State Consumer Disputes Redressal Commission
Rainoo Dhar vs Emaar Mgf Land Limited on 13 July, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Consumer Complaint No.942 of 2018
Date of institution : 03.12.2018
Reserved On : 08.07.2020
Date of decision : 13.07.2020
Rainoo Dhar W/o Sh. Rakesh Raina;
Correspondence Address:
House No.3359, Panjab Vidhan Sabha Society, Sector 49-D,
Chandigarh.
....Complainant
Versus
1.M/s Emaar MGF Land Private Limited (Mohali Hills), Site Office:
Sector 105, Landran-Banur Road, opposite Reliance Petrol Pump, Mohali-1600061, through its Managing Director/Director/ Authorized Representative.
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Authorized Representative.
E-mail ID:[email protected]
....Opposite Parties
2) Consumer Complaint No.943 of 2018
Date of institution : 03.12.2018
Reserved On : 08.07.2020
Date of decision : 13.07.2020
Ranjana Rawat W/o Rakesh Rawat;
Correspondence Address:
House No.3455, Sai Enclave, Sector 49-D, Chandigarh.
....Complainant Versus
1. M/s Emaar MGF Land Private Limited (Mohali Hills), Site Office:
Sector 105, Landran-Banur Road, opposite Reliance Petrol Pump, Mohali-160061, through its Managing Director/Director/ Authorized Representative.
2. M/s Emaar MGF Land Private Limited, ECE House, 28, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director/Director/Authorized Representative. E-mail ID:[email protected] ....Opposite Parties Consumer Complaint No.942 of 2018 2 Consumer Complaints under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:
For the complainant : Sh. Sandeep Bhardwaj, Advocate For the opposite parties: Sh. Ajiteshwar Singh, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT This order will dispose of above mentioned two (2) Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the questions of law involved in both the complaints are the same and both the complaints have been filed against the same opposite parties by the different complainant(s). The facts are taken from Consumer Complaint No.942 of 2018.
Consumer Complaint No.942 of 2018 The complainant has filed this complaint, under Section 17 of the Act, against the opposite parties, seeking following directions to them:
i) to refund the amount of ₹28,75,001/-, deposited by the complainant, along with interest at the rate of 12% per annum from the respective dates of deposit till realization;
ii) to pay compensation of ₹2,00,000/-, on account of mental agony and harassment suffered by the complainant; and
iii) to pay ₹1,00,000/- towards litigation expenses. Consumer Complaint No.942 of 2018 3
iv) It has also been prayed that any other direction, as may be deemed fit in view of facts and circumstances of the case, may be issued.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that the complainant approached the opposite parties, with a view to purchase a residential plot for construction of house. The opposite parties assured that they were having all the requisite approvals and sanctions for their project namely "Mohali Hills", situated in Sector 105, Mohali. Believing their assurances, the complainant applied for allotment of a plot in Sector 105, but the opposite parties allotted her a plot in Sector 109. She met Mr. Gupta and Ms. Sunaina, officials of the opposite parties, who agreed to relocate the plot in Sector 105. The opposite parties had received a sum of ₹13,80,000/- as registration charges on 23.09.2006, vide receipt Ex.C-1. Provisional allotment letter dated 05.05.2007 Ex.C-2 was issued, whereby plot measuring 400 sq.yds. was allotted to the complainant in "Augusta Green" Sector 109 at the rate of ₹11,500/- per sq.yds. Basic sale price thereof was fixed as ₹51,75,000/-. In addition thereto, a sum of ₹2,25,472/- was payable as EDC and ₹5,75,000/- towards PLC. Thus, total sale price of the plot was fixed as ₹54,00,472/-. The opposite parties sent Plot Buyer's Agreement, Ex.C-3, pertaining to allotment of plot situated in Sector-109. However, as the complainant was interested to have plot in Sector 105, so she refused o sign the said agreement and after retaining a copy thereof returned the original agreement to the opposite parties. They agreed to allot a plot to him in Consumer Complaint No.942 of 2018 4 Sector 105, with an assurance to sent fresh allotment letter and agreement qua allotment of plot in Sector 105. The complainant further paid ₹4,21,648/- to the opposite parties, vide receipt dated 19.06.2017 Ex.C-4. The opposite parties sent letter Ex.C-5, allotting plot No.61 in 'Augusta Greens' in Sector 109 to the complainant. She was asked to put signatures on provisional allotment letter along with two copies of agreement and stamp papers. However, the complainant did not do so, as she was not interested in having plot in Sector 109. There was no payment plan/schedule agreed between the parties. However, the opposite parties kept on demanding payment of instalments, in violation of provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). However, the complainant paid further instalment of ₹4,21,648/-, vide receipt dated 27.09.2007 Ex.C-9. Instead of allotting plot in Sector 105, the opposite parties further raised demand of ₹6,51,705/-; which was paid vide receipt dated 27.12.2007 Ex.C-11. The opposite parties further raised demand of ₹4,20,000/-, vide letter dated 09.07.2008, to be paid on or before 25.07.2008; failing which threatened to cancel the allotment. However, the complainant raised issue of allotment of plot in Sector 105 and the opposite parties assured to do so. However, they sent letter dated 03.10.2008, along with payment schedule, ignoring the fact that no payment plan had been executed between the parties in the absence of any agreement. Not only this, the opposite parties further sent a demand notice for ₹30,24,399/-, vide letter dated 20.12.2013 Ex.C-14, without any justification. Further, the opposite parties levied interest of ₹21,25,891.12, vide letter dated 08.05.2014 and demanded the Consumer Complaint No.942 of 2018 5 amount of ₹55,43,846.72 from the complainant, without executing any agreement or payment schedule. They also got some blank papers signed from the complainant. The complainant kept on approaching them and after various meetings, the opposite parties sent cheque No.001736 dated 24.07.2018 amounting to ₹28,75,001/- in the name of the complainant. The complainant sent detailed letter dated 06.10.2018, along with her friend namely Rakesh Rawat and his wife Ranjana Rawat, who also purchased residential plots in the project of the opposite parties, in which they raised issue of allotment of plot in Sector 109, instead of Sector 105 and non-execution of agreement and requested them to restore the allotment and reallocate the plot(s). Meetings were held with Company officials, who assured the complainant about restoration of the plots subject to condition of depositing two cheques worth ₹25,00,000/- each on account of balance instalments. That letter was neither replied by the opposite parties, nor any agreement was executed qua allotment of plot in Sector 105. Later on, the complainant came to know from similarly situated allottees that entry points of Sector 109 were sealed by the Forest Department of Govt. of Punjab; as per information obtained under RTI Act, vide letter dated 05.05.2019 Ex.C-19. This fact is also evident from letter dated 15.04.2015, Ex.C-48. Various other letters, supplying information obtained under RTI Act, have been mentioned in the complaint, which would be discussed in later part of the order. It was further pleaded that the opposite parties wrote letter dated 27.06.2012, Ex.C-28, to PUDA, stating that the work was not complete in Sector 109. Even no Completion Certificate has been obtained by Consumer Complaint No.942 of 2018 6 the opposite parties, nor any approval was obtained by them from Punjab State Power Corporation Limited (PSPCL) for providing electricity till 26.02.2015. Thus, the opposite parties are not in a position to deliver physical possession of the plot, which was to be delivered latest by the year 2009/2010, as per the agreement. The aforesaid act and conduct of the opposite parties amount to deficiency in service. Hence, the present complaint.
Defence of the Opposite Parties
3. Upon notice, the opposite parties appeared through counsel, but failed to file reply to the complaint within the stipulated period of 45 days as per provisions of the Act. Hence, right of the opposite parties to file reply was closed, vide order dated 07.05.2019. The opposite parties challenged that order before the Hon'ble National Commission, by way of First Appeal No.909 of 2019, in which operation of that order was stayed and the complaint was being adjourned for awaiting further orders of the Hon'ble National Commission. Ultimately, vide order dated 09.01.2020 passed in aforesaid appeal, the Hon'ble National Commission allowed the opposite parties to file reply to the complaint, subject to payment of ₹20,000/- to the complainant within 4 weeks. As per order dated 28.01.2020 passed by this Commission, the said amount was paid by the opposite parties to the complainant, by way of cheque dated 22.01.2020 and reply to the complaint was filed.
4. In the reply, the opposite parties raised preliminary submissions/objections that main grievance of the complainant is regarding delay in delivery of possession of the unit bearing No.109- Consumer Complaint No.942 of 2018 7 AG-61-400, having approximate area of 400 sq.yds. located in Augusta Greens, Sector 109, Mohali Hills, Mohali. Out of sale consideration of ₹54,00,472/-, the complainant paid only ₹28,75,001/-. Said unit was allotted to her, vide letter dated 05.05.2007 Ex.C-2. Perusal of that letter shows that Expression of Interest submitted by the complainant was in respect of the proposed residential complex, which was to be constructed/developed in Sectors 105, 108 and 109, Mohali, Punjab. After considering her application, plot in Sector 109 was allotted. From the year 2007 till October, 2018, no document has been produced by the complainant to show that she ever sought allotment of plot only in Sector 105, Mohali. It was further pleaded that the complainant refused to sign/execute the agreement, which was despatched to her. She even refused to make further payments of price of plot and, as such, the opposite parties issued various demand letters to her. Copy of one such demand letter dated 12.02.2014 is Ex.OP/2. When no response was received, the opposite parties were constrained to issue another notice dated 05.03.3014 Ex.OP/3, calling upon her to pay the balance outstanding amount of ₹25,25,471/- within 30 days from receipt thereof, failing which the unit was to be cancelled. However, the complainant neither paid that amount nor executed any agreement. The total outstanding amount swelled up to ₹33,33,169/-; which was demanded, vide letter dated 16.01.2015 Ex.OP/4. Further notice dated 15.03.2015 Ex.OP/5 was sent to her to pay outstanding amount of ₹35,37,179.75, but to no effect. Reminders dated 23.03.2015 and 23.06.2015 Ex.OP/6 and Ex.OP/7 were also sent in this regard. Default on the part of the complainant due to non-payment Consumer Complaint No.942 of 2018 8 of outstanding is also proved from Statement of Accounts Ex.OP/8. Therefore, the opposite parties proceeded to cancel the allotment of plot, vide letter dated 24.08.2017 Ex.OP/9 and the entire amount of ₹28,75,001/- paid by the complainant was refunded to her in full, without any deductions; which was to be paid to her when the plot was resold. After cancellation of the plot, the complainant has no right/lien in respect of the allotment of plot. Vide letter dated 31.07.2018, Ex.OP/10 (colly.) the opposite parties tendered the said amount of ₹28,75,001/- through negotiable instrument bearing No.001736 dated 24.07.2018 drawn on HDFC Bank. It transpired that even though the entire amount had been paid back to the complainant, yet she has chosen to file the present complaint, which is misconceived. However, the complainant requested the opposite parties for restoration and reallocation of unit, vide letter Ex.C-18. The complainant had no privity of contract to write that letter after cancellation of the plot. The present complaint is not maintainable in view of provisions of Section 2 (1) (o) of the Act, as the entire amount was refunded prior to the filing thereof. The complainant has concealed material facts. In parawise reply, it was stated that the pleas, as raised in the preliminary submissions/ objections may be read as part of parawise reply. It was further pleaded that the opposite parties have been granted exemption from the provisions of PAPRA. Moreover, no violation of provisions of PAPRA was ever committed. The payments by the complainant, as mentioned in the complaint, were stated to be matter of record. It was further pleaded that through the above said instrument, the entire principal amount stood refunded to the complainant and letter dated Consumer Complaint No.942 of 2018 9 06.10.2018 sent by the complainant is misconceived, unsubstantiated and wrong. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed with costs.
5. Rejoinder to the reply was filed, in which averments of the complaint were reiterated and pleadings of the reply filed by the opposite parties were controverted. It was controverted that the negotiable instrument sent by the opposite parties was not presented to be credited in the account of the complainant and she immediately wrote letter dated 06.10.2018, after receiving the amount through letter dated 24.07.2018.
Evidence of the Parties
6. To prove her claim, the complainant filed her own affidavit, along with copies of documents i.e. payment receipts/cheques Ex.C-1, Ex.C-4, Ex.C-7 to Ex.C-9, Ex.C-11 and Ex.C-17, provisional allotment letter dated 05.05.2007 Ex.C-2, Plot Buyer's Agreement Ex.C-3, demand letters Ex.C-6, Ex.C-10, letter dated 09.07.2008 Ex.C-12, letter dated 03.10.2008 Ex.C-13, letter dated 20.12.2013 Ex.C-14, letter dated 12.02.2014 Ex.C-15, letter dated 08.05.2014 Ex.C-16, letter posted vide postal receipt dated 06.10.2018 Ex.C-18, letter dated 01.04.2015 Ex.C-19 (colly.), letter dated 15.04.2015 Ex.C-20, letter dated 29.04.2014 Ex.C-21 (colly.), letter dated 11.03.2015 Ex.C- 22 (colly.), letter dated 29.02.2008 Ex.C-23, letter dated 21.10.2011 Ex.C-24 (colly.), letter dated 13.02.2012 Ex.C-25 (colly.), letter dated 31.02.2013 Ex.C-26 (colly.), letter dated 24.12.2010 Ex.C-27 (colly.), letter dated 27.06.2012 Ex.C-28 (colly.), letter dated 29.04.2015 Ex.C- 29 (colly.), notification dated 02.09.2014 Ex.C-30, letter dated Consumer Complaint No.942 of 2018 10 30.06.2014 Ex.C-31 (colly.), letter dated 21.08.2015 Ex.C-32 (colly.), letter dated 26.02.2015 Ex.C-33 (colly.), letter dated 11.03.2015 Ex.C- 34 (colly.) and letter dated 14.12.2016 Ex.C-35.
7. The opposite parties, in support of their defence, filed affidavit of Sh. Subrat K. Pradhan, DGM (Legal), along with copies of documents i.e. resolution dated 14.11.2018 Ex.OP-1, payment reminder dated 12.02.2014 Ex.OP/2, Final Notice for payment dated 05.03.2014 Ex.OP/3, Notice for payment dated 16.03.2015 Ex.OP/4, offer of possession letter dated 16.03.2015 Ex.OP/5, Notice for payment dated 23.03.2015 Ex.OP/6, Notice for payment dated 23.06.2015 Ex.OP/7, Statement of Account Ex.OP/8, Cancellation Letter dated 24.08.2017 Ex.OP/9 and letter dated 31.07.2018 Ex.OP/10 (colly.).
Contentions of the Parties
8. I have heard learned counsel for the parties and have gone through written arguments submitted on their behalf as well as record carefully.
9. The written arguments submitted on behalf of the complainant are on the lines of the complaint. It was further contended that the opposite parties allotted plot to the complainant in Sector 109, Mohali, whereas she intended and applied for allotment of plot in Sector 105. No agreement was executed by them, despite receipt of more than 25% of total sale price of the plot, which amounts to violation of provisions of PAPRA. No payment schedule was ever agreed between the parties. They several times sent copies of agreement to sign and execute the same, mentioning allotment of plot Consumer Complaint No.942 of 2018 11 in Sector 109, but as the same was not suitable to the complainant, so she did not sign the same and returned the same to them. There was no default in making payment of price of the plot, but the opposite parties unilaterally cancelled the allotment and refunded the amount, vide cheque dated 24.07.2018. Cancellation of unit without giving any notice is also illegal. However, the complainant never presented that cheque and requested the opposite parties to restore the allotment and reallocate the plot and she was ready to pay the balance amount, but nothing was done. The requisite permissions and sanctions were not obtained by the opposite parties from the competent authorities, before setting up the said project. As per information obtained under RTI, vide letter dated 29.04.2014, the opposite parties failed even to apply for water, sewerage, electricity etc. There is no connectivity of roads to main city; which is delay due to Court case. No basic amenities have been obtained at the site and the opposite parties also failed to obtain Completion and Occupation Certificates. The final layout plan of the project of the opposite parties was approved only on 31.01.2013, whereas they collected huge amounts from various buyers much prior to that. The deficiency in service on the part of the opposite parties has been clearly proved and, as such, the complainant is entitled to all the reliefs, as prayed for in the complaint. In support of his contentions, learned counsel for the complainant relied upon following cases:
i) Karun Malhotra & Anr. v. M/s IREO Grace Realtech Pvt. Ltd.
CC No.220 of 2019, decided by the Hon'ble National Commission vide order dated 06.03.2020;
Consumer Complaint No.942 of 2018 12
ii) Renu Khanna v. M/s Emaar MGF Land Private Limited CC No.73 of 2018 decided by State Commission, U.T. Chandigarh, vide order dated 24.09.2019;
iii) Kiran Joshi v. S.M.V. Agencies Pvt. Ltd. II (2019) CPJ 461 (NC);
iv) M/s TDI Infratech Ltd. v. Sundeep Singh Gulati F.A. No. 582 of 2019, decided by Hon'ble National Commission, vide order dated 08.07.2019;
v) Kulwant Singh v. Emerging India Housing Corporation Pvt.
Ltd. CC No.765 of 2018, decide by this Commission, vide order dated 26.11.2019; and
vi) Abdul Hafiz v. Greater Mohali Area Development Authority CC No.1022 of 2018, decide this Commission, vide order dated 17.06.2020.
10. In the written arguments submitted on behalf of the opposite parties, it was contended that the complainant failed to execute the agreement and also failed to pay the due instalments, as demanded from time to time. Thus, the allotment stood cancelled, vide letter dated 24.08.2017 Ex.OP-9, but this fact has been concealed by the complainant in the complaint. The entire amount received from the complainant has been paid back in full, without any deduction/ forfeiture, as is evident from document Ex.C-17. After refund of entire amount, the dispute raised in the complaint is excluded from the purview of the Act, as per Section 2 (1) (o) and the opposite parties cannot be held deficient or negligent. Thus, the complaint is liable to be dismissed for want of any cause of action and being barred by law. Consideration of Contentions
11. I have given my thoughtful consideration to the respective contentions raised by the learned counsel for the parties. Consumer Complaint No.942 of 2018 13
12. Admittedly, the complainant applied for allotment of a residential plot in the above noted project of the opposite parties by paying ₹13,80,000/-, vide receipt dated 23.09.2006, Ex.C-1. Vide provisional allotment letter dated 05.05.2007, Ex.C-2, the complainant was allotted plot No.61, having approximate area of 400 sq.yds. in Sector 109 for total sale consideration of ₹51,75,000/-, which included PLC of ₹5,75,000/- being facing major road. In addition to it, ₹2,25,472/- were payable towards EDC. The opposite parties sent 'Plot Buyer's Agreement', Ex.C-3, to the complainant, but she refused to sign/execute the same, as she had opted for allotment of plot in Sector 105, but the same was allotted in Sector 109 by the opposite parties, unilaterally. After retaining copy thereof, original agreement was returned to them. The complainant requested the opposite parties several times to allot plot in Sector 105, but to no effect. The complainant deposited a total sum of ₹28,75,001/- towards the price of the plot, as is proved from Statement of Account Ex.C-14. It needs to be mentioned that no agreement has been executed in this case, despite receipt of more than 25% of the sale price of the plot. Section 6 (1) of PAPRA is reproduced as under:
6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five percent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908).Consumer Complaint No.942 of 2018 14
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots."
13. Perusal of above reproduced Section 6 (1) of PAPRA shows that before accepting 25% of the sale price, the builder/developer shall enter into a written agreement for sale of the property with the buyer. However, the opposite parties failed to enter into any agreement for sale of the plot, in question, with the complainant, despite receipt of huge amount of ₹28,75,001/-. Thus, they committed violation of Section 6 (1) of PAPRA by receiving the above said huge amount from the complainant, without entering into any agreement for sale of the plot.
14. The opposite parties cancelled the allotment of the plot, vide letter dated 24.08.2017 Ex.OP/9, on the grounds complainant defaulted in making payment of instalments, despite sending various demand letters. It needs to be mentioned that no specific agreement has been executed in this case and, as such, there are no specific terms and conditions of allotment. However, it is a matter of common knowledge that possession of the plot was required to be delivered within a reasonable period of three years from the date of issuance of provisional allotment letter Ex.C-2, which was issued on 05.05.2007. Thus, the possession was to be delivered up to 05.05.2010. However, the opposite parties failed to deliver possession of the plot, complete in all respects, with all the basic and agreed amenities within that period. As per letter dated 16.03.2015, Ex.OP-5, the opposite parties offered possession of plot, subject to clearing balance payment and fulfilling the formalities. However, the opposite parties have not led any cogent Consumer Complaint No.942 of 2018 15 and convincing evidence to prove that the plot/project, in question, was complete in all respects along with agreed basic amenities on that date. As per letter dated 05.05.2015, Ex.C-19 (colly.), information sought by one Sh. Baljit Singh under RTI Act was supplied to him by Deptt. of Forest and Wild Life Sanctuary, Punjab. From perusal of this letter, it is clear that the entry point of the project of M/s Emaar MGF Land Ltd. for Sectors 105, 108 and 109 had been closed by the Forest Department by thorny fencing wire and digging the trenches, as the user agency had not obtained the requisite permission from the Government of India for use of land of Forest Department under FCA 1980 for the paths. It is further mentioned therein that the case regarding paths in Sector 109 was pending adjudication since 03.07.2012 before the Civil Court, Kharar, for violation of IFA-1927 under Sections 29, 33 and 63 of IFA, 1927. As per letter dated 15.04.2015, Ex.C-20, it is clear that opposite parties sought permission from GMADA for completion of six approaches from Kharar-Banur- Tepla Road; which was not yet completed. Perusal of letter dated 29.04.2014, Ex.C-21, shows that the sewerage treatment plant, water supply commissioning certificate, electricity supply commissioning certificate and electricity grid station commissioning certificate had not been applied by the opposite parties.
15. As per letter dated 11.03.2015, Ex.C-22, information under RTI Act was supplied by GMADA to Sh. Ajit Singh Yubi, stating that no Completion Certificate was applied by the promoter for Sectors 98, 99, 105 and 109. Further, from perusal of letters dated 21.10.2011, 13.02.2012 and 31.02.2013, Ex.C-24 to C-26, it is clear that approval Consumer Complaint No.942 of 2018 16 for revised layout plan of the project of the opposite parties was given, subject to compliance of various terms and conditions mentioned therein, but there is no evidence produced by the opposite parties to prove that they have complied with those terms and conditions. Further, perusal of letter dated 24.12.2010, Ex.C-27, shows that the opposite parties sought renewal of NOC from Punjab Pollution Control Board. However, it is clear from this letter that the Sewerage Treatment Plant (STP) had not yet been installed. As per letter dated 30.06.2014, Ex.C-31, not even a single permanent domestic connection had been released in Sector 109 from the year 2007 to 2014, nor any amount had been deposited by the opposite parties for securing such connections. The total load of 21023 KW had been sanctioned in Sectors 105, 108 and 109, but since Emaar MGF had yet to deposit the amount of Bank Guarantee, so no such load had been released. Still further, as per letter dated 16.09.2015, Ex.C-32 (colly.), the opposite parties had applied for issuance of Completion Certificate; which was under consideration. Other documents produced by the complainant also show that the project of the opposite parties was lacking in many respects.
16. From above discussed evidence, it is clear that the project of the opposite parties was not complete, in all respects even up to 16.09.2015 and, as such, the possession of the plot offered vide letter dated 16.03.2015 Ex.OP-5 was just a paper transaction. As such, the complainant was justified in withholding remaining instalments on account of non-development at the site. Besides this, the opposite parties failed to prove that the requisite approvals and sanctions were Consumer Complaint No.942 of 2018 17 obtained by them from the competent authorities before launching the project.
17. 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, they 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.942 of 2018 18
20. 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 rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
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 plot in a reasonable period. The circumstances clearly show that they 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. There is escalation in the price of construction also. The builder is under obligation to deliver the 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 Consumer Complaint No.942 of 2018 19 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.
21. Allotment of plot has already been cancelled, vide letter dated 24.08.2017, Ex.OP-9, but it is the specific plea of the complainant that the refund cheque No.001736 dated 24.07.2018 for ₹28,75,001/-, Ex.C-17, sent by the opposite parties has not been got encashed by her. After cancellation of allotment, she along with other allottees sent letter, Ex.C-18, on 06.10.2018, raising her grievances of allotment of plot in Sector 109 instead of opted Sector 105. She requested them to restore the allotment and reallocate the plot, but to no effect. However, cogent and convincing evidence has been led by the opposite parties to prove that cheque of above said amount was issued, which was not got encashed by the complainant. This fact is admitted by the complainant in para-15 of the complaint. The said cheque was not encashed by the complainant. However, in the complaint, the prayer has been made to refund the amount deposited Consumer Complaint No.942 of 2018 20 by the complainant i.e. ₹28,75,001/-, along with interest and compensation, besides litigation expenses. Since it has been abundantly proved that the project of the opposite parties is not complete in all respects and even there is no passage and the same has been sealed by the Forest Department, so the complainant is entitled to the refund of the amount deposited by her, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till the date of issuance of refund cheque Ex.C-17 i.e. 24.07.2018, as per Rule 17 of PAPRA, as the complainant did not intend to get it encashed, for this reason, the opposite parties cannot be burdened to pay interest after the date of issuance of that cheque. Besides this, the complainant is also entitled to suitable litigation costs and other expenses.
22. In view of my above discussion, the complaint is partly allowed and following directions are issued to the opposite parties:
i) to refund ₹28,75,001/- deposited by the complainant, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till the date of issuance of refund cheque Ex.C-17 i.e. 24.07.2018, as per Rule 17 of PAPRA; and
ii) to pay ₹22,000/- as litigation costs and other expenses.Consumer Complaint No.942 of 2018 21
2. Consumer Complaint No.943 of 2018
23. Similarly, in this complaint, the complainant applied for allotment of a residential plot in the above noted project of the opposite parties, by paying ₹13,80,000/- as registration amount, vide receipt dated 23.09.2006, Ex.C-1. Vide provisional allotment letter dated 05.05.2007, Ex.C-2, the complainant was allotted plot No.60, having approximate area of 400 sq.yds. in Sector 109 for total sale consideration of ₹51,75,000/-, which included PLC of ₹5,75,000/- being facing major road. In addition to it, ₹2,25,472/- were payable towards EDC. The opposite parties sent Plot Buyer's Agreement, Ex.C-3, to the complainant, but she refused to sign/execute the same, as she had opted for allotment of plot in Sector 105, but the same was allotted in Sector 109 by the opposite parties, unilaterally. After retaining copy thereof, original agreement was returned to them. The complainant requested the opposite parties several times to allot plot in Sector 105, but to no effect. The complainant deposited a total sum of ₹28,75,001/- towards the price of the plot, as is proved from Statement of Account Ex.C-9 (colly.). The opposite parties failed to develop the project and to provide agreed and basic amenities at the site. Later on, they sent cheque dated 17.05.2018 for ₹28,75,001/- Ex.OP-6 (colly.); which was never received by the complainant. Other averments are similar to that of Consumer Complaint No.942 of 2018 and similar prayer has been made.
24. Upon notice, the opposite parties appeared through counsel, but failed to file reply to the complaint within the stipulated period of 45 days as per provisions of the Act. Hence, right of the Consumer Complaint No.942 of 2018 22 opposite parties to file reply was closed, vide order dated 07.05.2019. The opposite parties challenged that order before the Hon'ble National Commission, by way of First Appeal No.910 of 2019, in which operation of that order was stayed and the complaint was being adjourned for awaiting further orders of the Hon'ble National Commission. Ultimately, vide order dated 09.01.2020 passed in aforesaid appeal, the Hon'ble National Commission allowed the opposite parties to file reply to the complaint, subject to payment of ₹20,000/- to the complainant within 4 weeks. As per order dated 28.01.2020 passed by this Commission, the said amount was paid by the opposite parties to the complainant, by way of cheque dated 22.01.2020. The opposite parties filed reply to the complaint, on the lines of their reply filed in Consumer Complaint No.942 of 2018. Similar documents have been filed by the parties and similar arguments have been raised, as filed/raised in Consumer Complaint No.942 of 2018.
25. As discussed above, the opposite parties failed to develop the project and deliver possession of the plot, along with agreed facilities within the reasonable period. Later on, they sent refund cheque dated 17.05.2018 for ₹28,75,001/- Ex.OP-6 (colly.). The cogent and convincing evidence has been led by the opposite parties to prove that the cheque of that amount was issued. This fact is also admitted by the complainant in para-15 of the complainant. However, the said cheque was not encashed by the complainant. Since it has been abundantly proved that the project of the opposite parties is not complete in all respects and even there is no passage and the same Consumer Complaint No.942 of 2018 23 has been sealed by the Forest Department, so the complainant is entitled to the refund of the amount deposited by her, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till the date of issuance of refund cheque Ex.OP-6 (colly.) i.e. 17.05.2018, as per Rule 17 of PAPRA, as the complainant did not intend to get it encashed, for this reason, the opposite parties cannot be burdened to pay interest after the date of issuance of that cheque. Besides this, the complainant is also entitled to suitable litigation costs and other expenses.
26. In view of the reasons and discussion held in Consumer Complaint No.942 of 2018, this complaint is partly allowed and following directions are issued to the opposite parties:
i) to refund ₹28,75,001/- deposited by the complainant, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period the same remained with the opposite parties at the rate of 12% per annum from the respective dates of deposit till the date of issuance of refund cheque Ex.OP-6 (colly.) i.e. 17.05.2018, as per Rule 17 of PAPRA; and
ii) to pay ₹22,000/- as litigation costs and other expenses.
27. The compliance of the orders passed in the complaints shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order.
Consumer Complaint No.942 of 2018 24
28. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of Court cases as well as stay granted by the Hon'ble National Commission in the above noted appeals filed by the opposite parties.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 13, 2020.
(Gurmeet S)