State Consumer Disputes Redressal Commission
Sheena Puri Her Poa Inder Bhushan Puri vs Emaar Mgf Land Private Limited on 15 November, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.502 of 2018
Date of institution : 13.06.2018
Reserved On : 05.11.2018
Date of decision : 15.11.2018
Sheena Puri D/o late Sh. Ashok Dewan, R/o H.No.2057, Sector 21-C,
Chandigarh. Presently residing at H.No.56, Old Wool Lane, Cheadle
Hulme, SK8 5 JA, United Kingdom, through her Power of Attorney,
Inder Bhushan Puri S/o Late Sh. Kidar Nath Puri, R/o 3175, Industrial
Co-operative Society, Sector 51-D, Chandigarh.
....Complainant
Versus
Emaar MGF Land Limited, through its Manager, S.C.O. 120-122, 1st
Floor, Sector 17-C, Chahdigarh-160017.
Second Address:
Emaar MGF Land Limited, 306-308, 3rd Floor, Square One, C-2,
District Centre, Saket, New Delhi-110017.
....Opposite Party
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.
Present:-
For the complainant : Sh. Harsh Chopra, Advocate For the opposite party : None.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant, Smt. Sheena Puri, has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), through her Special Power of Attorney, Sh. Inder Consumer Complaint No.502 of 2018 2 Bhushan Puri, against the opposite party, seeking following directions to it:
i) to refund the amount of ₹34,46,604/-, which has been paid to it;
ii) to pay interest amounting to ₹38,25,730.44P at the rate of 12% on ₹34,46,604/- from the date of last payment i.e. 12.03.2009 till the date of filing of the complaint;
iii) to pay ₹14,40,000/-, as penalty at the rate of ₹50/- per sq.yd.
(₹50x300 sq.yds. x 12 months x 8 years);
iv) to pay ₹4,00,000/- for causing harassment and mental agony suffered by the complainant; and
iii) to pay ₹1,00,000/- towards litigation expenses.
Totaling ₹92,12,334.44P Facts of the Complaint
2. Brief facts, as set out in the complaint, are that in pursuance of representations and attractive marketing campaign of the opposite party, Sh. Ashok Dewan, father of the complainant, agreed to purchase a plot from them in their project namely "Augusta Greens" at Mohali Hills, Sector 109, S.A.S. Nagar, Mohali. He paid ₹10,35,000/- to the opposite party on 11.05.2007 and a provisional allotment letter dated 11.05.2007 was issued, vide which plot No.630, having approximate area of 300 sq.yds. in the said project was allotted to him for total sale consideration of ₹34,50,000/-. Thereafter, Plot Buyer's Agreement dated 20.06.2007 was executed between father of the complainant and the opposite party. As per Clause-8 thereof, possession of the plot was to be delivered within 3 years from the date Consumer Complaint No.502 of 2018 3 of execution of the agreement subject to force majeure circumstances, failing which the opposite party was liable to pay penalty at the rate of ₹50/- per sq.yd. per month for delayed period. A total sum of ₹36,19,104/- was paid by her father to the opposite party towards the price of the plot and opposite party issued letter dated 04.02.2009 to the effect that father of the complainant had cleared the entire principal amount payment towards instalments. Unfortunately on 22.12.2009, father of the complainant passed away and thereafter, name of the complainant was entered in the records of the plot, as per letter dated 03.11.2011. Till June, 2018, possession of the plot has not been delivered to her by the opposite party, despite exchanging various e- mails, as detailed in Para No.9 (i) to (viii) of the complaint. Husband of the complainant visited the site of the project and came to know that possession of the plot, in question, cannot be delivered, since a piece of agricultural land in the close vicinity of the project, where the plot was planned to be situated/located, has not been acquired/purchased by the opposite party. Hence, the present complaint. Defence of the Opposite Parties
3. Upon notice, the opposite party appeared and filed reply to the complaint, raising preliminary objections that as per Clause-8 of the agreement, physical possession of the plot was to be delivered within 2 years from the date of execution thereof, but not later than 3 years; failing which penalty, as mentioned in the complaint, was payable to the complainant. It was pleaded that the competent authorities granted Partial Completion Certificate in respect of the area/sector, wherein the Consumer Complaint No.502 of 2018 4 subject property is situated, vide letter dated 16.10.2015. Offer of possession was made to the complainant, vide letter dated 14.07.2018, subject to clearance of all payments mentioned therein. Thereafter, reconciliation of accounts was carried out by the opposite party and a sum of ₹1,72,500/- was credited on account of 'on-time payment rebate' and a sum of ₹14,52,822/- was credited towards compensation payable after issuance of offer of possession, along with other charges, to the account of the complainant. Certain amounts due and payable by the complainant were accordingly adjusted. Thus, a sum of ₹11,83,492/- stands credited to the account of the complainant. The calculations of those amounts are given in Statement of Account dated 11.09.2018. However, she, instead of claiming the same and taking the possession of the plot, has filed this misconceived complaint. In parawise reply, it was denied that by way of purported power of attorney, the father-in-law of the complainant has been authorized to file the complaint. It was further denied that the plot, in question, has been purchased by the complainant for her own use; as she being an NRI has failed to show as to when she intends to return to India. In fact, the plot has been purchased by her for speculative purpose. It was submitted that pleadings made in preliminary objections be also read as parawise reply. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
Consumer Complaint No.502 of 2018 5Evidence of the Parties
4. To prove her claim, the complainant, along with the complaint, produced affidavit of her attorney, Sh. Inder Bhushan Puri, dated 11.07.2018, along with documents Ex.C-1 to Ex.C-7.The opposite party, along with its reply, produced affidavit of Sh. Subrat K. Pradhan dated 24.09.2018, along with documents Ex.OP/1 to Ex.OP1/4.
Contentions of the Parties
5. We have heard learned counsel for the complainant, as none appeared on behalf of the opposite party. We have also gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that the plot, in question, was earlier allotted to Sh. Ashok Dewan, father of the complainant, and after his death, the same was entered in the name of the complainant. A total sum of ₹34,46,604/- stood deposited towards the price of the plot, but the opposite party failed to deliver possession thereof to the complainant within the stipulated period of 3 years from the date of execution of the agreement, Ex.C-2 and on account of its failure to do, the opposite party is liable to pay penalty at the rate of ₹50/- per sq.yd. per month for the period of delay. The opposite party also failed to obtain requisite permissions and sanctions from the competent authorities for setting up their project and even it failed to acquire certain land for its project. Hence, the opposite party is not in a position to deliver possession of the plot, in question, and as such the complainant is entitled to the Consumer Complaint No.502 of 2018 6 refund of the entire amount deposited, along with interest and compensation, besides other reliefs as prayed for in the complaint. Consideration of Contentions
7. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the complainant.
8. First of all, we would like to dispose of the plea/objection of the opposite party that the plot, in question, has been purchased by the complainant for speculative purpose, as she being a NRI failed to show as to when she intends to return to India.
9. In this regard, it is relevant to mention that there is no evidence from the side of opposite party to prove that the complainant is indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite party is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale/purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project Consumer Complaint No.502 of 2018 7 undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by opposite party to prove that the complainant indulged in sale/purchase of properties or that she purchased the plot, in question, for further sale or for earning profits. So far as the plea of the opposite party that the complainant is an NRI and failed to show as to when she intends to return to India, is concerned, it is relevant to mention that there is no restriction on her to come back to India and reside in a house owned by her. In this regard, reliance can be placed on a case reported as RESHMA BHAGAT v. SUPERTECH LTD. 2016 (I) CPR 428 (NC), wherein Hon'ble National Commission held that it cannot be a 'rule of thumb' that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Thus, in view of the ratio of the above cited authorities, the above said plea/objection of the opposite party is rejected and the complainant is held to be 'consumer', under the Act.
10. Further, the opposite party has denied in its reply that by way of purported power of attorney, the father-in-law of the complainant has been authorized to file the complaint.
11. In this respect, it is relevant to mention that as per Special Attorney dated 14.04.2018, Sh. Inder Bhushan Puri, who is father-in- law of the complainant, has been duly authorized by her to file any complaint/case/application/petition etc. on her behalf before the Court/Consumer Forums etc. Besides this, it has been well settled that Consumer Complaint No.502 of 2018 8 the power of attorney can always file the complaint. So far as the deposition made by the power of attorney is concerned, it is pertinent to mention that the proceedings under the Act are summary in nature, in which basically the decision is based on the documents, which are annexed/produced by the parties in support of their respective pleas. The affidavit is filed only to support the averments, which are taken into consideration. It is important to mention here that the documents produced by the complainant have not been denied by the opposite party in this case. Rather the complainant has produced the same documents, as are issued by the opposite party or are exchanged between them. For that reason, we are of the view that the evidence, which has come on record in the shape of documents produced by both the sides, is sufficient to decide the controversy between the parties, the proceedings being summary in nature and filing of complaint through Power of Attorney does not make much difference. Accordingly, the above said plea/objection, in the shape of denial, of the opposite party is also rejected.
12. Now, coming to merits of the case, admittedly, the plot, in question, was provisionally allotted to Sh. Ashok Dewan (since deceased), father of the complainant, vide letter dated 11.05.2007, Ex.C-1. 'Plot Buyer's Agreement' (agreement), Ex.C-2, was executed between her father and the opposite party on 20.06.2007, as per which the sale price of the plot was ₹36,19,104/-. Against it, the father of the complainant had deposited a total sum of ₹34,46,604/- with the opposite party, vide receipts Ex.C-3 (colly.). After the death of her Consumer Complaint No.502 of 2018 9 father, the plot, in question, was duly entered in the name of the complainant by the opposite party, as per letter dated 03.11.2011, Ex.C-5. As per Clause-8 of the agreement, subject to force majeure condition and reasons beyond the control of the Company mentioned therein, the Company was to endeavour to deliver possession of the plot to the allottee within 2 years from the date of execution of the agreement, but not later than 3 years; failing which penalty of ₹50/- per sq.yd. per month for the period of delay was to be paid to the complainant. The stipulated period for delivery of possession expired on 19.06.2010, but the opposite party failed to deliver possession of the plot, in question, to the complainant within that period. No force majeure circumstances, as enumerated in Clause-8 of the agreement, have been pleaded and proved on record by the opposite party, which can be said to have caused delay in delivery of possession and in the absence of any evidence in this regard, it cannot be said that such force majeure circumstances have caused delay in delivery of possession of the plot to her.
13. The opposite party produced on record Partial Completion Certificate, issued vide letter dated 16.10.2015, Ex.OP/2, which was granted subject to compliance of certain terms and conditions by the opposite party. However, there is no evidence on record to prove that the same were ever complied with by the opposite party. The opposite party pleaded that it offered possession of the plot, in question, to the complainant, vide letter dated 14.07.2018, Ex.OP/3, and that it credited certain amount, as mentioned in the reply, in the account of Consumer Complaint No.502 of 2018 10 the complainant towards penalty charges on account of delay in delivery of possession and 'on-payment rebate charges'. However, in the absence of Completion Certificate issued by the competent authority as per Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), the Partial Completion Certificate and offer of possession cannot be considered. Section 14 of PAPRA deals with responsibility of the promoter to obtain Completion and Occupation Certificate from the competent Authority, which reads as under:
14. It is the responsibility of the promoter-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
14. Further, Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing), which is applicable to the properties falling within the Municipal Limits, provides as under:
Consumer Complaint No.502 of 2018 11
"No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
15. A reference can also be made to Section 272 of The Punjab Municipal Corporation Act, 1976, which reads as under:-
"272. Completion Certificate. -
(1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work.
(2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act: Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission, shall be deemed to have been granted."
16. There is no evidence on record to prove that the plot, in question, or a part thereof has been got certified by the opposite party from the local/competent authority, so as to deliver its complete possession to the complainant for her occupation. As already discussed above, no Completion/Occupation Certificate issued by the competent authority has been produced by the opposite party on the record, which itself is violation of above reproduced Section 14 of PAPRA and Clause 3.12 (i) of the Notification dated 07th July, 2015 Consumer Complaint No.502 of 2018 12 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing) as well as Section 272 of The Punjab Municipal Corporation Act, 1976, reproduced above. Even till today, no Completion/Occupation Certificate has been produced before this Commission. Without issuance of such a certificate by the competent authority, the opposite party cannot be said to be in a legal position to hand over possession of a particular property/plot. Thus, without Completion/Occupation Certificate, the possession of the plot offered to the complainant on 14.07.2018 was just a paper possession. In such circumstances, it is held that the opposite parties failed to deliver possession of the plot, complete in all respects, to the complainant within the stipulated period, as per terms and conditions of the agreement.
17. All the above facts and circumstances clearly prove that the opposite party has not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite party was required to make full and true disclosure of the nature of its 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. It was 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, Consumer Complaint No.502 of 2018 13 the opposite party failed to comply with section 3 of the PAPRA.
18. As per section 5 (Development of land into Colony) of PAPRA, the opposite party was liable to obtain permission from the competent authority for developing the colony, but it failed to produce on record any such permission. So, it also violated Section 5 of PAPRA.
19. 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 party to prove that any account has been maintained by it in this respect. As such, the opposite party also violated Section 9 of the PAPRA.
20. 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."
21. 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 made payment of substantial amount to the opposite party, with the hope to Consumer Complaint No.502 of 2018 14 get the possession of the plot within a reasonable period. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of plot and delivery of possession in a stipulated period. The act and conduct of the opposite party is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite party, she would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. It stands proved that the opposite party failed to hand over the possession of the plot, in question, to the complainant within the stipulated period, without any sufficient reason. 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.
22. The complainant has prayed for refund of the deposited amount, along with interest, compensation and penalty amount, as per Clause 8 of the agreement. No doubt, the opposite party offered to pay certain penalty amount for delay in delivery of possession and 'on-time payment rebate', as discussed above, but we are of the view that since it is not in a position to deliver physical possession of the plot to the complainant, in the light of observations made above, so the penalty Consumer Complaint No.502 of 2018 15 clause and other benefit as mentioned above would not operate in this case. Had the opposite party been in a position to deliver physical possession of the plot, along with Completion/Occupation Certificate issued by the competent authority, then the penalty clause would have become applicable, otherwise not. In such circumstances, the complainant is entitled to the refund of the amount deposited towards the price of the plot, along with interest and compensation.
23. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite party:
i) to refund the remaining amount of ₹34,46,604/- to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization;
ii) to pay ₹40,000/-, as compensation on account of the mental agony and harassment suffered by the complainant, including litigation expenses.
24. The compliance of this order shall be made by the opposite party within a period of 30 days of the receipt of certified copy of the order.
25. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER November 15, 2018.
(Gurmeet S)