State Consumer Disputes Redressal Commission
Harinder Pal Singh Kanda vs Greater Mohali Area Development ... on 4 August, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 33 of 2017
Date of Institution : 24.01.2017
Date of Decision : 04.08.2017
Harinder Pal Singh Kanda son of Sh. Amrik Singh Kanda, resident
of 124/12, Dashmesh Colony, Cinema Road, Sunam, Distt.
Sangrur.
....Complainant
Versus
Greater Mohali Area Development Authority (GMADA) PUDA
Bhawan, Sector-62, S.A.S. Nagar (Mohali) through its Chief
Administrator.
....Opposite party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Vinish Singla, Advocate
For the opposite party : Sh. Anuj Kohli, Advocate
Consumer Complaint No. 33 of 2017 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite party (hereinafter referred as Op) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Op floated their scheme Purab Premium Apartments for setting up a Mega Township of 4500 flats of type 1, 2 & 3 in land approximately 117 acres situated in Sector 88, SAS Nagar (Mohali). Complainant on 12.1.2012 approached the Op and submitted his application form No. 60783 alongwith earnest money of Rs. 6,90,000/- being 10% of the price of the flat Type-III. The total price of the apartment was Rs. 69 Lacs. The draw of lot was held on 20.3.2012. The complainant was successful in the draw of lots. Op vide letter No. SPL-3928 dated 23.3.2012 gave the confirmation letter with the draw serial No. 874 and complainant was to deposit the relevant documents on or before 23.4.2012. Complainant completed all the formalities and Ops issued letter of intent (hereinafter called LOI) No. GMADA-EO/2012/2123 dated 22.5.2012 to the complainant. Complainant was required to pay the installments in time, otherwise, he will be liable to pay interest @ 18%. As per Clause 3(ii) of the LOI, the possession of the apartment was to be handed over after completion of dwelling work at the site within 36 months from the date of issue of LOI, otherwise, complainant will be entitled to refund of the entire amount deposited alongwith 8% interest compounded annually. The complainant deposited Rs. 13,80,000/- equal to 20% by Consumer Complaint No. 33 of 2017 3 22.6.2012 vide DD No. 450541 dated 14.6.2012. The deposit of the balance amount of 65%, complainant choose Plan-A and deposited a sum of Rs. 42,60,750/- vide DD No. 450626 dated 21.7.2012 and paid 95% of the amount upto July, 2012. Vide general notice dated 10.12.2015, Ops gave the notice that there will be draw of lots for allotment of apartment numbers. The name of the complainant figured at serial No. 237 and amount of Rs. 8522/- was shown due towards him. On inquiry, it was stated that it was on account of late deposit of installment for 4 days. Complainant deposited that amount vide DD No. 454117 dated 1.1.2016. Complainant on the basis of draw of lots was allotted plot No. 1001, Tower No. A-3 on 9th Floor. However, when complainant visited the site, complainant was astonished to see that actually the project was being developed only on 45 acres of land instead of 117 acres. Instead of 4500 apartments only 1600 apartments were being constructed. World class amenities like all weather 25 meter indoor swimming pools, 8 lawn tennis Courts, 2 Skating rinks, 8 Indoor Badminton Courts, 8 Table Tennis Courts, Two 5000 sq. ft. gyms, 8 Basketball courts, 8 volleyball courts, 2 Football grounds, Over mile long walking tracks, Community Centre with 30000 sq. ft. covered area, as promised were either not developed at the site or substantially reduced. The flat was not ready for possession and construction work was still going on. The complainant's dream of moving in the flat was broken. Complainant immediately rushed to the Op and inquired about the delivery of possession, however, Op failed to make a mention of an exact or approximate date of delivery. Then Consumer Complaint No. 33 of 2017 4 complainant moved a letter dated 23.6.2016 demanding his right to withdraw i.e. refund of the entire amount alongwith interest @ 18% p.a. However, the complainant received a letter dated 29.7.2016 wherein it was stated that net payable amount to the complainant is Rs. 69,05,803/-, which include interest from 22.5.2015 to 20.7.2016. Complainant received that amount under protest. Alleging deficiency in service, complaint was filed before this Commission seeking following directions:-
1) Refund the amount of interest calculated @ 8% compounded per annum from the date of deposit till the date of actual payment minus the amount already refunded i.e. Rs. 19,04,633/-.
2) Compensation due to mental and physical harassment to the tune of Rs. 10 Lacs.
3) Litigation expenses of Rs. 1,00,000/-.
4) Any other relief deemed proper by this Hon'ble Court may also please be granted.
2. Complaint was contested by Op, who filed their written reply taking preliminary objections that there is no deficiency in service or any unfair trade practice on the part of Op; complainant had applied for the flat only for speculative purposes; complaint involved disputed and complicated questions of facts and law; complainant has not approached the Commission with clean hands and concealed the true and material facts and that in case of dispute, the matter is required to be referred to the Arbitrator to be appointed by the Chief Administrator, GMADA. On merits, Consumer Complaint No. 33 of 2017 5 application of the complainant for allotment of flat in Purab Premium Apartments is admitted. In the draw of lots held by Op on 20.3.2012, 1400 applicants were held successful, however, only 1075 successful applicants were found eligible. Approximately 400 allottees had defaulted in making due payments and 75 allottees opted for refund. The development of a group housing project is always planned in such a manner that contribution from all the allottees is taken into consideration for its timely completion. Any delay on the part of one allottee seriously prejudice the completion schedule. The complainant had deposited a sum of Rs. 42,60,750/- and that amount was deposited with a delay of 4 days. The condition regarding possession was subject to timely payment. Op endeavored diligently and completed the development works. Apart from basic facilities like sewer line, electric infrastructure, roads etc., inter-alia, the following facilities have been provided by the Op:-
i) Garbage chute
ii) Automatically switching Common Generator backup for
fans, lights, TV and Fridge @ 0.8, 1 & 1.2 KW per house, as per size.
iii) Underground electric cabling.
iv) Card plus Finger Print based Common Entry
v) Control for security
vi) 4 feet high railings for safety.
vii) Designed and built so as to withstand earthquakes as per Zone 4 notified by GOI. (7 on Richter Scale) Consumer Complaint No. 33 of 2017 6
viii) Spacious fast elevators and fire fighting equipment.
ix) GYM
x) Basket Ball Court.
xi) Volley Ball Court
xii) Football Ground
xiii) Walking Track
xiv) Community Centre
xv) Convenient Shoping (52 Nos. Built up Booths)
xvi) Card plus finger print based common entry control for
security
xvii) Area under E-surveillance (160 Nos. CCD cameras installed) xviii) 75% Open Space (Green Belt 42000 Sq. Mtr.) xix) All apartments North-East facing with big windows and balconies.
xx) Built by M/s Simplex Co.
xxi) Indoor Swimming Pool
xxii) Lawn Tennis Court
xxiii) Skating Rink
xxiv) Indoor Badminton Court
Other averments as alleged in the complaint were denied. The complainant had applied for refund and refund was given as per the terms and conditions of the LOI. Complaint is without merit, it be dismissed.
3. The parties led their respective evidence in the complaint.
Consumer Complaint No. 33 of 2017 7
4. Complainant in his evidence has tendered his affidavit Ex. C-A and documents Exs. C-1 to C-15. On the other hand, Op had tendered into evidence affidavit of Sh.Sukhwinder Kumari, E.O.(Housing), GMADA as Ex. Op-A and document Ex. Op-1.
5. We have heard the counsel for the parties and have carefully gone through the averments made in the complaint, written reply filed by the Ops, evidence and documents on the record.
6. Before taking the complaint on merits, the Ops have taken certain preliminary objections, those are required to be dealt with. A plea has been taken by the Ops that the flat was purchased by the complainant for speculative purposes, therefore, he is not a consumer. The complainant had booked one flat, the Ops had not led any evidence that before the booking, the complainant had any other residential property in the area of Mohali and he has been indulging in sale/purchase of the property, therefore, without any evidence on the record, mere plea is not sufficient to hold that the complainant has purchased the flat for speculative purposes.
7. It has been further stated that in case of any dispute, following the Clause No. 6 of the LOI, the matter was required to be referred to Sole Arbitrator to be appointed by Chief Administrator, GMADA. No doubt that there is an Arbitration Clause but in case Ops were really interested to refer the matter to the Arbitration then alongwith the written reply they were required to move an application under Section 8 of the Arbitration and Conciliation Act, Consumer Complaint No. 33 of 2017 8 1996, but no such application was moved. Moreover, under Section 3 of the CP Act, it has been provided as under:-
"3. Act not in derogation of any other law.--The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
Section 3 of the Act provides additional remedy and not in derogation of any other provisions or the law for the time being in force, therefore, the Consumer Fora has the right to entertain and adjudicate the complaint.
8. It is admitted fact that the complainant had applied for residential apartment in the scheme of the Ops known as Purab Premium Apartments and submitted his application form No. 60783 alongwith earnest money of Rs. 6,90,000/- being 10% of the price of the flat Type-III and was successful candidate in the draw of lots. After completion of documents, LOI was issued in the name of the complainant on 22.5.2012 (Ex. C-3), according to it the tentative price of the apartment is Rs. 69 Lacs. The complainant deposited Rs. 13,80,000/- equal to 20% by 22.6.2012 vide DD No. 450541 dated 14.6.2012 and for balance amount of 65%, complainant deposited a sum of Rs. 42,60,750/- vide DD No. 450626 dated 21.7.2012, therefore, paid 95% of the amount by July, 2012.
9. Complainant enquired from the Op about the exact date of possession but the Op had failed to make mention of any exact date of delivery and further on seeing the site in January, 2016, it transpired that the Op failed to provide the facilities as promised in Consumer Complaint No. 33 of 2017 9 the advertisement because the project was developed only in 45 acres of land instead of 117 acres and was lacking number of facilities referred above and mentioned in the complaint. Therefore, the complainant wrote a letter dated 25.6.2016 Ex. C-9 to the Ops to withdraw from Purab Premium Apartments Scheme. Vide letter dated 29.7.2016 Ex. C-10, a sum of Rs. 69,05,803/- has been assessed to be refundable amount, which was taken by the complainant under protest. This letter reveals that the interest has been calculated from 22.5.2015 to 20.7.2016, otherwise, it should have been from the various dates of deposit. This preposition has already been decided by this Commission in Consumer Complaint No. 183 of 2015 "Priyanka Nayyar versus Greater Mohali Area Development Authority & Anr.", decided on 9.9.2016 and we have allowed interest @ 8% p.a. compounded annually from the date of deposit vide order dated 9.9.2016. That order was challenged by the Op in First Appeal No. 1456 of 2016 and the said order has been affirmed by the Hon'ble National Commission. Therefore, it is clear from the order in Consumer Complaint No. 183 of 2015 duly affirmed by the Hon'ble National Commission that the allottee is entitled to interest as agreed between the parties from the date of deposit and not after expiry of 3 years in case he seeks refund. Further this Commission decided similar point in Consumer Complaint No. 275 of 2016 "Vijay Kumar versus GMADA", decided on 18.5.2017.
10. With regard to service charges @ 3.09%, equal to 21,321/-, it was argued that the counsel by the complainant that no Consumer Complaint No. 33 of 2017 10 services were availed by the complainant from the Op and has sought for a refund. Whereas counsel for the Op stated that amount was deposited with the Government but neither in the written reply, it has been detailed on which date amount was deposited with Government of India nor any statement of service tax has been placed on the record by the Op showing this amount was deposited as a Service Tax duly collected from the complainant. Therefore, in case the Op has not deposited the amount with Government of India and that the complainant has not availed any services from the Op, then complainant is not liable to pay this amount. Therefore, the complainant will be entitled to this amount deducted by the Op as Service Tax without prejudice to the right of the Op to get a refund from Government of India according to rules.
11. In these circumstances, we allow the complaint and direct the Op as under:-
i) Refund a sum of Rs. 63,30,750/- alongwith interest @ 8% compounded annually from various dates of deposit till the date of payment; minus a sum of Rs. 69,05,803/- already paid;
ii) Op failed to prove that amount of Service Tax was deposited with Government of India, therefore, the complainant will be entitled to refund of this amount, without prejudice to the right of the Op to claim it from the Government, in case it is so deposited;
iii) pay Rs. 1,00,000/- as compensation; and Consumer Complaint No. 33 of 2017 11
(iii) pay Rs. 21,000/- as litigation expenses.
The abovesaid directions be complied within 45 days from the receipt of a certified copy of the order.
12. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
13. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER August 04, 2017.
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