State Consumer Disputes Redressal Commission
Inderpal Singh Shani vs Country Colonisers Pvt. Ltd. on 18 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Consumer Complaint No.643 of 2017
Date of institution : 01.08.2017
Date of decision : 18.01.2018
1. Dr. Inderpal Singh Sahni son of Sh. Zorawar Singh Saini
resident of House No.1335, Ground Floor, Sector-44 B,
Chandigarh.
2. Parampreet Kaur wife Dr. Inderpal Singh Sahni son of Sh.
Zorawar Singh Saini resident of House No.1335, Ground
Floor, Sector-44B, Chandigarh.
....Complainants
Versus
1. Country Colonisers Private Limited (Wave Group Company)
through its Chairman Sh. Rajinder Singh Chadha, having
their registered office at P.O. Rayon and Silk Mills Adjoining
Coca Cola Depot, G.T Road, Chheharta, Amritsar, Punjab-
143105.
2. Rajinder Singh Chadha, Chairman of Country Colonisers
Private Limited (Wave Group Company) having its registered
office at P.O. Rayon and Silk Mills Adjoining Coca Cola
Depot, G.T Road, Chheharta, Amritsar, Punjab-143105.
3. M/s Country Colonisers Pvt Ltd, An Wave Infratech Venture
through its Vice Chairman/Director Sh. Manpreet Singh
Chadha having its Office at Site Office at Sector 85, Mohali,
Punjab.
4. Manpreet Singh Chadha, Vice Chairman/Director of Country
Colonisers Private Limited (Wave Group Company) having
its Office at Site Office at Sector 85, Mohali, Punjab.
....Opposite Parties
5. HDFC Bank through its Branch Manager having its office at
SCO 153-155, Sector 8-C, Chandigarh.
......Proforma opposite party
2) Consumer Complaint No.644 of 2017
Date of institution : 01.08.2017
Date of decision : 18.01.2018
Sumit Soni son of Sh. S.C. Soni resident of House No.3077,
Sector-20 D, Chandigarh.
....Complainant
Consumer Complaint No.643 of 2017 2
Versus
1 Country Colonisers Private Limited (Wave Group Company)
through its Chairman Sh. Rajinder Singh Chadha, having
their registered office at P.O. Rayon and Silk Mills Adjoining
Coca Cola Depot, G.T Road, Chheharta, Amritsar, Punjab-
143105.
2. Rajinder Singh Chadha, Chairman of Country Colonisers
Private Limited (Wave Group Company) having its registered
office at P.O. Rayon and Silk Mills Adjoining Coca Cola
Depot, G.T Road, Chheharta, Amritsar, Punjab-143105.
3. M/s Country Colonisers Pvt Ltd, An Wave Infratech Venture
through its Vice Chairman/Director Sh. Manpreet Singh
Chadha having its Office at Site Office at Sector 85, Mohali,
Punjab.
4. Manpreet Singh Chadha, Vice Chairman/Director of Country
Colonisers Private Limited (Wave Group Company) having
its Office at Site Office at Sector 85, Mohali, Punjab.
....Opposite Parties
5. HDFC Bank through its Branch Manager having its office at
SCO 153-155, Sector-8-C, Chandigarh.
....Proforma Opposite Party
3) Consumer Complaint No.689 of 2017
Date of institution : 14.08.2017
Date of decision : 18.01.2018
Iqbal Singh Randhawa son of Gurmit Singh Randhawa,
resident of # 1437, Pushpac Vihar, Sector 49, Chandigarh.
....Complainant
Versus
1. Country Colonisers Private Limited (Wave Group Company)
through its Chairman Sh. Rajinder Singh Chadha, having
their registered office at P.O. Rayon and Silk Mills Adjoining
Coca Cola Depot, G.T Road, Chheharta, Amritsar, Punjab-
143105.
2. Rajinder Singh Chadha, Chairman of Country Colonisers
Private Limited (Wave Group Company) having its registered
office at P.O. Rayon and Silk Mills Adjoining Coca Cola
Depot, G.T Road, Chheharta, Amritsar, Punjab-143105.
Consumer Complaint No.643 of 2017 3
3. M/s Country Colonisers Pvt Ltd, An Wave Infratech Venture
through its Vice Chairman/Director Sh. Manpreet Singh
Chadha having its Office at Site Office at Sector 85, Mohali,
Punjab.
4. Manpreet Singh Chadha, Vice Chairman/Director of Country
Colonisers Private Limited (Wave Group Company) having
its Office at Site Office at Sector 85, Mohali, Punjab.
....Opposite Parties
4. Consumer Complaint No.746 of 2017
Date of institution : 29.08.2017
Date of decision : 18.01.2018
1. Davinder Pal Singh S/o Sh. Tejinder Pal Singh, Age-64
Yrs, R/o H.No.2426, Sector 38-C, Chandigarh.
2. Supreet Kaur D/o Sh. Davinder Pal Singh, Age-29 Yrs,
R/o H.No.-2426, Sector 38-C, Chandigarh.
....Complainants
Versus
1. Country Colonisers Private Limited (Wave Group Company)
through its Chairman Sh. Rajinder Singh Chadha, having
their registered office at P.O. Rayon and Silk Mills Adjoining
Coca Cola Depot, G.T Road, Chheharta, Amritsar, Punjab-
143105.
2. Rajinder Singh Chadha, Chairman of Country Colonisers
Private Limited (Wave Group Company) having its registered
office at P.O. Rayon and Silk Mills Adjoining Coca Cola
Depot, G.T Road, Chheharta, Amritsar, Punjab-143105.
3. M/s Country Colonisers Pvt Ltd, An Wave Infratech Venture
through its Vice Chairman/Director Sh. Manpreet Singh
Chadha having its Office at Site Office at Sector 85 & 99,
SAS Nagar, Mohali, Punjab.
...Opposite Parties
4. Housing Development Finance Corporation Limited, through
its Branch Manager having its office at SCO-153-155, Sector
8-C, Chandigarh.
.....Proforma OP
Consumer Complaints under Section 17
of the Consumer Protection Act, 1986.
Consumer Complaint No.643 of 2017 4
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainants : Sh. Sanjeev Sharma, Advocate For OPs No.1-4 : Sh. Deepak Jain, Advocate For OP No.5 : Sh. Harshit Anand, Advocate for Sh. Shekhar Verma, Advocate KIRAN SIBAL, MEMBER:
This order will dispose of the above mentioned four Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in these complaints are similar and all the complaints have been filed against the same opposite parties (in short "OPs") by the complainants. For the sake of convenience, the facts are taken from Consumer Complaint No.643 of 2017.
Facts of the Complaint
2. The facts of the case in brief, as set out in the complaint, are that the opposite parties No.1 to 4(in short the OPs). The OPs had launched the Luxury Project "Wave Floor", in Sectors 85 & 99, SAS Nagar, Mohali, whereby they had propagated to provide "Residential Accommodation" to its customers. The brochure further enumerated that the project would also have various amenities and facilities and lured by the same, complainants approached the OPs in May 2013 for purchase of Residential Floor. The OPs told them that they had no unit available with them Consumer Complaint No.643 of 2017 5 but they could arrange a meeting of complainants with another seller. The complainants paid the amounts paid by earlier allottee and the receipts issued in favour of the earlier customer were endorsed in favour of the complainants by the OPs and accordingly, they allotted Residential Floor bearing No.8 on Ground Floor in Sector 99, Block G in the project of OPs having saleable super area of approx.1060 sq.ft and having total area of 200 sq yards (approximately 167.23 sq.mts). The basic sale price of residential floor under the subvention plan was fixed at Rs.42,00,000/- inclusive of EDC and IDC charges and the payment plan accepted by complainants was Subvention linked plan. Accordingly, Residential Floor Allottee(s) Arrangement was executed on 4th October 2013. The OPs promised to handover the possession within 24 months from execution of buyer agreement. After signing the same, while the complainants were waiting for possession of the said unit, the OPs forced the complainants to sign a new buyer agreement on 28.11.2014. The complainants signed the new agreement under protest as there was a delay of more than one year and the OPs had threatened them with forfeiture of amounts deposited by them. It was also assured by the OPs that the possession of the floor/unit would be handed over within time schedule agreed upon as per earlier buyer agreement i.e. within 30 months from 04.10.2013. This act of unilaterally coercing the complainants to sign a new buyer agreement after a delay of more than one year without any justifiable reason Consumer Complaint No.643 of 2017 6 amounts to unfair and deceptive trade practice on the part of OPs. The complainants availed a home loan from HDFC Bank for a sum of Rs.33,60,000/- and a tripartite agreement was signed between the parties in November 2014. According to Clause 5.1 of the buyer agreement, "Possession of said Project and the said apartment was to be completed within a period of 24 months, with an extended period of 6 months, i.e. not later than 30 months from the date of execution of the Agreement i.e. latest by 27.05.2017. Further as per Clause 5.5 of buyer agreement, "if the OPs fail to offer possession of the said plot to the allottees by the end of the grace period, the OPs shall be liable to pay to the Allottee, compensation calculated at the rate of Rs.5/- per sq. feet per month on the super area". Clause 6.1 provides that after completion of construction of the said Residential Floor, the developer shall handover the possession of the same in the manner stated under relevant clause 5 above. It further provided that the developer shall execute appropriate document of conveyance/sale deed in favour of the allottee for transfer of ownership of the said "Residential Floor" as per applicable laws, including interalia the rules, regulations and bye laws of the Government. As per clause 5.1 of initial agreement dated 04.10.2013, the period of 30 months expired on 03.04.2016 however the OPs have failed to offer possession of floor/unit even as per the later agreement also. The complainants inquired from the OPs about the possession after expiry of 24 months i.e. Consumer Complaint No.643 of 2017 7 27.11.2016 but they failed to give any satisfactory reply in this regard and avoided the same on one pretext or the other. The complainants made a lot of correspondence vide emails starting from December 2016 (dated 03.01.2017, 13.01.2017 and 16.01.2017) and finally were constrained to send a legal notice dated 03.01.2017. The complainants also exchanged e-mails with HDFC Bank not to charge Installments as project was delayed and the complainants were seeking refund from OPs. The complainants again visited the project site in May 2017 and found that there was no development at the site and the project was far from completion. It even came to the knowledge of the complainants that necessary approvals/permissions were also not granted by the competent authorities to the OPs and that they cannot legally offer the possession of the Residential Floor, without getting completion/occupation certificate which has not even been applied for, by the OPs. Aggrieved by this act of the OPs, the complainants sent an e-mail dated 28.06.2017 asking for refund of amount along with interest @18% as was charged by the OPs for delay in payment of installments. The OPs had earlier assured to handover the floor/unit to complainants in year 2015 and now they are proposing to hand over possession tentatively by October 2017. The complainants are residing in the rented accommodation have suffered double blow on account of false assurances of OPs as they have not only been forced to pay the rent of the house but further are paying installments to the bank Consumer Complaint No.643 of 2017 8 without getting possession of the floor allotted to them. In this way, the OPs have not adhered to the various provisions of the PAPRA and till date have not offered legal possession beyond the agreed stipulated date. To support their contentions the complainants have relied upon the judgment in "Inderjit Singh Bakshi Vs. S.M.V. Agencies Pvt. Limited" decided by the Hon'ble National Commission on 30.11.2015. Alleging deficiency in service and unfair trade practices, complainants have prayed for allowing the complaint with the following directions against the OPs:-
(i) refund of the entire amount of Rs.37,99,467/- paid by the complainants to OP/company and Rs.11,236/- paid to bank towards processing fees along with interest @ 18% p.a. from the date of receipt of respective amounts till the date of actual realization.
(ii) to pay Rs.5,00,000/- as compensation for mental tension and harassment.
(iii) To repay the amount of EMI/Interest paid by complainants to the bank and also direct the OPs/company to pay the future EMIs to bank after order of refund is made in favour of OPs, till the time amount is actually paid to complainants.
(iv) To pay Rs. 55,000/- as litigation expenses.
Defence of the Opposite Parties
3. Upon notice, the opposite parties No.1 to 4 appeared and filed reply to the complaint, raising certain preliminary objections Consumer Complaint No.643 of 2017 9 that complaint is not maintainable as the complainants have suppressed the material facts and have to prove that they fall within the definition of "Consumer" under Section 2(1)(d)(ii) of the CPA, 1986. The complainants had purchased the aforesaid floor in resale from one, Mr. Naresh Bhatia and thereafter was transferred in the name of the complainants. Even as per the documents submitted by one of the complainants, he is owner and resident of H.No.178/2 Sector 45-A, Chandigarh which further substantiates that he had sought to buy the housing unit in question for commercial purposes and not for residential purpose. This address also finds mention as the complainants' permanent address in the Residential Floor Allottee Arrangement and Tripartite Agreement. Even at the time of booking, the complainants told the OPs that they were booking the unit in question to earn profits as they were involved in the real estate business. Due to the ongoing slump in the real estate market, they are no longer interested in retaining the unit, in question, and therefore filed this false and frivolous complaint to unlawfully escape their obligations towards the OPs. The present complaint is not maintainable in view of the Arbitration Clause (Clause 13) in the said Residential Floor Allottee Arrangement. In the instant case, complainants opted for Subvention Linked Plan under which he had to pay 15% of the Basic Sale Price, following which the Residential Floor Allottee Arrangement is executed between the Allottee(s) and the Developer. Subsequent amount/subvention amount is called at the Consumer Complaint No.643 of 2017 10 start of construction. At this stage complainants had executed a Tripartite Agreement with Bank (from which the complainants took the loan-OP No.5), the Developer (OPs No.1 and 3) and the allottee(s)-complainant. Amounts under this plan become due in accordance with the stage of construction and the Bank pays these amounts as and when they accrue after taking permission from the Allottee(s) and itself surveying the site and verifying the construction status. Under the Tripartite Agreement, the EMI commences from the month following the month in which the loan disbursement is complete. The present complainants have got no cause of action. It was submitted that complainants are claiming interest @ 18% per annum from the date of payment whereas the actual position is that market rate of interest have been reduced a lot and even his own documents show that his loan is @ 8.45% P.A approx. The OPs have already paid interest on subvention on behalf of the complainants as per agreement for two years. Since, complainants have themselves not paid interest for the same period, as such the entire complaint claiming interest for period which had been paid by OPs is patently false vexatious and without cause of action. It was submitted that there was specific clause that specified time period was tentative and would be subject to Force Majeure and other events effecting the construction of the project within the agreed time. It was submitted that due to demonetization and slow down in the markets, the construction sector and payments which were to be received by Consumer Complaint No.643 of 2017 11 opposite parties were seriously effected and due to which the work of construction got little delayed which were beyond the control of the OPs. It was submitted that not only slowdown in real estate sector was effecting OPs but sudden announcement of the demonetization by the Government and subsequent restrictions on cash totally stopped the work resulting in shifting of entire work force as constructions industry is totally dependant on work force which required cash. It was further submitted that subsequently due to implementation of GST also the work has been effected as precious days of work were wasted due to transformation of vendors over GST and supply of raw material at agreed prices. It was further pleaded that the opposite parties entered into a Memorandum of Agreement (MoA) dated 03.02.2006 with the Government of Punjab and as per Clause 5(e) thereof, the State Government was to acquire land under the provisions of Land Acquisition Act, 1894 and transfer the same to the opposite parties for development. However, the State Government failed to acquire any land for the opposite parties and, as such, the approved plan of the entire project also shows certain "Critical Area' i.e. the lands, which are not in their possession, due to failure of the State Government. The lands, which are not available with them form 10% of the total land required for the project, due to which laying of lines for basic services is not complete. The request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, requesting the State Government to acquire 23.21 Consumer Complaint No.643 of 2017 12 acres of land, which falls within the master plan of the project, but without any result. However, opposite party No.1 managed to enter into a Land Use Agreement with the local farmer, from whose land an access road has been laid for proper access to the project. Thus, the delay, if any, in the completion of the project is due to inaction on the part of GMADA. On merits, it was submitted that the agreement dated 04.10.2013 was superseded by subsequent agreement dated 28.11.2014 which has not been challenged by the complainants as evident from the documents filed. It was further submitted that in case the complainants claim that they were threatened to sign new agreement after lapse of one year, than under CPA his challenge to same is time barred as even from 28.11.2014 two years expired on 28.11.2016. Moreover payment was taken as per agreement dated 28.11.2014 and it was acted upon and never protested. All other allegations of the complaint were denied and it was prayed that the complaint be dismissed with costs.
4. Proforma OP No.5 has filed separate written reply contending that the grievance of the complainants is directed only against OPs No.1-4, who have allegedly failed to deliver its commitments in terms of "Independent Residential Floor"
Allottee(s) Arrangement. There is no allegation of deficiency in service as regards OP No.5 is concerned. It was submitted that as regards the finance advanced by the HDFC Limited is concerned, the rights of the parties to the present complaint are governed by Consumer Complaint No.643 of 2017 13 the loan agreement dated 29.12.2014 and the tripartite agreement dated 28.11.2014 which states that in case of cancellation of the unit or in contingency of termination of the Buyer's Agreement, the HDFC Limited has the first charge/right to seek apportionment of its dues. It was also submitted that as on 17.09.2017, an amount of Rs.31,58,580/- was pending towards total loan account. It was also submitted that the last disbursement was made on 28.01.2016 and from January onwards the complainants was paying the Pre-EMI interest as per the loan agreement. All other allegations were denied and prayed that the complaint be dismissed qua the proforma OP No.5.
Evidence of the Parties
5. To prove his claim, the complainants tendered in evidence his affidavit as Ex.C-A, along with documents Ex.C-1 to Ex.C-11.
6. The OPs No.1 to 4 tendered affidavit of Sh. Amarjeet Singh, Manager as Ex.OP1/A, along with documents Ex.OP-1/1 to Ex.OP-1/3.
7. OP No.5 tendered affidavit of Sh. Nandan Singh Rawat, Authorized Signatory as Ex.OP5/A along with documents Ex.OP5/1 to Ex.OP5/4.
Contentions of the Parties
8. We have heard learned counsel for the parties and have gone through the record carefully.
9. It was contended that the Residential Floor Allottee(s) Arrangement towards the said floor was executed on 4th October, Consumer Complaint No.643 of 2017 14 2013 initially for a total sale consideration of Rs.42,00,000/- inclusive of EDC and IDC charges and the payment plan was Subvention linked plan. After signing of the buyer agreement while the complainants were waiting for possession of floor unit allotted to them, the OPs No.1-4 forced them to sign a new buyer agreement on 28.11.2014 which the complainants signed under protest as the signing of the new agreement was being done after a delay of more than one year. It was also assured by the OPs that the possession of the floor/unit would be handed over to the complainants within time schedule agreed upon as per earlier buyer agreement i.e. within 30 months from 04.10.2013. This act of unilaterally coercing the complainants to sign a new buyer agreement after a delay of more than one year without any justifiable reason amounts to unfair and deceptive trade practice on the part of OPs. It was vehemently contended by the learned counsel for the complainants that even till date of filing this present complaint the OPs are not able to handover the possession of the Residential Floor nor have refunded the money of the complainants and thus the cause of action is recurring in nature and is continuing till date, thereby forcing the complainants to seek refund with interest vide this complaint. All other submissions made by the learned counsel for the complainants were similar as averred in the complaint.
10. Learned counsel for the opposite parties No.1 to 4 vehemently contended that there was no specific period Consumer Complaint No.643 of 2017 15 mentioned in the agreement for delivery of possession. The opposite parties were just to make endeavour to deliver the possession of the unit, in question, within 30 months, with an extended period of 6 months from the date of agreement. Moreover, the complainants cannot allege any delay on the part of the opposite parties, as they themselves failed to pay the due amounts regularly on time. It was further contended that the delay, if any, in completing the project was on the part of GMADA, who failed to acquire the land required for the project of the opposite parties, as per MoA dated 03.02.2006. Even a request was made to the Land Acquisition Collector, Greater Mohali, vide letter dated 19.01.2012, to acquire 23.21 acres of land, which falls within the master plan of the project, but to no effect. In these circumstances, no liability can be fastened upon the opposite parties No.1 to 4. Moreover, the construction at the project is going on in full swing and they will deliver the possession of the unit, in question, to the complainants immediately after completion of the construction work. It was submitted that due to demonetization and slow down in the market the construction sector and payments which were to be received by OPs were seriously effected and due to which the work of construction got little delayed which were beyond the control of the OPs. It was submitted that not only slowdown in real estate sector was effecting OPs but sudden announcement of the demonetization by the Government and subsequent restrictions on cash totally stopped the work resulting in shifting of entire work Consumer Complaint No.643 of 2017 16 force as constructions industry is totally dependant on work force which required cash. It was further submitted that subsequently due to implementation of GST also the work has been effected as precious days of work were wasted due to transformation of vendors over GST and supply of raw material at agreed prices. It was further contended that the complainants purchased the unit, in question, for commercial purpose and, thus, they do not fall under the definition of 'consumers'. The complaint is liable to be dismissed with costs.
11. Learned counsel for OP No.5 contended that the Bank is only the proforma party and there is no deficiency in service on the part of OP No.5 and the complaint is liable to be dismissed qua OP No.5.
Consideration of Contentions
12. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the records of the complaint.
13. Admittedly, the unit, in question, was allotted to the complainants and Apartment Allottee (s) Arrangement (Ex.C-2), was executed between the parties on 04.10.2013 and subsequently the buyer's agreement dated 28.11.2014 was executed between the parties as Ex.C-3. The complainants have availed loan facility of Rs.33,60,000/- from HDFC Limited, for the said apartment and the tripartite agreement was executed in November 2014. The complainants had signed the new Consumer Complaint No.643 of 2017 17 agreement under protest as there was a delay of more than one year. The possession of the floor/unit was to be handed over to the complainants within time schedule agreed upon as per earlier buyer agreement i.e. within 30 months from 04.10.2013. It was submitted that OPs No.1 to 4 are not developing the project and there is no likelihood of the possession being handed over to the complainants in the near future also, even though the complainants are paying interest against the loan facility availed for the said apartment to the bank.
14. The opposite parties failed to complete the project within the stipulated period (which expired in April, 2016), to deliver possession of the unit, in question, to the complainants. The reason given for this delay was that it was due to force majeure conditions, which were beyond their control and therefore resulted in delay in handing over the possession. In the present case, the project seems to be far from completion and the OPs have not placed any cogent or specific evidence on record to show that the delay was due to any "force majeure" condition. Hence, the plea taken up by the OPs No.1 to 4 that due to force majeure conditions, they have failed to complete the project, does not find merit with us.
15. It has been pleaded by the OPs that due to demonetization and slow down in the market the construction sector and payments which were to be received by OPs were seriously effected and due to which the work of construction got little delayed which were Consumer Complaint No.643 of 2017 18 beyond the control of the OPs. It was submitted that not only slowdown in real estate sector was effecting OPs but sudden announcement of the demonetization by the Government and subsequent restrictions on cash totally stopped the work resulting in shifting of entire work force as constructions industry is totally dependant on work force which required cash. It was further submitted that subsequently due to implementation of GST also the work has been effected as precious days of work were wasted due to transformation of vendors over GST and supply of raw material at agreed prices.
16. We are of the view that the OPs cannot hide their deficiency and delay in handing over the possession under this plea of demonetization and GST imposition. The project of the OPs was started much before the period of demonetization which took place in the year 2016, whereas, the possession was to be handed prior to the onset of the demonetization and GST. Hence, we do not find any merit in this contention of the OPs No.1-4.
17. As per the Memorandum of Agreement dated 03.02.2006 (in short 'MoA'), which has been stated in the reply by the OPs wherein it was contended that State Government was to acquire the land but they failed to do so. As per Clause 5(e) of the said MoA, State Government was to acquire the land under the provisions of Land Acquisition Act, 1894. The OPs pleaded that they made several requests to the State Government to initiate the acquisition and handover the possession to them to carry out Consumer Complaint No.643 of 2017 19 development work on the same and GMADA was to provide external access roads to the project, who have failed to do so.
18. The aforesaid plea of the opposite parties is not tenable, because according to provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), it is the duty of the opposite parties itself to supply the information with regard to their ownership, permissions from PUDA/GMADA, licences and 'Change of Land Use' etc. The non-supply of this vital information to the complainants is against the provisions of PAPRA.
19. In Section 3 of PAPRA, 'General liabilities of the promoter' have been explained, which are as under:-
"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 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 Consumer Complaint No.643 of 2017 20 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 be taken;Consumer Complaint No.643 of 2017 21
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.
Further Section 4 of PAPRA provides as follows:
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 Consumer Complaint No.643 of 2017 22 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 :
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."Consumer Complaint No.643 of 2017 23
The opposite parties have not produced any evidence to prove that they have complied with the provisions of Sections 3 and 4 of PAPRA in letter and spirit, by making full and true disclosure of the nature of their title to the land on which such colony is developed or such building is constructed. There is also no evidence on record to prove that, before allotment of the unit, in question, to the complainants, they were made aware about the execution of the above MoA between the opposite parties and the State Government; which might have effected the decision of the complainants for purchasing the unit, in question, from the opposite parties in those circumstances. By not complying with the above said provisions of PAPRA, the opposite parties are certainly guilty of rendering deficient services and adopting unfair trade practice.
20. Further, as per Section 9 of 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/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties No.1 to 4 in this respect. As such, these opposite parties also violated Section 9 of the PAPRA.
Consumer Complaint No.643 of 2017 24
21. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-
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."
22. It stands proved that the opposite parties No.1 to 4 failed to hand over the possession of the unit, in question, to the complainants within the stipulated period, without any sufficient reason. The amount paid by the complainants is a deposit held by the opposite parties, in trust of complainants and it should be used for the purpose of 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 complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities.
23. As per application/nomination/transfer application as Ex.OP1/2 Sh. Naresh Bhatia deposited Rs.6,49,467/- for the purchase of the unit in question. The complainants purchased the same unit from said Naresh Bhatia by paying the above said amount. As per tripartite agreement Ex.OP5/3, OP No.5 granted a Consumer Complaint No.643 of 2017 25 loan of Rs.33,60,000/- in favour of the complainants. Out of the said amount a sum of Rs.31,50,000/- was disbursed by OP No.5 vide statements of account Ex.OP5/4. As such, the total amount paid by the complainants to the OPs comes Rs.37,99,467/-.
24. The complainants has also prayed for refund of Rs.11,236/- paid by him to the Bank as processing fees. The processing fees/charges cannot be refunded to the complainants as these charges are part and parcel of the banking business and the same have been charged by the bank for granting loan to them, as per rules.
25. In view of our above discussion, the complaint is allowed against OPs No.1 to 4 and the same is dismissed against opposite party No.5. Following directions are issued to opposite parties No.1 to 4:
i) to refund the amount of Rs.37,99,467/- along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA;
It is made clear that opposite parties No.1 to 4 shall also bear the Pre-EMI interest accrued on the loan amount obtained by the complainant from the Bank, from November, 2014 (date of execution of Tripartite Agreement) till the refund of the entire amount to the Bank/complainant.
It is also made clear that, first of all, opposite parties No.1 to 4 shall pay the outstanding amount to opposite party No.5- Bank towards the loan advanced by it to the Consumer Complaint No.643 of 2017 26 complainant and, thereafter, the remaining amount, if any, shall be paid to the complainant;
ii) to pay Rs.75,000/-, as lumpsum towards compensation for mental harassment and litigation expenses.
Consumer Complaint No.644 of 2017
26. Similarly, in Consumer Complaint No.644 of 2017 filed by the complainant- Sumit Soni, the OPs allotted Residential Floor to the complainant bearing No.22 on Ground Floor in Sector 99, Block G having saleable super area of approx.1060 sq.ft and constructed on a plot, having area of 200 sq yards (approximately 167.23 sq.mts) and the basic sale price under the subvention plan was fixed at Rs.42,00,000/- inclusive of EDC and IDC charges and the payment plan accepted by complainant was Subvention linked plan. Accordingly, Residential Floor Allottee(s) Arrangement was executed on 20.07.2013. After signing the buyer agreement while the complainant was waiting for possession of the said unit the OPs forced the complainant to sign a new buyer agreement on 28.11.2014 which was signed under protests. According to Clause 5.1 of the said agreement possession of the said project was to be completed within a period of 24 months, with an extended period of 6 months, i.e. not later than 30 months from the date of execution of the Agreement i.e. latest by 27.05.2017. The complainant approached HDFC Bank and got a loan sanctioned for a sum of Rs.33,60,000/-. Accordingly, a tripartite agreement was signed between the parties in November 2014. The main Consumer Complaint No.643 of 2017 27 grievance of the complainant is that despite having substantial amount paid by him, the OPs are not in a position to handover the possession till date and have also failed to return the amount to the complainant. All the averments of the complaint are same. The replies of both OPs in this complaint is on the same lines as in the complaint No.643 of 2017. It was contended by the learned counsel for the OPs that the complainant has booked the said unit for investment purposes and not for residential purpose. To establish his contention the counsel has laid emphasis on Ex.OP1/1 pleading that in the Expression of Interest Letter dated 25.01.2013, the name of the 2nd applicant is mentioned as Mr. Akhil and the first applicant is Mr. Sumit Soni. Complainant has not disclosed the relationship with Mr. Akhil that he is not a family member. Hence, it can be inferred that the said unit has been purchased for investment purposes. This contention has been rebutted by the learned counsel for the complainant contending that there is no suppression of facts and the agreement with the OPs is in the name of Sumit Soni and all the payments are also made by him to the OPs. Pleading deficiency in service and unfair trade practice the complainant prayed for allowing the complaint and sought the following reliefs:
(i) to refund the entire amount of Rs.38,89,467/- paid by the complainant to OP/company and Rs.11236/-
alongwith interest @ 18% p.a from the date of receipt of respective amounts till the date of actual realization. Consumer Complaint No.643 of 2017 28
(ii) To pay Rs.5,00,000/- as compensation for mental tension and harassment.
(iii) To refund the amount of EMI/Interest paid by complainant to the bank and also direct the OPs/company to pay the future EMIs to bank after order of refund is made in favour of OPs, till the time amount is actually paid to complainants.
(iv) To pay Rs. 55,000/- as litigation expenses.
27. The opposite parties No.1-4 filed reply on the similar lines of their reply, as given in Consumer Complaint No.643 of 2017.
28. OP No.5 filed reply on the similar lines of their reply, as given in Consumer Complaint No.643 of 2017 and further submitted that as on 17.09.2017, an amount of Rs.31,61,599/- is pending towards loan account.
29. To prove their case, the complainant tendered his own affidavit as Ex.C-A, along with documents Ex.C-1 to Ex.C-10.
30. The OPs No.1 to 4 tendered affidavit of Sh. Amarjeet Singh, Manager as Ex.OP1/A, along with documents Ex.OP-1/1 to Ex.OP-1/5.
31. OP No.5 tendered affidavit of Sh. Nandan Singh Rawat, Authorized Signatory as Ex.OP5/A along with documents Ex.OP5/1 to Ex.OP5/4.
32. Perusal of account statement Ex.C-6 shows that a total sum of Rs.38,89,467/- was deposited by the complainants with the OPs towards the price of the apartment in question. Consumer Complaint No.643 of 2017 29
33. In view of above discussion as well as the reasons and discussion held in CC No.643 of 2017, this complaint is allowed against opposite parties No.1 to 4 and the same is dismissed against opposite party No.5. Following directions are issued to OPs No.1 to 4:
(i) to refund Rs.38,89,467/- along with interest @ 12% p.a. from the respective dates of deposit till realization to the complainants, as per Rule 17 of PAPRA.It is made clear that opposite parties No.1 to 4
shall also bear the Pre-EMI interest accrued on the loan amount obtained by the complainant from the Bank, from November, 2014 (date of execution of Tripartite Agreement) till the refund of the entire amount to the Bank/complainant.
It is also made clear that, first of all, opposite parties No.1 to 4 shall pay the outstanding amount to opposite party No.5- Bank towards the loan advanced by it to the complainant and, thereafter, the remaining amount, if any, shall be paid to the complainant;
(ii) to pay Rs.75,000/- as lumpsum compensation towards mental harassment and litigation expenses.
Consumer Complaint No.689 of 2017
34. Similarly, in Consumer Complaint No.689 of 2017 has been filed by the complainant Iqbal Singh Randhawa. The complainant deposited total booking amount of Rs.4,50,000/- with the OPs for Consumer Complaint No.643 of 2017 30 allotment of apartment No.105, 1 BHK in Tower-Tulip at Wave Gardens, in Wave Estate. However, even after accepting the said payment of Rs.4,50,000/- the OPs did not issue any provisional allotment letter in favour of the complainant. OPs sent demand notice dated 20.01.2014 to deposit Rs.2,98,693/- within 7 days otherwise the OPs threatened to charge 18% interest. OPs further threatened the complainant with cancellation of provisional allotment and regarding forfeiture of 15% of sale price as per relevant clause of application/wave garden unit allottee agreement. The complainant again informed the OPs that they do not want to continue with the project and requested to refund their deposited amount as allotment letter was never issued in his favour. Complainant sent an e-mail dated 08.02.2015 asking for refund of the amount. It was further pleaded by the complainant that since the OPs have neither provided the allotment letter nor the buyer agreement, the same is non-execution of the agreement and is violative of various sections under PAPRA. Pleading deficiency in service and unfair trade practices, the complainant prayed for allowing the complaint and sought the following reliefs:
(i) to refund the entire amount of Rs.4,50,000/- alongwith interest @ 18% p.a from the date of deposit till its actual realization.
(ii) to pay Rs.1,00,000/- as compensation for mental tension and harassment.
(iii) To pay Rs. 33,000/- as litigation expenses.Consumer Complaint No.643 of 2017 31
35. OPs filed reply on the similar lines of the reply filed by the opposite parties in Consumer Complaint No.643 of 2017.
36. To prove their case, the complainant tendered in evidence affidavit of complainant as Ex.CA, along with documents Ex.C-1 to Ex.C-8.
37. The OPs tendered affidavit of Sh. Amarjeet Singh, Manager as Ex.OP1/A, along with documents Ex.OP-1/1 to Ex.OP-1/14.
38. Perusal of receipts Ex.C-2 and Ex.C-3 shows that a total sum of Rs.4,50,000/- was deposited by the complainant with the OPs towards the price of the apartment in question.
39. In view of above discussion as well as the reasons and discussion held in CC No.643 of 2017, this complaint is allowed and the following directions are issued:
(i) to refund Rs.4,50,000/- along with interest @ 12% p.a. from the respective dates of deposit till realization to the complainant, as per Rule 17 of PAPRA.
(ii) to pay Rs.75,000/- as lumpsum towards compensation for mental harassment and litigation expenses.
Consumer Complaint No.746 of 2017
40. Similarly, in Consumer Complaint No.746 of 2017 has been filed by the complainants-Davinder Pal Singh and Anr. Complainant No.1 is a retired senior citizen and complainant No.2 is daughter of the complainant No.1. OPs No.1-3 had introduced a project of developing the 'Mega Integrated Township' particularly known as "Wave Estate" at Sector 85 & 99, SAS Nagar Mohali, Consumer Complaint No.643 of 2017 32 Punjab. In the month of April 2013, complainants had purchased/booked one "Independent Residential Floor" in the above said project of OPs No.1-3. The OPs allotted Residential Floor bearing No.37/GF on the ground floor, in favour of complainants, who had paid Rs.3,50,000/- vide cheque No.001304 dated 02.04.2013. Complainants had also paid Rs.38,401/- as service tax vide cheque No.1229 dated 05.02.2015 to OP No.1. The aforesaid residential floor was previously booked by one Ms. Komal Kumar, who had also paid Rs.3,00,000/- vide receipt No.IR20121612 dated 05.02.2013 to OP No.1. The complainants had paid the above said amount of Rs.3,00,000/- to Ms. Komal Kumar through cheque No.001301 dated 15.03.2013 drawn on ICICI Bank, for purchase of the said floor. The "Independent Residential Floor Allottee(s) Agreement" was executed between the complainants and OPs No.1-3 on 09.01.2015. Complainants opted for "Wave Floors 99 Subvention Plan" as payment option for the payment of the said unit. The area of the aforesaid unit is 200 square yards and the basic sale price was fixed at Rs.42,00,000/-. Complainants got a loan sanctioned from HDFC Bank i.e. OP No.4 against loan account Number 614017547. A tripartite agreement was also entered into with OP No.4 in the month of January 2015 and a loan was sanctioned for Rs.33,60,000/-. In aggregate a total amount of Rs.32,08,401/- has already been paid by the complainants (Rs.6,50,000/- as payment and Rs.38,401/- as service tax) and the financer (Rs. 25,20,000/-) till date. OPs No.1-3 Consumer Complaint No.643 of 2017 33 were to handover the possession of the said floor within 24 months or with an extended period of 6 months from the date of execution of agreement i.e. latest by 10.01.2017. The OPs issued letter dated 20.02.2017 stating that the complainants were to pay the outstanding amount of Rs.7,02,450/- within 7 days along with interest 18% p.a to avoid cancellation. Since the possession has not been given till date and the project is far from completion despite receipt of huge amount from the complainants, they have prayed for allowing the complaint and seeking for following directions to OPs No.1 to 3:-
(i) to refund the amount of Rs.31,70,000/- plus Rs.38,401/- to the complainants along with interest @18% p.a.
(ii) to pay Rs. 5,00,000/- as compensation for mental tension and harassment.
(iii) to pay Rs.35,000/- as litigation expenses.
41. To prove their case, the complainants tendered in evidence affidavit of complainant No.1 as Ex.CA, along with documents Ex.C-1 to Ex.C-17.
42. The OPs No.1-3 tendered affidavit of Sh. Amarjeet Singh, Manager as Ex.OP1/A, along with documents Ex.OP-1/1 to Ex.OP-1/12.
43. OP No.4 tendered affidavit of Sh. Nandan Singh Rawat, Authorized Signatory as Ex.OP4/A along with documents Ex.OP4/1 to Ex.OP4/4.
Consumer Complaint No.643 of 2017 34
44. Perusal of receipts/cheques Ex.C-3 to Ex.C-6 and Ex.C-10 shows that a total sum of Rs.32,08,401/- was deposited by the complainants with the OPs towards the price of the apartment in question.
45. In view of above discussion as well as the reasons and discussion held in CC No.643 of 2017, this complaint is allowed against opposite parties No.1 to 3 and the same is dismissed against opposite party No.4. Following directions are issued to OPs No.1 to 3:
(i) to refund Rs.32,08,401/- along with interest @ 12% p.a. from the respective dates of deposit till realization to the complainants, as per Rule 17 of PAPRA.It is made clear that opposite parties No.1 to 3
shall also bear the Pre-EMI interest accrued on the loan amount obtained by the complainant from the Bank, from January, 2015 (date of execution of Tripartite Agreement) till the refund of the entire amount to the Bank/complainant.
It is also made clear that, first of all, opposite parties No.1 to 3 shall pay the outstanding amount to opposite party No.4-Bank towards the loan advanced by it to the complainant and, thereafter, the remaining amount, if any, shall be paid to the complainant;
(ii) to pay Rs.75,000/- as lumpsum compensation towards mental harassment and litigation expenses.
Consumer Complaint No.643 of 2017 35
46. Compliance of the orders passed in all the complaints shall be made by the opposite parties within 30 days of the receipt of certified copy of the order.
47. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
48. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER January 18, 2018.
SK/-