State Consumer Disputes Redressal Commission
Sarpal Singh vs Nature Heights Infra Ltd. on 24 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB AT CHANDIGARH.
1) Consumer Complaint No.115 of 2016
Date of institution : 18.04.2016
Date of decision : 24.03.2017
Sarpal Singh S/o Sh. Basant Singh, R/o H.No.2472, Phase-X, Mohali.
....Complainant
Versus
1. Nature Heights Infra Ltd., Head Office, 9 Sunder Nagri, opp.
Children Park, Hanuman Road, Abohar (152116), through its
C.M.D./Authorized Signatory.
2. Nature Heights Infra Ltd., Village Jhungian, Tehsil Kharar, District
Mohali, through Site Incharge/Authorized Signatory.
....Opposite Parties
2) Consumer Complaint No.116 of 2016
Date of institution : 18.04.2016
Date of decision : 24.03.2017
Gurpreet Singh S/o Sh. Sarpal Singh, R/o Kothi No.2472, Phase-X,
Mohali.
....Complainant
Versus
1. Nature Heights Infra Ltd., Head Office, 9 Sunder Nagri, opp.
Children Park, Hanuman Road, Abohar (152116), through its
C.M.D./Authorized Signatory.
2. Nature Heights Infra Ltd., Village Jhungian, Tehsil Kharar, District
Mohali, through Site Incharge/Authorized Signatory.
....Opposite Parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Consumer Complaint No.115 of 2016 2
Present:-
For the complainant : Sh. H.S. Parwana, Advocate
For the opposite parties: Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This order will dispose of the above mentioned two Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986, as the facts and the questions of law involved in these complaints are the same. The facts of the complaints are verbatim and both the complaints have been filed against the same opposite parties by the complainants, who are father and son. The facts are taken from Consumer Complaint No.115 of 2016.
Consumer Complaint No.115 of 2016:
2. Brief facts, as set out in the complaint, are that the complainant is a senior citizen, aged 85 years, and he had been International Hockey Player and Hockey Coach. In response to the advertisement of the opposite parties, the complainant applied for registration of 3 BHK flat of 1530 sq.ft. in "Nature Heights Western Homes, Mohali" and paid 1st instalment of ₹4,87,500/-, vide receipt dated 05.11.2011, Ex.C/2-A. He further paid ₹6,07,500/-, vide receipt dated 02.02.2012 Ex.C/2-C; ₹4,05,000/-, vide receipt dated 29.06.2012 Ex.C/2-D; ₹4,05,000/-, vide receipt dated 09.07.2013 Ex.C/2-D; and ₹1,20,000/-, vide receipt dated 23.05.2014 Ex.C/2-F. In all, he paid ₹20,25,000/- to the opposite parties, against the total price of the flat i.e. ₹40,50,000/-. The opposite parties executed Agreement for Sale Consumer Complaint No.115 of 2016 3 with the complainant with regard to the above said flat. The complainant, accompanied by his son, Gurpreet Singh (who has filed C.C. No.116 of 2016), recently visited the project site, but found that there was no development; such as pucca road leading to the proposed project and only a kacha dusty road passes by the side of the site, which connects the village ahead. There is no drinking water supply overhead tank, nor electricity poles for providing street lighting, as is clear from the photographs Ex.C/3-A to Ex.C/3-F. The complainant was told by some persons that the opposite parties have not purchased the entire land for the project and some chunks of the land were still in possession of the original owners. Thus, it is doubtful, whether the opposite parties have got approved the plan of the project from the competent authority or not, or whether they have obtained permission from the Govt. for change of land use for their project in question. The complainant received reminder dated 27.05.2014 from the opposite parties regarding pending instalment, whereas the complainant had already deposited the instalment of ₹1,20,000/- and the opposite parties issued receipt dated 23.05.2014. The complainant approached the opposite parties and asked them to apprise him regarding their plan to complete the project as well as construction of the flat, in question, but they failed to give any satisfactory reply.
Ultimately, the complainant sent a registered letter dated 26.11.2015 to the opposite parties to refund the entire amount of ₹40,50,000/- deposited by the complainant and his son and it was suggested that Consumer Complaint No.115 of 2016 4 ₹20,25,000/- deposited by the complainant may be taken into account of his son and one flat in the name of the complainant may be delivered to Sh. Gurpreet Singh, son of the complainant, in complete shape. This suggestion was made by the complainant, so as to affirm that whole payment of one flat was available with the opposite party. However, despite of above said letter, there was no response from the opposite parties. The complainant also sent legal notice dated 25.02.2016 to the opposite parties, detailing the above said facts. The act and conduct of the opposite parties, in not developing the project as per the agreement, amounts to deficiency in service and unfair trade practice on their part. Hence, the complainant sought for issuance of following directions to the opposite parties:
i) to refund ₹20,25,000/- deposited by the complainant, along with interest at the rate of 12% per annum from the date of deposit till the date of actual payment;
ii) to pay ₹1,00,000/-, on account of mal-practice as well as mental tension and physical harassment suffered by the complainant;
and
iii) to pay ₹10,000/-, as litigation expenses.
3. The opposite parties did not appear before this Commission, in-spite of their service and were proceeded against ex parte, vide order dated 13.12.2016.
4. To prove his claim, the complainant tendered in evidence his affidavit Ex.C/A, along with documents Ex.C/1 to Ex.C/7. Consumer Complaint No.115 of 2016 5
5. We have heard learned counsel for the complainant and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that innocent complainant was misled by the advertisement issued by the opposite parties. In pursuant to the advertisement, complainant had booked the flat with the opposite parties and has paid 50% of the total price of the flat to them. The enquiry made by the complainant at the site, where alleged flats would be constructed, and it was found that the site was having only pillars and semi constructed structures. He further contended that there is no likelihood of completion of construction even in near future. To the knowledge of the complainant, even no sanction has been taken from the PUDA and Town and Country Planning Department, Punjab. The project has been advertised, without following the procedure, as mentioned in the Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as the "PAPRA"). The complainant was always ready and willing to pay the entire amount as demanded, provided there was any hope or the possibility of the completion of alleged upcoming project in which she has been allotted flat. Since the opposite parties have failed to complete the project/flat, so the complainant is entitled to the refund of the amount deposited, along with interest and compensation.
7. We have given thoughtful consideration to the contentions raised by the learned counsel for the complainant. Consumer Complaint No.115 of 2016 6
8. The opposite parties have not contested the complainant, as they did not appear before this Commission, in-spite of their service and were proceeded against ex parte. As such, there is neither any defence, nor any evidence on the record on the part of the opposite parties. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. As such, the evidence adduced by the complainants remains unrebutted.
9. Undisputedly, the complainant applied for registration of 3BHK flat, measuring 1530 sq.ft. in the project of the opposite party, for a total sale price of ₹40,50,000/-. Agreement for Sale Ex.C/1 was executed between the parties on 20.03.2012. Against the total sale consideration of the flat, the complainant paid ₹20,25,000/-, vide receipts Ex.C/2-A to Ex.C/2-F. As per the agreement, the actual and physical possession was to be delivered at the spot only on registration Consumer Complaint No.115 of 2016 7 of Sale Deed. In-spite of the receipt of 50% of the sale price from the complainant, the opposite parties have not developed the site and there are only pillars and semi-constructed structures, as is evident from the photographs produced by the complainant as Ex.C/3-A to Ex.C/3-F. Despite their failure to complete the project as per their assurances and agreement, the opposite parties kept on demanding more and more amount from the customers.
10. Keeping in view of the above circumstances, we hold that the opposite parties have failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to 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, 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. They were also required to give inspection on seven days, notice or demand 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. However, the opposite parties failed to comply with section 3 of the PAPRA.
11. As per section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to Consumer Complaint No.115 of 2016 8 produce on record any such permission, as they were proceeded against ex parte. So, they also violated Section 5 of PAPRA.
12. 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 in this respect. As such, the opposite parties also violated Section 9 of the PAPRA.
13. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
14. The "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 Consumer Complaint No.115 of 2016 9 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."
15. 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. The opposite parties have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project, as they have no licence, CLU or permission to launch the project in question. Thus, the delay in completing the project and non-delivery of possession of flat within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.
Consumer Complaint No.115 of 2016 10
16. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of flat 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 his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the flat, due to which the complainant has suffered mental agony and Consumer Complaint No.115 of 2016 11 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 parties in trust of complainant 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 complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering his hope of getting the flat by waiting for all this period. In these circumstances, the complainant deserves suitable compensation.
17. Hon'ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected Consumer Complaint No.115 of 2016 12 money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. The ratio of the law laid down by the Hon'ble National Commission in the above authority fully applies to the facts and circumstances of the present case.
18. Apparently, the complainant has deposited ₹20,25,000/-, vide receipts Ex.C/2-A to Ex.C/2-F with regard to the flat in question, but the opposite parties have failed to put forth any defence or lead any evidence, as they remained ex parte. They failed to complete the project/flat, as per the agreement and also violated the provisions of PAPRA, as discussed above. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.
19. In view of our above discussion, the complaint (Consumer Complaint No.115) is allowed and following directions are issued to the opposite parties:
i) to refund the amount of ₹20,25,000/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
ii) to pay ₹1,00,000/-, as compensation for deficiency in service on the part of the opposite parties and for mental tension and physical harassment suffered by the complainant; and
iii) to pay Rs.10,000/-, as litigation expenses.
The opposite parties shall comply the order within 30 days of the receipt of certified copy of the order, failing which the compensation Consumer Complaint No.115 of 2016 13 amount shall also carry interest at the rate of 12% from the date of this order till realization.
Consumer Complaint No.116 of 2016:
20. Similarly, in Consumer Complaint No.116 of 2016, the complainant applied for registration of 3 BHK flat of 1530 sq.ft. for a total sale consideration of ₹40,50,000/-, as per agreement dated 20.03.2012 Ex.C/1. Against the total sale consideration, the complainant deposited ₹20,25,000/- with the opposite parties, vide receipts Ex.C/2, Ex.C/2-A to Ex.C/2-F. Despite receipt of 50% of the total sale consideration of the flat, the opposite parties failed to complete the project/flat, as is clear from photographs Ex.C/3-A to Ex.C/3-F. Alleging deficiency in service on the part of the opposite parties, the complainant has sought following directions to the opposite parties:
i) to refund ₹20,25,000/- deposited by the complainant, along with interest at the rate of 12% per annum from the date of deposit till the date of actual payment;
ii) to pay ₹1,00,000/-, on account of mal-practice as well as mental tension and physical harassment suffered by the complainant; and
iii) to pay ₹10,000/-, as litigation expenses.
21. In this complaint also, the opposite parties did not appear before this Commission, in-spite of their service and were proceeded against ex parte, vide order dated 13.12.2016.
Consumer Complaint No.115 of 2016 14
22. To substantiate the averments of the complaint, the complainant tendered in evidence his affidavit Ex.C/A, along with documents Ex.C/1 to Ex.C/7.
23. In view of the reasons and discussion held in Consumer Complaint No.115 of 2016 (Sarpal Singh Vs. Nature Heights Infra Ltd. & Anr.), the Consumer Complaint No.116 of 2016 (Gurpreet Singh Vs. Nature Heights Infra Ltd. & Anr.) is allowed and the following directions are issued to the opposite parties:
i) to refund the amount of ₹20,25,000/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
ii) to pay ₹1,00,000/-, as compensation for deficiency in service on the part of the opposite parties and for mental tension and physical harassment suffered by the complainant; and
iii) to pay Rs.10,000/-, as litigation expenses.
The opposite parties shall comply the order within 30 days of the receipt of certified copy of the order, failing which the compensation amount shall also carry interest at the rate of 12% from the date of this order till realization.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 24, 2017.
(Gurmeet S)