest @ 12% per annum as per Rule 17 of Punjab Apartment and Property Regulation Rules, 1995 from various dates of payment.
21. Accordingly the complaint is allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹26,05,804/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by the complainant; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.26 of 2016
22. In this complaint, the complainants purchased one residential Flat at Unihomes, Sector 107, Mohali, vide allotment letter dated 8.5.2010 (Ex.C-3) for a total consideration of ₹30,73,629/-. The Buyer's Agreement was signed between the complainants and the opposite parties on 10th of July 2010 (Ex.C-4). As per the version of Consumer Complaint No.234 of 2015 33 the complainants, they paid an amount equal to ₹27,80,924/-, which comes to more than 95% of the total consideration. The possession of the Flat was to be given within 36 months from the date of agreement i.e. upto 10.7.2013. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹27,80,924/- along with interest, compensation and costs was made.
23. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹27,80,924/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.60 of 2016
24. In this complaint, the complainants purchased one residential Flat in "Gardens", Sector 97, Mohali, vide allotment letter dated 19.5.2012 (Ex.C-2) for a total consideration of ₹47,24,699/-. The Buyer's Agreement was signed between the complainants and the opposite parties on 12.7.2012 (Ex.C-4). As per the version of the complainants, they paid an amount equal to ₹44,72,387/-, which comes to more than 95% of the total consideration. The possession Consumer Complaint No.234 of 2015 34 of the Flat was to be given within 36 months from the date of agreement i.e. upto 12.7.2015. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹44,72,387/- along with interest, compensation and costs was made.
25. State Bank of India has been impleaded as opposite party No.3. However, it is not liable to pay anything to the complainants as it has only provided home loan to them.
26. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to opposite parties No.1 and 2:-
i) to refund the amount of ₹44,72,387/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹4,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.92 of 2016
27. In this complaint, the complainants purchased one residential Flat in Unihomes, Sector 107, Mohali, vide allotment letter dated 18.8.2009 (Ex.C-4) for a total consideration of ₹26,81,304/-. The Buyer's Agreement was signed between the complainants and the opposite parties on 5.10.2009 (Ex.C-2). As per the version of the complainants, they paid an amount equal to ₹23,62,887/-, which Consumer Complaint No.234 of 2015 35 comes to more than 95% of the total consideration. The possession of the Flat was to be given within 36 months from the date of agreement i.e. upto 5.10.2012. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹23,62,887/- along with interest, compensation and costs was made.
28. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹23,62,887/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.110 of 2016
29. In this complaint, the complainants purchased one residential Apartment No.0104 in 'Gardens', Sector 97, Mohali, vide Apartment Allotment Agreement dated 3.5.2011 (Ex.C-1) for a total consideration of ₹44,05,275/-. As per the version of the complainants, they paid an amount equal to ₹42,52,377/-, which comes to more than 95% of the total consideration. The possession of the Apartment was to be given within 36 months from the date of agreement i.e. upto 3.5.2014. However, the same has not been Consumer Complaint No.234 of 2015 36 delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹42,52,377/- along with interest, compensation and costs was made.
30. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹42,52,377/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹4,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.126 of 2016
31. In this complaint, the complainants purchased one residential plot No.82 in Block C, measuring 358.80 sq. yards in the project "BOULEVARD" in "Uniworld City", Sector 107, Mohali, vide Agreement to Sell dated 19.1.2011 (Ex.C-1) for a total sale consideration of ₹53,37,150/-. The Buyer's Agreement was signed between one Sharda Sachdev and opposite parties No.1 and 2 on 30.10.2009 (Ex.C-3) as initially the allotment was made in the name of Sharda Sachdev and thereafter the same was transferred in the name of the complainants, vide letter dated 1.3.2011 (Ex.C-2). As per the version of the complainant, they paid an amount equal to ₹53,90,918/-. The possession of the Plot was to be given within 36 Consumer Complaint No.234 of 2015 37 months from the date of agreement i.e. upto 30.10.2012. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹53,90,918/- along with interest, compensation and costs was made.
33. Indiabulls Housing Finance Limited has been impleaded as opposite party No.3. However, it is not liable to pay anything to the complainants as it has only provided home loan to them.
34. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to opposite parties No.1 and 2:-
i) to refund the amount of ₹53,90,918/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹5,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.210 of 2016
35. In this complaint, the complainants purchased one residential Flat No.0701 in Block No.B-4 measuring 1790 square feet at Gardens, Sector 97, Mohali, vide allotment letter dated 3.12.2011 (Ex.C-3) for a total consideration of Rs.52,36,820/-. Thereafter Apartment Allotment Agreement was executed between the complainants and the opposite parties on 2.1.2012 (Ex.C-4). As per Consumer Complaint No.234 of 2015 38 the version of the complainants, they paid an amount equal to ₹49,09,067/-. The possession of the flat was to be given within 3 years from the date of agreement i.e. upto 2.1.2015. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹49,09,067/- along with interest, compensation and costs was made.
36. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹49,09,067/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹4,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.243 of 2016
37. In this complaint, the complainant purchased one residential Apartment No.0602 in Block No.A, measuring 1050 square feet at Gardens, Sector 97, Mohali, vide allotment letter dated 8.5.2010 for a total consideration of Rs.26,59,500/-. Thereafter Apartment Allotment Agreement was executed between the complainant and the opposite parties on 15.2.2011 (Ex.C-1). As per the version of the complainant, he paid an amount equal to ₹28,44,220/-. The possession of the Apartment was to be given within 3 years from the Consumer Complaint No.234 of 2015 39 date of agreement i.e. upto 15.2.2014. However, the same has not been delivered till the date of filing of the complaint. A prayer for a direction to the opposite parties to refund the amount of ₹28,44,220/- along with interest, compensation and costs was made.
38. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹28,44,220/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
Consumer Complaint No.271 of 2016
39. In this complaint, the complainant purchased one residential Flat No.0801 in Block No.A-1 measuring 1050 square feet at Gardens, Sector 97, Mohali, vide allotment letter dated 16.11.2012 (Ex.C-2) for a total consideration of Rs.35,62,500/-. Thereafter Apartment Allotment Agreement was executed between the complainant and the opposite parties on 11.1.2013 (Ex.C-4). As per the version of the complainant, he paid an amount equal to ₹33,58,427/-, which comes to more than 95% of the total price of the flat. The possession of the flat was to be given within 30 months from the date of agreement i.e. upto 11.7.2015. However, the same has not been delivered till the date of filing of the complaint. A prayer Consumer Complaint No.234 of 2015 40 for a direction to the opposite parties to refund the amount of ₹33,58,427/- along with interest, compensation and costs was made.
40. In view of the discussion held in Consumer Complaint No.234 of 2015 (Neelam Khurana vs. Unitech Limited & Others), this complaint is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹33,58,427/- along with interest at the rate of 12% per annum from the different dates of payment of different amounts till the date of payment;
ii) to pay ₹3,00,000/-, as compensation for the harassment and mental agony suffered by them; and
iii) to pay ₹20,000/-, as costs of litigation.
41. In all the complaints, the opposite parties are directed to comply with the order within 30 days of the receipt of the certified copy of the order.
42. If the opposite party/opposite parties has/have failed to comply with the orders in all the complaints within the stipulated period, then the amount of compensation awarded, vide this order in all the complaints shall carry interest at the rate of 12% per annum from the date of this order till realization.
43. The complaints could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 06, 2017 Bansal Consumer Complaint No.234 of 2015 41