State Consumer Disputes Redressal Commission
Jaspreet Singh vs C & C Towers Ltd on 8 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 995 of 2018
Date of Institution : 19.12.2018
Date of Reserve : 20.12.2019
Date of Decision : 08.01.2020
Jaspreet Singh S/o Sh.Ajit Singh, Corresponding Address : 244,
Harinder Nagar, Tripuri Town, Patiala, Punjab.
.....Complainant
Versus
1. C&C Towers Ltd., Site Office : C&C Towers, ISBT cum
Commercial Complex, Opposite Verka Milk Plant, Gate No.5,
Phase-6 (Sector 57), Mohali through its Chairman/ Director /
Managing Director / Manager / Authorized representative.
2. C&C Towers Ltd., Corporate Office, Plot No.70, Sector 32,
Gurgaon, Haryana through its Chairman/ Director / Managing
Director / Manager/ Authorized representative.
3. G.S.Johar, Chairman, C&C Towers Ltd., Corporate Office, Plot
No.70, Sector 32, Gurgaon, Haryana.
....Opposite parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection
Act, 1986.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member
Present:-
For the complainants : Sh.Sandeep Bhardwaj, Advocate For the opposite parties : Sh.Rohit Mittal, Advocate Consumer Complaint No.995 of 2018 2 RAJINDER KUMAR GOYAL, PRESIDING MEMBER The complainant has filed this complaint, under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short 'the Act') seeking following directions to the opposite parties:
i) to refund the entire amount of Rs.7,42,000/- from respective dates of deposit till realization along with interest at the rate of 18% per annum;
ii) to pay Rs.1,00,000/- as compensation on account of mental agony, physical harassment, deficiency in service, unfair trade practice;
iii) to pay Rs.50,000/- as litigation expenses; and
iv) any other relief which this Commission may deem fit and proper.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that the opposite parties made a number of assurances through various newspapers, marketing e-mails and telemarketing with regard to launching of their integrated project under the name and style of "C&C Towers" and the tower namely "C&C Capital", having salient features. The complainant is practicing lawyer by profession and the father of the complainant in an Income Tax Practitioner holds a valid license for contesting the cases of Income Tax and for that purpose the complainant was looking of an office space in and around Chandigarh in order to hold his office in order to keep his record and attend his clients. The office space purchased by the complainant in order to earn his source of livelihood and in order to Consumer Complaint No.995 of 2018 3 use the same for work related to his qualification. The opposite parties assured him that they are in possession of all the permissions and approvals to hand over the possession of the unit in time. Accordingly, the complainant submitted an Application Form and paid a sum of Rs.3,18,000/- vide receipt dated 12.05.2012. The opposite parties further received an amount of Rs.4,24,000/- on 18.07.2012 from the complainant. Along with the Application Form, they also received declaration from him to the effect that "I/we further confirm that the property is not being leased by me/us for any unlawful use or purpose or otherwise with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector". The said undertaking shows that the unit sought to be purchased was not for price manipulation or unfair trade practice, but it was for self use of the complainant. Thereafter, the opposite parties issued letter of allotment dated 24.07.2012, vide which unit No.25, 15th Floor, Tower-C, measuring 265 sq.ft. (approx.) was allotted to him. The total BSP of the unit was Rs.21,20,000/- and after adding other charges, such as licence fee etc., the total cost thereof was fixed as Rs.22,26,000/-. The complainant deposited a total sum of Rs.7,42,000/- with the opposite parties towards the price of the unit. As per Clause 1.3.3 of the allotment letter, the opposite parties agreed to complete the construction and to deliver possession of the unit within a period of 48 months from the date of compliance i.e. 16.12.2009 as well as after obtaining the requisite approvals. The opposite parties vide letter dated 07.03.2014 requested the Consumer Complaint No.995 of 2018 4 complainant to visit for execution of documents for relocation of the unit. The complainant did not execute any document for relocation as there was no occasion for relocation of the unit as the opposite parties were not in possession of all the approvals. The opposite parties also wrote letter dated 07.05.2015 to the complainant, informing that the Bankers, GMADA and other stakeholders were committed to extend their financial support and that the construction would be started by July, 2015 and the project would be completed by mid-2017. GMADA also supplied information under RTI Act to one of the allottees, vide letter dated 29.09.2016, informing that neither any licence had been granted to the opposite parties, nor any agreement was executed by them with the Government. The opposite parties, vide letter dated 24.12.2015 written to the allottees, furnished vague reason for delay in completion of the project and mentioned about efforts being made to restart the project. Another allottee also sought information under RTI Act from GMADA; who was informed by GMADA, vide letter dated 11.03.2016, that proceedings had been initiated by GMADA for cancellation of agreement of the opposite parties due to non-completion of the project in time. It was also informed that the reason for delay in completing the project was disclosed by the opposite parties to be non-availability of funds with them. The opposite parties received an amount of Rs.7,42,000/- from complainant, but they did not reach the first floor slab by raising construction, from which first installment was to be commenced and, as such, the opposite parties retained the hard earned money Consumer Complaint No.995 of 2018 5 of the complainant, without any basis. No requisite permissions and approvals were obtained by opposite parties on the date of receiving the registration amount from complainant. Thus, they also violated various provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), which they were bound to comply with. Due to deficiency in service on the part of the opposite parties, the complainant suffered mental agony and harassment. Hence, the present complaint.
3. Upon notice, the opposite parties appeared and filed reply to the complaint, raising preliminary objections that this Commission has no pecuniary jurisdiction to entertain and decide the complaint, as the complainants have sought refund of Rs.7,42,000/-, along with interest and compensation of Rs.1,00,000/-, besides cost of litigation of Rs.50,000/-. The complainant does not fall under the definition of 'consumer', as defined in the Act, as he purchased the unit, in question, for commercial purpose and not for self-employment. In the application for allotment, in the column of profession, the complainant has specifically stated that he is a taxation advisor. Moreover, the unit booked by the complainant is a commercial unit, situated in the commercial project, having only commercial office spaces and retail spaces. In the Allotment Letter it is clearly mentioned at every instance when the unit, in question is being referred to, that the said unit is a 'commercial space'. Owing to plummeted real estate market, he is now seeking to retract his investment so as to avoid losses on his speculation. As per Clause 1.15 of the allotment Consumer Complaint No.995 of 2018 6 letter, due to mis-representation/ concealment on the part of the complainant, the entire amount deposited by him is liable to be forfeited. The complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. Clause 1.2.1 thereof states that timely payments were the essence of the contract, but the complainant failed to make payments in a timely manner. As per Clause 1.2.3 of the Letter of Allotment, a buyer is entitled to request for cancellation of the allotment, whereupon the transferor (opposite parties) has the option to accept such request and to refund 50% of the amount paid, without any interest. It was further pleaded that there was no mandatory time for completion of the construction, nor there was any binding obligation upon the opposite parties to complete the space within 48 months, but the same was likely to be completed within that period, that too subject to force majeure circumstances mentioned in Clause 1.3.5 of the letter of allotment. The project, in question, is being developed by the opposite parties on a piece of land owned by GMADA under Public Private Partnership (PPP) mode in Design, Build, Operate, Transfer and Finance (DBOTF) format. This project was allotted to the opposite parties by way of a transparent tender allotment process through bidding, vide Notice of Award dated 06.02.2009. A Concession Agreement for developing said project was duly executed on 15.04.2009 amongst C & C Towers Ltd.; GMADA; State Government of Punjab, through the State Transport Department; and the Punjab Infrastructure and Development Board (PIDB). As per the terms of the said Consumer Complaint No.995 of 2018 7 agreement, the conditions with regard to obtaining of requisite approvals/ permissions/NOCs were to be completed and thereafter the land, in question, was leased out to the opposite parties for 90 years with effect from 15.12.2009. The opposite parties immediately got their layout plans/designs approved from GMADA, vide letter dated 27.01.2010, and thereafter the construction was started and a substantial part of the project has been developed. However, in the month of January/February, the Deputy Chief Minister, Punjab directed certain changes in the approved designs and plans, such as increasing number of basements from 2 to 3 in Towers B & C. Thereafter, up till 04.04.2011(when the revised plans/designs were finally approved) various revised plans/designs were prepared for approval. In this regard, a letter dated 29.12.2010 was issued by GMADA to the opposite parties. The opposite parties had to halt the construction in the month of January, 2010 and necessary changes were made multiple times. Thus, the delay of one year and three months occurred owing to no fault of the opposite parties. It was further pleaded that owing to heavy rains in the intervening night and early morning of 6/7.09.2011, some constructed portion of Tower-C collapsed, due to no fault of the opposite parties and the same had to be subsequently re-constructed. This fact is evident from the information provided by the Indian Meteorological Department, vide letter dated 02.07.2012. It was further pleaded that in June, 2012, the Hon'ble Punjab and Haryana High Court directed stoppage of mining in the State of Punjab, including Ropar and Mohali Districts; Consumer Complaint No.995 of 2018 8 which resulted in severe shortage and non-availability or raw materials, as a result of which progress of the project was severally impacted. The mining activity could only commence after December, 2012. Despite all these force majeure circumstances, the opposite parties completed the construction and development of a state of art Air-Conditioned ISBT, Mohali; which was inaugurated by the then Deputy Chief Minister, Punjab on 16.11.2016. The opposite parties have neither diverted any funds elsewhere nor they had any intention of not completing the construction and development of the project. Inauguration of the Bus Stand by the Deputy Chief Minister shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. It was further pleaded that real estate growth underwent a downward spiral after the US Mortgage Crisis of 2011-12, which resulted in stark reduction of investment in the present project. On account of the fact that the said ISBT is non- operational due to omissions on the part of the State Government, the opposite parties are earning zero revenue from the said ISBT and rather they are bearing exorbitant maintenance expenses on the same. Thus, there is no deficiency in service on the part of the opposite parties. Intricate questions of law and facts are involved in the present case and this Commission has no jurisdiction to entertain and decide the same, rather the same can be properly decided only under the provisions of the Specific Relief Act and Indian Contract Act. It was further pleaded that opposite party No.3 have been wrongly arrayed as parties in the complaint, as no Consumer Complaint No.995 of 2018 9 specific role has been attributed to them. The present dispute and grievance of the complainant is only against opposite parties No.1 & 2-Company, which is a distinct juristic person in the eyes of law, having capacity to sue as well as to be sued. Thus, the complaint is liable to be dismissed against opposite party No.3. It was further pleaded that the opposite parties are not bound by the provisions of PAPRA, as the project, in question, is based on a Public Private Partnership Mode (PPP Mode) granted to the opposite parties on a leasehold basis. On merits, similar pleas, as raised in preliminary objections, were reiterated. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
4. To prove their claim, the complainant has filed his affidavit along with documents as Ex.C-1 to Ex.C-12 and Mark A to Mark C.
5. On the other hand, the opposite parties filed the affidavit of Arunav Pankaj, Authorized Representative along with documents as Ex.OP-1 to Ex.OP-17 and Mark OP-A and Mark OP-B (colly).
6. I have heard the learned counsel for the parties and have carefully gone through the record.
7. Learned counsel for the complainant has vehemently contended that the complainant is not in the business of sale and purchase of the properties. He purchased the space, in question, just for earning his livelihood by way of self-employment, as he is an Income Tax Advisor. Therefore, the complainant duly falls under the definition of 'consumer'. Moreover, the opposite parties failed to prove that the unit, in question, was purchased by him for Consumer Complaint No.995 of 2018 10 generating any profits. It was further contended that along with the application for allotment of the unit, in question, an undertaking was duly taken from the complainant, to the effect that the unit was not purchased with an intention to support or assist in any kind of price manipulation or unfair trade practice as to the real estate sector. It was further contended that as per clause 1.3.3 of allotment letter, Ex.C-4, the construction of the unit was to be completed within 60 months from the date of start of the lease period, after obtaining necessary approvals and sanctions, subject to force majeure circumstances and reasons beyond the control of the Concessionaire/Licensor. The lease started on 16.12.2009. The opposite parties received a sum of Rs.7,42,000/- from the complainant towards the price of the unit, in question, but they failed to complete the project, in question, within the said stipulated period, without disclosing any cogent reasons. No development was carried on at the site. The complainant came to know from the newspapers that the agreement between the opposite parties and GMADA has been cancelled and apprehending safety of his financial interest, he sought refund of the amount deposited from the opposite parties. The opposite parties committed deficiency in service and unfair trade practice, by not honouring their commitments, as per the allotment letter. Accordingly, it has been contended that the complaint be allowed and all the reliefs, as prayed for in the complaint, be awarded in favour of the complainant.
Consumer Complaint No.995 of 2018 11
8. Per contra, learned counsel for the opposite parties has contended that the commercial space, in question, was purchased by the complainant for commercial purpose for earning profits. The complainant failed to prove that he purchased the said unit for earning his livelihood by way of self-employment. Thus, the complaint is liable to be dismissed on this score alone. It was further contended that the complainant has not made the payments as per the Payment Schedule regularly and has only paid a sum of Rs.7,42,000/-. The construction has been raised, as per the sanctioned building plans and in compliance of the Municipal laws, regulating the construction. The delay in construction/completion of the project was due to the delay on the part of GMADA to approve the drawings and designs of the project. It is further contended that in June, 2012, there was severe shortage of raw material due to ban imposed by the Hon'ble Punjab and Haryana High Court, as a result of which progress of the project was severally impacted. Despite all these force majeure circumstances, the opposite parties completed the construction and development of the Air Conditioned ISBT, Mohali; which was inaugurated by Deputy Chief Minister, Punjab on 16.11.2016. Inauguration of the Bus Stand by the Deputy Chief Minister shows that the opposite parties have all the requisite approvals/permissions etc. to develop the project, in question. Thus, there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
9. I have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties. Consumer Complaint No.995 of 2018 12
10. So far as the contention of the learned counsel for the opposite parties that the unit, in question, is a commercial space and the complainant had purchased the same with the sole purpose of earning profits, is concerned, the same cannot be accepted on the face of it; specifically in view of the fact that it is the categorical averment of the complainant that he has purchased the commercial space for earning his livelihood, by way of self- employment, as he is doing the business of as Income Tax Advisor. No cogent evidence has been led by the opposite parties to dislodge the said averment. Merely purchasing a space, which is commercial in nature, will not always lead to the fact that it is purchased only for gains. When a person takes the property for self-employment to earn his livelihood, then certainly such a property will not come under the definition of commercial. The true spirit behind the purchase of the unit, in question, is to be seen. The opposite parties failed to produce any evidence on record to rebut this fact. Besides this, there is also no evidence from their side to prove that the complainant purchased the space, in question, for commercial purpose by employing many persons. The bona fide of the complainant to use the space, in question, for the purpose of earning his livelihood by way of self-employment has been duly mentioned in the complaint and no documentary evidence to rebut the same has been produced by the opposite parties on record. The fact remains that opposite parties miserably failed to prove that the complainant purchased the unit, in question, for commercial purpose to earn profits therefrom. Hon'ble National Consumer Complaint No.995 of 2018 13 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 undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the case in hand also, as already discussed above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale/purchase of properties or that he has purchased the unit, in question, for further sale or for earning profits. In view of the law laid down by the Hon'ble National Commission in the above said case, the objection of the opposite parties is rejected, holding the complainant as consumer.
11. So far as the objection of the opposite parties regarding pecuniary jurisdiction of this Commission is concerned, it is relevant to mention that the total price of the unit, in question, is more than Rs.20,00,000/- and the complainant have already paid Rs.7,42,000/- and, thus, the matter in hand squarely falls within the pecuniary jurisdiction of this Commission, in view of the ratio of the Consumer Complaint No.995 of 2018 14 law laid down in I (2017) CPJ 1 (NC) (AMBRISH KUMAR SHUKLA & 21 ORS. v. FERROUS INFRASTRUCTURE PVT.
LTD) and accordingly the objection of the opposite parties in this regard is also rejected. The authorities relied upon by the learned counsel for the opposite parties in the reply are not applicable.
12. The further objection of the opposite parties is that complaint is not maintainable before this Commission, in view of Arbitration Clause 1.25 in the Letter of Allotment. In this respect, it is relevant to mention here that the Larger Bench of the Hon'ble National Commission, vide order dated 13.07.2017, passed in Consumer Complaint No.701 of 2015 titled as Aftab Singh v. EMAAR MGF Land Limited & Anr., held that an Arbitration Clause in the afore-stated kind of Agreements between the Complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) filed against the said order of the Hon'ble National Commission has also been dismissed by the Apex Court, vide order dated 13.02.2018. Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017 filed against the above said order dated 13.02.2018 was also dismissed by the Hon'ble Supreme Court, vide order dated 10.12.2018. Consequently, the existence of an Arbitration Clause in the allotment letter is not a bar to resolve this dispute by this Consumer Complaint No.995 of 2018 15 Commission. Accordingly, the said objection of the opposite parties is also rejected.
13. Now, coming to the merits of the case, admittedly, vide letter of allotment dated 24.07.2012, Ex.C-4, the complainant was allotted unit No.25, Tower C, 15th Floor, measuring 265 sq.ft.(approximately) in the project of the opposite parties. As per version of the complainant, the total cost of the unit, in question, was Rs.22,26,000/-, against which he deposited a total sum of Rs.7,42,000/- with the opposite parties, as per Statements of Account, Ex.C-2 & Ex.C-3 and this fact has also admitted by the opposite parties in their written statement. As per clause 1.3.3 of the allotment letter, Ex.C-4, the construction of the unit was likely to be completed within 48 months from compliance date i.e. 16.12.2009, after obtaining all the necessary approvals and sanctions, subject to force majeure circumstances. Therefore, the construction of the unit, in question, was to be completed and possession was to be delivered upto 16.12.2013. The complaint has been filed on 19.12.2018 i.e. after about five years therefrom. However, the opposite parties failed to complete the construction of project/unit within the stipulated period, without any sufficient cause, so as to deliver possession of the unit, in question, to the complainant. The payment plan as per Allotment Letter, Ex.C-4, was Construction Linked. The opposite parties were supposed to inform the complainant the stage of construction to deposit further instalments. As per evidence, no such information has been given to the complainant by the opposite parties.
Consumer Complaint No.995 of 2018 16
14. No doubt, in the present case, the opposite parties have produced a copy of Concession Agreement Ex.OP-4 for Development of Bus Terminal-Cum-Commercial Complex at Mohali on design-built-operate-transfer (DBOT) basis, executed amongst Greater Mohali Area Development Authority, M/s C&C Towers Limited, State Transport, Government of Punjab and Punjab Infrastructure Development Board; but the fact remains that the complainant purchased the unit/space, in question, from the opposite parties and has made the payment substantial amount to them. It is the inter-se arrangement/agreement between the opposite parties and other departments of the Government of Punjab, but the complainant cannot be made to suffer for the same. Even otherwise the opposite parties have failed to prove that the terms and conditions of the Concession Agreement have been complied with by them. Be that as it may, the fact remains that more than four years have already lapsed after expiry of stipulated period for delivery of possession, but the project has not been completed in all respects. The delay in completing the construction has also been duly admitted by the opposite parties themselves in their reply. Once the complainant was satisfied that there was no likelihood of the completion of the project in question, therefore, he was well within his rights to withhold the payment of further instalments towards the price of the space/unit, as there is no fun in first depositing the amount and thereafter to claim refund of the same.
Consumer Complaint No.995 of 2018 17
15. It is also relevant to mention that the opposite parties wrote letter dated 28.07.2017, Ex.C-11, to the complainant, vide which they agreed to pay interest at the rate of 8.8% per annum on their deposited amount from the date of receipt of 35% of the BSP to 31.08.2016, which was to be paid in four equated quarterly instalments, commencing from October-December, 2017. They were asked to sign an undertaking, giving their concurrence to extend the construction timeline by three years commencing from September, 2016 to August, 2019, during which they would not be eligible to claim payment of interest damages. This letter clearly proves that the opposite parties failed to complete the project within the stipulated time frame and they further sought extension for completing the construction timeline from September, 2016 to August, 2019. Still further, the opposite parties pleaded in their reply that the delay in the project was due to various variations in the layout and designs of the project effected by the State Government. This reason is not a force majeure circumstance and the same can well be foreseen by the opposite parties before commencing the project and receiving amounts from different purchasers, including the complainant. No doubt, environmental clearance was granted to the opposite parties, vide letter dated 29.10.2009, Ex.OP-12; NOC from Punjab Pollution Control Board was granted, vide letter dated 09.04.2010, Ex.OP-13; NOC from PSPCL was granted, vide letter dated 03.11.2016, Ex.OP-15, but the fact remains that the same were granted subject to compliance of certain terms and conditions. However, the opposite parties have Consumer Complaint No.995 of 2018 18 not produced on record any evidence to prove that they have complied with those terms and conditions, in letter and spirit. The opposite parties also produced on record Partial Occupation Certificate dated 15.12.2016, Ex.OP-17, only for Block-A, Basement-1, Basement-2, Lower Ground Floor, Ground Floor & First Floor, whereas the unit of the complainant is situated on 15th Floor of Tower-C. However, in the absence of Completion Certificate as envisaged under Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), this Partial Completion Certificate is not sufficient to prove that the project is fully complete. It is also relevant to mention that one another allottee sought information under RTI Act from GMADA. GMADA, vide letter dated 29.09.2016, Ex.C-8, supplied the requisite information to her, informing that no licence of construction was granted to the opposite parties, nor any agreement was entered into by the opposite parties with the Government. Still further, as per letter dated 11.03.2016, Ex.C-10, issued by GMADA, the process for cancelling the agreement of the opposite parties had already been initiated, due to non-completion of the project within the stipulated period. It is also mentioned therein that the reason for delay in completing the project was disclosed by the opposite parties to be paucity of funds. The opposite parties neither completed the work of construction of the project, nor have submitted the copies of any Lease Deeds to GMADA. The opposite parties also defaulted in making the payment of upfront money, annual concession money, interest, causing consequential Consumer Complaint No.995 of 2018 19 damages to GMADA; as a result of which the Chief Administrator, GMADA had issued termination notice to opposite party No.1 on 04.04.2016, but it sought extension of time in completing the project, which is still under consideration of the authorities. To rebut the letter, Ex.C-7, discussed above, the opposite parties have produced on record letter dated 12.06.2018, Ex.OP-16, issued by GMADA, in which clarification was given that no licence was granted by GAMDA to the opposite parties and on instructions of Punjab Government, PIDB issued Notice of Award in favour of the Company, allowing it to raise construction in the project, as per approved designs by the GMADA only. It was also stated therein that copy of Notice of Award was attached with the said letter, but no such copy has been attached therewith, from which the contents of that letter could be proved. In such circumstances, the complainant cannot be made to wait for an indefinite period of time for the completion of the project and delivery of the space/unit in question. This certainly amounts to deficiency in service and adoption of unfair trade practice on the part of the opposite parties.
16. The opposite parties further contended that opposite party No.3 has been wrongly arrayed, as parties as no specific role has been attributed to them and, therefore, the complaint is liable to be dismissed against them. In this respect, it is relevant to mention that opposite party No.3 is the Chairman of opposite parties No.1 & 2-Company and are responsible for the day to day affairs of the said Company. Thus, it cannot be said that he has been wrongly impleaded in the complaint.
Consumer Complaint No.995 of 2018 20
17. Keeping in view the above circumstances, I 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 their title to the land, on which such project 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 project, as approved by the prescribed authority in the case of a project. However, the opposite parties failed to comply with Section 3 of the PAPRA.
18. 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 project, but they failed to produce on record any such valid permission. So, they 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/commercial space/unit, 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. As such, the opposite parties also violated Section 9 of the PAPRA.
Consumer Complaint No.995 of 2018 21
20. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The opposite parties 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 with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit, in question, 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.
21. The 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 unit 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 unit and delivery of possession in a stipulated period. 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 builder is under obligation to deliver the Consumer Complaint No.995 of 2018 22 possession of the plot/unit/flat/space within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the unit booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the unit, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The 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 these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation.
22. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the 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 Consumer Complaint No.995 of 2018 23 rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
23. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to refund Rs.7,42,000/- along with interest at the rate 12% per annum from the respective dates of deposit till realization;
ii) to pay Rs.18,000/- as compensation as well as litigation expenses.
24. Arguments in these complaints were heard on 20.12.2019 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
25. This complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER January 8th ,2020 parmod