State Consumer Disputes Redressal Commission
Ankit Sood vs M/S Mariners Buildcon India Ltd. on 20 July, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 368 of 2016
Date of institution : 28.11.2016
Date of decision : 20.07.2017
Ankit Sood S/o Sh. Dharam Prakash Sood, permanent resident of
VPO Pragpur, Tehsil Dehra, District Kangra, Himachal Pradesh -
177107, now residing at # 3088, F.F., Sector 40-D, Chandigarh-
160036 through SPA holder Dr. Mrs. Anoop Bedi W/o Ankit Sood
R/o # 3088, F.F., Sector 40-D, Chandigarh-160036
....Complainant
Versus
1. M/s Mariners Buildcon India Ltd. through its Managing
Director Capt. H.S. Anand @ Capt. Harjot Singh Anand, 717-718,
7th Floor, International Trade Tower, Nehru Place, New Delhi -
110019
2. M/s Mohali Oceanic Buildwell Pvt. Ltd. Through its Director
Capt. H.S. Anand @ Capt. Harjot Singh Anand, C/10, Ground
Floor, Kailash Colony, New Delhi-110048
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member.
Present:-
For the complainant : Sh. Gunjan Rishi, Advocate
For the opposite parties: Ex.-parte.
Consumer Complaint No. 368 of 2016 2
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The complainant has filed this complaint under Section 17 of the Consumer Protection Act, 1986 (for short the Act) against the opposite parties (hereinafter referred as Ops) on the averments that the complainant belongs to Merchant Navy i.e. Mariners wanted to buy a luxury residential villa for himself and his family in the vicinity of Chandigarh alongwith other mariners. He approached the Ops, who made the complainant to believe that its Director is Ex-Mariner and Ops are one of the leading construction company. Trusting the Ops Sh. H.S. Anand and its proposed project 'Mohali Oceanic' and email dated 25.8.2010, stating that 'during the course of due diligence and the feasibility that was being conducted by us, GMADA extended the master plan and opened up new sectors with much better prospects and better connectivity and proximity with Chandigarh (a point of contention with many enrolled members). We have thus joined hands with M/s Bajwa Developers Private Ltd. (of Sunny Enclave) for providing us with the gated community of 25 acres in Sector 123, Mohali.' It was further stated that agreement for land has been entered into between Ops and M/s Bajwa Developers Ltd. for procuring land in Sector 123, Mohali. The project shall be completed by December, 2012. Ops also hold numerous conferences having media coverage, who have an independent expendable villas of 330 sq. ft. with a built up area of 1850 sq. ft. Accordingly, the complainant booked a villa through application form alongwith payment of Rs. 50,000/- as provisional Consumer Complaint No. 368 of 2016 3 registration application amount vide cheque No. 032253 dated 16.1.2010. Ops demanded payment of Rs. 4,50,000/- vide letter dated 6.5.2010 but the payment plan was never intimated to him. The complainant made this payment vide cheque No. 032254 dated 15.5.2010. Then complainant received another email with regard to payment of next installment due on 1.1.2011 and complainant will be required to pay 33% of the EDC/IDC. Lateron complainant came to know about MOU dated 26.5.2010 and agreement to sell dated 19.1.2011 entered into between Ops and M/s Bajwa Developers @ Rs. 11,200/- per sq. yard inclusive of EDC/IDC. The complainant made further payments i.e. payment of Rs. 7 Lac vide cheque No. 186232 dated 1.1.2011 of Rs. 5 Lac and cheque No. 186233 dated 15.1.2011 of Rs. 2 Lac. Then another payment of Rs. 7 lac was made vide cheque No. 186238 & 186239 dated 25.7.2012 of Rs. 4 Lac and Rs. 3 Lac. Another payment of Rs. 5 Lac was made vide cheque No. 186245 dated 25.9.2013. Ops after a long lull, again wrote an email dated 22.12.2011 apologizing for their delay in communicating and believing M/s Bajwa Developers Ltd. They also disclosed that the project has been reduced to 17 acres from 25 acres as promised earlier. Then Op No. 1 sent confirmation letter for allotment vide email dated 14.6.2013 stating its price as Rs. 53 Lac. Complainant received another email dated 20.1.2014 that they will receive the approved layout plan from M/s Bajwa Developers but it turned out to be a dilatory tactics. He received another email dated 26.3.2014 with regard to Bhumi Pujan in April/May, 2014 but lateron there was no Consumer Complaint No. 368 of 2016 4 communication from the Ops. Complainant realized that his dream to have a house in the vicinity of Chandigarh is far from being realized. Ops indulged in an act of unfair trade practice and gross deficiency in service. The dispute between Ops and M/s Bajwa Developers was referred for arbitration before the Hon'ble Chief Justice (Retd.) N.K. Sodhi, who vide order dated 21.9.2012 in Arbitration Case No. 91 of 2012, the claim petition of Ops was rejected. Then the complainant wrote an email dated 26.10.2016 to the Ops seeking refund because Ops now have no right in the land of the project. Handing over of residential villas without the land is impossible. Accordingly, the complaint has been filed before this Commission seeking directions to the Ops to refund a sum of Rs. 24 Lacs, pay an interest @ 18% from the date of payment till the filing of the present complaint, pay Rs. 5 Lacs as compensation and litigation expenses.
2. Notice of the complaint was issued to the Ops. A report was received that Ops left the address then they were ordered to be served through substituted service in publication in "Daily Tribune". Notice of publication was published in Daily Tribune dated 8.2.2017 but none appeared on behalf of the Ops, therefore, they were proceeded ex-parte.
3. In the ex-parte evidence, the complainant tendered affidavit of Dr. Mrs. Anoop Bedi as Ex. CW-1/A and documents Exs. C-1 to C-32.
Consumer Complaint No. 368 of 2016 5
4. We have heard the learned counsel for the complainant Sh. Gunjan Rishi, Advocate and have gone through the averments made in the complaint, evidence and documents on the record.
5. Apart from the complainant through his GPA/SPA i.e. Anoop Bedi, who tendered the affidavit Ex. CW-1/A and also tendered the email dated 25.8.2010 Ex. C-1 giving the features of the project, email scanned coverage of Mariners Buildcon Ex. C-2, features of the project Ex. C-3, advertisement given in paper with regard to Mohali Oceanic Ex. C-4, receipt regarding deposit of Rs. 50,000/- Ex. C-5, copy of cheque Ex. C-6, payment of first installment Ex. C-7, copy of cheque vide which a sum of Rs. 4,50,000/- was paid Ex. C-9 and its receipt Ex. C-10, another letter dated 13.12.2010 vide which a sum of Rs. 7 Lac was demanded Ex. C-14, a sum of Rs. 5 Lac was paid vide receipt dt. 11.1.2011 Ex. C-15 and Rs. 2 Lac vide receipt dated 19.1.2011 Ex. C-16, copies of the cheques Ex. C-17. Vide letter dated 4.7.2011 (Ex. C-
18) another installment of Rs. 7 Lacs was demanded, which was paid vide cheque dated 25.7.2012 of Rs. 4 Lac Ex. C-19, cheque of Rs. 3 Lac dated 25.7.2012 Ex. C-20 and its receipt was issued by Ops on 10.9.2012 Ex. C-21. Vide letter Ex. C-22 another amount of Rs. 5 Lacs vide cheque dated 25.9.2013 Ex. C-23 was paid. Ex. C- 24 is the copy of the passbook of Punjab National Bank from where cheques were issued. Ops had an agreement with Bajwa Developers (Ex. C-12), who had promised to give 25 acres land for development of the project. Vide letter dated 22.12.2011 Ex. C-25, it was intimated that now project will be in an area of 17 acres Consumer Complaint No. 368 of 2016 6 instead of 25 acres. Vide letter dated 14.7.2013 Ex. C-26, confirmation of allotment was issued for 300 sq. yard extendable villa with construction area 1850 sq. ft. with BSP of Rs. 53 Lac. Vide letter Ex. C-27, it was intimated that they are waiting for final layout plan from the Government. Vide email dated 26.3.2014 Ex. C-28, it was intimated that Bhumi Pujan will be held on 15th April, 2014. Vide order dated 21.9.2012 Ex. C-29, the matter was referred to the Arbitrator before Hon'ble Justice N.K. Sodhi, Former Chief Justice and vide award Ex. C-30 claim of the Ops was rejected. Ex. C-31 is the email dated 26.10.2016 vide which refund was sought. Ex. C-32 is the copy of the Special Power of Attorney. It is apparent from above referred evidence that before floating the scheme, Ops did not have a land and requisite approvals from the Government. It is against the provisions of PAPRA, for which a reference can be given to Section 4 of the PAPRA, which reads as under:-
4. Issuing of advertisement of prospectus. - (1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under sub-
section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and Consumer Complaint No. 368 of 2016 7
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.
(2) The advertisement or prospectus issued under sub- section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of the advertisement or prospectus, if the promoter is a company;
Consumer Complaint No. 368 of 2016 8Provided, however, that such person shall not be liable if he proves that,-
(a) he withdraw his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor."
6. According to which, Ops are not competent to issue any advertisement till they owned the property and have the necessary licences and other certificates. Since Ops did not have any required land or other sanctions as required under the PAPRA, therefore, without land, the project could not be developed. Ultimately, vide email dated 26.10.2016, the complainant had sought refund of the amount deposited with Ops alongwith interest. Ops did not appear to contradict the version given by the complainant. Whether the complainant is entitled to refund? In this regard, counsel for the complainant has referred to the judgment III (2007) CPJ 7 (NC) "Kamal Sood versus DLF Universal Ltd." and in para No. 24 of the judgment, it has been mentioned that it was the duty of the DLF to plan in advance, obtain necessary Consumer Complaint No. 368 of 2016 9 permission and thereafter promise to deliver the possession of the flat/apartment within the stipulated time. It was further observed that delay in obtaining the permission would hardly be a ground for directing the consumer to suffer. He also referred to another judgment I(2009) CPJ 136 (NC) "Prasad Homes Private Limited versus E. Mahender Reddy & Ors." In that case, approved layout plan was not supplied. No development work was carried at the site. Payment of further instalment was stopped by the complainant. It was observed that developer cannot be allowed to take shelter under agreement clause to usurp money deposited. Agreement clause heavily loaded in favour of builder and against purchasers. Such agreement clearly amounts to unfair trade practice. State Commission ordered refund alongwith interest and revision petition before the Hon'ble National Commission was dismissed. He has also referred to Consumer Complaint No. 225 of 2014 "Sh. Kesar Singh versus M/s Bajwa Developers Ltd. & Anr." decided by the Hon'ble Principal Bench on 23.2.2016 in para No. 7 of the order, it was observed that evidence produced on the record by Ops proves that they never got approved the project and without getting approval of the project, they collected the amount/money from the complainant and others. It amounts to unfair trade practice on the part of Ops. He has also referred to Consumer Complaint No. 33 of 2014 "Smt. Anju Mittal versus M/s Bajwa Developers Ltd." decided by this Bench on 1.4.2015. In that case also Ops called application without getting the project approved and after that he had written to the Chief Town Planner for approval of the Consumer Complaint No. 368 of 2016 10 layout plan. He had not placed any CLU from GMADA, NOC from Punjab State Pollution Control Board as required under Section 32 or in the alternative no exemption certificate under Section 44 of the PAPRA Act.
7. Similar complaint has already been allowed by this Commission i.e. Consumer Complaint No. 247 of 2015 "Gurinder Singh versus M/s Mariners Buildcon India Ltd. & Ors.", decided on 2.8.2016. Seeing no rebuttal of the contentions as raised by the counsel for the complainant and that it being a covered matter, we allow the complaint and direct the Ops as under:-
(i) refund a sum of Rs. 24 lacs alongwith interest @ 11% from the date of deposit till payment;
(ii) pay Rs. 1 lac on account of unfair trade practice and deficiency in service to receive the payment and launch the project without proper approvals from the competent authority i.e. CLU from the PUDA and Town and Gram Planning Department, Punjab or licence from the GMADA, layout plans or other certificates as provided under the PAPRA; and
(iii) Rs. 21,000/- as litigation expenses.
8. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
9. Order be communicated the parties as per rules.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
July 20, 2017. (GURCHARAN SINGH SARAN)
as JUDICIAL MEMBER
Consumer Complaint No. 368 of 2016 11