State Consumer Disputes Redressal Commission
Tony Minhas vs Nitishree Infrastructure Limited on 13 February, 2020
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.749 of 2019
Date of institution : 11.10.2019
Reserved on : 27.01.2020
Date of decision : 13 .02.2020
1. Tony Minhas son of Budh Singh, aged 56 years;
2. Peter Minhas son of Budh Singh, aged 53 years;
both residents of 29, West Hill Drive, Dartford, UK DA 13 DU, through
their lawful attorney Jaswinder Kumar son of Chet Ram, aged 52
years, 383, Gali No.6, Sainik Vihar, Rama Mandi, Jalandhar.
....Complainants
Versus
1. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its authorized representative.
(email : [email protected])
2. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its Director Anil Jain.
3. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its Director Ankur Jain.
4. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shourya
Greens, Surya Enclave, Amritsar Bye-pass Road, near Trinity
College, Jalandhar, through its Project Manager.
....Opposite parties
2) Consumer Complaint No.750 of 2019
Date of institution : 11.10.2019
Reserved on : 27.01.2020
Date of decision : 13.02.2020
1. Tony Minhas son of Budh Singh, aged 56 years;
2. Peter Minhas son of Budh Singh, aged 53 years;
both residents of 29, West Hill Drive, Dartford, UK DA 13 DU, through
their lawful attorney Jaswinder Kumar son of Chet Ram, aged 52
years, 383, Gali No.6, Sainik Vihar, Rama Mandi, Jalandhar.
....Complainants
Consumer Complaint No.749 of 2019 2
Versus
1. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its authorized representative.
(email : [email protected])
2. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its Director Anil Jain.
3. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shop
No.108, 1st Floor, Vardhman Mayur Market, Mayur Vihar, Phase
III, Delhi, through its Director Ankur Jain.
4. Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Shourya
Greens, Surya Enclave, Amritsar Bye-pass Road, near Trinity
College, Jalandhar, through its Project Manager.
2-4 (email : [email protected])
....Opposite parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Ms. Kiran Sibal, Member Present:-
For the complainants : Sh. Mukand Gupta, Advocate For the OPs : Sh. Hoshiar Chand, Advocate KIRAN SIBAL, MEMBER:
This order will dispose of the above mentioned two consumer complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in these complaints are the same. The facts of the complaints are verbatim and the complaints have been filed against the same opposite parties (in short "OPs") by the complainants. The facts are taken from Consumer Complaint No.749 Consumer Complaint No.749 of 2019 3 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd.".
Consumer Complaint No.749 of 2019
2. The complainants have filed this complaint against the OPs seeking following directions to them:
i) to hand over the actual legal physical possession of the allotted flat complete in all respects, as per specifications laid down in the flat buyer's agreement with completion/occupation certificate or in the alternative to refund the deposited amount with interest @15% per annum from the date of deposit till the date of realization;
ii) to pay compensation of Rs.10,00,000/- for causing mental tension and harassment to the complainants and escalation of construction cost; and
iii) to pay Rs.1,00,000/-, as litigation expenses.
Facts of the Complaint
3. Brief facts, as set out in the complaint, are that in the year 2005, the OPs, in pursuance of the tenders floated by the Improvement Trust Jalandhar (in short, "the Trust"), gave bid to develop 16.52 acre of land. The tender of the OPs was accepted and they were given possession of the land by the Trust. The OPs were also given the construction and development rights to develop mega housing project namely "Shourya Green", for which they had entered into a "Memorandum of Understanding" (in short, "MoU") with the Trust on Consumer Complaint No.749 of 2019 4 05.08.2005. As per the MoU, the OPs were required to construct the flats according to the plan approved by the Trust and thereafter were required to obtain completion certificate from the Trust and only thereafter the possession of the constructed flat was to be delivered by the OPs. In pursuance of the MoU, the OPs issued advertisement/ distributed brochures from time to time in public for allotment of flats. The complainants applied for allotment of a flat on 09.03.2016, measuring 1565 sq.ft. with the OPs in the above project i.e. "Shourya Green", for the basic sale price of Rs.21,91,000/- and by including the PLC and IFMS charges, the total price of the flat was Rs.22,61,425/-. The OPs issued allotment letter dated 27.03.2006 for flat no.404, block E-3, 4th floor. The complainants are real brothers and have booked two flats together one flat No.E-3/404 and another flat No.F-4/003 with OPs for their personal family use. Flat Buyer's Agreement was entered into between the parties on 23.03.2011. The complainants opted for Down payment plan and deposited the amounts with OPs as under:-
Receipt No. Date Amounts in Rs.
193 09.03.2006 1,00,000.00
573 23.03.2006 5,00,000.00
5716 07.02.2007 2,00,000.00
5717 07.02.2007 20,000.00
5756 05.03.2007 2,00,000.00
5780 12.03.2007 1,00,000.00
5800 15.03.2007 50,000.00
5806 16.03.2007 5,00,000.00
5834 23.03.2007 1,00,000.00
5835 23.03.2007 50,000.00
Consumer Complaint No.749 of 2019 5
5836 23.03.2007 90,000.00
Total 20,90,000.00
As per the Buyer's Agreement, the possession of the flat was to be delivered by December, 2011 after obtaining the completion/occupation certificate. The OPs have failed to complete the construction of the flat or to deliver the possession thereof. On 12.06.2015, OPs issued letter to complainant stating therein that OPs have decided to resume construction at site after holding meeting with the allottees. OPs sent another letter dated 01.08.2016 stating that complainants should not make payment to any unauthorized person or any contractor/broker and should be made in the office of OPs. On 20.05.2018 and 22.11.2018, OPs again sent letters stating that construction work of the flats has not been completed, as finishing work is in progress and likely to be completed by mid 2018 and they demanded Rs.1,91,196/-, as balance payment from complainants. The complainants visited the site on 17.11.2018 and were surprised to see that the flat was incomplete. They issued letter dated 26.11.2018 to OPs for delivery of possession of the allotted flat or to refund the amount already deposited. They have already paid 90% of the cost of the flat, but OPs failed to complete the project and to deliver the possession with completion certificate till date. The OPs even revised the layout plans, which were still pending for approval, though they had started the construction of the flats, as per the revised drawings. The Trust issued a letter to OPs, stating that they had submitted the documents of completion plan of total ten towers in Phase-I, but on Consumer Complaint No.749 of 2019 6 inspection, it was found by the Trust officials that only eight towers existed, which were incomplete. On further inspection, the Trust officials found that only four towers have been completed and directed these OPs to complete the remaining towers and only then to submit the completion plan. Further as per MoU, OPs were required to deposit the charges for water and sewerage supply after getting the approval, so that they could develop the project, but the OPs have not deposited the said charges. As such, the Trust, vide its letter dated 07.02.2014, asked them to get approval for water and sewerage supply, in order to construct/complete the flats. One of the allottees sought information under RTI Act, 2005 from the Trust, who informed that the OPs have got all the drawings approved in the year 2006-07, but the revised drawings were pending for approval and till the year 2015, the OPs had not completed the construction and had not obtained the completion certificate. The complainants approached the OPs to deliver the possession of the flat, but they failed to complete the construction or to obtain the completion certificate. The aforesaid act and conduct of the OPs amounts to deficiency in service. Hence, the present complaint.
Defence of the OPs
4. Upon notice, OPs appeared and contested the complaint. OPs filed their joint reply to the complaint.
5. OPs in their joint reply have raised preliminary objections that complainants filed the complaint with the malafide intentions of deriving undue monetary benefit from OPs. This complaint falls out of the realm of the jurisdiction of State Commission. The State Consumer Complaint No.749 of 2019 7 Commission does not have the pecuniary jurisdiction to entertain and adjudicate the complaint. The complainants are not consumers, as they invested in multiple properties for earning speculative gains. The power of attorney given by the complainants is not in proper form as prescribed under law. The complainants cannot seek the benefit out of their own negligence and wrong doing and then arm-twist the OPs into acceding to its unreasonable and unlawful demands. The complainants are in breach of their obligations under the Buyer's agreement and they cannot claim refund under the said agreement. The Civil Court has the jurisdiction/competence to rescind the contract. The complainants have suppressed the material facts from this Commission and have no cause of action to file the complaint against OPs. The complaint is alleged to be time barred. The company has been impleaded through the authorized representative and the project manager in the memo of parties, who are only the employees of the company and as such are not liable for any act and conduct on behalf of OPs, since they are not taking care of the day to day affairs of the company and as such the complaint is liable to be dismissed on the said ground. On merits, OPs have averred that complainants are defaulters. They controverted the other averments of the complainants and denied any deficiency in service on their part. OPs prayed for dismissal of the complaint.
Evidence of the Parties
6. To prove their claim, the complainants tendered affidavit of Jaswinder Kumar, lawful attorney of complainants alongwith documents i.e. Ex.C-1 MOU dated 05.08.2005, Ex.C-2 copies of Consumer Complaint No.749 of 2019 8 passport of complainants, Ex.C-3 copy of agreement dated 23.03.2011, copies of payment receipts Ex.C-4 to Ex.C-14, copies of letters Ex.C-15 to C-19, photographs Ex.C-20 (colly), Ex.C-21 is the copy of advertisement, Ex.C-22 to C-24 are the letters issued by authorities to OPs, Ex.C-25 and C-26 are the copies of information obtained by one Sourav Gupta regarding OPs project.
7. On the other hand, OPs tendered affidavit of Sh. Praveen Chandra Mishra Authorized Signatory and copy of resolution dated 26.11.2019 Ex.R-1.
Contentions of the Parties
8. We have heard learned counsel for the parties and have gone through the record carefully.
9. Learned counsel for the complainants has vehemently contended that the complainants were allotted flat No.E-3/404, measuring 1565 sq.ft. for basic price of Rs.21,91,000/- and Flat Buyer's Agreement Ex.C-3 was executed between the parties on 23.03.2011. Against the total cost of the flat i.e. Rs.22,61,425/-, the complainants deposited Rs.20,90,000/- by 23.03.2007. The possession of the flat was agreed to be delivered by December, 2011. However, OPs failed to construct the flat and to complete the project. Even they have not obtained requisite permissions/sanctions from the competent authorities for developing their project. On account of their failure to complete the flat, in question, and to hand over its possession, OPs cannot raise any kind of demand from the complainants. As such, due to deficiency in service on the part of OPs, the complainants are entitled to possession of flat in question Consumer Complaint No.749 of 2019 9 complete in all respect with requisite approvals and occupation/completion certificate in case of failure to do so, they should refund the deposited amount along with interest and compensation.
10. Per contra, learned counsel for OPs contended that in view of clause 10 of Flat Buyer Agreement Ex.C-3, OPs reserved its right to enter upon the further collaboration, Joint Venture or development agreement with any third parties or may assign the whole or part of the project to any third party at its sole discretion and without obtaining any approval or consent or intimation to the allottee. It was further contended that the complaint is time barred, as the present dispute relates to the year 2011, whereas the complaint was filed in the year 2019. The complainants are not consumers, as they invested the amount for speculative purposes to earn profits. There is no deficiency in service on the part of OPs and the complaint is liable to be dismissed against them.
Consideration of Contentions
11. We have given thoughtful consideration to the contentions raised by the learned counsel for the parties.
12. In view of the rival contentions of OPs, the present case involves the determination of their inter-se dispute; as to what were the respective rights and liabilities of them under the agreements/MoU; who was liable to deliver the possession to the complainants; and who is liable to refund the amount, in dispute, and pay the compensation etc.? The determination of those questions involves interpretation of the Memorandum of Understanding dated 05.08.2005. Consumer Complaint No.749 of 2019 10
13. For non-compliance of the terms and conditions of Buyer's Agreement Ex.C-3, OPs cannot escape their liability towards the complainants and other consumers for delivery of possession of flat in question. The responsibility to obtain all the necessary permissions/approvals was of OPs.
14. Now, coming to other merits of the case, all the allegations made in the complaint stand proved from the affidavit of one Shri Jaswinder Kumar. The evidence produced by the complainants by way of affidavit stands corroborated by the documents Ex.C-1 to Ex.C-26. Admittedly, vide Flat Buyer Agreement dated 23.03.2011, Ex.C-3, the flat, in question, was allotted to the complainants. The basic sale price of the same was Rs.21,91,000/-, against which the complainants deposited Rs.20,90,000/-, as per receipt Ex.C-4 to C-14. As per Clause-9 of the Agreement, Ex.C-3, the possession of the flat was to be delivered by December 2011, with a grace period of three months, subject to the delays due to non-availability of construction materials and labour etc. However, OPs failed to produce any evidence on the record to show that there was delay due to non-availability of construction materials and labour etc. They even revised the layout plans, without giving any notice to the complainants and the said revised layout plans were still pending for approval with the competent authorities. The completion plan submitted by OPs was returned by the Jalandhar Improvement Trust due to non-completion of the flats as per the agreement, vide letter dated 11.01.2013, Ex.C-23. Initially, OPs proposed ten towers in their project, but in the original drawing, only eight towers were mentioned, as is evident from letter dated Consumer Complaint No.749 of 2019 11 19.12.2012 Ex.C-22. One Sh. Saurabh Gupta sought information under RTI Act from the Trust; who, vide letter dated 24.03.2015, Ex.C- 11, informed that the revised layout plans submitted by OPs were not still approved and were pending with the competent authorities.
15. In fact, on account of the non-completion/non-development of the project, in which the flat in question was located, OPs were not in a position to deliver the possession of the flat, in question, to the complainants. This clearly amounts to deficiency in service on their part. It is very much clear from the evidence produced on the record that the said OPs are still not in a position to deliver the possession of the flat in dispute to the complainants.
16. OPs have also taken the plea that the complaint is time barred, as the dispute relates to agreement dated 23.03.2011 and the complaint was filed in the year 2019. This plea of OPs does not stand on its legs, because as per clause 9 of the agreement Ex.C-3, the possession of the flat was to be given by December, 2011. However, they failed to deliver the same by that period. Even they failed to complete the project/flat, as is evident from the photographs Ex.C-20 (colly.). Perusal of letter Ex.C-24, which is dated 07.02.2014, itself shows that correspondence was going on between OPs and the Improvement Trust, Jalandhar with regard to approval of water supply and sewerage supply system. Further letter dated 24.03.2015 Ex.C-25 proves that the revised layout plans submitted by these OPs to the Improvement Trust were still pending till that date. All these facts sufficiently prove that OPs themselves failed to complete/development the project/flat till the year 2015. Thus, it is a continuous cause of Consumer Complaint No.749 of 2019 12 action in favour of the complainants/purchasers till the delivery of possession of the flat and it cannot be said that the complaint is time barred in any manner.
17. All the above facts and circumstances clearly prove that OPs have not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, 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. They were also required to give inspection on seven days' notice or demand 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. However, they failed to comply with Section 3 of the PAPRA.
18. As per Section 5 (Development of land into Colony) of PAPRA, OPs was liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
19. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by OPs to prove Consumer Complaint No.749 of 2019 13 that any account has been maintained by it in this respect. As such, they also violated Section 9 of the PAPRA.
20. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, 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."
21. OPs had been collecting huge amounts from the buyers for the development of the project. 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. Thus, the delay in not delivering the possession of flat within the agreed period amounts to deficiency in service on the part of these OPs, for which the complainants are to be suitably compensated.
22. The Consumer Protection Act came into being in the year 1986. It is 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. The complainants have made payment of substantial amount to the OPs, with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the OPs made false statement of facts about the goods and services i.e. allotment of flat and construction in a stipulated period and ultimate delivery of possession. The act and Consumer Complaint No.749 of 2019 14 conduct of OPs No.1 to 3 & 5 is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with OPs No.1 to 3 & 5, they would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the flat booked. 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 builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were 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 complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of their grievance, on account of the betrayal by OPs in shattering his hope of getting the flat by waiting for all this period. In these circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.
Consumer Complaint No.749 of 2019 15
23. The sum and substance of above discussion is that OPs are deficient in rendering services, by not delivering the possession of the allotted flat to the complainants, despite receiving a substantial amount of Rs.20,90,000/-, which stands proved on record vide Ex.C-4 to Ex.C-14, the payment receipts. OPs are liable to deliver the possession of the flat in question refund the amount deposited, along with interest and compensation.
24. Accordingly, the complaint is allowed against OPs and following directions are issued to OPs:
i) to deliver actual and physical possession of the flat, in question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to payment of balance sale consideration by the complainants, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants;
ii) to pay composite litigation expenses and compensation for the mental and harassment suffered by the complainant to the tune of Rs.40,000/-.
In case OPs fail to comply the directions, as ordered above, then in the alternative, they shall:
i) refund the entire amount deposited by the complainants i.e. Rs.21,90,000/-, along with compensation in shape of interest @12% per annum from the date of respective deposit till realization, as per Rule 17 of PAPRA.; and Consumer Complaint No.749 of 2019 16
ii) pay Rs.40,000/-, as compensation for the harassment and mental agony suffered by the complainants, including cost of litigation.
The compliance of this order shall be made by the OPs within a period of 60 days of the receipt of certified copy of the order. Consumer Complaint No.750 of 2019
25. Similarly, in Consumer Complaint No.750 of 2019 (Consumer Complaint No.749 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd.", flat no.003, Block F-4, ground floor, measuring 1565 square feet @Rs.1400/- per square feet for a total price of Rs.21,91,000/-, in their above said project. The complainants paid a total sum of Rs.24,00,000/- with the OPs, vide receipt Ex.C-5 to C-13. However, the OPs failed to raise any construction at the site. Hence, the complainants sought possession of the unit with completion/occupation certificate and amenities. In case of failure to deliver the possession of flat, complainants sought refund of their deposited amount with interest @15% per annum; compensation of Rs.10,00,000/- and litigation expenses of Rs.1,00,000/-.
26. In this complaint, OPs appeared and filed joint written reply on the similar lines as raised by them in written reply filed in main complaint no.749 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd." in their defence.
27. The complainants tendered affidavit along with documents i.e. Ex.C-1 to C-27. On the other hand, OPs tendered affidavit of Sh. Consumer Complaint No.749 of 2019 17 Praveen Chandra Mishra Authorized Signatory and copy of resolution dated 26.11.2019 Ex.R-1.
28. As per receipts Ex.C-5 to C-13, complainants deposited Rs.24,00,000/- with the OPs.
29. Learned counsel for the parties argued on the same lines as in complaint no.749 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd."
30. In view of above as well as the reasons and discussion held in Consumer Complaint No.749 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd.", this Consumer Complaint No.750 of 2019 titled as "Tony Minhas & another Vs. Nitishree Infrastructure Ltd." is accepted and the following directions are issued to the OPs:
i) to deliver actual and physical possession of the flat, in question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to payment of balance sale consideration by the complainants, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants;
ii) to pay composite litigation expenses and compensation for the mental and harassment suffered by the complainant to the tune of Rs.40,000/-.
In case OPs fail to comply the directions, as ordered above, then in the alternative, they shall:
i) refund the entire amount deposited by the complainants i.e. Rs.24,00,000/-, along with compensation in shape of interest Consumer Complaint No.749 of 2019 18 @12% per annum from the date of respective deposit till realization, as per Rule 17 of PAPRA.; and
ii) pay Rs.40,000/-, as compensation for the harassment and mental agony suffered by the complainants, including cost of litigation.
31. The compliance of this order shall be made by the OPs within a period of 60 days of the receipt of certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER February 13, 2020.
MM