State Consumer Disputes Redressal Commission
Amandeep Kaur vs Unitech Ltd. on 12 January, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. Consumer Complaint No.198 of 2015
Date of institution : 10.08.2015
Date of decision : 12.01.2017
Amandeep Kaur wife of late Sh. Gurpal Singh, resident of Flat No.D-2,
Faculty Homes, Baba Banda Singh Bahadur Engg. College, Fatehgarh
Sahib.
....Complainant
Versus
1. Unitech Limited, Regd. Office 6, Community Centre, Saket, New
Delhi-110017, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing Office at SCO
189-90-91, Sector 17, Chandigarh, through its Authorized Officer.
....Opposite Parties
2. Consumer Complaint No.116 of 2015
Date of institution : 27.05.2015
Date of decision : 12.01.2017
Paramjit Singh Bindra S/o Pritam Singh Bindra, R/o 191, N. Herman -
Ave, Bethplace, New York-11714, USA, through his special power of
attorney holder Sohanjit Singh s/o late Sh. Gurcharan Singh, R/o
H.No.1915, Phase-V, S.A.S. Nagar, Mohali.
....Complainant
Versus
Unitech Limited;
Registered Office: 6, Community Centre, Saket, New Delhi-110017,
through its Managing Director;
Marketing Office:SCO 189-190-191, Level-1, Sector 17-C, Chandigarh,
through its Manager.
....Opposite Party
3. Consumer Complaint No.276 of 2015
Date of institution : 19.10.2015
Date of decision : 12.01.2017
Parshotam Dass Singla S/o Sh. Janki Dass, r/o H.No.253, Ward No.8,
Part 2, Samana, Distt. Patiala.
....Complainant
Versus
Consumer Complaint No.198 of 2015 2
1. Unitech Limited, Sector 107, Mohali, through its Managing
Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh,
through its Managing Director/Authorized Signatory.
3. Alice Developers Private Limited, having its office at Basement, 6
Community Centre, Saket, New Delhi-110017, through its
Managing Director/Authorized Signatory.
....Opposite Parties
4. Consumer Complaint No.277 of 2015
Date of institution : 19.10.2015
Date of decision : 12.01.2017
Rajesh Kumar Singla, r/o 486/9, Mahavir Street, near Aggarwal
Hospital, Samana.
....Complainant
Versus
1. Unitech Limited, Sector 107, Mohali, through its Managing
Director/Authorized Signatory.
2. Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh,
through its Managing Director/Authorized Signatory.
3. Alice Developers Private Limited, having its office at Basement, 6
Community Centre, Saket, New Delhi-110017, through its
Managing Director/Authorized Signatory.
....Opposite Parties
5. Consumer Complaint No.264 of 2016
Date of institution : 23.08.2016
Date of decision : 12.01.2017
1. Mohit Dhiman son of Sh. Mohinder Kumar Dhiman R/o Village
Garlahar, Post Office Kathog, Tehsil Jawalamukhi, Distt.
Kangara, H.P., through his GPA namely Sh. Mohinder Kumar
Dhiman.
2. Seema Dhiman wife of Mohit Dhiman, R/o Village Garlhar, PO
Kathog, Tehsil Jawalamukhi, Distt. Kangara, H.P., through her
GPA Sh. Mohinder Kumar Dhiman.
....Complainants
Versus
1. Unitech, Uniworld City Garden, Sector 97, Mohali, through its
Managing Director Sh. Avtar Singh.
Consumer Complaint No.198 of 2015 3
2. Unitech, Regd. Office 6, Community Center, Saket, New Delhi,
through its Chairman Sh. Ramesh Chandra.
3. Unitech Limited, SCO 189-90-91, Sector 17-C, Chandigarh,
through its Director.
4. Alice Developers Pvt. Ltd., Registered 6, Community Center,
Saket, New Delhi.
....Opposite Parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the complainant : Shri R.S. Jhand, Advocate For the opposite parties : Ms. Vertika H. Singh, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The above referred Consumer Complaints are being decided by this common order, as common questions of law and facts are involved in all the complaints. The facts are taken from Consumer Complaint No.198 of 2015.
2. The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act").
3. The relevant brief facts as averred in the complaint are that opposite parties launched a Project in the name of Uniworld City, Mohali for providing built-up flats, floors and plots, after developing the area, along with basic amenities and other facilities, as per the brochure issued by them and that Project was widely advertised. Believing those claims the complainant purchased one residential flat in his name, vide Customer Code: GFM0096(3 Bedroom), Executive Floors, Plot No.0070, Block-D, measuring approximately 300 sq.mts., Consumer Complaint No.198 of 2015 4 for a consideration of Rs.50,06,995/-. The allotment letter containing the terms and conditions was issued to her on 26.05.2011 and thereafter the Agreement was signed on 08.07.2011.
4. The amenities and facilities were to be provided by all the opposite parties as per their promise and were to provide direct road from Chandigarh to Mohali, along with the latest facilities provided by the Government in Mega Housing Projects. At the time of booking she was assured by the officials of the opposite parties that the roads, streetlights, electricity, sewerage connection and other facilities were in process and would be provided within few months before the completion of the building. She was also promised a Club House, for which the charges were levied upon her. All the facilities were promised to be provided at the most in 12 months from the date of Agreement. The complainant paid all the instalments to the opposite parties till date as demanded by the opposite parties and a total amount of Rs.30,41,935/- has been paid.
5. The opposite parties failed to offer the possession of the flat after the lapse of 3 years from the date of agreement. The construction/development at the site has been totally stopped for the last more than six months. The complainant visited the opposite parties to know the status of the project, but no satisfactory reply was given. The act and conduct of the opposite parties amount to deficiency in service and unfair trade practice. The complainant has thus prayed that the opposite parties be directed to refund the amount of Rs.30,41,935/- along with interest at the rate of 18% per annum and Consumer Complaint No.198 of 2015 5 to pay Rs.10,00,000/-, as compensation and Rs.50,000/-, as litigation charges.
6. The complaint was contested by the opposite parties, who filed joint written reply, in which they did not dispute that the complainant purchased the residential Executive Floor, plot from them for a consideration of Rs.50,06,995/- and that Allotment Letter dated 26.05.2011 containing the terms and conditions was issued to her and later on Agreement dated 08.07.2011 was executed. They also did not dispute that the amounts were deposited with them by the complainant and that the possession of the floor/flat has not been handed over to her.
7. On merits, it was pleaded that the period of 12 months mentioned in the Agreement was the tentative time period for the delivery of possession and was subject to force majeure circumstances. No date was ever committed by them for the delivery of possession of the Flat. The Company could not hand over the possession due to reasons of Global meltdown of the economy worldwide wherein the foreign investors, as anticipated by them, refrained from any kind of investment in India and there was a total cash crunch throughout. They are facing extreme financial hardship due to recession in the reality market and all those circumstances were beyond their control. They are also facing problems with regard to providing electricity in the said area as P.S.P.C.L. (in short, "Power Corporation") has been raising objections on one pretext or the other. They were to provide electricity Sub Station of 66 KV. Consumer Complaint No.198 of 2015 6
8. On account of the possession of some of the flats and plots already given by them, they made a request to the Power Corporation to provide at least 1 MW connection to the Project in the year 2010 but it kept on raising objections regarding the compliance of various formalities and those were duly complied with by the Company. It further imposed the condition of Bank guarantee for providing of 1 MW connection, vide its letters dated 19.12.2014 and 02.03.2015. On account of the non-providing of that connection the rest of the development work and the amenities have been delayed. They are dependent on Power Corporation for the supply of electricity and other amenities in the Project. Despite all the odd conditions they are making every endeavour to complete the development work at the site and are making sincere efforts to hand over the possession of the flat to the complainant. The construction work is in full swing and the possession shall be shortly handed over to her.
9. As per clause 4(c) of the Agreement, they have made themselves liable to pay charges at the rate of Rs.5/- per square foot per month of the saleable area of the floor/flat for the period of delay in offering the possession beyond the period of 36 months but the payment of those charges are subject to any reason beyond their control and those are to be adjusted at the time of issuance of final notice of possession. The complainant is merely an investor, who had invested in the flat for resale purposes. She could not resell the said property due to slump in the real estate market and, as such, she has frivolously sought this legal remedy before this Commission. As she had purchased the said flat for commercial purposes, so she does not Consumer Complaint No.198 of 2015 7 fall within the ambit of the definition of the 'consumer' as per the Act. No cause of action has accrued to her to file the complaint and the same is not maintainable under the provisions of the Act. No deficiency in service can be attributed to them, as throughout they discharged all their services to the complainant in a bona fide manner. They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 08.07.2011 was executed at New Delhi and the demand for the payment had been raised from their Gurgaon Office, which has not been impleaded as a party. Even the payments were made by the complainant through cheques; which were payable at New Delhi and were deposited in their Bank account at that place itself. The facts, as narrated in the complaint, do not constitute "consumer dispute' as defined in Section 2(1) (e) of the Act. The complainant is seeking relief, which is not covered under the definition of "consumer dispute". They raised issues relating to contractual matter arising out of the terms and conditions of the Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. The opposite parties prayed for the dismissal of the complaint with heavy costs.
10. To substantiate her claim, the complainant tendered in evidence her affidavit Ex.C-A along with documents Ex.C-1 to Ex.C-18. On the other hand, the opposite parties tendered affidavit of Sh. Lalit Gupta, Authorized Representative Ex.OP-A and documents Ex.OP-1 and Ex.OP-2.
11. We have heard learned counsel for the parties and have perused the record carefully.
Consumer Complaint No.198 of 2015 8
12. Learned counsel for the complainant contended that all the allegations made in the complaint stand proved from the affidavit of the complainant and the documents proved on the record and some of those allegations also stand proved from the admissions made by the opposite parties. It is proved on the record that the complainant agreed to purchase the flat from the opposite parties regarding which allotment letter dated 26.05.2011, Ex.C-2, was issued in her favour and thereafter Agreement dated 08.08.2011, Ex.C-3, was executed. The total price of the flat was Rs.50,06,995/- and she paid all the instalments, along with taxes and interest in time and in all paid Rs.30,41,935/-. These facts have not been disputed by the opposite parties. After having paid the instalments, as per the Payment Plan, she became entitled to the possession of the flat; which was to be delivered within 12 months of the date of the execution of the Agreement and that period expired on 08.08.2012. Even after that the complainant waited for about more than one year but the possession of the flat was not delivered and she was compelled to file the complaint. She noticed that the construction work had been stopped at the site by the opposite parties. In view of the terms and conditions of the Agreement she is entitled to the possession of the complete flat with all the facilities immediately and a direction is required to be issued to that effect to the opposite parties. For the delay in delivering the possessions he is entitled to the penalty as stipulated by Section 4(c) of the Agreement. By not delivering the possession of the Flat by the agreed date the opposite parties committed deficiency in service, as a result of which the complainant suffered harassment and mental Consumer Complaint No.198 of 2015 9 agony; as for all this time she was hoping to have his own floor/flat. On that account she is entitled to compensation as claimed in the complaint.
13. On the other hand, it was contended by the learned counsel for the opposite parties that the period of 12 months as mentioned in the Agreement was the tentative period and that period was subject to force majeure circumstances and other circumstances beyond the control of the opposite parties. From the evidence produced by them, it stands proved that the completion of the Project was delayed on account of the non-providing of additional connection of 1 MW by the Power Corporation though strenuous efforts were made by them to get such a connection for completing the Project. When such is the position, it cannot be said that the opposite parties committed any deficiency in service by not delivering the possession of the flat to the complainant. They were liable to pay the penalty, as stipulated by the Agreement, in case there were no such circumstances beyond their control. The complainant is not entitled to any interest on the amount deposited by her, as there was no such stipulation in the Agreement. The opposite parties cannot be penalized twice by imposing the penalty stipulated in the Agreement and by issuing direction to pay the interest on the deposited amounts. Learned counsel for the opposite parties further contended that the opposite parties are making every effort to complete the Project and immediately after the completion thereof the possession of the flat shall be delivered to the complainant. She prayed for the dismissal of the complaint.
Consumer Complaint No.198 of 2015 10
14. We have given a thoughtful consideration to the contentions raised by the learned counsel for the parties.
15. At the outset, it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:
i) Consumer Complaint No.122 of 2015 (Sh. Puneet Chugh Vs. Unitech Limited & Ors), decided on 12.09.2016; and
ii) Consumer Complaint No.233 of 2015 (Naresh Kumar Vs. Unitech Limited & Ors), decided on 08.09.2016.
The matter in the present complaints is squarely covered by the orders passed in above said complaints, so we intend to decide the present complaints in view of orders passed in above said complaints.
16. It is the admitted case of the parties that after the allotment letter dated 26.05.2011 Ex.C-2 was issued to the complainant the Agreement dated 08.07.2011 Ex.C-3 was executed between the parties. The Payment Plan is annexed with that Agreement and a perusal thereof shows that it was Construction Linked Payment Plan. For proving that the payments were made as per that Schedule, the complainants proved on record the receipts Ex.C-4 to Ex.C-16. However, at the time of arguments it was not disputed by their counsel that the complainant paid an amount of Rs.30,41,935/- to the opposite parties. As per clause 4(a) of the Agreement Ex.C-3, the possession of the flat was to be offered by the opposite parties within 12 months of the signing of the Agreement. The same was signed on 08.07.2011 and, as such, the possession of the Flat was to be delivered to him on or before 08.07.2012. It is a fact that it is mentioned in the said clause Consumer Complaint No.198 of 2015 11 itself that the delivery of possession of the flat within that period was subject to force majeure circumstances and the opposite parties have tried to take the benefit of that proviso. The question arises, whether they have been able to prove on the record that the non-delivery of possession of the flat to the complainant within the period of 12 months was on account of force majeure circumstances or circumstances beyond their control?
17. The word "force majeure" has been defined in Concise Law Dictionary by P. Ramanatha Aiyar as "irresistible force or compulsion; circumstance beyond one's control". It was held by the Hon'ble Apex Court in AIR 1961 SC 1285 (M/s Dhanrajamal Gobindram v. M/s Shamji Kalidas and Co.) that force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control.
18. To take refuge under the force majeure circumstances, it was incumbent on the part of the opposite parties to prove that the alleged circumstances were beyond their control. There may be worldwide recession and crunch in the real estate business, but the opposite parties were bound to fulfil their commitment under the Agreement for developing the Project and delivering the possession of the flat to the complainant within the agreed time. These were the circumstances, which could have been foreseen and should have been kept in mind while agreeing upon the terms and conditions so mentioned in the Agreement. If these are to be taken as an excuse to wriggle out of the condition so imposed in the Agreement, then in every Consumer Complaint No.198 of 2015 12 case such a plea would be taken as an excuse for not performing their part of the contract, by the Developers.
19. The other such circumstance, which has been argued before us and which has been so mentioned in the written reply of the opposite parties, is that they had applied for additional connection of 1 MW to the Power Corporation in the year 2010 but it failed to provide the same; which resulted in the delay in the completion of the Project. It stands proved from the documentary evidence produced by the opposite parties and which consists of the letter dated 9.9.2011 Ex.OP- 2 that they did apply to the Power Corporation for the release of 1 MW connection on 28.9.2010 and the same was not provided and they had been repeatedly writing to the Power Corporation for the release thereof. It may be so, but the question to be determined is, whether the non-completion of the Project was on account of the non-supply of that connection of 1 MW? Lalit Gupta, Authorized Representative of the opposite parties made a detailed deposition in his affidavit Ex.OP-A regarding the applying of that connection to the Power Corporation and the non-providing thereof by the Power Corporation on one pretext or the other and that period of 5 years has already consumed for obtaining that additional connection. He also deposed in that affidavit that on account of the non-availability of that electricity the rest of the development work and amenities have been delayed, as they were dependent upon the Power Corporation for the supply of that electricity and further amenities in the project. He also deposed in that affidavit that every endeavour is being made to complete the development work Consumer Complaint No.198 of 2015 13 at the site and sincere efforts are being made for handing over the possession of the flat to the complainant.
20. It is not the case of the opposite parties that they could not start with the Project on account of the non-providing of electric connection by the Power Corporation and according to them, the rest of the development work has been delayed. This Lalit Gupta is not a technical person to make a statement that on account of the non- supply of electric connection the development of the Project was delayed. Such a fact could have been proved only by a technical person, who was also required to disclose as to how such electricity was required for the construction work and that there was no other alternative with the opposite parties to complete the construction. Such a circumstance cannot be said to be force majeure circumstance or a circumstance beyond the control of the opposite parties.
21. It would be apposite to refer to the relevant provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), which are as follows:
3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section. (2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the Consumer Complaint No.198 of 2015 14 transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-
fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to Consumer Complaint No.198 of 2015 15 be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or 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
(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 Consumer Complaint No.198 of 2015 16 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 :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew 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. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true.
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony. (2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other Consumer Complaint No.198 of 2015 17 matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee.
(5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force.
(8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit.
(9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be Consumer Complaint No.198 of 2015 18 prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution.
(11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority. (12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue. (14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them.
(16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to Consumer Complaint No.198 of 2015 19 the promoter.
6. Contents of Agreement of Sale:-
(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause
(b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause
(c),-
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and Consumer Complaint No.198 of 2015 20 facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is
intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be
handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended
and restriction on its use, if any;
(c) the copies of documents to be attached with the
agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be Consumer Complaint No.198 of 2015 21 liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
21. Then "Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 , it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.
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 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."
Consumer Complaint No.198 of 2015 22
22. 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. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement. Thus, the delay in not delivering the possession of the flat within the agreed period of 12 months amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.
23. The complainant deposed in her affidavit Ex.C-A that at present the construction/development of the Project is totally stopped without any reason and whenever she tried to know the status of the construction/development of the Project, every time the opposite parties and their officials made excuses on one pretext or the other. She also deposed that when she visited the site and made those enquiries from the officials, they failed to give any satisfactory reply regarding the stoppage of the development/work and there is no sign of basic amenities. She also deposed that the construction/development of the project has been stopped by the opposite parties intentionally, which shows their mala fide intention.
24. To rebut this evidence of the complainant, Lalit Gupta deposed in his affidavit Ex.OP-A that the construction work at the site is in full swing and he is making diligent and sincere efforts to complete the construction work and hand over the Flat to the complainant. Consumer Complaint No.198 of 2015 23 There is no corroborative evidence in support of that deposition. The opposite parties could have produced the recent photographs of the site or could have moved the application for appointment of Local Commissioner for proving all those facts but have failed to do so. In the absence of such corroborative evidence it cannot be held that the deposition made by the complainant in his affidavit Ex.C-A stands rebutted by the affidavit of Lalit Gupta. It stands proved that the construction work has been totally stopped by the opposite parties and there is no possibility of the delivery of possession of the flat to the complainant in near future.
25. 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 complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the unit 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 construction 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 complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There Consumer Complaint No.198 of 2015 24 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 unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint and the reply of the opposite parties, 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 unit, 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 paid by the complainant is a deposit held by the opposite party in trust of complainant and it should be used for the purpose of building the 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 she is also entitled to the Consumer Complaint No.198 of 2015 25 compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite parties in shattering her hope of getting the floor/flat by waiting for all this period. In these circumstances, the complainant deserves suitable compensation, which we quantify in a lumpsum as Rs.3,00,000/-.
26. Accordingly the complaint is allowed partly and following directions are issued to the opposite parties:-
i) to refund the amount of Rs.30,41,935/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of payment;
ii) to pay Rs.3,00,000/-, as compensation for the harassment and mental agony suffered by the complainant; and
iii) to pay Rs.20,000/-, as costs of litigation.
Consumer Complaint No.116 of 2015
27. In Consumer Complaint No.116 of 2015, the complainant was allotted Flat No.0076 in Block-D, Executive Floors, Uniworld City, Sector 97, Mohali having plot area of 300 sq.mts. (approx. 358 sy.yds.) and saleable area was 166.85 sq.mts., vide allotment letter dated 04.07.2008 Ex.C-2. Total sale price of the flat was Rs.58,59,300/-. As per the version of the complainant, he paid total amount of Rs.57,62,975/- as per Customer Ledger Ex.C-4 and prayed for the refund of said amount with interest and compensation. Consumer Complaint No.198 of 2015 26
28. The opposite party took the same defence as taken by them in Consumer Complaint No.198 of 2015, but they disputed the amount deposited by the complainant. It pleaded in the written reply that the complainant paid total amount of Rs.56,48,324/-, which includes Rs.5,98,850/- on account of CMRC, service tax and interest on delayed payments (Rs.60,000/- CMRC + Rs.77,910/- Service Tax + Rs.4,60,940/- interest on delayed payments) as per account Statement Ex.OP-3.
29. The complainant, in support of the fact that he deposited total amount of Rs.57,62,975/-, is relying upon the Customer Ledger Ex.C-4 which is the document of the opposite party-Unitech Limited. The opposite party is also relying upon Customer Leger Ex.OP-3, but has not produced any supportive document in support of Ex.OP-3 that the complainant deposited only Rs.56,48,324/-.
30. In view of the discussion held in Consumer Complaint No.198 of 2015 (Amandeep Kaur Vs. Unitech Limited & Anr.), the Consumer Complaint No.116 of 2015 (Paramjit Singh Bindra Vs. Unitech Limited) is allowed and following directions are issued to the opposite party:
i) to refund the amount of Rs.57,62,975/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of payment;
ii) to pay Rs.5,00,000/-, as compensation for the harassment and mental agony suffered by the complainant;
and
iii) to pay Rs.20,000/-, as costs of litigation.
Consumer Complaint No.198 of 2015 27Consumer Complaint No.276 of 2015
31. In Consumer Complaint No.276 of 2015, the complainant was allotted Flat No.0604 in Block-A1 at Gardens Sector 97, Mohali measuring 1485 sq.ft., vide allotment letter dated 01.12.2010 Ex.C-1. Total sale price of the flat was Rs.37,74,150/-. The complainant prayed for refund of Rs.37,46,709/- along with interest and compensation.
32. The opposite parties took the same defence as taken by them in Consumer Complaint No.198 of 2015, but they disputed the amount deposited by the complainant. They pleaded in the written reply that the complainant paid total amount of Rs.29,00,061/- and Rs.51,508/- is still pending against the complainant.
33. Except the averment in the written reply regarding deposit of Rs.29,00,061/-, the opposite parties have not produced any document to prove their defence, whereas the complainant has relied upon the Customer Ledger Ex.C-5, which was issued by the opposite parties itself to prove that he deposited Rs.34,51,109/-. The complainant in para No.5 of the complaint specifically pleaded that the opposite parties did not adjust cheque of Rs.2,95,600/- in principal amount. Hence, thus amount of Rs.2,95,600/- is also to added to the above amount and total amount deposited by the complainant comes Rs.37,46,709/-.
34. In view of the discussion held in Consumer Complaint No.198 of 2015 (Amandeep Kaur Vs. Unitech Limited & Anr.), the Consumer Complaint No.276 of 2015 (Parshottam Dass Singla Vs. Unitech Limited & Anr.) is allowed and following directions are issued to the opposite parties:
Consumer Complaint No.198 of 2015 28
i) to refund the amount of Rs.37,46,709/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of payment;
ii) to pay Rs.3,00,000/-, as compensation for the harassment and mental agony suffered by the complainant; and
iii) to pay Rs.20,000/-, as costs of litigation.
Consumer Complaint No.277 of 2015
35. In Consumer Complaint No.277 of 2015, the complainant was allotted Flat No.0503 in Block-A2 at Gardens Sector 97, Mohali measuring 1485 sq.ft., vide allotment letter dated 07.06.2011 Ex.C-1. Total sale price of the flat was Rs.38,48,400/-. The complainant prayed for refund of Rs.39,34,086/- along with interest and compensation.
36. The opposite parties took the same defence as taken by them in Consumer Complaint No.198 of 2015, but they disputed the amount deposited by the complainant. They pleaded in the written reply that the complainant paid total amount of Rs.30,33,653/- and Rs.13,848/- is still pending against the complainant.
37. The opposite parties in support of pleading that the complainant paid only Rs.30,33,653/- and Rs.13,848/- is still pending against the complainant, has not produced any supporting document, whereas the complainant has produced Customer Ledger Ex.C-5, which is the document of the opposite parties itself, vide which he deposited Rs.39,34,086/- with the opposite parties.
38. In view of the discussion held in Consumer Complaint No.198 of 2015 (Amandeep Kaur Vs. Unitech Limited & Anr.), the Consumer Complaint No.277 of 2015 (Rajesh Kumar Singla Vs. Consumer Complaint No.198 of 2015 29 Unitech Limited & Anr.) is allowed and following directions are issued to the opposite parties:
i) to refund the amount of Rs.39,34,086/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of payment;
ii) to pay Rs.3,00,000/-, as compensation for the harassment and mental agony suffered by the complainant;
and
iii) to pay Rs.20,000/-, as costs of litigation.
Consumer Complaint No.264 of 2016
39. In Consumer Complaint No.264 of 2016, the complainants were allotted Unit No.0503, Block-B-4, Floor 5, Gardens Sector 97, Mohali, vide allotment letter dated 01.01.2011 Ex.C-1. Total sale price of the flat was Rs.39,59,181/-, against which complainant paid Rs.37,61,707 as per receipts and cheques Ex.C-5 to Ex.C-13 and statement of account Ex.C-14. The complainant prayed for refund of Rs.37,61,707- along with interest and compensation.
40. The opposite parties took the same defence as taken by them in Consumer Complaint No.198 of 2015.
41. In view of the discussion held in Consumer Complaint No.198 of 2015 (Amandeep Kaur Vs. Unitech Limited & Anr.), the Consumer Complaint No.264 of 2016 (Mohit Dhiman and Anr. Vs. Unitech & Others) is allowed and following directions are issued to the opposite parties:
Consumer Complaint No.198 of 2015 30
i) to refund the amount of Rs.37,61,707/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of payment;
ii) to pay Rs.3,00,000/-, as compensation for the harassment and mental agony suffered by the complainant; and
iii)to pay Rs.20,000/-, as costs of litigation.
42. In all the cases, the opposite parties are directed to comply with the order within 30 days of the receipt of the certified copy of the order.
43. If the opposite party/opposite parties has/have failed to complied with the orders in all the complaints within the stipulated period, then the amount of compensation awarded vide this order in all the complaints shall carry interest at the rate of 12% per annum from the date of this order till realization.
44. The complaints could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER January 12, 2017.
(Gurmeet S)