State Consumer Disputes Redressal Commission
Abhinav Singla vs Punjab Urban Planning And Development ... on 16 August, 2022
Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.58 of 2021
Date of institution : 03.12.2021
Reserved on : 13.07.2022
Date of decision : 16.08.2022
Abhinav Singla, aged about 33 years, s/o Sh. Om Parkash through its
GPA Holder, Sh. Om Parkash, R/o H.No.115, Phulkian Enclave,
District-Patiala, 147001.
....Complainant
Versus
1. Punjab Urban Planning and Development Authority through its
Chief Administrator, PUDA Bhawan, Sector-62, Mohali, SAS
Nagar, Punjab. Email Id: [email protected].
2. Patiala Urban Planning and Development Authority through its
Chief Administrator, PUDA Complex, Urban Estate, Phase-II,
Patiala, Punjab-147001. Email Id: [email protected].
....Opposite Parties
Consumer Complaint under Section 47
of the Consumer Protection Act, 2019.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued By:-
For the complainant : Sh. Jatin Bansal, Advocate For the OPs : Sh. Anuj Kohli, Advocate C.C. No.58 of 2021 2 HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER The present complainant-Abhinav Singla has filed this complaint through his GPA Holder-Sh. Om Parkash, under Section 47 of the Consumer Protection Act, 2019, (in short "C.P. Act") seeking following directions to the opposite parties:-
(i) to hand over the actual physical possession of the plot No.35-PF at Animal Husbandry Site after completion of all development work and procuring requisite completion certificate.
(ii) to hold that the period of three years for the completion of building/structure on the residential plot no.35 PF, would commence from the date of actual delivery of possession.
Accordingly, OPs be directed not to charge any non- construction or holding charges till completion of period of three years from actual delivery of possession.
(iii) to pay 18% interest to the complainant on deposited amount of Rs.76,00,000/- paid over and above the 25% total sales consideration in violation of the prevailing policies w.e.f. 21.02.2017 till 20.06.2018; and to further pay interest @ 18% on the entire deposited amount of Rs.1,03,18,000/- to the complainant on account of delay in delivering the possession of the plot, w.e.f. 20.06.2018 till the actual possession (after obtaining completion certificate).
(iv) to pay Rs.15,00,000/- as compensation on account of unnecessary harassment (monetary as well as physical), C.C. No.58 of 2021 3 unfair trade practice, extreme mental tension, torture, agony, damages and financial loss which the complainant has suffered on account of deficiency of service, unfair trade practice and negligence at the hands of OP, and to pay Rs.1,00,000/- as litigation expenses.
(v) Any other relief, which this Commission may deem fit.
2. Brief facts culminating to the institution of the present complaint are that complainant is a consumer as he had purchased a Residential Plot from the OPs for his personal usage and to build his residential house. Being harassed mentally and physically with unfair and unethical trade practices and deficiency of service and negligence from the hands of OPs, the complainant is left with no option to file the present complaint. Fake assurances were given by the OPs in the brochure advertising residential plots at the Animal Husbandry Site and assuring to deliver the possession of the plot in a timely manner but subsequently, failed to deliver the physical possession of the plot after completion of all development work even after an inordinate delay of three years. Under section 28 of the Punjab Regional and Town Planning and Development Act, 1995, the main objects and functions of PDA is to promote and secure better planning & development of any area of the State and in furtherance of same, execute and administer the township plans and policies as moderated and regulated by PUDA. PUDA gave wrong assurances to develop project in Patiala and in pursuance of the same inviting applications for their integrated project under the name and style of '309 Residential Plots at Nabha Road Patiala' scheme at the erstwhile Govt. Animal Husbandry site in C.C. No.58 of 2021 4 November, 2015. Copy of the advertisement is Annexure C-1. Believing this advertisement and assurances given by the PUDA, Smt. Abha Singla (sister of complainant) applied for a Residential Plot of 400 sq. yards in the said project vide Application Form No.1354 alongwith depositing the earnest money of Rs.10,00,000/-. Acknowledgement of payment of earnest money is Annexure C-2 and it was assured in the Advertised Brochure that the possession is to be delivered on payment of 25% amount. It is further mentioned that the possession of residential plots would be handed over at the completion of the work or within 18 months from the date of issuance of Allotment Letter, whichever is earlier. The Application alongwith the earnest money of Rs.10,00,000/- was duly accepted by OPs and accordingly vide letter No.PUDA-EO-PTA/2016/2390 dated 03.03.2016 a Letter of Intent was issued to the complainant. As per the LOI, the complainant had to intimate the acceptance of terms and conditions of the LOI to the OPs along with payment of 15% of total sale consideration alongwith 2% amount towards Cancer Cess. The copy of LOI is Annexure C-3. Smt. Abha Singla vide letter dated 04.04.2016 accepted the terms and conditions of the LOI and in furtherance of the same, deposited the amount of Rs.17,00,000/- with OPs towards 15% value of the total sales consideration of the aforesaid plot. A copy of acceptance letter alongwith the payment receipt is Annexure C- 4(colly). Subsequently, via Transfer Memo No.PUDA/EO/2016/11605 dated 16.09.2016, the aforesaid LOI was transferred in the name of Sh. Abhinav Singla (present complainant) from Smt. Abha Singla (original allottee). Copy of transfer memo is Annexure C-5. In this way, C.C. No.58 of 2021 5 the payment of 25% of the total sale consideration was completely paid and, as such, OPs ought to have provided the possession of the aforesaid Plot No.35 PF alongwith all the basic amenities, prior to demand or accepting any further payments. After the payment of the transfer of the plot, the present complainant approached the OPs for possession of the aforesaid plot as per advertisement and assurances given in the brochure, the OPs with intent to defraud the complainant, issued "Allotment Letter" No.PUDA-EO/2016/5224 dated 21.12.2016, as per which the complainant was allotted Residential Plot No.35 PF measuring 400 sq. yards @ Rs.26,250/-. sq. yards. amounting to Rs.1,03,18,000/-. The copy of the allotment is Annexure C-6. Without any prior consent or intimation to the complainant, PUDA in a very deceitful manner, arbitrarily and illegally changed the payment plan of the project as per which, now any allottee had to pay further amount over and above the 25% prior to actual possession of the plot which is gross violation of pre-contractual condition. The aforesaid Allotment Letter clearly reflects the wholly one-sided unfair terms of the allotment, although the terms and conditions of Allotment Letter were unfair. Complainant opted to pay the complete remaining sales consideration in lumpsum after availing the benefit of 5% discount and paid Rs.76,00,000/- to PUDA towards the remaining sales consideration. Copy of payments details of Rs.76,00,000/- paid by the complainant to the OPs alongwith the receipt is Annexure C-7(colly). In this way, the complainant has already paid an amount of Rs.1,03,18,000/- to PUDA towards total sales consideration of Residential Plot No.35 PF allotted to the complainant in the said C.C. No.58 of 2021 6 project and no dues were pending in any manner. The true copy of the Accounts Property Ledger Statement dated 24.09.2021 availed from the official website of OPs is Annexure C-8. As per clause 7 of the Allotment Letter states that "This allotment shall be governed by the provisions of Punjab Regional and Town Planning and Development Act 1995, Rules and Regulations and policies framed there-under, as amended from time to time and conditions in the brochure of the scheme". As per clause 7(I) OPs are under obligation to comply with any amended policies. Complainant also referred to the ruling of Hon'ble Punjab and Haryana High Court's judgment dated 22.11.2016 in CWP No.4108 of 2016, titled as "Ram Kishan and Anr. Vs. State of Haryana and Ors" wherein the Hon'ble High Court while issuing directions to Chief Secretaries to the Government of Punjab and Haryana, has held that any govt. agency cannot allot or allocate any property/plot until and unless the same is fully developed and provided with all basic amenities. In pursuant to this Hon'ble High Court's directions in aforesaid case, a high level official meeting was conveyed on 02.01.2017 in State of Punjab, wherein general policy was laid in compliance of the directions issued by the Hon'ble High Court in the case mentioned (supra). It is submitted that as per clause 3 sub- clause (ii) and (iv) the OPs could not have charged or accept any deposits over and above the 25% of the total sales consideration till the time possession of the plot is handed over. Copy of the policy is Annexure C-10. Complainant was not liable to pay anything over and above 25% of the total sales consideration till the time of possession after completion of all development work, but despite that OPs by C.C. No.58 of 2021 7 taking undue advantage of its dominant position and by threatening to cancel the allotment, coerced the complainant to pay over and above the 25% of the total sales consideration which amounts to unfair trade practice. He also referred to the ruling of Hon'ble Supreme Court in Civil Appeal No.5862 of 2002, in case titled as "Haryana Urban Development Authority vs. Somnath", 2004 (12) CLD 4 SC, wherein the Hon'ble Apex Court directed the developers to pay interest for delayed possession @ 15% p.a. and also refund any surplus amount alongwith interest @ 15% p.a. The OPs were well aware that they cannot charge or impose any interest on the installment of the payment due to implementation of new policies and guidelines but in order to extract more money from other allottees, the OPs illegally and in a complete arbitrary manner offered possession of the plot to all the allottees including the present complainant and issued Offer of Possession Letter dated 11.12.2017, instructed the complainant to take the possession of his plot as the development work was complete. The copy of offer of possession is Annexure C-12. In pursuance of the said offer, the complainant visited the site and was shocked to discover that the OPs failed to complete the development work as there was no development done by the OPs and in this manner PUDA has committed fraud with the allottees but offering the possession is illegally and wrongly without completion of the development work. The complainant alongwith the allottees also approached to this move of all the OPs as this offer of possession is invalid and void as per Clause 3 sub-clause (iii) of the policy 2017 as the possession cannot be given unless and until all the basic amenities C.C. No.58 of 2021 8 such as Water Supply, Sewerage, Roads, parking etc. are properly developed. As per the provision of RERA under Section 11(4) (b) and 17 of RERA, the OPs were to offer the possession only after obtaining the completion certificate. The complainant has put reliance on Hon'ble National Commission's decision in "Aditya Mishra & Anr. vs. M/s. Unitech Limited" decided on 03.06.2016, wherein the Hon'ble National Commission while reiterating the principal laid down in case of "Cap. Gurtaj Singh Sahni Vs. Unitech Limited" has again held that the possession has to be offered after obtaining the completion certificate. State Commission while referring to the aforesaid Aditya Mishra case hasheld in case of "Devender Kumar Kalia vs. M/s. Bee Gee Builtech & Anr." decided on 27.10.2017. Reliance also placed on the judgment of State Commission, Chandigarh in the case titled as "Rajesh Arora vs. TDI Infratech Ltd. & Anr." decided on 24.02.2021. The copy of RERA Registration Form submitted by OPs is Annexure C-14. At the time of offer of possession, the OPs were not even having the requisite permissions and clearances from the concerned Departments and Authorities. Letter dated 10.10.2019 issued by Forest Department mentioning that the OPs have not obtained the NOC from the Forest Department till date is Annexure C-15. The objections raised by the Forest Department with "Right of Way" has not been removed by the OPs till date. Copy of RTI Application dated 29.10.2019 alongwith its reply on 04.11.2019 is Annexure C-16(colly). Not only OPs were lacking necessary sanctions from Forest Department but also the electricity supply from the concerned Department of PSPCL was obtained at much later stage than the time C.C. No.58 of 2021 9 of offer of possession. The information was received from under RTI from PSPCL qua that the copy of the same is Annexure C-17. Even the partial completion certificate was obtained by the OPs on 08.01.2019 and development work has been affected due to unauthorized occupation of land in the project by certain religious institutions and sect. The copy of the Partial Completion Certificate dated 08.01.2019 is Annexure C-18. The copy of Government Instructions dated 02.09.2014 pertaining to issuance of Partial Completion Certificate is Annexure C-19. OPs also issued the notice to the religious institutions against the unauthorized construction of Dargah and Mandir on 246.22 sq yards of the land in the said project, as Annexure C-20. To refuse to vacate the land and a copy of letter dated 15.01.2020 by Bhartiya Valmaki Dharam Samaj to OPs wherein they stated that their leader has refused to shift the premises of the said Mandir and Dargah as Annexure C-21. Numbers of representations were given by the allottees pertaining to the pending development work which is Annexure C-22. As the large number of quantity of development work was pending so the OPs were not in position to offer the actual possession of the plot and same was done merely with the objective to impose interest on installments prior to actual possession of the plots. Moreover, it is mentioned clause 4 of the Allotment Letter that possession was to be offered after completion of development work at site or within 18 months from issuance of allotment letter without any provision of extension of time. It is further ordered Clause 3 sub-clause (iv) of Government of Punjab, 2017 Policy (Annexure C-8), the OPs duty bound to complete the work in C.C. No.58 of 2021 10 the shortest period possible not extending 18 months due date for delivery of possession was 20.06.2018 after completion of development work. Development work is still pending so the OPs are liable to pay delayed interest @ 12% from 18.06.2018 the due date of delivery. Numerous efforts have been made by the complainant requesting OPs to handover the possession of the plot but in futile and subsequently complainant issued a legal notice to OPs for delivery of the possession, but no response was given by the OPs. The said acts and omissions of the OPs clearly amounts to deficiency in service however they should be held liable. Reliance be placed on the Hon'ble National Commission's decision in "Anil Kumar Jain & Anr. Vs. M/s. Nexgen Infracon Private Limited" decided on 23.12.2019 and Civil Appeal No.6239 of 2019, in case titled of "Wg. Cdr. Arifur Rahman Kan and Aleya Sultana vs. DLF Southern Homes Pvt. Ltd". decided on 24.08.2020. Clause 6 (III) of the Allotment Letter states that the construction of the building on the residential plot should be done within three years from the date of possession but the actual possession in the case of the complainant has not been handed over till date so the tenure of completion of three years would commence from the date when the OPs would have handed over the actual possession so the OPs cannot levy any non-construction charges to the complainant even after three years still the project is lacked basic facilities and amenities such as roads, water Supply and electricity connections and as such commencement of construction of any building was not possible at all. Moreover, the complainant has also the challenged the legality and validity of the possession letter and as C.C. No.58 of 2021 11 such, the tenure of period of three years for completion of building would be subject to the adjudication of the legality of the said possession letter. Taking advantage of the dominant position the OPs have forced to complainant to sign such one-sided contract, clearly amounts to unfair trade practice. Reliance placed on the Hon'ble Supreme Court's decision in Civil Appeal No.5785 of 2019, in case titled as "Ireo Grace Real Tech Pvt. Ltd. vs. Abhishek Khanna & Ors" decided on 11.01.2021. Complainant is a consumer by all means as he purchased the said plot for his residential purpose. Alleging deficiency in service and unfair trade practices the complainant has filed the present complaint.
3. After admitting the present complaint, notice was issued to the OPs, OPs appeared through counsel and filed joint written reply, raising preliminary objections denying the contents and averments made by the complainant in his complaint mentioning therein that the present complaint has not been instituted by the competent person as per law laid down and there is no deficiency in service or unfair trade practice on their behalf. Complainant has not approached the Court with clean hands. It is further submitted that considering the increase in litigation pertaining to the allotment of government site through government agency(s), the Hon'ble High Court vide order dated 22.11.2016 passed in CWP No.4108 of 2016 titled Ram Kishan and Anr. Vs. State of Haryana and Ors" has directed the states to ensure that no allotment is to be made by auction or otherwise any property either of government or through government agency unless it is free from any encumbrance and fully developed. On this direction the C.C. No.58 of 2021 12 committee was constituted and meeting dated 02.01.2017 issued the following instructions. It is further submitted that the allotment against which the complainant applied for plot published on 13.10.2015 and draw of lots were held on 22.01.2016 and the letter of intent declaring the sister of complainant has given successful in the process of draw of lots was issued on 03.03.2016. The allotment letter of the payment of initial 25% insured amount was issued on 21.12.2016. This itself shows that the process of allotment in favour of the complainant was initiated much before the order dated 22.11.2016 and before the policy instructions issued by the Punjab Government on 15.02.2017. It is settled principle of interpretation that judgment and the policy were neither intended nor given any retrospective effect and the scheme under which the complainant has applied and was allotted the plot was of 2015 hence was not amenable to the said judgment or policy. Moreover, as per Clause 19 of the LOI that in case the terms and conditions of the LOI are acceptable to the allottee, she is required to send acceptance letter issued registered post with a demand draft of 15% price of the plot within 30 days of issuance of the LOI and she submitted a communication dated 04.04.2016 accepting the terms of the LOI which were already Ex.C-4(colly). It has been specifically mentioned that Clause 4 of the Allotment Letter and Clause 9 of the Letter of Intent that the possession of the plot shall be handed over after the completion of the development work or 18 months of issuance of the allotment letter. After carrying out of development and provision of basic amenities, the offer of possession was delivered to the complainant on 11.12.2017 which was well within time as specified C.C. No.58 of 2021 13 in LOI and Allotment Letter. Letter dated 11.12.2017 clearly establishes that in case the complainant fails to take possession in terms of the letter within 30 days then the date of letter to be taken as date of possession. The possession of the plot in question has been taken over by the complainant in terms of the aforesaid letter dated 11.12.2017. As per the record of the PUDA, Patiala the development works i.e. water supply, sewerage, roads, electricity were complete as on 21.02.2018 as per the Partial Completion Certificate issued by the Competent Authority on 08.01.2019 showing that there was no hindrance of the construction of the house by the complainant. The complaint is bad for mis-joinder of party. The complainant is not a consumer as per the provisions of Consumer Protection Act. The complainant purchased the plot for speculation purpose and for earning profit by way of resale in the open market. The complaint is barred by limitation as complainant was to challenge the offer of possession letter dated 11.12.2017 and further processes and actions like partial completion certificate and this actions should be raised within the prescribed limit of Section 69 of the Consumer Protection Act but the complainant for the first time raised the objection on 12.04.2021 through legal notice but the contents of this legal notice are denied and has wrong and incorrect. This complaint is of fully barred by limitation which required dismissal. It is relevant to refer to the judgment titled as "Khatri Hotels Pvt. Ltd. & Anr. vs. Union of India & Anr" Civil Appeal No.7773 of 2011. Complainant has not approached the Commission with clean hands by not disclosing true facts and misrepresented the material facts. The complainant is C.C. No.58 of 2021 14 stopped by its own act and conduct from filing the instant complaint which requires dismissal. This Commission has no jurisdiction to entertain the present complaint because as per the Section 8 of Allotment Letter dated 21.12.2016 lays down in clause 8 under the heading "Disputes" as under:-
"8. Disputes All the Disputes/or differences which may arise in any manner touching or concerning this allotment shall be referred to the sole Arbitrator, who may be appointed in terms of the Arbitration and Conciliation Act 1996, as amended from time to time".
Clearly, there is an arbitration clause in the allotment letter dated 21.12.2016 and in view of Section 8 of the Arbitration and Conciliation Act, 1996, the matter deserves to be referred to the Arbitrator. Section 8 of Arbitration and Conciliation Act, 1996 (as amended vide the Arbitration & Conciliation (Amendment) Ordinance, 2015) inter alia states:
Section 8: Power to refer parties to arbitration where there is an arbitration agreement.
(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.";C.C. No.58 of 2021 15
4. These clauses and agreements are denying and this Commission has no judicial authorities to proceed further. On merits, the OPs also denied the averments in all the paragraphs made by the complainant. Alleging that PUDA ever wrongly projected anything to any alleged innocent consumers and buyers however, they admitted that 400 sq. yrds plot was allotted to the sister of the complainant. It is further alleged that the brochure was superseded by the terms of the LOI and the Allotment Letter which were duly accepted by the complainant without any protest. It is further alleged that the respondents being a body by the State Government for the development of land or housing in exempted from the provisions of Punjab Apartment and Property Regulation Act, 1995, PAPRA. They further denied that the development of the project site cannot be completed owing to the reason that large portion of the projected area illegally occupied by certain religious institutions but a very small portion of land measuring 246.2 sq. yrd. is also under the "Dargah and Mandir" which does not affect a huge land of the project.
5. In support of his claim, the complainant, along with the complaint filed his affidavit along with documents Ex.C-1 to Ex.C-26. Whereas, to rebut this evidence OPs tendered in evidence affidavit of Sh. Mahesh Bansal, Estate Officer along with documents i.e. Ex.OP- 1(colly) to Ex.OP-5.
6. We have heard the contentions of learned counsel for the parties in the present case.
7. Learned counsel for the complainant at the very outset vehemently contended on the lines of the averments taken by him in C.C. No.58 of 2021 16 the complaint alleging that in response to the advertisement of the opposite parties published in the newspaper on Nov.,2015 for the scheme of residential plots under the name and style of '309 Residential Plots at Nabha Road, Patiala. The sister of the complainant Smt. Abha Singla applied for the allotment of the plot by depositing 25% of the amount and Letter of Intent (LoI) was issued on 03.03.2016 and subsequently this LoI was transferred in the name of the complainant Sh.Abhinav Singla on 16.09.2016. He further contended that as per the terms and conditions of the contract, the physical possession was to be handed over after completion of all the development works and ultimately Allotment Letter No.15224 dated 21.12.2016, whereby the plot No.35 PF measuring 400 sq. yards was allotted to the complainant at the rate of 26,250/- per sq. yards amounting to Rs.1,05,00,000/- and the complainant opted to pay the complete remaining payment in lumpsum after availing the benefit of 5% discount and further paid Rs.76,00,000/- to PUDA towards the remaining sale consideration against the receipt Ex.C-7 (colly). Although as per the prevailing policy the complainant was not supposed to deposit any amount beyond 25% of the sale consideration, before the possession of the plot and completion of all development work and after that the opposite parties in a very illegal manner, offered possession of the plot and issued Possession Letter dated 11.12.2017 directing the complainant to take the possession of the said plot which was wrong as there was no development work was done and the claim of the opposite party was false. He submitted that the opposite parties in a deceitful manner offered the possession of C.C. No.58 of 2021 17 the plot in an undeveloped colony which is against the terms and conditions and the complainant is very much entitled for the compensation of the same.
8. Per contra, learned counsel for the opposite parties denied the contention of the learned counsel for the complainant. Firstly, taking the plea that the person who filed the complaint is not competent to file the present complainant as he is not a proper attorney of Sh.Abhinav Singla. He further submitted that reliance placed by the complainant on the order of the Hon'ble High Court in CWP No.4108 of 2016 is totally misconceived and it is not applicable to the present case. He further referred to the policy formulated by the Government on the instructions of the Hon'ble High Court and alleged that these policies are not applicable to the present case as the process of allotment in favour of the complainant initiated on 22.11.2016 and the said policy was issued by the Government dated 15.12.2017 and this policy cannot be implemented retrospectively as the allotment letter was also issued on 21.12.2016. It is further contended that the possession was offered only after proper development of the area and there is no deficiency of service on behalf of the opposite parties in the present case as alleged by the complainant.
9. The opposite parties have raised an objection that the plot has been purchased by the complainant for speculation purpose and hence does not fall under the definition of 'consumer' as defined in the Act. In this regard, it is relevant to mention Section 2(7) of the Act, which is as under:
"2. Definition- In this Act, unless the context otherwise requires,-C.C. No.58 of 2021 18
(7) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system or deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Explanation - For the purpose of this clause,-
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing."
10. The opposite parties have failed to produce any cogent and convincing evidence to prove that the plot purchased by the C.C. No.58 of 2021 19 complainant is for speculative purpose and mere assertion does not support the contention of the opposite parties.
11. We are further fortified with the judgment passed by the Hon'ble National Commission in the case titled "Meghna Singh Khera and Ors. V. Unitech Ltd.", 1(2020) CPJ 93 (NC) and KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS in Consumer Case No.137 of 2010, decided on 12.02.2015,
12. In view of the above, the objection raised by the opposite parties that the complainant is not a consumer is hereby rejected and the complainant is held to be 'consumer' under the Act.
13. With regard to the objection raised by the opposite parties that this Commission has no jurisdiction to try and entertain the complaint as per Clause 8 of the Allotment Letter dated 21.12.2016, whereby it is mentioned that the matter between the parties is liable to be resolved through Arbitration.
14. In this regard, it is mentioned that the Hon'ble National Commission, vide its order dated 13.07.2017, passed in CC No.701 of 2015 titled "Aftab Singh v. EMAAR MGF Land Limited & Anr." has held that an Arbitration Cause 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 order of the Hon'ble National Commission was challenged by M/s EMAAR MGF Limited before the Hon'ble Supreme Court by filing Civil Appeal No(s).23512-23513 of 2017 has also been dismissed, vide order dated C.C. No.58 of 2021 20 13.02.2018. The Review Petition against the order dated 13.02.2018 was also dismissed by the Hon'ble Supreme Court, vide its order dated 10.12.2018. Accordingly, the objection of the opposite parties is also rejected.
15. The undisputed facts in the present case which are relevant for the adjudication of the present case are that in November, 2015, opposite parties launched a scheme namely '309 Residential Plots at Nabha Road, Patiala' and for this applications were invited from general public for allotment of residential plot in the same scheme claiming on the payment of 25% of the total amount, for which the sister of the complainant Smt. Abha Singla applied for plot by paying the earnest money, vide Ex.C-3. The sister of the complainant became successful in the draw of lots and LoI was issued on 03.03.2016, Ex.C-3. The tentative price of the plot was termed as Rs.26,250/- per sq. yards amounting to Rs.1,05,00,000/- and the terms and conditions of the LoI was accepted by Smt. Abha Singla, vide acceptance letter dated 04.04.2016, Ex.C-4(colly) and paid the balance 15% amount i.e. Rs.17,00,000/-. Thereafter, the LoI was transferred in the name of the present complainant Sh.Abhinav Singla on16.09.2016, Ex.C-5. The term for payment of remaining 75% amount was mentioned in Clause 7 of the LoI, which is reproduced as under:
"7. For Balance Payment of 75%
i) The balance 75% of the tentative price of plot, can either be paid in lump sum without any interest within 60 days from issue of allotment letter or in 6 equated half-yearly installments along with an interest @12% per annum. First C.C. No.58 of 2021 21 installment shall become due after one year from the date of issue of allotment letter.
ii) In case balance 75% payment is made in Lump-sum within 60 days from the date of issue of allotment letter, a rebate @5% shall be admissible on 75% amount. However, in case payment of amount due is made in lump-sum subsequently at any stage, a rebate of 5% on the balance principal amount shall be admissible.
iii) In case of any advance payment, which is not less than the next due installment, remaining installments shall be rescheduled.
iv) In case of non-payment of installments by due date, allottees shall be liable to pay penalty on the amount due at the following rates for the delayed period:-
Sr.No. Period of the Delay Rate of Penalty
1. Up to One year Normal rate of interest+3%
P.A. for the delayed period.
2. If the delay is up to 2 years Normal rate of interest+4% P.A. for the delayed period.
3. If delay is up to 3 years or Normal rate of interest+5% more P.A. for the delayed period.
However, before imposing penalty, Estate Officer shall issue a notice and provide an opportunity of being heard to the allottee, and pass an order in writing, provided that penalty so imposed shall not exceed the amount due including principal and the interest chargeable from the allottee.
v) The receipt from the allottee shall be adjusted first towards penalty, then towards interest and thereafter towards principal.
16. The above said terms and conditions clearly laid down that the remaining outstanding amount of 75% can be paid by lumpsum also. However, in order to avoid any inconvenience, the complainant C.C. No.58 of 2021 22 deposited a sum of Rs.76,00,000/-, vide Ex.C-7 (colly) with the opposite parties. Ultimately, letter of possession dated 11.12.2017, Ex.C-12 was issued to the complainant to take over the possession. From the perusal of the allotment letter, as per Clause 4, states that possession of the plot would be delivered after completion of the development works at the site or 18 months from the issuance of the allotment letter, whichever is earlier. The opposite parties have taken a specific plea that after carrying out the development works and providing basic amenities offered the possession letter to the complainant on 11.12.2017 well within the specified period of the allotment letter. The complainant also accepted this possession on 11.12.2017 when the complainant has already accepted the terms and conditions of the LoI and also of the allotment letter then at this juncture the complainant is not entitled to raise any objection that qua the terms and conditions of LoI and allotment letter.
17. Undisputed facts of the case are that as per the allotment letter dated 21.12.2016, the possession of the plot was to be delivered after completion of development works at site or 18 months from the issuance of allotment letter. Admitted fact is that the possession of the plot was offered to the complainant vide letter dated 11.12.2017, Ex.C- 12 and as per the pleas taken by the opposite parties, the same was accepted by the complainant. Although, the complainant is alleging that the possession letter is merely a paper possession and no actual physical possession was given to him as the development work was not complete. There are number of encroachments on the site as certain religious institutions and structures are raised by some illegal C.C. No.58 of 2021 23 occupants which have not been removed by the opposite parties despite the verbal representations given to them by the complainant that these are major deficiencies in the development of the project. The complainant further alleged that because of this incomplete development work, the complainant could not start the construction of the house on the said plot despite the fact that he has already paid the whole consideration amount as per the requirements of the opposite parties. Learned counsel for the complainant also referred to the Govt. Policy dated 15.02.2017, as per which the opposite parties were bound to offer the possession after completion of the development works of the project and when the possession given on 11.12.2017, there was no development at the spot. He admitted that there is a Partial Completion Certificate, Ex.C-18. The perusal of the Partial Completion Certificate exhibited by the complainant reveals that the basic amenities like Road, PH Services and Electrical Services of the project was complete on 21.02.2018, barring development of green belts, portion of road unconstructed due to encroachment of Mandir, development of EWS pocket and development of Commercial pocket. This Partial Completion Certificate clearly indicates that the basic amenities, such as, Roads, Public Health Services and Electricity Services were already provided in the project and it cannot be termed as Partial Completion is of no value. Meaning thereby that when the possession letter was issued to the complainant on 11.12.2017, the basic amenities were available at the spot and as per the version of the complainant himself, he also visited the spot and found that roads were there and there was wild growth in the area. No doubt, the C.C. No.58 of 2021 24 project is in open area and if no occupant occupy the plot then wild growth is bound to occur there and even during the construction of the house by the occupants/allottees roads are bound to damage during the said course and these things can only be possible if the allottees start the construction of their houses and then point out the lack of amenities and other incomplete development work but that has not happened in this case as the complainant is alleging that the Letter of Possession so issued to him was a paper possession which this Commission has failed to understand what is the meaning of 'paper possession' when the land is lying there, open roads are there and the plots are given specific numbers of allotment then of course it cannot be construed to be a paper possession and it was an actual possession handed over to the complainant. The complainant never raised any finger regarding development of work at relevant time when this Possession Letter was issued to him on 11.12.2017 and ultimately he filed the present complaint for relief of interest, compensation along with other prayers on 03.12.2021. The complainant was duty bound to brought to the notice immediately by producing or filing the complainant that too within two years of the delivery of possession instead of sitting quite without raising any objection. This complaint, which he filed on 03.12.2021 is badly barred by limitation as the complainant was bound to approach this Commission within two years of the cause of action which arose to him on 11.12.2017 when the Possession Letter was issued to him, as such, this complaint is not maintainable.
C.C. No.58 of 2021 25
18. In view of the above discussions, this complaint is devoid of merits and the same is hereby dismissed.
19. The complaint could not be decided within the statutory period due to heavy pendency of work.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER August 16th ,2022 parmod