State Consumer Disputes Redressal Commission
Manisha Goel vs M/S Pearls Infrastructure Projects ... on 7 December, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.77 of 2017 Date of Institution : 08.02.2017 Order Reserved on : 05.12.2017 Date of Decision : 07.12.2017 1. Manisha Goel w/o Davendra Kumar Goel, 78, Sky Net Enclave Loahgarh Patiala Road, Ziraklpur Mohali (Pb), M 9417839931. 2. Davendra Kumar Goel S/o Sh. Suresh Kumar Goel, 78 Sky Net Enclave Loahgarh Patiala Road, Zirakpur Mohali (Pb) M. 9458512130 ....Complainants Versus 1. M/s Pearls Infrastrcture Projects Ltd through its Chairman Mr. Nirmal Singh Bhangoo A wing , 2nd Floor Statesman House, Barakhamba Road, Connaught Place, New Delhi 110001 Also at: M/s Pearls Infrastructure Projects Ltd., through its Chairman (Mr. Nirmal Singh Bhangoo) SCO No. 06 Sector 69, SAS Nagar Mohali 2. M/s P.A.C.L Ltd, through its Chairman Mr. Nirmal Singh Bhangoo A wing, 2nd Floor Stateman House Barakhamba Road, Connaught Place New Delhi. Opposite parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Davendra Kumar Goel Complainant no.2 in person. For opposite parties : Ex-parte
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that on the allurement of OPs, they moved application for purchase of one plot under name and style of Mohali Township in Sector 100 in February 2011. Along with the application, an amount of 15% was paid, as earnest money. The payments and discussions were made only with OP no.2. The promoter company M/s PACL Ltd has entered into an agreement with marketing company OP No.1/M/s Pearls Infrastructure Projects Ltd on 11.07.2006 and have collected the money from the buyers. The OPs after showing the project brochure promised the complainants that fully developed and fully-operational common areas along with facilities would be provided in the above said project. Hi-tech security, in-house club, multipurpose hall, swimming pool, health club, children's play area, parks etc. complete in all respects would also be provided at the time of offer of possession of the plot. They were further assured by OPs that most advanced township and other amenities would be provided in the project containing the plot of the complainants. OP no.1 has not acknowledged the timely delivery of the plot, as per allotment letter being essence of the understanding between the parties and any delay from the due date thereof shall entail the OPs liability to reimburse the complainants with 18% rate of interest p.a on the entire amount of payment so made for the plot till actual date of transfer of plot to them along with damages to the tune of Rs. 10 lac. The buyers agreement was executed between the parties on 20.07.2010 and possession was scheduled to be given by July 2013 (within three years) as per clause 10 of buyers agreement. It was further averred that M/s Pearls Infrastructure Projects Ltd has never shown its identity, as marketing agent of OP no.2/PACL on letterheads. The architect M/s Khanna & Associates has confirmed on their reports regarding projects approvals to the effect that development was in progress on 11.02.2011, whereas no development work was started thereat till date. It was so done by OPs so that Housing Company like DHFL and India Bulls Housing Finance Ltd can give housing loan to customers and more and more customers could be attracted and then applied for loans to them for this project. Both companies have approved the project of M/s Pearls Mohali, so that maximum number of persons could apply for loan and OP/company could sell maximum plots and thereafter run away after collecting the money from the gullible customers. The complainants purchased residential plot no. 102 in Sector 104 (400 sq. yard) and paid money through cheque in favour of M/s Pearls Infrastructure Projects Ltd/OP no.1. In every reports of the OP/company, it was mentioned that development was work was in full swing, but M/s Pearls Infrastructure Project Ltd has never started the work of development in the project. The GMADA has to inspect the work done in every six months in above said project, but they have never visited and never published the reports of this project. The architect, housing loan company and GMADA authority is involved in this scam as well. The PACL Ltd/OPs is involved in pongee scam and being investigated by SEBI and on the directions of Hon'ble Supreme Court a committee has been constituted under chairmanship of His Lordship Hon'ble Mr. Justice R.M. Lodha then Chief Justice of India and above committee was selling the properties through sale on CBI reports. The complainants have paid almost 95% and 100% till 2014 of the plots values and possession thereof has not been given to them by OPs. They have made payment of Rs.60 lac for 400 sq. yard plot in Mohali Sector 104 to OP no.1/M/s Pearls Infrastructure Project Ltd. They have also paid Rs.39326/- (Rs.35000 + applicable service tax) for the club charges, whereas there was no development work done by OPs in the project. The possession was scheduled to be delivered in 2013, but after receiving all the payment from investors, OP/company have surrendered before SEBI and now has not been submitting the statements as to how much money, they have received from the investors in the name of M/s Pearls Infrastructure Projects Ltd and why company was not giving the possession. The OPs illegally demanded club charges and service tax from them without construction of said club in the project. OP no.1 charged interest Rs.368199.45 on minor late payments from them. In order to adjust the same, the instant offer has been given to deposit of 5% of balance amount of plot, so that OPs would give the adjustment of 60% of interest amount and would only charge 30% that would be given in cash only. The balance payments of Rs. 3 lac has been deposited on 16.12.2013. The OPs charged electric grid charges @ 300 per sq. yard with service tax, club charges, and maintenance charges for 5 years and on asking of details, no reply was given. The OPs failed to execute the buyer's agreement in favour of complainants. It was further averred that till date, the OPs have failed to even confirm a date by which they would deliver the plot to them. The complainants have suffered a lot of mental, emotional and financial losses due to illegal acts of OPs. In this way, OPs are negligent, deficient in rendering service and also indulged in unfair trade practice. The complainants have, thus, filed the complaint praying that OPs be directed to hand over the possession of the plot to the complainants complete in all respects and to pay Rs. 1,50,000/- as compensation for unnecessary harassment, to pay interest @ 18% p.a on the deposited amounts till the date of delivery of possession, further to pay Rs.3 lac as compensation for mental harassment and not to demand the electric grid charges @ 300 per sq. yard and general maintenance for five years and club charges of Rs.3,68,199.45 without providing any club and further to pay monthly rent @ 18000 per month to complainants for being out of possession of the plot after due date of delivery of possession.
2. Upon notice, OPs were set exparte by this Commission, vide order dated 06.09.2017.
3. The complainant tendered in exparte evidence affidavit of Davendra Kumar Goel Ex.C-A along with copies of documents Ex.C-1 to his affidavit Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-9 and closed evidence. He also placed on record the authority letter in his favour given by Manish Goel/Complainant no.1.
4. We have heard Sh. Davinder Kumar Goel complainant in person and also being authorized agent of Manish Goel complainant. and also examined the record of the case. The pleadings of complainants have been evaluated by us with able assistance of complainant Davendra Kumar Goel in this case. The exparte evidence on the record, as adduced by the complainant has also been appraised by us. The complainant Devendra Kumar Goel tendered his affidavit Ex.CA in evidence. He proved this fact that pursuant to the allurement given by OP no.1, he booked the plot with OP no.1 on the prescribed format. He deposited the booking amount on 29.08.2010 being 10% price of the cost of plot. He further deposed that he deposited Rs.60 lac with OPs no.1 and plus Rs.35000/- paid subsequently for the club. The provisional allotment dated 15.07.2010 was made to him on 25.08.2010 by OP no.1. He further deposed that he has paid almost entire amount of sale consideration to OPs on different occasions, but OPs have not delivered the possession within scheduled time to them and as such, they have been misusing their hard earned money in this case. He also testified that OPs also raised unfair demand of Rs. 2,09,438/- over and above the settled price on the pretext of administrative charges of Rs.16,854/- replacement /sinking fund of Rs.1,41,573/- , interest free maintenance security of Rs.40,000/- and club membership of Rs.39,326/-. He deposed that external development charges or other charges to be levied by GMADA and Town and Country Planning Department were included in the basic sale price of the plot, as agreed upon between the parties . This witness has testified that OPs indulged in unfair trade practice with them and received sale consideration from them, but have not delivered the complete possession of the plot to them within scheduled time, as agreed upon in buyers agreement. This witness has alleged deficiency in service and unfair trade practice on the part of OPs in misusing their hard-earned money in this case. We have perused the evidence on the record tendered by the complainant. Ex.C-1 is brochure of OP no.1 effective from 18.02.2010. The payment plan of Block A & B has been set out in it. Ex.C-2 is buyers agreement, which was executed between the parties pursuant to booking of plot by the complainants. Buyers agreement was executed on 20.07.2010 between the parties in this case. Clause 10 of buyers agreement is quite material in this regard, which is reproduced as under :-
The promoter shall endeavor to hand over possession of plots within 3 years from the date of commencement of development and construction on the said township and after obtaining requisite permissions/approvals from the concerned authorities. However, if delay in handing over the possession of plot within aforesaid time is attributable to any Force Majeure circumstances, which interalia, includes but not limited to war , enemy action, earthquake, act of God, delay in certain decisions/clearness or if non delivery of possession is as a result of any notice, order, rules notification of any government or public authority or for any reason beyond the control of the promoter, the promoter shall be entitled to a reasonable corresponding extension of time for delivery of the said plot.
It is, thus, evident from perusal of Clause 10 of buyers agreement (supra) that OPs agreed to hand over the possession of the plot to complainant within three years from the date of commencement of development and construction on the said township. No force majeure circumstances are established to be obtaining on the record by OPs to beg OPs off this obligation to deliver the possession within the scheduled period of time. Ex.C-3 is allotment letter dated 15.07.2010 addressed to complainant by OPs. Ex.C-4 is statement of account of OP no.1 proving payments remitted by Manisha Goel complainant from time to time to them. Ex.C-5 is letter dated 10.06.2014 addressed to Manisha Goel by OPs for clearing outstanding amounts and to take over possession of plot no. A -102 Pearls City Sector 104 Mohali. Ex.C-6 is letter sent by complainant to OPs regarding pointing out the discrepancies of the statements of the amounts, as raised by OPs from the complainant. No evidence of OPs is on the record in this case, as they have been set exparte. The above evidence of the complainant has gone un-rebutted on the record. Davendra Kumar Goel testified in his affidavit Ex.CA that OPs have not completed any development work in the project, where the plot allotted to him is located. This witness categorically deposed that club-house was complete only by 45%, substation was completed only to the extent of 33%. Road were completed up to 73%. STP was under design and power transmission distribution. This witness further testified that OPs could not deliver the possession without completing the development work of the project to them. He further stated that OPs also demanded extra charges of Rs. 7,45,729/- without addition of Rs.3 lac being balance 5% price of plot, which had been paid in advance. OPs have received more than 95% of the sale price from the complainants and as per Clause 8 of the plot buyers agreement, the provisional allotment is not of much consequence in this case. The complainant lived in rented accommodation and paid rent on account of default of OPs in not delivering the possession within agreed time to them despite receipt of sale amounts. We find that complainants have paid substantial amounts of sale consideration to OPs. The OPs were to deliver the possession to complainants by 19.07.2013, as per Clause 10 of the buyer's agreement on the record, but OPs have not delivered the possession within agreed time. There is some dispute regarding the payments between the parties only in this case. One thing is clear that OPs have misutilized the substantial amounts of complainants since after three years period of time from the agreed date of delivery of possession. There is nothing on record that OPs deposited the amounts in nationalized bank received from complainants, as mandated by Section 9 of Punjab Apartment of Property Regulation Act 1995. Whatever the case may be, the relief of the complainants is for direction to OPs to deliver the possession of the plot in question at the earliest without electrical grid charges @ 300 per sq. yard and general maintenance for five years and club charges without providing club and interest Rs.368199.45 without providing details and also claiming compensation and payment of rent amounts.
5. We find that even plot buyers agreement Ex.C-2 was also executed between the parties viz OP no.1 and PACL Limited a company incorporated under the Companies Act 1956. PACL Limited is also a party to plot buyers agreement Ex.C-2 on the record in this transaction. The version of OPs is that it is only an agent of PACL Limited and PACL Limited has been virtually developing the project in this case. As per order of Hon'ble Supreme Court in Civil Appeal no. 13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India, Top Court passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated, as Chairman of the said Committee by Apex Court. The committee has been authorized by Apex Court to collect relevant record including title itself and so on and a Nodal Officer shall be appointed, who shall be in charge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc, wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited. Here in this case, PACL Limited is also a party to buyer agreement and as such the intervention of the above Hon'ble Committee is indispensable in this case and also mandatory, herein, as per direction of the Hon'ble Supreme Court.
6. The compensation to be awarded to complainant would cover the escalation cost with regard to charges raised by OPs for electrical grid charges and general maintenance , club charges. The case is strictly covered by provisions of buyers agreement Ex.C-2 on the record dated 20.07.2010. As per clause 1 (c) cost of electricity connection includes electric wiring, installation of electric substation, laying of transmission lines, expenses incurred on other allied works etc is not included in the aforesaid basic sale price and shall be payable by the allottee in addition to price of the said plot. In view of this, relief of the complainant on this count is declined with regard to demand of electrical grid charges, general maintenance and club charges. OPs will be entitled to recover the general maintenance charges and club charges after delivery of possession of plot to complainants only and not prior to that.
7. It is made clear in this order that since PACL Limited has some concern in the matter, as per buyers agreement, hence the amount involved in this case shall be recovered from OPs through the instrumentality of above Hon'ble Committee constituted by Hon'ble Supreme Court under Chairmanship of His Lordship Hon'ble R.M. Lodha former Chief Justice of India. The Hon'ble Committee shall then, disburse the amounts to complainants as per directions of the top Court strictly as per order in this complaint.
8. Consequently, OPs are directed to deliver the complete possession of the plot to complainants within a period of three months from the date of receipt of certified copy of the order accompanied by occupancy certificate, subject to deposit of dues, if any, by the complainants with OPs within a period of one month from the date of receipt of certified copy of the order. Undoubtedly, OPs have misused the substantial amounts of money deposited by the complainants for numerous years since after 19.07.2013 hence the complainants are also held entitled to recover interest on the entire deposited amounts @ 12% p.a from 19.07.2013 i.e. the agreed date of delivery of possession, till actual date of delivery of the complete possession to complainants with occupancy certificate. The complainants have also suffered from mental harassment in this case and have paid rents for living in some other rented properties due to deficient act of OPs. The complainants are held entitled to limpsum compensation of Rs.2,50,000/- for mental harassment and payment of rents and Rs.30,000/- as costs of litigation from OPs, which would be quite fair and reasonable in our view.
9. In view of our above discussion, complaint is allowed exparte with the directions mentioned above.
10 Arguments in this complaint were heard on 05.12.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER December 7, 2017 (ravi)