State Consumer Disputes Redressal Commission
Gurmeet Singh Jogar vs Primary Estates & Developers Private ... on 23 July, 2020
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 24 of 2019 Date of Institution : 04.02.2019 Date of Decision : 23.07.2020 Gurmeet Singh Jogar S/o Sh. Atma Nand Singh, R/O H. No.870, Shivalik Society, Sector- 49 A, Chandigarh. ....Complainant Versus Primary Estates & Developers Private Limited, having its Registered office at H. No. 38, Sector - 10 A, Chandigarh through its Directors Sh. Jashneet Singh, Sh. Vijay Rana, Sh. Gulshan Wadhawan, Sh. Samar Mohan Ranga and Sh. Ashish Sachdeva. Now shifted to: SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab 1 60062. Jashneet Singh, Director of Primary Estates & Developers Private Limited having its office at SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab-1 60062. Vijay Rana, Director of Primary Estates & Developers Private Limited having its office at SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab-1 60062. Gulshan Wadhawan, Director of Primary Estates & Developers Private Limited having its office at SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab-1 60062. Samar Mohan Ranga, Director of Primary Estates & Developers Private Limited having its office at SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab-1 60062. Ashish Sachdeva, Director of Primary Estates & Developers Private Limited having its office at SCO 43, Ground Floor, Behind KFC, New Sector 125, Sunny Enclave, Sahibzada Ajit Singh Nagar, Punjab-1 60062. .....Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by: (Through Video Conferencing):-
Sh.Savinder Singh Gill, Advocate for the complainant.
Opposite parties exparte vide order dated 10.09.2019.
Opposite Party No.2 exparte vide order dated 06.01.2020.
RAJESH K. ARYA, MEMBER This complaint has been filed by the complainant seeking refund of amount of Rs.37,51,100/-, paid by him, from time to time i.e. from 08.09.2011 to 02.12.2014, towards purchase of an independent floor in a project launched by the opposite parties, under the name and style 'Arcadia Dream Homes", Sector 116, SAS Nagar, Mohali, Punjab (in short the project), total sale price whereof was fixed at Rs.33,95,000/-. It is the case of the complainant that despite the fact that substantial amount, referred to above, had been paid to the opposite parties, yet, they failed to deliver possession of the said unit by 28.12.2016 i.e. within a period of two years as per Clause 17 (a) of the agreement dated 29.12.2014 for lack of construction and development works at the project site. It has been stated that neither possession of the unit, in question, was delivered by the stipulated date nor compensation by way of monthly assured return, as promised by the opposite parties, was paid to the complainant. Alleging the aforesaid act and conduct of the opposite parties as deficiency in providing service and adoption of unfair trade practice, this complaint was filed by the complainant seeking directions to the opposite parties to deliver possession of the unit, in question, alongwith interest, compensation; litigation expenses etc. The opposite parties filed reply wherein while admitting the factual matrix of the case, they took certain preliminary objections to the effect that the complainant did not fall within the definition of 'consumer', as defined under Section 2 (1) (d) of the Act; that this Commission did not have jurisdiction to entertain this complaint and the matter needs to be relegated to Civil Court; that the complaint filed is beyond limitation and that the opposite parties never refused to deliver possession of the unit in question.
On merits, the fact of purchase of the unit in question; payment made by the complainant as mentioned in the complaint; execution of agreement in respect of the unit in question; non delivery of possession of the unit in question by the committed date or thereafter has not been disputed. It has been stated that the opposite parties are ready to deliver possession of the unit to the complainant and he may come at any time, during working hours for the same.
It is pertinent to mention here that during pendency of this complaint, the complainant moved miscellaneous application bearing no.730 of 2019, whereby he sought amendment of prayer clause i.e. instead of seeking delivery of possession of the unit in question, the complainant has prayed for refund of the amount paid, alongwith interest, compensation etc., which was allowed by this Commission, vide order dated 18.02.2020.
The parties led evidence in support of their case by way of affidavits. Though joint written version had been filed by the opposite parties, yet, they failed to put in appearance on 10.09.2019 and subsequently, on 06.01.2020, as a result whereof, they were proceeded against exparte on the said dates for non-appearance.
We have heard the Counsel for the complainant through video conferencing and have gone through the evidence and record of the case and the written submissions of the complainant received in the drop box on 24.06.2020 and one copy of written submission sent through email on 24.06.2020 itself.
First coming to the objection taken by the opposite parties to the effect that the complainant did not fall within the definition of 'consumer', it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite parties to establish that the complainant has purchased the unit, in question, to indulge in 'purchase and sale of apartments/flats' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence, we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act.
It is not in dispute that the complainant had paid an amount of Rs.37,51,100/- towards purchase of the unit referred to above, possession whereof was to be delivered on or before 28.12.2016 i.e. within a period of two years, as per Clause 17 (a) of the agreement dated 29.12.2014. It is also an admitted fact that by the date when this complaint was filed or even during pendency of this complaint, possession of the unit, in question, has not been offered and delivered to the complainant nor any amount of compensation by way of monthly assured return was paid to him. Possession of the unit was to be delivered by December 2016 and now it is July 2020. Already a period of more than three and a half years has expired and still the complainant is empty handed.
In the written reply, without assigning any reason for delay, it has been casually stated that the opposite parties are ready to deliver possession of the unit to the complainant. However, there is nothing on record as to whether, construction is complete and that the opposite parties are in possession of completion certificate so that legal possession of the unit can be handed over to the complainant. It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove as to, at what stage, construction and development work has reached at the project site and that as to whether necessary certificates have been obtained by it from the competent Authorities or not, which are mandatory before handing over possession. In case, the development/construction activities have been completed at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities have been completed at the site or not but they failed to do so.
Furthermore, there is nothing on record to show that the opposite parties suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit in question was not delivered to the complainant by the promised date.
At the same time, it is pertinent to mention here that during pendency of the miscellaneous application aforesaid, Counsel for the complainant submitted that as per the memo No.GMADA/STP/2020/447 dated 17.02.2020 alongwith documents placed on record by Sh. Vinod Kumar, Clerk from the office of District Town Planner, GMADA, SAS Nagar, Mohali, the name of opposite parties has been declared defaulter and no Completion Certificate has been issued to them in respect of the project in question till date. Furthermore, in compliance to the order passed by this Commission, Sh.Vinod Kumar, Clerk from the office of District Town Planner, GMADA, SAS Nagar, Mohali put in appearance and he also placed reliance on memo No.GMADA/STP/2020/447 dated 17.02.2020 alongwith relevant documents, wherefrom, it transpired that no Completion Certificate was issued in favour of the opposite parties, in respect of the project in question. It is well settled law that without the completion certificate, possession cannot be offered and delivered to the complainant. It is not known as to by which period completion certificate will be issued to the opposite parties, as this much has not been proved, as to at what stage, construction and development work at the project site has reached. It has also come out from the documents placed on record that because of non-payment of dues to the government, the project of the opposite parties has been brought in the defaulter list.
The complainant had booked the unit as far as back in the year 2011, possession whereof was to be delivered by December 2016 and now it is 2020, and still he is empty handed despite the fact that substantial amount, referred to above, stood paid to the opposite parties. The complainant cannot be made to wait for an indefinite period on the bald assurances given by the opposite parties.
From the peculiar circumstances of this case, it is proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception, there was intent to induce the complainant to enter into the contracts by way of signing agreement, referred to above, and also intent to mislead him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.
It is well settled law that non-delivery of possession of apartments/units in a developed project by the promised date or within a reasonable period, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D' Lima & Ors. (2018) 5 SCC 442 . In the present case also, since there has been an inordinate delay in the matter, which is still continuing one, as such, we are of the considered opinion that if we order refund of the amount paid by the complainant alongwith interest, that will meet the ends of justice.
Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amount paid. It may be stated here that a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential apartments/units/plots, by the stipulated date or within a reasonable period, fell for determination before the Hon'ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon'ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, the Hon'ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No.1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a. Not only as above, even under Section 12 of the PAPR Act, read with Rule 17 of the Rules thereunder, it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a. It is, therefore, held that if interest @12% p.a. is awarded on the amount to be refunded to the complainant i.e. on Rs.37,51,000/-, that will meet the ends of justice.
Since, it is an admitted fact that possession of the unit has not been offered to the complainant by the date this complaint has been filed or even thereafter nor the Company is in a position to do so, as explained above, as such, there is a continuing cause of action in his favour to file this complaint in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action in favour of the allottee/buyer. Furthermore, since the Company is still utilizing the amount paid by the complainant and has not refunded the same, as such, in that event also, there is a continuing cause of action in his favour in view of observations made by the Hon'ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016, in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount.
In the instant case, delay if any, in offering possession of the unit was on the part of the opposite parties and they cannot take benefit out of that by saying that the consumer complaint is barred by limitation. In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon'ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986, could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay.
Another objection was raised by the opposite parties, that this complaint is not maintainable before the Consumer Fora, under the Act and that only the Civil Court has power to adjudicate the same. It may be stated here that the complainant hired the services of the opposite parties, for purchasing the unit on making payment of sale consideration, referred to above. The opposite parties were to deliver possession of the unit, in a time bound manner, referred to above, with complete basic amenities. By not completing the development and construction within the stipulated period, the opposite parties violated the terms and conditions of the agreement, which act amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC) it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, objection raised by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
To refund the amount of Rs.37,51,000/- to the complainant, alongwith interest @12% p.a. (simple) from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.37,51,000/- shall carry interest @15% p.a. (simple) from the date of default i.e. after expiry of period of 30 days till realization. To pay consolidated amount of Rs.50,000/- to the complainant as compensation for mental agony & physical harassment and cost of litigation, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/- shall carry interest @12% p.a. (simple) from the date of filing of this complaint till realization.
However, it is made clear that if the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the said apartment(s), it will have the first charge on the amount payable, to the extent, the same is due to be paid by the complainant. Certified copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
23.07.2020 [JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT [PADMA PANDEY] MEMBER [RAJESH K. ARYA] MEMBER Ad