State Consumer Disputes Redressal Commission
Ms. Kiranjit Kaur Toor vs M/S Puma Realtors Pvt. Ltd. on 10 January, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 170 of 2017
Date of Institution : 24.03.2017
Date of Reserve : 03.01.2018
Date of Decision : 10.01.2018
Ms. Kiranjit Kaur Toor wife of Mr. Parminder Singh Toor, at present
resident of 3242 Apricot Street, Mississauga, Canada;
Through her Special Power of Attorney Mr.Harminder Singh, son of
Mr. Rajinder Singh, resident of Village Bhasaur, Tehsil Dhuri, Distt.
Sangrur.
....Complainant
Versus
1. M/s Puma Realtors Pvt. Ltd. through its Managing Director, 5,
Dhanraj Chamber, 1st Floor, Satbari, New Delhi 110 074.
2. M/s Puma Realtors Pvt. Ltd., through its Senior Manager,
S.C.O. 6-7, Sector 9-D, Chandigarh 160009
3. Greater Mohali Area Development Authority, through its Chief
Administrator, PUDA Bhawan, Sector 62, Mohali 160062.
....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
Present:-
For the complainant : Sh. K.S. Sidhu, Advocate
For Op Nos. 1&2 : Sh. Mukesh Pandit, Advocate for
Sh. Ramneek Gupta, Advocate
For Op No. 3 Sh. G.S. Arshi, Advocate
Consumer Complaint No. 170 of 2017 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed the present complaint through Special Power of Attorney Mr. Harminder Singh s/o Mr. Rajinder Singh against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act). It has been alleged in the complaint that Ops launched their project i.e. Ireo Hamlet, Sector 98, Mohali. A plot No. 25, measuring 250.59 sq. yards was already allotted to one Amarjeet Singh s/o Surinder Singh on the basis of provisional allotment letter dated 29.4.2011 and agreement dated 24.8.2011. The complainant purchased the said plot from abovesaid Amarjeet Singh vide their letter dated 20.9.2011. In this way, the complainant stepped into the shoes of his predecessor-in-interest and the Company was bound to fulfill all the commitments made with her predecessor-in- interest. As per the commitment, the possession of the plot was to be given within a period of 2 years from the date of agreement i.e. 24.8.2011 including all ancillary facilities like internal and external roads, parks, water, sewerage, electricity etc. However, Ops were not able to honour their commitments, even after passing of more than 5 years. The Ops were not able to complete the development work especially with regard to providing electricity, sewerage treatment plant, proper access roads etc. The complainant had been paying promptly all the amounts as demanded by the Ops hoping that she will be able to construct the house on the plot Consumer Complaint No. 170 of 2017 3 purchased by her. Complainant has already paid the entire amount payable to the Ops including EDC, IFMS. On 7.1.2017, husband of the complainant visited the site but he was surprised to see that it was not feasible to construct a house and reside there because a lot of development work is still to be done there. Finding no other alternative, the complainant was constrained to seek a refund of the amount paid by her alongwith interest. She got served a legal notice dated 13.1.2017 through its Advocate calling upon the Ops to refund the entire amount paid by the complainant alongwith interest @ 18% p.a. within a period of 15 days but to no response. Through an RTI application, information was sought from PSPCL and PSPCL vide their letter dated 13.8.2017 stated that till date no regular load has been released to the project by PSPCL Authorities. The GMADA vide their letter dated 21.2.2017 also intimated that completion certificate has not been granted to the Ops. Layout plan of the Ops has been approved by Town and Country Planning Department, Punjab vide their letter dated 15.5.2013 subject to certain conditions but Ops have failed to comply with most of the conditions stipulated in their letter. Alleging deficiency in services, present complaint has been filed against the Ops seeking following directions:-
(1) Ops be directed to refund the entire amount of Rs.
61,28,437/-, which was paid by the Complainant to the Company;
(2) And the Opposite Parties be directed to pay interest to the complainant @ 18% p.a., on the total amount paid Consumer Complaint No. 170 of 2017 4 by her, from the date the amount was paid till it is refunded;
(3) And the Opposite Parties be directed to pay compensation of Rs. 500,000/- (Five Lakh) to the Complainant for the pain, hardships and mental agony suffered by her;
(4) And the Opposite Parties be directed to pay Rs.
1,00,000/- (One Lakh) as cost of litigation to the Complainant;
(5) And the Opposite Parties be directed to provide any other relief to which the Complainant are found entitled to by this Hon'ble Commission.
2. Upon notice, Op Nos. 1 & 2 appeared and filed their written reply taking preliminary objections that the complaint is false, frivolous and vexatious because as per buyer's agreement dated 24.8.2011 entered into between the original allottee Amarjit Singh and Op No. 1 and subsequently, in favour of complainant on 20.9.2011 have already been offered the valid and legal possession vide letter dated 4.5.2015, which fact was intentionally concealed by the complainant; there is existence of an Arbitration Clause No. 33 under the agreement under which in case of any dispute between the parties, the matter is to be referred to the Arbitrator to be appointed vide resolution of the Board of Directors of the Company, whose decision will be binding upon the parties and under Section 8 of the Arbitration and Conciliation Act, 1996, the Judicial Authority can refer the matter to arbitration in view of Consumer Complaint No. 170 of 2017 5 the specific clause in the agreement and the Consumer Foras are a judicial authority and that the provisions of Section 3 of the CP Act, 1986 are not applicable; the complainant is not a consumer as he has not purchased the goods and has not hired the services from Op No. 1 because the construction activities are being carried out by Op No. 1 on its own and not for and on behalf of the complainants and no part of the agreement obligates the Ops to provide the services as defined under Section 2(1)(o) of the Act; the complainant has not booked the plot for his personal use and booking is for investment and commercial purposes and accordingly, she is not a consumer; the allegations of the complaint are of contractual nature, therefore, triable only in the Civil Court; there is no deficiency in services on the part of Ops, therefore, if any, direction is to be passed, it is to be passed under Section 14 of the CP Act; the claim demanded by the complainant is exorbitant and compensation is untenable. On merits, the averments stated in the preliminary objections were reiterated. With regard to execution of the agreement with the complainant is a matter of record. It is incorrect that the possession of the plot was to be delivered within two years. One cannot rely upon Clause No. 11 only and agreement is to be read as a whole. It also provides grace period of 6 months and according to Condition No. 11.2 of the agreement, it was further agreed by the complainant that in case Op No. 1 fails to offer the possession of the plot by the end of the aforesaid grace period then she shall be paid a reasonable damages @ Rs. 50/- per sq. yard per month till the possession is actually offered. Consumer Complaint No. 170 of 2017 6 Further Condition No. 11.3 of the agreement provides an option to the complainant to terminate the said agreement and seek the refund if Op No. 1 fails to deliver the possession even after expiry of 12 months from the efflux of the grace period. The complainant has never terminated the said agreement and sought the refund despite lapse of said period of 42 months and failed to receive the notice of possession and to pay the balance amount. Then according to Clause 21.2, the external development was to be done by the Competent Authorities. Op No. 1 has developed the site by laying internal roads, electrical infrastructure, sewer lines, storm lines, street lights, bore well, STP, electrical transformers, Pneumatic water supply system, green parks, water hydrants, storm water pits etc. It was denied that the Ops have failed to honour the commitments to complete the development work at the site. In CC No. 170 of 2015 "Abha Arora Vs. Puma Realtors Private Limited and another", the Hon'ble SCDRC, Chandigarh vide its order dated 15.10.2015 was pleased to appoint Local Commissioner for inspection of the site and report about the position of the development at the site. In compliance of the said order, the Local Commissioner submitted its report dated 24.10.2015 and perusal of the said report unequivocally spells about the development as well as the existence of the basic amenities at the site. With regard to access road; the construction of the said road was obligation of the GMADA and obligation on the part of Op No. 1 was to pay EDC to the said Authorities, which it did from time to time since 2008 onwards. Therefore, the Consumer Complaint No. 170 of 2017 7 complainant is just making false allegations in furtherance of the present false and frivolous allegations in order to project the false claim of refund. It has been denied that husband of the complainant went to the site on 7.11.2017. It has been denied that there is no development at the site. With regard to the development, it has been stated in detail as referred above. With regard to information under the RTI, no information has been issued by Information Officer as required under the RTI Act, therefore, no reliance or credence can be placed upon such a report. It has been further mentioned that Op No. 1 is developing a housing project under the Punjab State Industrial Policy, 2003 in furtherance of Letter of Intent (in brief LOI) dated 30.9.2005. Vide notification dated 14.8.2008, Op Nos. 1 & 2 are exempted from the provisions of the PAPRA except Section 32, therefore, Op was under no obligation to obtain the completion certificate. However, Op No. 3 vide letter dated 16.2.2015 advised Op No. 1 to obtain the completion certificate on the basis of alleged notification dated 2.9.2014 to avoid the difficulties to the allottees in obtaining the occupation certificate and accordingly, Op No. 1 applied for issuance of the completion certificate. It has been denied that Ops have failed to comply with the conditions of letter dated 15.5.2013. In fact Ops have complied with all the conditions laid down in the letter dated 15.5.2013. The complaint is without merit, it be dismissed.
3. Op No. 3 was proceeded ex-parte vide order dated 5.5.2017. However, vide order dated 25.7.2017, Op No. 3 was Consumer Complaint No. 170 of 2017 8 allotted to join the proceedings. There are no pleadings as well as evidence on behalf of Op No. 3.
4. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in his evidence has tendered affidavit of Harinder Singh, SPA as Ex. CW/A and documents Exs. C-1 to C-9. On the other hand, Op Nos. 1 & 2 have tendered affidavit of Rohit Tanwar, Auth. Representative as Ex. OP/A and documents Exs. Op-1 to Op-30.
5. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
6. Before coming to the merits of the complaint, some preliminary objections have been taken by the Ops, which are required to be dealt with.
7. The first objection taken by the Ops is that the letter of possession was issued by the Ops in favour of the complainant but it was not referred by the complainant in his complaint, therefore, the complainant has concealed the material fact from the Court/Commission, which amounts to fraud on the part of complainant and vitiates the proceedings. This plea will be dealt with by us when we will take the complaint on merits whether the complainant is entitled to refund of the amount and whether the letter giving of notice of possession is a complete in accordance with the agreement between the parties and as per the provisions of the PAPRA.
Consumer Complaint No. 170 of 2017 9
8. It has been stated that under Clause 33 of the agreement, there is a provision to refer the matter to the Arbitration and under Section 8 of the Arbitration and Conciliation Act, the State Commission being the judicial authority can refer the matter to the Arbitrator. For ready reference Section 33 of the agreement is referred as under:-
"33. Dispute Resolution by Arbitration All or any disputes arising out of or touching upon or in relation to the terms of this Agreement or its termination including the interpretation and validity of the terms hereof and the respective rights and obligations of the Parties shall be settled amicably by mutual discussions failing which the same shall be settled through reference to a sole Arbitrator to be appointed by a resolution of the Board of Directors of the Company, whose decision shall be final and binding upon the Parties. The Allottees hereby confirms that it shall have no objection to the appointment of such sole Arbitrator even if the person so appointed, is an employee or advocate of the Company or is otherwise connected to the Company and the Allottee hereby accepts and agrees that this alone shall not constitute a ground for challenge to the independence or impartiality of the said sole Arbitrator to conduct the arbitration. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or any statutory amendments/modifications thereto and shall be held at the Company's offices or at a location designated by the said sole Arbitrator in Chandigarh. The language of the arbitration proceedings and the Award shall be in English. Both the Parties will share the fees of the Arbitrator in equal proportion."Consumer Complaint No. 170 of 2017 10
In this regard, it is necessary to mention Section 8 of the Arbitration and Conciliation Act, 1996, which reads as under:-
"8. Power to refer parties to arbitration where there is an arbitration agreement.-- (1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.(Emphasis supplied). (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.
Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said Agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the Consumer Complaint No. 170 of 2017 11 original arbitration agreement or its duly certified copy before that Court.
(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made." According to this Section, in case a party to the Arbitration agreement and any other person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, the Court can refer the parties to the Arbitration but no such application was filed. Then additional remedy has been provided under Section 3 of the Act under which Consumer Fora has the right to entertain the complaint when there is arbitration Clause. For ready reference, Section 3 of the Act is referred as under:-
"3. Act not in derogation of any other law.--The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
Recently, the larger Bench of the Hon'ble National Commission in Consumer Case No. 701 of 2015 "Aftab Singh versus EMAAR MGF Land Limited & Anr." and in other similarly situated cases, decided on 13.07.2017, after discussing various judgments of the Hon'ble Supreme Court and the amendment made by the Parliament in Section 8(1) of the Act of the Arbitration and Conciliation Act, 1996 observed that the amendment does not Consumer Complaint No. 170 of 2017 12 affect in any manner the powers of the Consumer Fora to entertain the complaints under Section 3 of the Act. It was held that even if there is provision of Arbitration Clause in the agreement, it does not debar the Consumer Fora to take cognizance of the complaint despite provision of Arbitration Clause in the agreement. The counsel for the Ops was unable to rebut this legal provision and the judgment pronounced by the Hon'ble National Commission, therefore, we do not agree with the plea raised by the counsel for the Ops that the State Commission does not have the power to entertain the complaint in view the Arbitration Clause in the agreement.
9. It has been argued by the counsel for the Ops that the complainant is not a consumer as she has not bought the goods and has not hired any service from Op No. 1 and that the Ops are developing the project on its own line. The agreement is in the nature of an agreement to sell and does not create any right and interest in the property in favour of the buyer. In this regard, it is pertinent to refer the definition of the consumer as defined under Section 2 (1)(d) of the CP Act:-
"2. Definitions. - (1) In this Act, unless the context otherwise requires,--
(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the Consumer Complaint No. 170 of 2017 13 person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-
employment;"
No doubt that the complainant has not purchased the goods but his case is covered as she has availed the services from the Ops and that too for consideration because under the agreement Ex. C-1 dated 24.8.2011 executed between the Ops and Amarjit Singh and Consumer Complaint No. 170 of 2017 14 lateron vide letter dated 20.9.2011, the rights were assigned in favour of the complainant in Plot No. 25 in terms of Clause 14 of the Buyer's Agreement and after that various payments were received by the Ops and as per the statement of account issued by the Ops, a sum of Rs. 60,19,535/- has been received by the Ops and balance has been shown to be Rs. 1,08,901/-. Under agreement Ex. C-1, Ops have agreed to deliver the possession of Plot No. 25 after developing it within a period of 24 months with grace period. The definition of the services has been defined under Section 2(1)(o) of the Act, which reads as under:-
"2. Definitions. - (1) In this Act, unless the context otherwise requires,--
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
It includes the housing construction, therefore, in case the Ops have agreed to develop a plot in his property for the complainant for consideration, it comes under the definition of housing construction duly covered under the definition of the service and in case a service has been obtained for consideration as defined Consumer Complaint No. 170 of 2017 15 under Clause 2(1)(d) of the Act then the complainant comes under the definition of the consumer. We do not agree with the plea raised by the counsel for the Ops that it is just an agreement to sell creating contractual liability. It is just not an agreement to sell because in that event, the plot would have been sold as it is but it is mega project under which all the development works are to be carried out by the Ops enabling its allottees to raise the construction. Therefore, it is more than agreement to sell and it is duly covered under the definition of services as referred above.
10. It has been further contended by the counsel for the Ops that the plot was booked for speculative purposes and that the complainant is not a consumer, therefore, she is not covered under the definition of consumer according to definition attached to Section 2(1)(d) of the Act. In case we go through the contents of the complaint, the complainant had booked only one plot and in para No. 8 of the complaint, it has been stated that husband of the complainant had gone to the site to inspect the site on 7.1.2017 but he was surprised to see that it is not feasible to construct a house or reside in their colony as a lot of development work was to done there, which makes it clear that the intention of the complainant is to raise the construction and to reside there. There is no bar that in case the complainant is residing abroad, she does not own a house. The Indians reside abroad often come to India and want to own a house to live in as and when they come to India, therefore, merely because the complainant is residing abroad, it cannot be said that the plot is booked for speculative purposes. The Ops have Consumer Complaint No. 170 of 2017 16 not been able to place on the record that the complainant is trading in the real estate. They have not referred that she has any other property in the vicinity of Mohali or that she was earlier use to sell or purchase the plot. In case the Ops have not been able to prove these things on the record then it cannot be said that the complainant had purchased the property for speculative purposes. We are fortified by the judgment of 2017(3) CLT 459 (NC) "Pranab 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. Therefore, we do not agree with the plea raised by the counsel for the Ops that the complainant is not a consumer as she had booked the plot for commercial purposes.
11. It has been further alleged that the allegations in the complaint are contractual in nature and as such only triable in a Civil Court. No doubt that there is a contract between the parties and under that contract the Ops has agreed to develop the colony in which the Plot No. 25 has been allotted and the possession has been agreed to be given after development work at the site. We have dealt in detail this point in para No. 10 that complainant is a consumer as defined under the CP Act and under Section 3 of the Act, the Consumer Foras have a right to entertain the complaint, Consumer Complaint No. 170 of 2017 17 therefore, in consumer disputes this Commission has a right to entertain the consumer complaint and the plea raised by the counsel for the Ops that it is triable only before the Civil Court is not a correct preposition.
12. Now we will take the complaint on merits to see whether there is deficiency in service, amount of compensation in reference to Section 14(1)(d) of the CP Act, extent of the claim and concealment of material fact, if any, is there on the part of the complainant. As per averments in the complaint, the complainant has purchased Plot No. 25, booked in the name of Amarjit Singh on the basis of agreement dated 24.8.2011 and it was ratified by the Ops by issuing a letter dated 20.9.2011 Ex. C-2 in terms of clause 14 of the buyers agreement under which there is provision of assignment/transfer of right in favour of the complainant, therefore, agreement exist in favour of the complainant with Ops with regard to allotment of plot No. 25. With regard to payment plan, the plot has been booked at the rate of Rs. 23,000/- per square yard for a plot of 250.59 sq. yards with total basic sale price of Rs. 57,63,570/- then EDC @ Rs. 1275.10p per sq. yards, PLC, if any, Rs. 500/- per sq. yard and IFMS Rs. 350/- per sq. yards. As per statement of account prepared by the Ops, the complainant has already paid a sum of Rs. 60,19,535/- and balance Rs. 1,08,901.66p and a sum of Rs. 3,32,032/- was required to be paid at the time of possession. Therefore, the complainant has made a payment whichever due to be paid to the Ops and this preposition has not been raised by the counsel for the Ops during the course of Consumer Complaint No. 170 of 2017 18 arguments with regard to any default on the part of the complainant to make the payment.
13. With regard to delivery of the possession a reference can be made to Clause No. 11 to 11.3, which reads as under:-
"11. POSSESSION AND HOLDING CHARGES 11.1 Subject to Force Majeure as defined herein, and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement; and not being in default of any provision(s) of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges, and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Plot to the Allottee within a period of 24 (Twenty Four) months from the date of execution of this Agreement ("Commitment Period"). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 6 (six) months ("Grace Period"), after the expiry of the said Commitment Period.
11.2 Subject to Clause 11.1, if the Company fails to offer possession of the said Plot to the Allottee by the end of the Grace Period, it shall be liable to pay to the Consumer Complaint No. 170 of 2017 19 Allottee compensation calculated at the rate of Rs. 50/- (Rupees Fifty only) per sq. yd. of the area of the said Plot ("Delay Compensation") for every month of delay until the actual date fixed by the Company for handing over of possession of the said Plot to the Allottee. The Allottee shall be entitled to payment against such 'Delay Compensation' only after completion of all documentation including registration of the Conveyance Deed.
11.3 Subject to Clause 11.1, in the event of delay by the Company in handing over the possession of the said Plot beyond a period of 12 months from the end of the Grace Period (such 12 months period hereinafter referred to as the "Extended Delay Period"), then the Allottee shall become entitled to opt for termination of the Allotment/Agreement and refund of the actual paid up installment(s) made against the said Plot after adjusting the interest / penalty on delayed payments along with Delay Compensation for 12 months. Such refund shall be made by the Company within 90 days of receipt of intimation to this effect from the Allottee, without any interest thereon. For removal of doubt, it is clarified that Delay Compensation payable to the Allottee who is validly opting for termination, shall be limited to and calculated for the fixed period of 12 months only irrespective of the date on which the Consumer Complaint No. 170 of 2017 20 Allottee actually exercised the option for termination. This option of termination may be exercised by the Allottee only up till dispatch of the Notice of Possession by the Company to the Allottee whereupon the said option shall be deemed to have irrevocably lapsed. No other claim, whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Allottee."
According to these Clauses, the possession of the plot with all developments was to be made within a period of 24 months with a grace period of 06 months, which comes to an end on February, 2014 and further under Clause 11.3 in case the Ops failed to deliver the possession of the plot beyond a period of 12 months from the end of grace period then the allottee shall be entitled to opt for termination of the allotment/agreement, thus, 12 months also came to an end in February, 2015 but even by the end of February, 2015, the possession letter was not issued. The letter of possession was issued on 4.5.2015 Ex. Op-4/A, therefore, the delay in delivery of the possession according to agreement clauses has given a right to the complainant to opt for termination of the agreement. The complainant gave a legal notice dated 13.1.2017 in which a reference has been made that the husband of the complainant had visited the property at the site and that development work was not complete to raise the construction and to reside there, therefore, the complainant was not left to no other option but to seek refund of the amount deposited by the Consumer Complaint No. 170 of 2017 21 complainant. Therefore, under Clause 11.3, the complainant has opted to terminate the agreement and after termination, she is entitled for the refund of the amount deposited alongwith the interest.
14. It has been argued by the counsel for the Ops that the allotment letter was issued on 4.5.2015 Ex. Op-4/A and alongwith that copy of the statement of account was supplied and according to which a sum of Rs. 1,08,901/- was a balance but the complainant instead of taking the decision and paying the balance amount has opted for termination of the agreement and sought for refund.
15. What is the value of the possession letter? As per averments in the complaint, it has been stated that number of development works have not been completed specifically with regard to the electricity, sewerage treatment plant, proper access road etc. and no completion certificate has been obtained by the complainant from the Competent Authority. With regard to completion certificate, the counsel for the Ops has referred that they have initiated to make the project under the Punjab State Industrial Policy, 2003 in furtherance of that LOI dated 30.9.2005 was issued. Vide its notification dated 14.8.2008 State had exempted the project of Ops from the provisions of the PAPRA except Section 32 of the Act, which deals with Constitution of Punjab Urban Development Fund. However, there is letter No. 4966-CTP(Pb)/SP-458 dated 2.9.2014(Ex.Op-30) issued by Govt. of Punjab, Department of Housing and Urban Development Consumer Complaint No. 170 of 2017 22 (Housing II Branch) under which it has been stated that Mega Housing Project has been approved under PAPRA, 1995, however, the present frame work does not provide the clear procedure to issue completion or partial completion to such projects, which causes hardships to promoters and residents of such projects for the maintenance and upkeep of public utilities and services. To stream line the issue of completion/ partial completion certificate of PAPRA project, falling outside Municipal Limits, its procedure and time frame has been worked out. Therefore, the completion/partial completion certificate is required to be obtained by the Ops under the scheme issued by the Government of Punjab vide its letter dated 2.9.2014 and under that letter, the Ops had already applied for and vide letter dated 16.2.2015 (Ex. Op-29), a specific letter was sent to the Ops to get a completion certificate. In para No. 11 of the written reply on merits, it has been stated that in order to avoid the difficulties to the allottees in obtaining the occupation certificate, Op No. 1 applied for issuance of the completion certificate but no letter has been placed on the record. Complainant had sought information under RTI from the GMADA and the office of Senior Town Planner vide its letter dated 21.2.2017 (Ex. C-8) has stated that Ops had applied to get completion certificate on 16.7.2015 but Ops have not submitted certain documents, which were demanded vide letter No. 3800 dated 7.10.2016 but till date those certificates/documents have not been submitted, therefore, no completion certificate has been issued in favour of the Ops. The Hon'ble National Commission in the judgment 2017(1) CPR 292 Consumer Complaint No. 170 of 2017 23 "Harinder Singh versus Unitech", in which it was held that in the absence of completion certificate, complainant cannot be compelled to take possession of the plot. In another judgment reported in 2017(1) CPR 168 (NC) "Sanjay Kumar versus Sahara Prime City Limited & others" it was held that allottee is entitled to withdraw from the scheme in the event of delay in completion of the project. These judgments have not been rebutted by the counsel for the Ops. Therefore, even if there is a notice of possession letter issued by Ops that too after completion of 42 months as referred in Clause 11.3 of the agreement, there is no completion certificate, which is still pending with the Competent Authority, therefore, without completion certificate, the complainant cannot be compelled to take the possession.
16. Whether the possession letter is in real sense or only to avoid the penalty because the development work at the site is not complete and that is the reason that competent authority demanded various documents from the Ops vide its letter No. 3800 dated 7.10.2016 but those documents have not been submitted by the Ops, perhaps the work at the site is not complete, therefore, completion certificate has not been granted. In fact the Ops want to deliver the half baked things to the complainant without completion of the development work at the site and in the absence of fulfillment of conditions, it will be very difficult for the complainant to make the construction and resident there.
17. The layout plan of integrated mega township of Ops was approved by STP vide its letter dated 15.5.2013 (Ex. C-9) on Consumer Complaint No. 170 of 2017 24 various conditions including to comply with all the conditions of the CLU, providing of rain water harvesting and solar water heating system, NOC from Punjab Pollution Control Board, Roads, provisions of utilities to provide general amenities as per the policy of the Government/agreement, to provide electricity from PSPCL, NOC from Forest Department, leveling of roads, water supply, sewerage lines etc. To know the conditions of the CLU, CLU sanction letter has not been placed on the record by the Ops. The Ops have placed on the record the letter dated 19.8.2011 (Ex. Op-
11) issued by the Government of India, Central Ground Water Authority to get ground water in their integrated township but what infrastructure has been placed in the project to provide the water facilities has not come on the record. Ex. Op-13 is the letter dated 19.4.2012 issued by GMADA for permission for disposal of solid waste generated from development of project of the Ops and there is letter dated 14.5.2013 from Punjab Pollution Control Board from pollution angle, it is subject to various conditions but no final inspection note from the Punjab Pollution Control Board on the record that the project has been developed according to the conditions laid down in the letter. With regard to the electrical provisions, no doubt that NOC has been issued by PSPCL vide its letter dated 8.7.2015 (Ex. Op-18) that estimated expenditure for layout of electrical LD system of the project is approved from Rs. 6.73 crores and bank guarantee @ 150% cost of the LD system was to be deposited and guarantee letter from Axis Bank is Ex. Op- 21 but there is no evidence on the record with regard to installation Consumer Complaint No. 170 of 2017 25 of the LD system so that the electricity connection could be further given to the residents. There is no evidence with regard to construction of the roads as per the approved layout plan letter dated 15.5.2013, installation of rain harvesting and solar water heating system, road, sewerage lines etc. that may be the reason that final completion certificate has not been given in favour of the Ops. Therefore, in case the Ops have issued the possession letter without completion of the development work at the site, it does not carry any sense because no offer of possession letter could be issued to the complainant till development work at the site is complete and completion certificate is obtained from the Ops.
18. To check whether the amenities at the site are complete, Ops themselves have referred to the report of one Local Commissioner appointed by the U.T. State Commission in CC No. 170 of 2015 "Abha Arora Vs. Puma Realtors Private Limited and another" and its report dated 24.10.2015 is on the record as Ex. Op-23. It is referred in the report that main gate of the project is situated in front of Sector 97 and in front of the main gate, there is no metalled road. The sewerage pipe lines have been laid and connected to Sewerage Treatment Plant but have not been connected with the main service lines of the GMADA. Storm water pipelines inside the project have been laid and connected with rain water harvesting wells but have not been connected with the main service lines of GMADA. There is no boundary wall to the project, therefore, even on the basis of report of the Local Commission, the amenities at the site are not complete. Even if the letter of Consumer Complaint No. 170 of 2017 26 possession was not referred in the complaint, it does not have any bearing upon the case of the complainant because it was not accompanied with completion certificate and as discussed above, the amenities at the site are not complete.
19. As referred above, in case the possession letter has not been issued within the stipulated time even after calculating the period provided under Clause 11.3 of the agreement and that the complainant has a right to terminate the agreement and she has terminated the agreement vide legal notice dated 13.1.2017 and that possession letter has been issued by ignoring the development work at the site and without getting the completion certificate and that could not be said an offer of possession letter in legal sense, therefore, the complainant is entitled to refund of the amount as deposited by it from time to time.
20. It has been stated by the counsel for the Ops that according to Clause 11.2 of the agreement, the delay compensation will be calculated @ Rs. 50/- per sq. yards but it has been stated by the counsel for the complainant that the agreement is one sided because in case of delayed payment the complainant is required to pay interest @ 15% p.a. from the date of due till the date of payment. However, it was further observed by the Hon'ble National Commission in the judgment 2017(3) CLT 520 (NC) "Ankur Goswami versus Supertech and another" that this clause in the allotment letter would be applied to the case where allottee is seeking possession of the flat and where allottee is not seeking refund of the amount. However, in the present case, the Consumer Complaint No. 170 of 2017 27 allottee is seeking the refund, therefore, the penalty @ Rs. 50/- per sq. yards will not be applicable. Further under Rule 17 i.e. Rate of Interest on refund of 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 complainant will be entitled to interest @ 12% on the deposited amount.
21. With regard to applicability of Section 14 of the CP Act, it is a services agreed by the Ops to be provided to the complainant under the agreement and the Ops have defaulted to provide the services as agreed in the agreement and in view of the detailed discussion referred above, the complainant has a right to withdraw from the scheme and to seek for the refund and further under Clause 14(d) the Fora has a right to award such amount as compensation to the complainant for any loss or the injury suffered by the complainant due to the negligence of the Ops for which provision is there under the PAPRA under which Housing Project of Consumer Complaint No. 170 of 2017 28 Ops was sanctioned under which there is a provision that in case of refund, the amount be refunded alongwith interest @ 12% p.a. and further some compensation can also be allowed with regard to mental and physical harassment to the complainant for awaiting a long period and to visit the site to check the development at the site.
22. What is the amount deposited by the complainant with Ops Nos. 1 & 2? In the complaint, the complainant has referred a sum of Rs. 61,28,437/- whereas Ops No. 1 & 2 in their statement of account referred in the record by the complainant also as Ex. C- 3, in which amount received has been referred as Rs. 60,19,535/-. The complainant has not referred to the receipts vide which a sum of Rs. 61,28,437/- was deposited, therefore, the complainant will be entitled to Rs. 60,19,535/-.
23. In nutshell, we are of the opinion that there is a deficiency in service on the part of Ops Nos. 1 & 2, accordingly, we allow the complaint and direct Ops Nos. 1 & 2 as under:-
(i) To refund a sum of Rs. 60,19,535/- alongwith interest @ 12% p.a. from the various dates of deposit of the amount till payment;
(ii) Rs. 1 Lac as compensation for physical and
mental harassment; and
(iii) Rs. 21,000/- as litigation expenses.
The above directions be complied by Ops No. 1 & 2
within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant will be at liberty to execute Consumer Complaint No. 170 of 2017 29 the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
24. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
25. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER January 10, 2018.
as Consumer Complaint No. 170 of 2017 30