State Consumer Disputes Redressal Commission
Ajay Kumar vs Sky Rock City Welfare Society on 14 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1. Consumer Complaint No.175 of 2017
Date of institution : 24.03.2017
Date of decision : 14.11.2017
Ajay Kumar s/o Late Shri Om Parkash R/o H.No.119-B, Sector 51-A,
Chandigarh.
....Complainant
Versus
1. Sky Rock City Welfare Society (Regd.), through its President,
Navjeet Singh, Site Office 111-112, Near CGC College, Landran,
SAS Nagar, Mohali.
2. Navjeet Singh, President, Sky Rock City Welfare Society (Regd.)
through its President Navjeet Singh Site Office 111-112, Near
CGC College, Landran, SAS Nagar, Mohali.
....Opposite Parties
2. Consumer Complaint No.200 of 2017
Date of institution : 06.04.2017
Date of decision : 14.11.2017
Sanjeev Verma s/o Late Shri Madan Lal Verma, R/o 174, Sector 55,
Chandigarh.
....Complainant
Versus
1. Sky Rock City Welfare Society (Regd.), through its President,
Navjeet Singh, Site Office 111-112, Near CGC College, Landran,
SAS Nagar, Mohali.
Consumer Complaint No.175 of 2017 2
2. Navjeet Singh, President, Sky Rock City Welfare Society (Regd.)
through its President Navjeet Singh Site Office 111-112, Near
CGC College, Landran, SAS Nagar, Mohali.
....Opposite Parties
3. Consumer Complaint No.367 of 2017
Date of institution : 16.05.2017
Date of decision : 14.11.2017
Gurbir Singh s/o Late Shri Amar Singh, R/o 4058, Sector 46-D,
Chandigarh, now residing at H.No.10805 Blooming Orchard DR,
Fishers, IN 46038 USA through Special Power of Attorney holder Shri
Leela Dhar Sharma s/o Late Shri Hari Dutt Sharma R/o H.No. 3196,
Sector 46-C, Chandigarh.
....Complainant
Versus
1. Sky Rock City Welfare Society (Regd.), through its President,
Navjeet Singh, Site Office 111-112, Near CGC College, Landran,
SAS Nagar, Mohali.
2. Navjeet Singh, President, Sky Rock City Welfare Society (Regd.)
through its President Navjeet Singh Site Office 111-112, Near
CGC College, Landran, SAS Nagar, Mohali.
....Opposite Parties
4. Consumer Complaint No.374 of 2016
Date of institution : 05.12.2016
Date of decision : 14.11.2017
Rama Kumari w/o Shri Suresh Kumar, 3160 B, Sector 39-D,
Chandigarh presently residing at House No.97C/SBP Homes, Sector
126, Kharar, Mohali.
....Complainant
Consumer Complaint No.175 of 2017 3
Versus
1. Sky Rock City Welfare Society (Regd.), Sky Rock City, Sector
111-112, Sector 112, Mohali-160 062 through its President Shri
Navjeet Singh.
2. Sh. Navjeet Singh, President, Sky Rock City Welfare Society
(Regd.), SCO No.668, Top Floor, Sector 70, Mohali.
....Opposite Parties
5. Consumer Complaint No.386 of 2017
Date of institution : 19.05.2017
Date of decision : 14.11.2017
Satkar Singh through its authority holder Shri Joginder Singh s/o Shri
Gurdial Singh, resident of House No.846 A (HIG), Phase-2, SAS
Nagar.
....Complainant
Versus
M/s Sky Rock City Welfare Society through its President, Navjeet
Singh Brar, SCO No.672 (First Floor), Sector 70, SAS Nagar.
Second Address:
M/s Sky Rock Welfare Society, Sector 111-112, 116 and 127, Shop-
cum-Booking Office, Opposite Chandigarh Engineering College,
Landran, Tehsil and District SAS Nagar.
....Opposite Parties
6. Consumer Complaint No.387 of 2017
Date of institution : 19.05.2017
Date of decision : 14.11.2017
Consumer Complaint No.175 of 2017 4
Ravinder Singh s/o Shri Joginder Singh, through Shri Joginder Singh
father of the complainant and authority holder, resident of House
No.846 (HIG), Phase 2, SAS Nagar.
....Complainant
Versus
M/s Sky Rock City Welfare Society through its President, Navjeet
Singh Brar, SCO No.672 (First Floor), Sector 70, SAS Nagar.
Second Address:
M/s Sky Rock Welfare Society, Sector 111-112, 116 and 127, Shop-
cum-Booking Office, Opposite Chandigarh Engineering College,
Landran, Tehsil and District SAS Nagar.
....Opposite Parties
Consumer Complaints under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Sh. N.S. Jagdeva, Advocate For the opposite parties: Shri K.S. Sidhu, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
All the above referred six Consumer Complaints are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these complaints. The facts are taken from Consumer Complaint No.175 of 2017.Consumer Complaint No.175 of 2017 5
Facts of the Complaint:
2. Brief facts, as set out in the complaint, are that in the year 2009-
2010, the opposite parties had launched a scheme of housing by giving plots to its members. The complainant had applied for allotment of a plot, vide application dated 16.06.2011, by making payment of ₹5,000/- and became its member, vide Share Certificate, having membership No.2184. He booked one plot, measuring 150 square yards with the opposite parties at the rate of ₹9,500/- per square yard. The total price of the plot was informed as ₹14,25,000/-. The opposite parties told that the possession of the plot would be handed over to him within two years from the date of registration. At the time of booking the plot, the complainant was allured by the Manager of the opposite parties, who had shown to the complainant that they have all the necessary permissions of Punjab Government/GMADA to launch the project. The complainant has paid ₹16,62,500/-, vide receipts/cheques Ex.C-4 to Ex.C-13, as the total cost of the plot, well on time as demanded by the Society from time to time. However, the opposite parties failed to hand over the possession of the plot within the stipulated period and, thus, the complainant requested for cancellation of allotment and to refund the amount deposited, but to no effect. The complainant visited the site and came to know that the opposite parties have not even completed the basic infrastructure in the area, nor any development work has been completed. The complainant came to know from the official website of GMADA that the licence of the opposite parties had been cancelled by the Punjab Govt. and GMADA. Thus, they are not in a position to go ahead with Consumer Complaint No.175 of 2017 6 development activities in the area. The opposite parties did not have any such permission/licence to develop the colony in the year 2010- 2011. As such, the opposite parties could not have entered into agreement with the complainant to hand over the possession of the plot within two years. The opposite parties were issued licence No.LDC-18/2014, under Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"), as per which they were to get the building plans sanctioned from Estate Officer, GMADA and in the absence thereof, the opposite parties could not have allotted specific plots to its members. Since the possession was not being delivered to the complainant, therefore, he moved an application to the opposite parties for cancellation of allotment and refund of the amount deposited by the complainant. However, nothing was done by the opposite parties. The act and conduct of the opposite parties, in not developing the project; non-delivery of possession and non-refunding the amount deposited by the complainant, amounts to deficiency in service and unfair trade practice. The complainant has, thus, prayed for issuance of following directions to the opposite parties:
i) to cancel the plot booked by the complainant and to refund the amount deposited by him i.e. ₹16,62,500/-, along with interest @ 18% on the deposit kept illegally retained by the opposite parties till the date of refund;
ii) to pay ₹3,00,000/-, as compensation for mental and physical harassment, mental agony suffered by the complainant as well as for deficiency in service and sleepless nights; and
iii) to pay ₹33,000/-, as litigation expenses.Consumer Complaint No.175 of 2017 7
Defence of the Opposite Parties:
3. Upon notice, opposite parties appeared through counsel Sh. J.S. Bhullar, Advocate on 18.8.2017 and filed his memo of appearance. He sought time to file written reply along with power of attorney.
Accordingly the opposite parties were directed to file written reply in the registry within ten days with advance copy to the counsel for the complainant. The case was adjourned to 6.9.2017 for evidence of the complainant. On 6.9.2017 the opposite parties failed to file any reply or Power of Attorney as per order dated 18.8.2017 and the case was fixed for 19.9.2017 for evidence of the complainant. On 19.9.2017 also neither any reply nor power of attorney has been filed by the opposite parties and the matter was adjourned to 6.10.2017 for arguments. On 6.10.2017 Shri Neeraj Yadav, Advocate filed power of attorney on behalf of the opposite parties and the case was adjourned to 26.10.2017 for arguments. On 26.10.2017 on the request of the counsel for the parties the case was adjourned to today for arguments. Evidence of the Complainant:
4. To prove his case, the complainant tendered in evidence his affidavit Ex.CWA, along with documents Ex.C-1 to Ex.C-17. However, opposite parties have not filed their evidence.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
Contentions of the Parties:
6. The learned counsel for the complainant has vehemently contended that the complainant booked a residential plot of 150 square yards in the project of the opposite parties by paying ₹5,000/-, vide Consumer Complaint No.175 of 2017 8 Application Form Ex.C-1, and was issued share certificate Ex.C-2. The total price of the plot was ₹14,25,000/-, against which he deposited ₹16,62,500/-, vide receipts/cheques Ex.C-4 to Ex.C-13. As per the terms and conditions mentioned in Ex.C3, the possession of the plot was to be handed over physically not later than two years of the registration/requisition. However, the opposite parties have failed to develop the plot/project. At the site, there was no development of the plots/project. The opposite parties committed deficiency in service and unfair trade practice and as such, they are liable to refund the deposited amount, along with interest, compensation and costs.
7. Per contra, it has been contended by the learned counsel for the opposite parties that the complainant has not disclosed the terms and conditions of the agreement and has approached this Commission by concealing material facts. He further contended that as per Clause (4) of the said terms and conditions, which are signed by the complainant, if the complainant does not want to continue even after paying some instalments, the entire amount shall be refunded with interest after the expiry of period of three years from the date of requisition, which has still not elapsed. The complaint is premature and is liable to be dismissed.
Consideration of Contentions:
8. We have given our thoughtful consideration to the contentions of learned counsel for both the sides.
9. First of all, we would like to emphasize the conduct of the opposite parties. Upon notice, Shri J.S. Bhullar, Advocate, appeared and filed Memo of Appearance on behalf of opposite parties on Consumer Complaint No.175 of 2017 9 18.8.2017. The opposite parties were directed to file written reply and power of attorney within a period of 10 days with an advance copy to the counsel for the complainant. However, the opposite parties did not file any reply to the complaint within the stipulated period. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in the pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. In the present case, firstly the opposite parties failed to file reply to the complaint within the stipulated period. Thus, in the present complaint the opposite parties are precluded from raising any type of plea against the contents of complaint. Moreover, the opposite parties have also failed to produce any evidence on record and as such, the evidence adduced by the complainant remains unrebutted.
10. Admittedly, the complainant applied for allotment of residential plot measuring 150 square yards with the opposite parties, vide application dated 16.6.2011, Ex.C-1, by depositing ₹5,000/-, vide cheque No.370083 dated 16.6.2011 drawn on Axis Bank Ltd. The total cost of the plot was ₹14,25,000/-, against which the complainant Consumer Complaint No.175 of 2017 10 deposited a sum of ₹16,62,500/-, vide receipts/cheques Ex.C-4 to Ex.C-13 i.e. more than the agreed amount. As per condition No.5 of terms and conditions Ex.C-3, the physical possession of the plot was to be delivered not later than two years of registration/requisition, but the same was not delivered within that period. The complainant applied for refund of the amount deposited by him, vide application Ex.C-14. However, the opposite parties neither delivered the possession of the fully developed plot in question nor refunded the amount deposited by the complainant.
11. As per Section 9 of the Punjab Apartment and Property Regulation Act (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 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.
As such, the opposite party also violated Section 9 of the PAPRA.
12. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
13. The "Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 8 & 17 , it has been provided as under:-
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in Consumer Complaint No.175 of 2017 11 clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub-section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
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."
The opposite parties had been advertising allotment of plots, without any licence & permission and had been misleading the complainant.
14. The opposite parties had been collecting huge amounts from the buyers for the development of the project. 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. The opposite parties are not to play the game at the cost of others. When the builders 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. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop the project, as they have no CLU or permission to launch the project in question. Thus, the delay in not delivering the possession of plot within the agreed period and non-refund of the amount deposited by the complainant with them amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated. Consumer Complaint No.175 of 2017 12
15. 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 complainant has made payment of more than the agreed amount to the opposite parties with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of plot 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 complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which the complainant has 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 Consumer Complaint No.175 of 2017 13 paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of developing/building the plots/flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant 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 complainant has to wage a long drawn and tedious legal battle. As such, the complainant was 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 complainant, are also required to be taken into consideration for awarding compensation. In addition to that he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering his hope of getting the plot by waiting for all this period. In these circumstances, the complainant deserves suitable compensation.
16. Hon'ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation.
Consumer Complaint No.175 of 2017 14
17. The sum and substance of the present dispute is that the opposite parties failed to deliver possession of the allotted plot to the complainant, despite receipt of more than the agreed amount from the complainant, within the stipulated period, as per the terms and conditions agreed upon between them. Accordingly, the opposite parties are held guilty of committing deficiency in service and adopting unfair trade practice and the complainant is held entitled to the refund of the amount deposited by him i.e. ₹16,62,500/-, as claimed in the complaint, along with interest and compensation.
18. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund the amount of ₹16,62,500/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses.
19. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.200 of 2017:
20. In this case the complainant purchased the residential plot measuring 150 square yards at the rate of ₹11,500/- per square yard for a total sale consideration of ₹17,25,000/- against which he paid ₹19,38,750/-, vide receipts Ex.C-4 to Ex.C-9. Rest of the averments are same as made in CC No.175 of 2017. In this case also, the Consumer Complaint No.175 of 2017 15 opposite parties failed to file written reply or evidence. Similar arguments have been advanced by the learned counsel for the parties as have been advanced in CC No.175 of 2017.
21. In view of the findings recorded in CC No.175 of 2017, this complaint (CC No.200 of 2017) is also allowed in same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹19,38,750/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses.
22. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.367 of 2017:
23. In this case also the complainant purchased the residential plot measuring 150 square yards at the rate of ₹12,000/- per square yard for a total sale consideration of ₹18,60,000/- against which he paid ₹20,95,000/-, vide receipts Ex.C-4 to Ex.C-8. Rest of the averments are same as made in CC No.175 of 2017. The complainant sought refund of the amount of ₹20,95,000/- along with interest, compensation and litigation expenses. Hence this complaint.
24. In the reply opposite parties took preliminary objections to the effect that the complainant is not a 'consumer' of the Society and no 'consumer dispute' has arisen in the present case. It is averred that Consumer Complaint No.175 of 2017 16 the Society aims to work for the welfare of its Members and among other things, wants to provide affordable housing to its members. In pursuance of its objectives, the Society has been trying to provide plots and flats for them and thus had initiated a scheme to purchase land and after developing it, provide houses and flats to its Members. Thereafter some members had applied for the said project. The society had provided terms and conditions including a time schedule to the members to make payments in instalments. The amount received from them was utilized to purchase land, carry out development works and to make statutory payments to GMADA etc. It is further averred that due to the earnest efforts of the society, it was able to purchase significant land holdings. After completion of the formalities and statutory requirements, the society was granted the licence of promoter. The CLU was also granted to the society by the competent authority. The other necessary approvals and the development licence were also granted to the Society. Thereafter the society has been carrying out the development work at the site, which has made significant progress. Subsequently allotment letters of plots had been issued to the eligible members and the Society had offered possession to the eligible members. However, the complainant failed to make the entire payment due and did not come forward to complete the other formalities like providing his residence proof, PAN card and signing other documents. It is further averred that the complainant had applied for the plot in question in order to later sell it and earn profit. However, due to slump in the housing market and due to the crash in prices, the complainant now does not wish to take the possession of the plot Consumer Complaint No.175 of 2017 17 applied for by him, after paying the balance amount due. The complainant being a speculator and having applied for the plot to earn profit, cannot be considered a 'consumer' and is thus, not entitled to any relief from this Commission. It is further averred that the complainant cannot claim refund at this stage as he never submitted any requisition for the refund from the Society and that the dispute, if any, is liable to be referred for arbitration in terms of the Arbitration and Conciliation Act, 1996. On merits, the purchase of the plot in question by the complainant and payment of the amounts in the manner stated in the complaint has been admitted. Denying all other averments made in the complaint a prayer for dismissal of the complaint was made.
25. In support of his case the complainant tendered in evidence affidavit of his Special Power of Attorney as Ex.C1/A and copy of Special Power of Attorney as Ex.C-A along with documents Ex.C-1 to Ex.C-11. On the other hand, opposite parties tendered in evidence affidavit of Mrs. Parminder Kaur wife of Shri Navjeet Singh as Ex.OPA along with documents Ex.OP-1 and Ex.OP-2.
26. Similar arguments have been advanced by the learned counsel for the parties as have been advanced in CC No.175 of 2017. In addition to this, learned counsel for the opposite parties has also argued on the similar lines as mentioned in the reply.
27. So far as the arbitration clause in the Memorandum of Society is concerned, this point has already been discussed exhaustively and decided by this Commission in M.A. No.1587 of 2015 in Consumer Complaint No.73 of 2015 (Jatinder Pal Singh & Anr. Vs. M/s Bee Consumer Complaint No.175 of 2017 18 Gee Builtech & Anr.) decided on 08.03.2017 and, after discussing various judgments of the Hon'ble Supreme Court and National Commission, it was held that the remedy, provided under Section 3 of C.P. Act is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer.
28. Recently also, the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as "Aftab Singh Versus EMAAR MGF Land Limited & Anr. held that an Arbitration Clause in the afore- stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Therefore, the aforesaid objection raised by the opposite parties in the present case is rejected.
29. In view of the findings recorded in CC No.175 of 2017, this complaint (CC No.367 of 2017) is also allowed in same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹20,95,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses.
30. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation Consumer Complaint No.175 of 2017 19 amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.374 of 2016:
31. In this case the complainant purchased the residential plot measuring 250 square yards at the rate of ₹10,500/- per square yard for a total sale consideration of ₹26,25,000/- against which she paid ₹15,10,000/-, vide receipts Ex.C-1, Ex.C-2, Ex.C-4 and Ex.C-5. Rest of the averments are almost similar as made in CC No.175 of 2017. The complainant sought refund of the amount of ₹15,10,000/- along with interest, compensation and litigation expenses. Hence this complaint.
32. In the reply opposite parties took preliminary objections to the effect that the core issue of refund of the money deposited by its member (like the complainant) with the society, the same has already been decided in favour of opposite parties by Principal Bench of this Commission in its order dated 3.8.2015 passed in FA No.147 of 2015 (Pankaj Mahajan v. The Sky Rock City) in which it has been observed that the persons like the complainant can ask for the refund of payment made to the Society along with 8% interest per annum, after the expiry of the period of three years from the date of requisition i.e. their written request made to the society in writing as per clause 4 of the terms and conditions which have been duly accepted and signed by its members. The complainant in the present case alleges that she has made the requisition i.e. written request dated 8.12.2014 for refund, Ex.C-8. However, she has failed to prove on record the same was duly received in the office of the opposite parties. Otherwise also if the Consumer Complaint No.175 of 2017 20 requisition letter dated 8.12.2014 is admitted to be made to the society, though otherwise it is denied, in that scenario also, the period of three years would expire on 7.12.2017. Hence before that date there is no cause of action arose to the complainant. Therefore, the present complaint is premature and is liable to be dismissed. It is further averred that as per clause 17 of the Memorandum of Society the dispute is to be referred to the Arbitrator under the Arbitration and Conciliation Act, 1996. There is no relation of customer and consumer within the parties and moreover, there is no relation of any service provided by the opposite parties. The motto of the Society is "No Profit No Loss". On merits, the purchase of the plot in question by the complainant and payment of the amounts in the manner stated in the complaint have been admitted. Denying all other averments made in the complaint a prayer for dismissal of the complaint was made.
33. In support of her case the complainant tendered in evidence her affidavit as Ex.CA and documents Ex.C-1 to Ex.C-8, Ex.C-11 to Ex.C16, Ex.C-16 (A) to Ex.C-16(E) and Ex.C-17 and Mark C-9 and Ex.C-10. On the other hand, opposite parties tendered in evidence affidavit of Mrs. Parminder Kaur wife of Shri Navjeet Singh as Ex.OPA along with documents Ex.OP-1 to Ex.OP-3.
34. Similar arguments have been advanced by the learned counsel for the parties as have been advanced in CC No.175 of 2017. In addition to this, learned counsel for the opposite parties has also argued on the similar lines as mentioned in the reply.
35. So far as the arbitration clause in the Memorandum of Society is concerned, this point has already been discussed exhaustively and Consumer Complaint No.175 of 2017 21 decided by this Commission in M.A. No.1587 of 2015 in Consumer Complaint No.73 of 2015 (Jatinder Pal Singh & Anr. Vs. M/s Bee Gee Builtech & Anr.) decided on 08.03.2017 and, after discussing various judgments of the Hon'ble Supreme Court and National Commission, it was held that the remedy, provided under Section 3 of C.P. Act is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer.
36. Recently also, the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as "Aftab Singh Versus EMAAR MGF Land Limited & Anr. held that an Arbitration Clause in the afore- stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Therefore, the aforesaid objection raised by the opposite parties in the present case is rejected.
37. So far as the plea of the opposite parties that the requisition for the refund was made on 8.12.2014, vide Ex.C-8, and as such, this complaint is premature as per clause (4) of the terms and conditions of the allotment is concerned, there is no merit in the same since the project is lying abandoned and there is no possibility of the development of the plot and delivery thereof in near future. The complainant cannot be made to wait for indefinite period for delivery of possession of the developed plot. Moreover, the Competent-Authority- Consumer Complaint No.175 of 2017 22 cum-Chief Administrator, Greater Mohali Area Devlopment Authority issued a Public Notice dated 2.3.2017, Ex.C-15, and cautioned the general public not to indulge in purchasing any plot/flat/commercial shop in any of the projects of M/s Sky Rock City Welfare Society. The same reads as under:-
"GMADA had issued license vide No.18/2014 to M/s Sky Rock City Welfare Society to set up a colony over an area of 25 acres of in Sectors 110-111, SAS Nagar. It has come to the notice of the Authority that the Promoter has cheated the general public by collecting crores of rupees from them in the name of booking plots/flats more than the number of plots/flats approved in the project. Apart from this, the Promoter is cheating general public by booking plots/flats by way of floating advertisements in various newspapers for its projects in Sector 116 and Sector 127, SAS Nagar and Mullanpur Garibdas, without getting approvals. The Authority vide Letter No.4440 dated 8.2.2017 has written to Senior Superintendent of Police, SAS Nagar for registration of case against the Promoter under Section 3(1)(2), 4, 5 (1) of Punjab Apartment and Property Regulation Act, 1995 and under Section 420 of Indian Penal Code for cheating general public by collecting money from them for booking flats/plots more than those available in its project located in Sectors 110-111, SAS Nagar and for booking plots in Sector 116 and Sector 127, SAS Nagar Consumer Complaint No.175 of 2017 23 and Mullanpur Garibdas without obtaining approval from Competent Authority. The office of M/s Sky Rock City Welfare Society located in Sectors 110-111 has also been sealed by GMADA.
The general public is hereby cautioned not to indulge in purchasing any plot/flat/commercial shop in any of the projects of M/s Sky Rock City Welfare Society. This office will not be responsible in any manner, if any, person purchases any property in the above mentioned projects."
Hence, in view of this, it does not lie in the mouth of the opposite parties to allege that the requisition for the refund of the amount was made by the complainant on 8.12.2014 and as per clause 4 of the terms and conditions the refund was to be made along with interest after the expiry of period of three years from the date of requisition and as such, this complaint is premature. There is no merit in this contention and the same is hereby rejected.
38. In view of our above findings and in view of the findings recorded in CC No.175 of 2017, this complaint (CC No.374 of 2016) is also allowed in same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹15,10,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses. Consumer Complaint No.175 of 2017 24
39. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.386 of 2017:
40. In this case the complainant purchased the residential plot measuring 300 square yards at the rate of ₹6,500/- per square yard for a total sale consideration of ₹19,50,000/- against which he paid ₹25,20,000/-, vide receipts Ex.C-1, Ex.C-3 to Ex.C-13. Rest of the averments are almost similar as made in CC No.175 of 2017. In this case also, the opposite parties failed to file written reply or evidence. Similar arguments have been advanced by the learned counsel for the parties as have been advanced in CC No.175 of 2017.
41. In view of the findings recorded in CC No.175 of 2017, this complaint (CC No.386 of 2017) is also allowed in same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹25,20,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses.
42. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.175 of 2017 25Consumer Complaint No.387 of 2017:
43. In this case also the complainant purchased the residential plot measuring 300 square yards at the rate of ₹6,500/- per square yard for a total sale consideration of ₹19,50,000/- against which he paid ₹25,15,000/-, vide receipts Ex.C-1, Ex.C-3 to Ex.C-11. Rest of the averments are almost similar as made in CC No.175 of 2017. In this case also, the opposite parties failed to file written reply or evidence. Similar arguments have been advanced by the learned counsel for the parties as have been advanced in CC No.175 of 2017.
44. In view of the findings recorded in CC No.175 of 2017, this complaint (CC No.387 of 2017) is also allowed in same terms and following directions are issued to the opposite parties:-
i) to refund the amount of ₹25,15,000/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA; and
ii) to pay ₹50,000/-, as compensation for mental harassment and agony suffered by the complainant including litigation expenses.
45. The opposite parties shall comply with the order within 30 days of the receipt of certified copy thereof, failing which the compensation amount of ₹50,000/- shall also carry interest at the rate of 12% from the date of this order till realization.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER November 14, 2017.
Bansal