State Consumer Disputes Redressal Commission
Bharat Bhushan Singla vs Pearls Infrastructure Projects Ltd. on 21 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Misc. Application No.824 of 2017
In/and
Consumer Complaint No.142 of 2015
Date of institution : 12.06.2015
Date of decision : 21.07.2017
1.Bharat Bhushan Singla s/o Shri Parshotam Dass Singla;
2. Manju Singla w/o Shri Bharat Bhushan Singla;
Both residents of Dharampura Mohalla, adjoining Krishna Mandir, Tehsil Qadian, District Gurdaspur, Punjab-143 516.
.......Complainants Versus
1. Pearls Infrastructure Project Ltd., 2nd Floor, A Wing, Statement House, Bara Khamba Road, Connought Place, New Delhi-110
001.
2. Regional Office, SCO 06, Sector-69, Mohali-160 062.
3. PACL India Ltd. through Committee constituted by the Hon'ble Supreme Court of India, C/o Security Board of Exchange of India, having its office at The Ashok, Annexe Building (Oudh Corridor), 50-B, Chanakya Puri, New Delhi-110 021.
........Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the complainants :Shri Ashim Aggarwal, Advocate For opposite parties Nos.1&2:Shri Ammish Goel, Advocate.
For opposite party No.3 :Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: M.A. No.824 of 2017:
This is an application for bringing on record subsequent developments/facts by the complainants.
2. Allowed as prayed for and the document Annexure C/A is taken on record.Consumer Complaint No.142 of 2015 2
Main Case:
Facts of the Complaint:
3. The complainants, Bharat Bhushan Singla and Manju Singla, have filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the C.P. Act") for the issuance of following directions to the opposite parties:-
i) to refund the total amount of ₹46,38,672/-, paid by the complainants to the opposite parties;
ii) to pay interest @ 18% per annum from the different dates of deposits till the date of realization;
iii) to pay an amount of ₹20,00,000/- to the complainant on account of mental agony, cheating and harassment; and
iv) to pay litigation expenses of ₹50,000/- to the complainants.
4. The complainants alleged, in their complaint, that the opposite parties; namely, Pearls Infrastructure Project Limited, purchased land at Villages Sukhgarh, Raipur Kalan, Dhurali and Saneta, District SAS Nagar from Punjab Government for setting up the Township to be known as "Pearl City, Mohali" and obtained CLU permission from the competent authorities for area measuring 174.59 acres situated in Sector 100 of the said Township, vide Memo No.1452 CTP (PB) 432 (M) dated Chandigarh 12.2.2009. The approval of the layout plan for 172.59 acres out of the above said 174.59 acres has been accorded, vide letter No.1747 CTP (PB)-MPR 1 dated 8.3.2010. Thereafter the opposite parties through their agents and property dealers induced the general public to invest into their future project Consumer Complaint No.142 of 2015 3 and to purchase residential plots. It is averred that the complainants purchased the rights of Plot No.570 measuring 200 square yards situated at Sector 100 of the said Township at the basic sale price of ₹46,00,000/- at the rate of ₹23,000/- per square yard and deposited ₹4,60,000/-, vide Cheque No.330713 dated 30.1.2011. The allotment letter dated 30.1.2011 in respect of the same was issued in favour of the complainants on 9.2.2011 and thereafter Buyer's Agreement was executed on 3.8.2011. It is further averred that the plot in question was a park facing plot and as such, as per clause (b) of the Buyer's Agreement, the complainants agreed to pay additional charges termed as "Preferential Location Charges" to the opposite parties. The complainants made timely payment of every instalment along with Preferential Location Charges (PLC) as per the Schedule of Payment amounting to ₹46,38,672/-, vide receipts mentioned in para no.6 of the complaint. As per the latest layout plan of the opposite parties, the location of the plot purchased by the complainants has been changed and the area which was reserved for park by them in the previous layout plan has been used commercially and for their own benefits. Before using the area which was reserved for park no consent/approval of the complainants was taken by the opposite parties, as the complainants have specifically purchased the said plot because of its location which was park facing and paid the PLC also for buying the said plot in that location. The grievance of the complainants is that they had paid the Preferential Location Charges (PLC) only to buy park facing plot but the opposite parties without taking any permission or Consumer Complaint No.142 of 2015 4 instructions or consent of the complainants changed the location of the said plot and thus, the main purpose of the complainants is defeated and the complainants have been cheated by the opposite parties because they have been made to pay PLC charges much before the completion of the Township. The complainants took a housing loan from the State Bank of Patiala for the amount of ₹15,00,000/- (rupees Fifteen Lakhs only) @ 10.5% per annum to pay timely payment as per the Schedule to the opposite parties. As per the latest market survey and revised price list of the opposite parties, current rate per square yard is fixed at ₹30,500/-, which is ₹7,500/- per square yard more than the earlier rate at which the complainants have purchased the said plot. They also served legal notice on the opposite parties dated 24.4.2015, vide registered post but to no avail. This action of the opposite parties not only amounts to deficiency in service but also adoption of unfair trade practice due to which the complainants suffered great loss financially and mentally. Defence of Opposite Parties Nos.1 & 2:
5. In the joint written reply opposite parties Nos.1 and 2 admitted that the complainants purchased Plot No.570 measuring 200 square yards situated at Sector 100 of the said Township and deposited a cheque dated 17.1.2011 of ₹4,60,000/-. Thereafter allotment letter dated 9.2.2011 had been issued at the basic sale price of ₹46,00,000/- calculated at the rate of ₹23,000/- per square yard. It is also admitted that the complainants made the payment of ₹46,38,672/- in all to the opposite parties. However, it is denied that the entire payment was made as per the Schedule. It is also denied Consumer Complaint No.142 of 2015 5 that without taking any permission or instruction or consent of the complainants, the opposite parties changed the location of the plot and due to the said reason the main purpose of the complainants has been defeated. It is averred that as per Clause No.9 of booking application form and clause No.1(g) of Plot Buyer's Agreement, the promoter could change the layout plans/designs and the said conditions had duly been accepted by putting their signatures on the booking application form and thereafter on the Plot Buyer's Agreement. Moreover, once the complainants had given their consent by putting their signatures on above said documents, their further consent was not required by the opposite parties. Thus, the complainants had not been cheated by the opposite parties firstly the modifications had not been done by the opposite parties as they have been doing the work of supervision in township namely, "Pearls City, Mohali" and secondly, whatever the modifications had been done by the promoter i.e. PACL India Ltd., the same had been done after taking the requisite approvals from competent authorities.
When the complainants came to know about the change in the location of the plot, they had immediately written e-mail dated 28.9.2014 to them, whereby they requested for the refund of the PLC charges. It is none of the concerns of the opposite parties as to what is the current rate of price in the area, as the complainants are at liberty to enjoy, use and dispose off the allotted plot in any manner whatsoever. Rather when the opposite parties received the mail dated 28.9.2014 from the complainants, the officials of opposite parties immediately replied through mail dated 11.10.2014 informing Consumer Complaint No.142 of 2015 6 them that their PLC charges would be adjusted in basic sale price. Furthermore the opposite parties are still ready to relocate the location of the complainants' plot according to their choice and subject to the availability of the plots. Thus, whatever was found to be done and legitimate, the opposite parties did the same in order to avoid acrimony in relationship. Since there has been recessioning trend in real estate and fall in the prices of plots, the complainants intended to get wriggle out of the allotment of plot and seeking refund of their amount paid towards part of sale consideration against the allotted plot which is not sustainable factually as well as legally. The complainants have not approached this Commission with clean hands and have suppressed and concealed material facts. In para no.9 they have alleged that they had been cheated by the opposite parties and as per the settled law where there are allegations of forgery, fraud or cheating contained in the complaint, the same cannot be decided under the C.P. Act and which can only be gone into by the Civil Courts as the same involves complicated questions of facts and law and the detailed evidence is required to be undertaken therein. This Commission does not have territorial jurisdiction to entertain the present complaint as in the instant complaint the Plot Buyer's Agreement had been executed between the complainant and opposite party No.1 at New Delhi. Moreover, as per clause 14 of booking application form and clause no.29 of Plot Buyer's Agreement dated 3.8.2011 only Courts situated at Delhi have the jurisdiction to entertain the dispute. Moreover, the plot in question had been purchased by complainant No.1 along with his Consumer Complaint No.142 of 2015 7 wife; namely, Manju Singla jointly whereas no application has been filed by them with the instant complaint seeking prior permission to initiate the proceedings against the opposite parties jointly which are mandatory as per Section 12 (c) of the C.P. Act. The complaint is bad for non-joinder of parties or misjoinder of parties as the complainants had not impleaded the PACL India Limited and State Bank of Patiala as necessary party in the present case as the land where the plot of the complainants is situated had been purchased and owned by PACL Limited for the development of Pearls City and moreover it has been alleged by the complainants that they had also availed the loan from State Bank of Patiala. Opposite parties Nos.1 and 2 are merely PMC Company providing services on behalf of Promoter/Developer Company i.e. PACL Limited. The essence of the agreement between the complainants being allottees and the opposite parties being the developers, herein is enshrined in the application form and thereafter in the plot buyer's agreement and the terms and conditions and covenants had been accepted by the complainants without any demur or protest. Moreover, the complainants are not coming under the definition of "consumer" as defined in the C.P. Act as they have some other properties in Budhlada, Punjab. Denying all other allegations a prayer for dismissal of the complaint with costs has been made.
6. After the filing of the above reply, Opposite parties Nos.1 and 2 moved Misc. Application No.1590 of 2016 for impleading of PACL India Ltd through Committee, Constituted by the Hon'ble Supreme Court of India, C/o Security Board Exchange of India having its office Consumer Complaint No.142 of 2015 8 at The Ashok, Annexe Building (Oudh Corridor) 50-B, Chanakya Puri, New Delhi-110 021 as opposite party No.3 in the array of parties in view of the Plot Buyer's Agreement dated 3.8.2011 and order dated 2.2.2016 passed by the Hon'ble Apex Court in Civil Appeal No.13301/2015. The same was allowed, vide order dated 13.6.2017 and the notice was ordered to be issued to it. However, since none appeared on behalf of opposite party No.3, therefore, it was proceeded against ex parte, vide order dated 13.6.2017.
7. Vide Misc. Application No.824 of 2017 filed by the complainants, which has already been allowed above, following facts have been brought on record:-
A. That as per agreement dated 3.8.2011, possession was to be given after complete development within 3 years of signing of agreement i.e. by 2.8.2014. However, till date the opposite parties have been unable to offer possession of the original plot as there is no development in the area till date. This fact has also been judicially noticed by this Commission in judgment dated 1.3.2017 passed in CC No.336 of 2015, which also pertained to Sector 100, where plot of complainants is located.
B. That during pendency of the complaint, the OPs filed an application bearing MA 1590/2016 seeking to implead PACL India Ltd., as it is alleged that PACL is the landowner and working of said Company has been stopped by the Hon'ble Supreme Court and development Consumer Complaint No.142 of 2015 9 of township cannot be pursued. Thus, it has virtually been admitted by the OPs that there is no development nor can same be carried out. The complainants have filed their reply to said application and it has been averred that there is no ground to implead PACL India Ltd. The Hon'ble NCDRC has also held in judgment dated 29.11.2016 passed in RP No.2697 of 2016 that as agreement has been signed by Pearl Infrastructure Project Ltd. alone, they cannot be absolved from their responsibility under the Agreement. It has been further held that there is no privity of contract of the allottees with PACL and there is no basis to implead the said Company.
C. That as per agreement, the promoter of the said project "Pearls City, Mohali" is PACL India Ltd. It has come to knowledge of the complainants that the said company is facing CBI enquiry for allegedly siphoning off funds of its investors. It has also come to knowledge that the CBI on 8.1.2016 arrested the founder of PACL on allegations of cheating investors to tune of Rs.45000 Crores. Copy of one such news report published in the Indian Express dated 9.1.2016 is annexed hereto and marked Ex.C/A. D. That this Commission in Consumer Complaint No.336 of 2015, while ordering refund in case of similarly placed allottee, has inter alia held in para 18 of the said judgment:
Consumer Complaint No.142 of 2015 10
"The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going."
Thus, it is clear that Pearls Infrastructure Project Ltd., has also siphoned off funds paid to it by the complainants, which has led to non-development of the area.
E. That as is clear from the above, the project faces uncertainty and there is no hope for the complainants to get possession after completion of development within any defined time period nor are the complainants now interested to take possession as nearly 3 years delay has been caused till date by the OPs in handing over of possession. It is settled law that an allottee is not obliged to take over possession where there has been material breach of agreement including delay in handover of possession.
An affidavit of complainant No.1 has been filed in support of the aforesaid facts.
Evidence on Record:
8. To prove the allegations made in the complaint, the complainants proved on record their affidavits as Ex.CA and Ex.CB and documents Ex.C-1 to Ex.C-20 and Ex.C/A. On the other hand, opposite parties Nos.1 and 2 proved on record the affidavit of Consumer Complaint No.142 of 2015 11 Gurpinder Singh Brar, their Senior Manager as Ex.OP-A and documents Ex.OP-1 to Ex.OP-6.
9. I have heard the learned counsel for both the sides and have carefully gone through the records of the case.
Contentions of the Parties:
10. Learned counsel for the complainants has vehemently argued that the complainants purchased the plot in question from the opposite parties for residential purpose for a total cost of ₹46,00,000/- and have paid ₹46,38,672/- including Preferential Location Charges amounting to ₹2,30,000/-. He further argued that from the evidence produced by the complainants, which includes the Buyer's Agreement Ex.C-1, it stands proved that the possession of the developed plot was to be given to the complainants within a period of three years from the date of execution of the Buyer's Agreement. The payments were time linked and no development ever proceeded and the payments were made as per the Schedule, which form part of the Agreement. The Agreement was executed on 3.8.2011 and, as such, the possession was to be delivered by the opposite parties to the complainants on or before 2.8.2014 but they failed to do so. He further argued that the Project faces uncertainty and there is no hope for the complainants to get possession after completion of development within any defined time period nor the complainants are now interested to take possession as nearly 3 years delay has been caused till date by the opposite parties in handing over of possession. It is settled law that an allottee is not obliged to take over possession where there has been material Consumer Complaint No.142 of 2015 12 breach of agreement including delay in handing over of possession.
It also stands proved that the development had not been started at the site and the opposite parties were/are not in a position to hand over the possession of the developed plot. The complainants cannot wait for all times to come to get the plot as they are in dire need of the house. The complainants had paid the entire sale consideration but at the spot there is no development till date. The opposite parties have failed to perform their part of the contract and they were negligent in not delivering the possession; as a result of which the complainants suffered mental agony and harassment and are entitled to the compensation by way of interest on the amount already paid by them, besides the refund of that amount. He also submitted that keeping in view the facts and circumstances of the case and the settled law the complainants are entitled to interest at the rate of 12% per annum from the date of payment of the said amount till actual realization. This Commission in similar Consumer Complaint No.336 of 2015 has ordered the refund of the amount along with compensation, interest and costs to a similarly situated allottee in the same very project in Section 100, SAS Nagar, Mohali.
11. On the other hand, it has been submitted by the learned counsel for opposite parties Nos.1 and 2 that no doubt, the possession of the developed plot could not be delivered to the complainants but that will not entitle the complainants to any compensation by way of interest or otherwise as the complainants have some other properties in Budhlada, Punjab. It has further been submitted by the learned counsel for the opposite parties that the Consumer Complaint No.142 of 2015 13 complainants are not consumers under the C.P. Act and this Commission does not have the jurisdiction to entertain the present complaint as it has been specifically stated/mentioned in clause no.29 of the said Agreement that all the disputes shall be referred to an Arbitrator to be appointed as per provisions of Arbitration and Conciliation Act, 1996. Moreover, as per clause No.14 of booking application form and clause no.29 of plot Buyer's Agreement dated 3.8.2011 only Courts situated at Delhi have the jurisdiction to entertain the dispute. The controversy involves disputed and complicated questions of fact and law which can be clarified only by way of detailed evidence and pleadings and cannot be adjudicated in a summary manner. In the last it has been submitted that the opposite parties are committed towards delivering possession in favour of the complainants at the earliest and are expediting the activity in the area where the plot of the complainants is located so that possession can be offered to the complainants at the earliest. He prayed that there is no merit in the present complaint and the same be dismissed with cost.
Consideration of Contentions:
12. I have given my thoughtful consideration to the contentions of the learned counsel for the parties.
13. According to the complainants, they paid ₹46,38,672/- against the total sale consideration of ₹46,00,000/- along with Preferential Location Charges of ₹2,30,000/-. The possession of the plot was to be delivered to the complainants within a period of 3 years from the date of Buyer's Agreement dated 3.8.2011 (Ex.C-1) i.e. latest upto Consumer Complaint No.142 of 2015 14 2.8.2014. It cannot be made out from the evidence produced on the record that the complainants invested the amount in the plot in dispute for the purposes of investment and profit. I am not inclined to conclude that the complainants do not fall under the definition of 'consumer' as contained in Section 2(1)(d) of the C.P. Act. It is very much clear from the contents of the Agreement Ex.C-1 that the plot, which the complainants agreed to purchase, was to be developed by the opposite parties. Thus, they hired the services of the opposite parties for a consideration and, as such, fall under the definition of 'consumer'.
14. So far as the contention of the learned counsel for the opposite parties with regard to the existence of clause 29 in the Buyer's Agreement is concerned, the remedy available under the C.P. Act is an additional remedy and the matter is no more res-integra. Hon'ble Supreme Court in Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233 and in Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.Consumer Complaint No.142 of 2015 15
15. Recently, it was held by the Hon'ble National Commission, in Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, as under:-
"In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon'ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the Consumer Complaint No.142 of 2015 16 protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986."
16. Hon'ble National Commission in a latest decision rendered in Consumer Case No.701 of 2015 (AFTAB SINGH v. EMAAR MGF LAND LIMITED & ANR.) decided on 13.7.2017 after discussing a number of judgments of Hon'ble Supreme Court and various provisions of the Arbitration and Conciliation Act, 1996 has observed as under:-
"3. In view of afore-going discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to sub-serve a particular public policy are not arbitrable; (ii) there are vast domains of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon'ble Supreme Courtl (iv) Sectiion 2(3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and (iv) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended sub-section (1) of Section 8 Consumer Complaint No.142 of 2015 17 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement.
4. Consequently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act."
In view of the above, objection raised by Counsel for the opposite parties that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.
17. So far as the objection raised by the opposite parties in their written statement that the parties by agreement have confined jurisdiction to Delhi Courts only and in view of settled law this Commission does not have the jurisdiction to entertain the present complaint is concerned, it may be said that State Consumer Disputes Redressal Commission, New Delhi has also the jurisdiction, as the Agreement itself was executed at that place. At the same time, it cannot be lost sight of that this Commission has also the territorial jurisdiction, as the plot is situated in SAS Nagar, Mohali in the State of Punjab and the payments were also made by the Consumer Complaint No.142 of 2015 18 complainants at that place itself. Even one of the Branch Office of the opposite parties is situated at that place itself.
18. As per the settled law, in the civil matters for filing suits before the Courts the parties could have entered into an Agreement to confine the jurisdiction to one of the Courts, having the jurisdiction. However, so far as the Foras under the C.P. Act are concerned, the position is different. In case clause 29 of the Agreement is invoked that will negative the provisions of Section 11 of the C.P. Act. The legislation in its wisdom did not incorporate any such provision in the C.P. Act under which the parties could have confined the jurisdiction to one of the District Forums/State Commissions, where two or more District Forums/State Commissions had the territorial jurisdiction to entertain and decide the complaint. The C.P. Act was enacted for the better protection of the interests of the consumers and that interpretation of any provision of the C.P. Act, which is beneficial to the consumer, is to be accepted. The forcing of the consumer to some other State Commission, while the State Commission, before whom he has filed the complaint and which has the territorial jurisdiction, amounts to prejudicing his interest, which is against the spirit of the object and reasons for enacting the C.P. Act.
19. The ratio of the judgment of Hon'ble National Commission reported in IV(2006) CPJ 172(NC) (Polymech Plast Machines Ltd. and Anr. v. Apple Plast Pvt. Ltd.) leaves no doubt that any such clause restricting the jurisdiction to one of the District Forums/State Commissions is contrary to Section 11(2) of the Act. In that case, in the invoice issued by the opposite party it was mentioned that the Consumer Complaint No.142 of 2015 19 same was subject to Baroda's jurisdiction. The question of territorial jurisdiction was raised before the Hon'ble National Commission by invoking that writing in the invoice. It was held that the Consumer Protection Act, 1986, which is a socially beneficial legislation cannot be permitted to be undermined by such contracts. Section 11 of the Act would determine the jurisdiction and, therefore, the words 'subject to Barodara jurisdiction' used in the invoice would not oust the jurisdiction of the Consumer Forum as it would be contrary to Section 11(2) of the Act. Thus, merely on the basis of clause 29 of the Agreement, it cannot be concluded that only the District Forum/State Commission at Delhi has the jurisdiction to entertain and decide the present complaint. This objection of the opposite parties thus being devoid of merit is also rejected.
20. So far as the contention of the learned counsel for the opposite parties that the complainants do not fall under the definition of 'consumer' as they have some other properties in Budhlada, Punjab, is concerned, there is nothing on record that the complainants are property dealers and deal in the sale and purchase of property, on regular basis, and as such, the plot in question was purchased by them by way of investment, with a view to resell the same as and when there was escalation in the prices thereof. Thus, in the absence of any cogent evidence in support of the objections raised by the learned counsel for the opposite parties, mere bald assertion i.e. simply saying that the complainants being investors, did not fall within the definition of consumers, cannot be taken into Consumer Complaint No.142 of 2015 20 consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during Consumer Complaint No.142 of 2015 21 short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected. No other point has been raised before us.
21. The consumers are not to suffer at the hands of such like developers and the Foras under the C.P. Act are to come to their rescue. The bona fides of the parties are also to be seen. The payment of entire basic price of the Plot in time shows that the complainants bona fidely required the Plot for their use and were interested in getting the possession thereof.
22. This act on the part of the opposite parties in collecting huge amounts from the prospective buyers under the guise of developing the area and to give the possession of the developed plots therein by the stipulated date and not developing that area at all and to use the huge money, so collected by them, clearly amounts to unfair trade practice. On account of that unfair trade practice, the complainants have certainly faced harassment and agony, as their hope to have a plot stood shattered. Had the opposite parties not adopted such an unfair trade practice, they might have invested this money with some other developer and might have got the plot by now. Consumer Complaint No.142 of 2015 22
23. As per Section 9 of Punjab Apartment and Property Regulation Act, 1995 (in short, 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 apartments/flats/plots, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties violated Section 9 of the PAPRA.
24. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties 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.
25. Admittedly the amount of ₹46,38,672/- has been paid by the complainants to the opposite parties towards the price of the plot. Builder Buyer Agreement was executed between the complainant and the opposite parties on 3.8.2011 and as per the same, the possession of the plot was to be delivered to the complainants within a period of three years from the date of Buyer's Agreement i.e. latest by 2.8.2014. The present complaint was filed on 12.6.2015. However, till then the opposite parties failed to deliver the possession of the fully developed plot to the complainants. The Consumer Complaint No.142 of 2015 23 complainants cannot be made to wait for indefinite period for delivery of possession of the plot. Moreover, the opposite parties are not in a position to deliver the physical possession of the plot in dispute to the complainants in near future.
26. The Consumer Protection Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the plot in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development of plots in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite parties, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainants have suffered loss, as discussed above. The builder is under obligation to deliver the possession of the developed plot within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the Consumer Complaint No.142 of 2015 24 record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the plot, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainants is a deposit held by the opposite parties in trust of complainants and it should be used for the purpose of developing the plots, as mentioned in Section 9 of PAPRA. 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 grievance suffered by them on account of the betrayal by the opposite parties in shattering their hope of getting the plot by waiting for all this period. Consumer Complaint No.142 of 2015 25
27. Under Section 12 of the PAPRA read with Rule 17 of the Rules framed thereunder if the amount is to be refunded, it is to be refunded along with interest at the rate of 12% per annum.
28. Similar view has been taken by this Commission in Consumer Complaint No.336 of 2015 (Sudhir Kumar Verma v. M/s Pearls Infrastructure Projects and another) decided on 1.3.2017.
29. In view of the above discussion, the complaint is allowed and the following directions are issued to the opposite parties:-
i) to refund the amount of ₹46,38,672/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹5,00,000/-, as compensation for the harassment
and mental agony suffered by them; and
iii) to pay ₹20,000/-, as cost of litigation.
30. The opposite parties shall make compliance of this order within two months from the date of receipt of the certified copy of this order.
31. If the opposite parties fail to comply with the order in the complaint within the stipulated period, then the amount of compensation awarded, vide this order shall carry interest at the rate of 12% per annum from the date of this order till realization.
32. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 21, 2017 Bansal Consumer Complaint No.142 of 2015 26