State Consumer Disputes Redressal Commission
Manmohan Singh vs Parkwood Developers Pvt. Ltd. on 16 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No. 1397 of 2019
In/and
Consumer Complaint No.254 of 2019
Date of Institution : 26.03.2019
Date of Decision : 16.01.2020
Manmohan Singh, Aged 63 years, son of Bhajan Singh resident of
H.J-306, Housing Board Colony, Bhai Randhir Singh Nagar,
Ludhiana-141012.
....Complainant
Versus
1. Parkwood Developers Pvt. Ltd., Registered Office at 1001,
Hemkunt Chamber, 89, Nehru Place, New Delhi-110019
through its Director/ Authorized Signatory.
2. Harpreet Singh, Managing Director, Parkwood Developers Pvt.
Ltd., Site Office at Parkwood Glade, Sante Majra, Kharar
Landran Road, Mohali, Punjab.
3. Dakshdeep Singh, Director, Parkwood Developers Pvt. Ltd.,
Site Office at Parkwood Glade, Sante Majra, Kharar Landran
Road, Mohali, Punjab. [email protected]
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr.Rajinder Kumar Goyal, Member
Mrs.Kiran Sibal, Member Present:-
For the complainant : Sh.Arun Kumar, Advocate For opposite party No.1 : Sh.I.P.Singh, Advocate Defence struck off vide order Dated 17.07.2019 For Opposite parties No.2&3 : Ex-parte Consumer Complaint No 254 of 2019 2 RAJINDER KUMAR GOYAL, MEMBER :
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act 1986, (in short, "the Act"), for issuance of the following directions to the opposite parties:
I. to refund an amount of Rs.30,79,939/- deposited by the complainant;
II. to pay interest @13% per annum on the amount of Rs.30,79,939/- from the respective dates of deposit till realization;
III. to pay compensation to the tune of Rs.3,00,000/- for mental torture and harassment;
IV. to pay Rs.55,000/- towards legal expenses;
V. to direct the opposite parties to bear the cost of proceedings;
and VI. to pass such other order which this Commission may deem fit.
Misc. Application No.1397 of 2019 (For Dismissal of Complaint)
2. This application has been filed by the opposite parties for dismissal of the complaint being not maintainable in view of Section 79 read with Section 89 of the Real Estate (Regulation and Development) Act, 2016. It is stated that the Commission does not have jurisdiction to adjudicate upon the said dispute, in view of the provisions of the Real Estate (Regulation and Development) Act, 2016 which came into force on 01.05.2017. It was further submitted that RERA is a comprehensive act, enacted to serve the interest of consumers and regulate promoters in the real estate sector. Consumer Complaint No 254 of 2019 3
3. Reply to the application has been filed by the complainant stating therein that the case decided by the Hon'ble Delhi High Court, as mentioned by the opposite parties in their complaint, is not applicable upon the complainant as in the said case neither the complainant was party nor opposite party was party. However, learned counsel for the complainant argued at the time of final arguments and stated that this Commission has the jurisdiction to entertain the complaint as per the law laid down by the Hon'ble Supreme Court as well as Hon'ble National Commission. Hence, the application filed by opposite parties be dismissed.
4. We have heard the arguments of the counsel for the parties and have carefully gone through the record.
5. In the present case the project in question was launched by opposite parties and the agreement was executed between the parties on 08.08.2012, Ex.C-3, for allotment of residential flat/apartment in question. The facts are not in dispute. The main stress of the opposite parties is only with regard to the maintainability of the complaint before this Commission since the RERA has come into force on the date of filing of the present complaint. It needs to be mentioned that provisions of Sections 2, 20 to 39, 41 to 58, 71 to 78 came into force with effect from 01.05.2016 and the provisions of Sections 3 to 19, 40, 59 to 70 and Section 79 to 80 came into force with effect from 01.05.2017. It is also an admitted fact that the complainants had entered into Residential Floor Allottee(s) Arrangement prior to the coming into force of the RERA and they had also booked the flat/apartment much earlier to the date of Consumer Complaint No 254 of 2019 4 enforcement of RERA in the State of Punjab and even in the country, in the year 2014. Having failed to comply with the terms of the said Arrangement the complainants have approached this Commission for the illegal acts, omissions and commissions and adoption of unfair trade practice and various types of deficiencies in service and as such, they being 'consumers' and the opposite parties being 'service providers' under the C.P. Act. It would be appropriate to reproduce the relevant provisions of Sections 71, 79, 88, 89 of RERA as under:-
"71. Power to adjudicate.-(1) For this purpose of adjudicating compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer(s) deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner after giving any person concerned a reasonable opportunity of being heard.
Provided that any person, whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act.
(2).....
(3)....."
79. Bar of jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no Consumer Complaint No 254 of 2019 5 injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
88. Application of other laws not barred.--The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.
89. Act to have overriding effect.-The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force." Some questions were raised by the 'consumers' with the Ministry of Housing and Urban Property Alleviation, Government of India. Under Frequently Asked Questions (FAQ) at Sr. Nos. 85 and 86 it has been observed as under:-
"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?
As per Section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under Section 12, 14, 18 and section 19 from the consumer forum and file it with the adjudicating officer appointed under the Act.
86. Can a complainant approach both the Regulatory Authority/adjudicating officer and the consumer forums for the same disputes?
The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."Consumer Complaint No 254 of 2019 6
In answer to question No.85 it has been stated that the jurisdiction of the Consumer Fora at District, State or National level has not been barred from the ambit of C.P. Act. Rather Section 71 of RERA provides the 'consumer', whose complaint in respect of matters covered under Sections 12, 14, 18 and Section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under Section 9 of the C.P. Act, an option to seek permission from the Fora, as the case may be, to withdraw the complaint pending before it and file an application before the adjudicating officer under the RERA.
6. A perusal of Section 79 of RERA reveals that the provisions of said Act bar the jurisdiction of Civil Court. The Consumer Fora under the C.P. Act are not Civil Courts; rather, are performing the judicial functions, which are summary in nature. As such, bare reading of Section 79 of RERA makes it clear that the same is not applicable.
7. In answer to question No.86 it has been stated that the consumer/complainant can approach either of the two authorities i.e. the Consumer Fora under the C.P. Act or the authorities established under the RERA.
8. It is also relevant to mention that as per Section 3, the provisions of the C.P. Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Similarly Section 71 of the RERA has specifically mentioned about the applicability of the provisions, which falls under Section 12, 14, 18 and Section 19 of the C.P. Act and the first proviso to Section 3 of the Consumer Complaint No 254 of 2019 7 RERA provides that the projects, which are ongoing on the date of commencement of the RERA and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of RERA. Section 88 of RERA says that application of other laws is not barred. The provisions of RERA shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The provisions of Section 88 of the RERA and the provisions of Section 3 of the C.P. Act are almost identical, which means both the Fora have jurisdiction to entertain and decide the matter, whichever come in their respective jurisdiction. Section 89 of the RERA provides that the provisions of RERA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. However, there is no inconsistency between the provisions of the two Central Acts. The C.P. Act is applicable where there is deficiency in service and adoption of unfair trade practice, whereas the provisions of RERA have own field i.e. Section 12, 14, 18 and 19 of RERA. This makes it very much clear that there is no inconsistency in the provisions of both the Acts. Section 88 of RERA has clarified that application of other laws is not barred. The remedies are additional remedies under the RERA as well.
9. Moreover, by introduction of RERA, the jurisdiction of the C.P. Act is not specifically ousted. The scope and reach of the C.P. Act of 1986 has been considered by the Hon'ble Supreme Court in catena of judgments, some of the important ones are: Lucknow Consumer Complaint No 254 of 2019 8 Development Authority v. M.K. Gupta (1994) 1 SCC 243, Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385, Skypay Couriers Limited v. Tata Chemicals Limited (2000) 5 SCC 294, State of Karnataka vs. Vishwabharathi House Building Cooperative Society (2003) 2 SCC 412, CCI Chambers Cooperative Housing Society Limited Vs. Development Credit Bank Limited (2003) 7 SCC 233, Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (2004) 1 SCC 305, H.N. Shankara Shastry Vs. Assistant Director of Agriculture, Karnataka (2004) 6 SCC 230.
10. In M.Lalitha's case (supra), Hon'ble Supreme Court noticed the background, the object and reasons and the purpose for which the Act of 1986 was enacted. After referring to its earlier judgments in M.K. Gupta's case (supra) and N.K. Modi's case (supra), the Hon'ble Supreme Court observed as under:-
"11. The preamble of the Act declares that it is an Act to provide for better protection of the interest of consumers and for that purpose to make provision for the establishment of Consumer Councils and other authorities for the settlement of consumer disputes and matters connected therewith. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of the 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
12. From the Statement of Objects and Reasons and the scheme of the 1986 Act, it is apparent that the main objective of the Act is to provide for better protection of the interest of the consumer and for that purpose to provide for better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is Consumer Complaint No 254 of 2019 9 made available to consumers. To serve the purpose of the Act, various quasi-judicial forums are set up at the district, State and national level with wide range of powers vested in them. These quasi-judicial forums, observing the principles of natural justice, are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to the consumers and to impose penalties for non-compliance with their orders."
11. In Kishori Lal Vs. Chairman, Employees' State Insurance Corporation 2007(5) Recent Apex Judgments (R.A.J.) 68, the Hon'ble Supreme Court held as under:-
"17.......... The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated."
12. Further in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. (2012) 2 SCC 506, it has been authoritatively held by the Hon'ble Supreme Court that the protection provided to the consumers under the Act is in addition to the remedies available under any other Statute.
13. Similarly, State Consumer Disputes Redressal Commission Chandigarh, U.T. Chandigarh in Consumer Case No.659 of 2017 (Veena Ghai & Anr. v. Manohar Infrastructure & Consumer Complaint No 254 of 2019 10 Constructions Pvt. Ltd.), which was decided along with bunch of similar other cases, vide order dated 28.06.2018, observed that RERA and PAPRA will not debar the jurisdiction of the Consumer Fora in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. It has been held as follows:-
"Further contention was raised by Counsel for the opposite parties that in the face of provisions of the RERA, under which the opposite parties have registered the project, in question, on 15.09.2017, it was not open to this Commission, to entertain and decide the present complaint. He further asserted that sufficient safeguard is provided under the provisions of RERA and if the complainants are feeling aggrieved of any action, on the part of the opposite parties, they may approach under the said Act (RERA) and not under the Act, 1986.
We are not inclined to accept this argument. At the time of arguments, it is very fairly admitted by Counsel for the contesting parties, that the provisions of RERA are prospective in nature. It was also so said by the High Court of Bombay in the case of NeelKamal Realtors Suburban Pvt. Ltd. and anr. Vs. Union of India and ors. 2018 (1) R.C.R. (Civil) 298. It is on record that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. It is also on record that some of the provisions of RERA came into operation on 01.05.2016 and even the remaining of it, in May 2017. In all, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very Consumer Complaint No 254 of 2019 11 clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred.
It may be stated here that the Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred, to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the opposite parties. Intention of the framers of law has been made clear by the concerned Department i.e. Ministry of Housing and Urban Property Alleviation, Government of India in its website www.mygov.in/group/ministry-housing-and-urban-poverty- alleviation. Under Frequently Asked Questions (FAQ), at Sr.nos. 85 and 86, it was observed as under:-
"85. Are the civil courts and consumer forums barred from entertaining disputes under the Act?
As per section 79 of the Act civil courts are barred from entertaining disputes (suits or proceedings) in respect of matters which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the Act to determine. However, the consumer forums (National, State or District) have not been barred from the ambit of the Act. Section 71 proviso permits the complainant to withdraw his complaint as regards matters under section 12, 14, 18 and section 19, from the consumer forum and file it with the adjudicating officer appointed under the Act.
86. Can a complainant approach both the Regulatory Authority / adjudicating officer and the consumer forums for the same disputes?Consumer Complaint No 254 of 2019 12
The laws of the country do not permit forum shopping, thus, an aggrieved can only approach one of the two for disputes over the same matter."
It was also so said by the State of Punjab in its Official Website Portal rera.punjab.gov.in. The above fact clearly indicates that in the face of provisions of the RERA, any action taken under the provisions of Act 1986 is not debarred.
In view of above findings, we can safely say that RERA and PAPRA will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the opposite parties. Further, in another judgment passed by the Hon'ble National Commission passed in Consumer Case No.1764 of 2017 titled as "Ajay Nagpal Vs. Today Homes & Infrastructure Pvt. Ltd." decided on 15.04.2019, wherein it has been held as under:-
"40. From the various decisions of the Hon'ble Supreme Court referred to above, the following principles emerge:-
(i) The Consumer Protection Act, 1986 is a supplement Act and not in derogation of any other Act.
(ii) Any Consumer who is aggrieved by any defect in goods purchased or deficiency in service as also regarding unfair trade practice, can approach the Consumer For a by filing the complaint under the Act. Even a Class Action Complaint is permissible under the Act.
(iii) The Consumer Fora constituted under the Consumer Protection Act, 1986 are not Civil Courts.
(iv) The Consumer Fora can provide for the reliefs as contemplated under Section 14 of the Act.
(v) A Consumer cannot pursue two remedies for the same cause of action. However, if a Consumer has Consumer Complaint No 254 of 2019 13 not approached for redressel of its grievance under the particular Statute, the Consumer can approach the Consumer Fora under the Consumer Protection Act. But, if the Consumer had already approached the Authority under the relevant Statute, he cannot simultaneously file any complaint under the Consumer Protection Act.
(vi) Mere availability of a right to redress the grievance in a particular Statute will not debar the complainant/ Consumer from approaching the Consumer Fora under the Act.
(vii) Even though under Sections 14, 15, 18 and 19 of RERA, various provisions have been made which are to be followed by the Developer/Promoters and the rights and duties and the return of amount as compensation as also rights and duties of Allottees, yet same cannot mean to limit the right of the Allottee only to approach the Authorities constituted under the RERA, he can still approach the Consumer Fora under the Consumer Protection Act.
(viii) Section 71 of RERA which gives the power to adjudicate, does not expressly or impliedly bar any person from invoking the provisions of the Consumer Protection Act. It has also given a liberty to the person whose complaint is pending before the Consumer Fora to withdraw it and file before the RERA authorities.
(ix) Section 79 of RERA only prohibits the jurisdiction of Civil Court from entertaining any suit or proceeding in respect of any matter which can be decided by the Authorities constituted under the RERA. As the Consumer Fora are not Civil Courts, the provisions of Section 79 which bar the jurisdiction of Civil Courts, will not be attracted. So far as to grant injunction is concerned, only that power has been Consumer Complaint No 254 of 2019 14 taken away Section 79. But, it does not, in any manner, effect the jurisdiction of the Consumer Fora in deciding the complaints. Both, the Consumer Protection Act, 1986 and the Real Estate (Regulation and Development) Act, 2016 are supplemental to each other and there is no provision in the Consumer Protection Act, which is inconsistent with the provisions of RERA."
14. In view of law laid down in the above noted authorities, it is held that this Commission is competent to entertain and decide the present complaint and the provisions of RERA do not bar the jurisdiction of the Consumer Fora. Accordingly, the application filed by the opposite parties is hereby dismissed.
Facts of the Complaint:
15. Brief facts, as set out in the complaint, are that the complainant applied for allotment of a Flat in the upcoming project of opposite parties namely 'Parkwood Glade' situated at Pocket-C, Sante Majra, Kharar Landran Road, Mohali, Punjab. The total cost of the flat was Rs.32,78,700/-. The complainant deposited a sum of Rs.4,71,542/- on 28.07.2012 against receipt No.PAGL/1213/0364. Thereafter, opposite party No.1 allotted a Unit bearing No.A-208, Block-A, 2nd Floor to the complainant in "Parkwood Glade", having super built up area of 1260 sq. ft. A Flat Buyer Agreement was executed between the parties on 08.08.2012 and a copy was supplied to him. As per clause 19(a) of Flat Buyers Agreement dated 08.08.2012, the opposite parties were to deliver the possession complete in all respects on or before 31.01.2015. To make the timely payments the complainant also availed Housing Loan from LIC Consumer Complaint No 254 of 2019 15 Housing Finance Limited. The complainant paid Rs.22,94,233/- to the opposite parties upto 17.10.2013, however, he paid Rs.27,65,755/- against the total sale consideration. Despite receiving the said amount, the complainant was not offered possession. Accordingly, an email dated 03.09.2016 was sent to opposite party No.1 asking for the possession of the flat at the earliest and to pay the delay penalty charges as per agreement. It has been further averred that there was no development at the site. On enquiring, the complainant was assured that the possession would be handed over to the complainant at the earliest. On 30.09.2017 a letter was sent by the complainant to opposite party No.1 after visiting the site but no response was received. Having left no other opportunity the complainant issued a Legal Notice dated 02.02.2019 to opposite party No.1 with the request to refund the amount deposited along with interest from the respective dates of deposit. Thus, opposite parties committed deficiency in service and unfair trade practice, causing mental agony and harassment to the complainants. Hence, the present complaint.
Defence of the Opposite parties
16. Upon notice, opposite party No.1 appeared through its counsel, however, written reply was not filed within statutory period. Accordingly, the defence of opposite party No.1 was stuck off. On the other hand, opposite parties No.2 & 3 failed to appear before this Commission despite their service, thus, they were proceeded against ex-parte vide order dated 27.09.2019.
Consumer Complaint No 254 of 2019 16Evidence of the Complainant
17. To prove his claim, the complainant filed his affidavit dated 25.03.2019 along with documents as copy of receipt dated 22.08.2012 as Ex.C-1, copy of Allotment Letter dated 08.08.2012 as Ex.C-2, copy of Flat Buyers Agreement dated 08.08.2012 as Ex.C-3, copy of Two Cheques dated 17.09.2012 as Ex.C-4, copy of receipt dated 01.12.2012 as Ex.C-5, copy of receipt dated 06.12.2012 as Ex.C-6, copy of receipt dated 23.04.2013 as Ex.C-7, copy of receipt dated 29.04.2013 as Ex.C-8, copy of receipt dated 22.05.2013 as Ex.C-9, copy of receipt dated 11.07.2013 as Ex.C-10, copy of receipt dated 17.10.2013 as Ex.C-11, copy of cheque dated 28.06.2017 as Ex.C-13, copy of letter dated 30.09.2017 as Ex.C-14, copy of Legal Notice dated 02.02.2019 as Ex.C-15, copy of postal receipts dated 02.02.2019 as Ex.C-16, 4 photographs as Ex.C-17. Contention of the Parties
18. We have heard learned counsel for the parties and have gone through the record carefully.
19. It has been vehemently contended by the learned counsel for the complainant that the complainant applied for an allotment of a flat in the project of the opposite parties named 'Parkwood Glade'. A Flat Buyer's Agreement was executed between the parties on 08.08.2012 wherein the complainant was allotted a Unit No.A-208, Block-A, 2nd Floor having super built up area of 1260 sq. ft. As per clause 19(a) of the Agreement, the opposite parties were to deliver the possession on or before 31.01.2015. The complainant also availed a Housing Loan from LIC Housing Finance Limited to make the payments to the Consumer Complaint No 254 of 2019 17 opposite parties without any delay. Against the total sale consideration the complainant had paid Rs.27,65,755/- but they failed to deliver the possession to the complainant despite receiving the substantial amount, which is a deficiency in service on the part of the opposite parties. The complainant also gave a legal notice to the opposite parties but did not receive any response from them. This act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice on their part and pray to allow the complaint as per the reliefs claimed.
20. Per contra, learned counsel for opposite party No.1 argued that there was no deficiency in service on the part of opposite party No.1. The complainant has not paid the due amounts to the opposite parties punctually due to which the possession was not offered to the complainant. It has been further contended that opposite parties have almost completed and in 4 Towers and possession has already been delivered to various allottees, whereas construction work in remaining Towers is in full swing and shall be completed very soon and accordingly, the possession of the flat, in question, would be delivered to the complainants in near future. It was further contended that the project of the opposite parties is duly approved by the competent authorities and it has duly obtained all the requisite sanctions and permissions from the competent authorities with regard to the project, in question.
Consideration of the Contentions 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 Consumer Complaint No 254 of 2019 18 the point(s) on which the parties agree 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 proof can substitute pleadings, which are the foundation of the claim of the parties. At the sake of repetition, it is relevant to mention that in the present case, opposite parties No.2&3 failed to file reply to the complaint. Thus, the evidence adduced by the complainant remains unrebutted. In view of this, all the averments made in the complaint are deemed to have been admitted by opposite parties No.2 & 3 and an adverse inference is to be drawn against it. It is, therefore, held that the opposite parties No.2 & 3 is deficient in rendering service to the complainant.
21. Undisputedly, a flat bearing No.A-208, for super built-up area of 1260 sq.ft. in Parkwood Glade, vide Ex.C-2 was allotted to the complainant. On the same day, a Flat Buyers Agreement was executed between the parties, Ex.C-3. The total sale consideration of the flat, in question, was Rs.32,78,700/-, against which the complainant has deposited a sum of Rs.30,79,939/- vide Ex.C-2, Ex.C-4 to Ex.C-11 and Ex.C-14. As per Clause 19(a) the possession was to be delivered to the allottees after receiving of all the payments punctually as per agreed terms and on receipt of complete payment by 31.01.2015. The relevant clause 19(a) is reproduced hereunder:-
"19(a) The possession of the said Premises is proposed to be delivered by the Developer to the Purchaser by 31st Jan, 2015, subject to receipt of all payments punctually as per Consumer Complaint No 254 of 2019 19 agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable upto the date of possession according to the payment plan applicable to him and if delay is due to force majeure conditions, restrictive directions of the authorities or for reasons beyond control of the Developer, the time for completion shall be deemed to be reasonably extended. The Developer on completion of the construction shall issue final call notice to the Purchaser who shall within 30 days thereof, remit all dues and also pay the Stamp Duty and municipal tax and other charges relevant for Registration of Sale Deed and take possession of the Unit / Premises on or before Registration of Sale Deed as decided by the Developer. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Developer."
22. As per above mentioned clause, the opposite parties failed to deliver the possession even after receiving the substantial amount from the complainant.
23. Further as per Clause 20(b) of the agreement, the opposite parties were liable to pay compensation at the rate of Rs.5/- per sq. ft. per month. The relevant Clause is reproduced hereunder:-
"20(b) If there is any delay solely attributable to the Developer in the delivery/possession of the said premises to the Purchaser(s) beyond the period mentioned hereinabove, the Purchaser shall be entitled to receive for the period of delay, compensation from the Developer @Rs.5/- per sq. ft. per month for the period of such delay after allowing the Developer a grace period of 90 days from the date of expiry of the stipulated Consumer Complaint No 254 of 2019 20 period provided the Purchaser(s) has paid all payments punctually as per agreed terms. Similarly, the Purchaser(s) would be liable to pay Holding charges @Rs.5/- per sq.ft. per month, in the event he/she/they fail to take possession within 30 days from the date of issue of notice of possession by the Developer, until the actual possession of the said premises is taken over by the Purchaser(s)."
24. The opposite parties have also not compensated to the complainant on account of delay in handing over the possession which itself deficiency in service or unfair trade practice on the part of the opposite parties. Admittedly, the possession of the flat, in question, has not been delivered to the complainant within the stipulated period, as mentioned above.
25. During the course of arguments, the counsel for opposite party No.1 was asked to show any Completion Certificate / Occupation Certificate, which he failed to produce. Thus, we have no hesitation to hold that the delivery of possession of the flat, in question, is not possible in near future. Therefore, it can be said that it has violated Sections 3, 4, 5 and 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). There is also no evidence led on the record led by opposite party No.1 to prove that any separate account has been maintained by it in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats. This amounts to violation of Section 9 of the PAPRA.
26. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, the Consumer Complaint No 254 of 2019 21 amount is to be refunded along with 12% interest per annum, as opposite party No.1 failed to deliver possession of the unit, in question, to the complainants within the stipulated period and, thus, it failed to comply with the terms and conditions of the agreement between the parties.
27. From the above facts and circumstances, it is clearly proved that opposite parties failed to deliver the possession of the flat, in question, to the complainant within the agreed period, without any sufficient cause. The complainant paid the substantial amount to opposite parties towards the price of the flat, in question, from his hard earned money, with a purpose to have a residential flat for their personal use, but due to non-delivery of possession during all this long period, he suffered great mental tension, hardship and harassment at their hands. Therefore, the complainant is entitled to the refund of the amount deposited by him, along with interest and suitable compensation.
28. In view of the above discussion, the complaint is allowed against the opposite parties and following directions are issued:-
i) to refund the amount of Rs.30,79,939/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization.
It is made clear that the opposite parties will first pay the outstanding amount of loan to the LIC Housing Finance Limited and thereafter remaining amount, if any, shall be refunded to the complainant; and Consumer Complaint No 254 of 2019 22
ii) to pay Rs.45,000/- towards compensation on account of the mental agony and harassment suffered by the complainants as well as litigation expenses.
29. The opposite parties shall comply with the above said directions within a period of one month from the date of receipt of certified copy of the order.
30. This complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER January 16th, 2020.
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