State Consumer Disputes Redressal Commission
Geeta Dutt vs Pearls Infrastructure Projects Ltd. on 4 January, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.205 of 2014 Date of Institution : 11.11.2014 Order Reserved on : 02.01.2017 Date of Decision : 04.01.2017 1. Geeta Dutt w/o Mohan Dutt, r/o H.No. 172-A, Sector 51-A, Chandigarh 2. Mohan Dutt s/o Bhawani Dutt r/o H.No. 172-A, Sector 51-A, Chandigarh. .....Complainants Versus 1. Pearls Infrastructure Projects Ltd., SCO 6, Sector 69, Mohali through its Director Sh. Kanwaljit Singh Toor. 2. Pearls Infrastructure Projects Ltd., 2nd Floor, 'A' Wing Statesmen House, Barakhamba Road, Connaught Place, New Delhi, through its Director. Sh. Mohan Lal Sehajpal. 3. Pearls Agrotech Corporation Limited (PACL), Registered Office: 22nd, 3rd Floor, Amber Tower, Sansar Chand Road, Jaipur through its Managing Director, Gurmeet Singh. ....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri J.S Gill, Member.
Present:-
For the complainants : Sh. S.S. Gill, Advocate For opposite parties : Sh. Anuj Kohli, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that they purchased plot no.529 measuring 200 sq. yds in Pearls City Sector 100 Mohali township of OPs in resale from Gulshan Rai, who bought the same from original allottee i.e. Manjit Singh for Rs.46,00,000/- and also paid Rs.35,000/- plus Rs.4326/- (towards service tax on club membership). The above said plot was transferred in their name on 31.05.2014 after paying the transfer fee of Rs.40,000/- plus service tax of Rs.4944/-. It was averred that plot buyers agreement was also endorsed in the name of the complainants after the said transfer. The complainants made an excess payment of Rs.20815/- to OP no.1, which OPs instead of refunding the same, promised to adjust in the maintenance charges, when they would take the possession. It was further averred that as per the plot buyers agreement, the OPs were to deliver the possession of plot within three years from the date of signing of plot buyers agreement from 03.08.2011. The complainants bought the above said plot for living there, but possession was not given to them in time. No offer of possession has been made to complainants. It was further averred that they sent e-mail to OP no.1 on 05.07.2014 in this regard, but to no use. The complainants again raised the same issue with OP no.1 on 12.09.2014, but possession has not been offered till date. The complainants checked up the development in the OP's township in Sector 104 Mohali and found that the promised facilities were not up to mark there. It was further averred that the complainants again sent email to OPs on 29.10.2014 to the effect that no development has taken place in the township and also sent the latest photograph of the same. It was further averred that OP no.1, while doing the marketing of the projects never disclosed the facts that land belongs to op no.3, which was in the business of collecting money from the investors through unauthorized way. The same has been held by SEBI in the recent order dated 22.08.2014 passed against OP no.3. In the said order, OP no.3 has been ordered by SEBI to return the money of investors within three months from the date of order. They alleged deficiency in service on the part of OPs. The complainants have, thus, filed the complaint directing OPs to refund the total amount of Rs.47,05,085/-, besides Rs.3,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
2. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is not maintainable. It was alleged that the complainant is not a 'consumer' of the OPs. The complaint is bad for non-joinder and mis-joinder of necessary parties. On merits, it was averred that address of the complainants is # 1142-D, Dashmesh Nagar Tehsil Kharar District Mohali. It was denied that complainants are residents of H. No.172-A Sector 51-A Chandigarh or they have been living on rent at the aforesaid address. It was averred that rent agreement was a fabricated document created by complainants in connivance with the alleged owner of the alleged demised premises. The complainants have booked the above said plot in question with the sole intention of investment. It was denied that complainants made any excess payment much less an amount of Rs.20,815/- to OP No.1. There was no occasion for OPs to make any promise to complainants to adjust any alleged excess payment in maintenance charges. It was averred that an amount of Rs.1,77,529/- was outstanding against the complainants payable at the time of taking the possession of the plot. This fact was denied that offer of possession has never been made to complainant or the site of the township has not been developed. It was further by OPs denied that complainant checked up the development in the OPs township and found that promised facilities were not up to the mark. It was further denied that OP no.3 was collecting money from investors through unauthorized way. It was further averred that complainants endorsed the buyer's agreement on 31.05.2014, which clearly mentioned the title of the land lies with OP no.3. Rest of the averments have been denied by OPs and it prayed for dismissal of the complaint.
4. The complainant tendered in evidence her affidavit Ex.C-A, affidavit of Mohan Dutt husband of the complainant along with copies of documents Ex.C-1 to Ex.C-11. As against it; OPs tendered in evidence affidavit of Sh. Harvinder Singh working as officer Marketing for OPs Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-10 and closed the evidence.
5. We have heard learned counsel for the parties and have also examined the record of the case. The facta probanda of both the parties have been duly weighed by us in this case. Ex.C-1 is rent agreement dated 01.03.2014 executed by complainants with one Harshvardhan Sharma s/o N.P Sharma to prove this fact that complainants remained deprived of the possession of the property and had to live in rented portion by making payment of the rent for this period. Ex.C-2 is allotment letter dated 08.02.2011 issued by OPs to Manjit Singh to the effect that plot no. 529 measuring 200 sq. yards at basic sale price of Rs.46 lac has been allotted @ Rs.23,000/- per square yard. Ex.C-3 is receipt dated 23.04.2011 is on the record. This is a vital document, which determines the relationship of the parties. It was executed voluntarily by the parties on 03.08.2011 and the rights and liabilities of the parties are governed by the terms and conditions of buyers agreement or by the statutory provisions of law. Clause 1 of this buyer's agreement has made it clear that plot no. 529 measuring 200 sq. yards to be sold by OPs to complainants for total sum of Rs.46 lac @ 23000/- per sq. yards. The terms and conditions are mentioned in buyers agreement. Clause 1 (c) of buyers agreement Ex.C-4 dated 03.08.2011. Clause 1 (c ) of Ex.C-4 further makes it clear that cost of electrification and electricity connection which inter alia, includes electric wiring, installation of electric substation, laying of transmission lines, expenses incurred on other allied works etc. is not included in the aforesaid basic sale price and shall be payable by the allottee in addition to price of the said plot. Similarly, other terms and conditions are also settled in Clause 10 of buyer's agreement Ex.C-4 between the parties. Clause 10 of buyer's agreement Ex.C-4 is also vital document to be noted for adjudication of the case. It reads as under :-
" possession of the said plot is likely to be delivered within (3) three years, from the date of official launch of Sector 100 of the said township or from the date of signing of flat buyers agreement, whichever is later, subject however to force majeure circumstances, regular and timely payments by the allotees and obtaining requisite permissions/approvals from the concerned authorities. However, if delay in handing over possession of plots within afore-stated time is attributable to any force majeure circumstances, which interalia, includes but not limited to war, enemy action, earthquake, act of God, delay in certain decision/clearances or if non delivery of possession is as a result of any notice, order, rules notification of any Government or public authority or for any reason beyond the control of the promoter, the promoter shall be entitled to a reasonable corresponding extension of time for delivery of the said plot.
As per Clause 10 of buyer's agreement Ex.C-4, the onus is upon the promoter to prove that there existed any force majeure circumstances, which were beyond the control of the promoter to deliver the complete possession. Annexure 'A' is part of buyers agreement dated 03.08.2011 and payment of installments has been linked with construction stage. This fact is not disputed before us that complainants have paid the entire sale amount to OPs. Ex.C-5 is email sent to complainants by OPs on 11.07.2014 to the effect that said plot has already been demarcated/numbered, sewerage/water network is lined up for query regarding the re-carpeting of road would be done on receipt of 70% possessions by plot owners. The complainants raised grievance that the works were still incomplete in Sector 100 because in front of plot, street light in front of plot, no club house work Sector 100, STP work has been done, water works is also not there, parks are also incomplete and electricity grid/connection from PUDA is not provided. The above-mentioned imperfections were raised by complainant to OPs. The complainant also relied upon photographs Ex.C-6 to the effect that basic facilities have not been provided nor the construction has been completed by OPs. There is no plot shown in the said photographs. Ex.C-7 is the order in the matter of M/s PACL Limited dated 26.08.2014. SEBI ordered not to alienate or dispose off or sell any of the assets of PACL Limited except for the purpose of making refunds to its investors as directed above. Securities and Exchange Board of India passed order and made a reference to State Government/Local Police to register a civil/criminal case against PACL Limited, its promoters, directors and its managers/persons in-charge of the business and its schemes. It is stated in this order dated 26.08.2014 that Hon'ble Supreme Court directed SEBI to proceed further in accordance with law.
"If PACL, is found to be carrying on CISs. Therefore, for the contraventions as found in this order and the contravention of Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003, SEBI has been advised to initiate appropriate proceedings under Sections 11(4) and 11B of the SEBI Act read with Regulation 65(e) of the CIS Regulations and Chapter VI A of the SEBI Act against PACL Limited, its promoters and directors, including Mr. Tarlochan Singh, Mr Sukhdev Singh, Mr. Gurmeet Singh, Mr Subrata Battacharya, Mr. Nirmal Singh Bhangoo, Mr. Tyger Joginder, Mr. Gurnam Singh (r/o Wazidpur), Mr Anand Gurwant Singh and Mr. Uppal Devinder Kumar.
The above action would be without prejudice to the right of SEBI to initiate any action under law including prosecution proceedings under Section 24 of the Securities and Exchange Board of India Act, 1992, against PACL Limited, its promoters and directors, including Mr. Tarlochan Singh, Mr. Sukhdev Singh, Mr. Gurmeet Singh, Mr. Subrata Bhattacharya, Mr. Nirmal Singh Bhangoo, Mr. Tyger Joginder , Mr. Gurnam Singh (r/o Waizdpur), Mr. Anand Gurwant Singh and Mr. Uppal Devinder Kumar and those other persons who are in default, for the above violations."
Ex.C-8 is the brochure issued by OPs showing layout plan of the site. Ex.C-9 is bill dated 01.12.2014. Ex.C-10 is photograph showing that no development work is at the site. Only poles seems to have been standing there without any provisions of electricity as shown in Ex.C10. Ex.C-11 is order of Government of Punjab Department of Housing and Urban Development (Housing II Branch) no.4966-CTP(Pb)/SP 458 dated 02.09.2014. The completion certificate as required under Punjab Apartment Property Regulation Act, 1995 has been defined as follows:-
"Completion Certificate" means a Certificate issued by the Competent Authority on written request of the applicant or promoter after completion of building works including all services or utilities as provided in the sanctioned building plans in case of a building and in case of a colony under the Punjab Apartment Property Regulation Act, 1995 or the Mega Projects policy on completion of development works viz. roads, water supply, sewerage and drainage system, street lighting parks and other utilities as provided in the layout plan of the colony or project.
Provided that the economically weaker section component of the colony or project has been duly completed by the applicant or promoter as per policy of the State Government.
Provided further that the applicant or promoter has made all payments or changes to the Competent Authority and the area under roads and parks have been duly transferred to the concerned authority by the applicant or promoter."
The partial completion of land development project is also set out in it, if the promoter fulfills the conditions detailed in it.
6. The OPs version is that complainant is not a 'consumer' of the OPs as there is no privity of contract between the complainants and OPs. The offer of possession has already been made to complainants, vide letter dated 12.02.2015 clarifying that if they failed to take possession of the plot within 30 days then they shall be liable to pay holding charges @ Rs.50 per sq., which they are liable to pay.
7. The sheet-anchor of the case of the OPs is on letter dated 12.02.2015 to the effect that complainant asked to take possession of the plot within 30 days. The OPs also took the plea that when there is Clause 29 of the Buyers Agreement for adjudication of the matter in case of any dispute, then there is arbitration provision. In view of Section 8 of the Arbitration and Conciliation Act, 1996, this Forum has no jurisdiction to proceed with the matter.
8. The next plea of the OPs is that the parties mutually restriction the jurisdiction in matter of dispute by means of buyers agreement through arbitrator. Harvinder Singh working as officer Marketing of OPs no.1 and 2 tendered his affidavit Ex.OP-A sticking to the stand, as projected in the written statement by the OPs. Ex.OP-1 is resolution dated 03.01.2015 authorizing Harvinder Singh Officer Marketing to defend the case. Ex.OP-2 is letter addressed to complainants by OPs on 17.02.2015 to the effect that above said plot was ready for possession and complainants were asked to take possession within 30 days of plot no.529. Ex.OP-2, the main document i.e statement of account on the record proving balcane amount of Rs.48,16,855.00. The amount received is Rs.46,60,141.00 and balance amount has been shown as Rs.1,56,714.00 only. Ex.OP-3 is buyers agreement dated 03.08.2011 executed between the parties, which has already been referred to us. Ex.OP-4 is the statement of account relied upon by OPs to the effect that complainant has cleared the amount Rs.46,60,141.00 to them and balance amount has been shown as Rs.1,56,714.00 only. The total price of the plot was Rs.46 lac as per buyer's agreement Ex.C-4. The price of the plot has been paid by complainants to OPs as per statement of account Ex.OP-4. The OPs also relied upon some other conveyance deed Ex.OP-5 in favour of Harish Arora and Suresh Kumar by OPs. Ex.OP-6 is conveyance deed executed by OPs in favour of Taranpreet Mast. Ex.OP-7 is conveyance deed executed by OPs in favour of M/s KLV Builders and Developers Pvt. Ltd. Ex.OP-8 is conveyance deed executed by OPs in favour of Santosh Rani. Ex.OP-9 is conveyance deed executed by OPs in favour of Subhash Sharma. In the year 2015, OPs wanted to draw this inference from these conveyance deeds that they have completed their part of construction. OPs also relied upon Ex.C-10 showing re-carpeting of road and few houses, which appeared on the site.
9. From appraisal of above referred evidence on the record and hearing the respective submissions of counsel for the parties, the basic dispute between the parties is that complainant raised grievance that completion certificate has not been taken by the OPs from the competent authority under Section 14 of the Punjab Apartment and Property Regulation Act, 1995. It was emphasized that unless and until the completion certificate or occupation certificate is obtained, there is no question of delivery of possession to the complainant by the OPs. When put this query to counsel for OPs, no such completion certificate or occupation certificate as required by Section 14 of the above Act has been brought to our notice nor has been placed on the record. Section 14 of the Punjab Apartment and Property Regulation Act, 1995 is relevant provision of law, it is reproduced as under:-
14.Occupation and completion certificate : 1) It is the responsibility of the promoter :-
i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allotee of an apartment may apply for an occupation certificate from the said authority and
ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all respects as per terms and conditions of the licence granted to him under Section 5.
2. The authority referred to in sub section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.
10. We have again referred to buyer's agreement Ex.C-4 on the record. Clause 10 of buyer's agreement mandates the promoter to deliver the possession within three years from the date of buyer's agreement dated 03.08.2011, unless there were force majeure circumstances. The OPs have not adduced any evidence to prove any existence of force majeure circumstances to the effect that the completion of the project was beyond their control. In the absence of any evidence or specific pleading by OPs on the record, we hold that OPs failed to prove existence of any force majeure circumstances in this case. Consequently, there is no escape with OPs other than to deliver the possession of the property to complainant within three years period from 03.08.2011. The time of three years stood lapsed on 03.08.2014. The OPs relied upon Ex.C-2, which is letter of year 2011. There is no provision for compensation brought to our notice in buyers agreement Ex.C-4 for late delivery of possession. In the absence of any such specific provision in the buyers agreement and in view of mandate of Section 14 of the Punjab Apartment and Property Regulation Act, 1995, we hold that OPs have failed to prove the completion of construction and in the circumstances of the case, the complainants are justified in seeking refund of the amount with interest.
11. The next argument projected by counsel for OPs is that when there is a arbitration clause and in view of Section 8 of Arbitration and Conciliation Act, 1996, this Forum has jurisdiction to proceed with the matter. We find no force in the submission of the OPs in this regard. Section 3 of the Consumer Protection Act, 1986 provides an additional remedy under the Act to redress the grievance of aggrieved persons. Section 3 of the Consumer Protection Act provides additional remedy and in view of Section 3 of the CP Act, we are of this view that additional remedy has been provided on the Consumer Forums under the Act and hence it has been authorized to decide the case despite the fact that there was an arbitration clause. We find support from the law laid down by National Commission in Inderjit Singh Bakshi versus SMV Agencies Pvt. Ltd, in First Appeal No. 729 of 2013 decided on 30.11.2015 .
12. The next submission pressed by counsel for OPs before us is that Clause 29 of the buyers agreement Ex.C-4 restricts the jurisdiction to Delhi Forum only. Reliance has been placed by counsel for OPs in Balaji Coke Industry Pvt. Ltd vs. M/s Maa Bhagwati Coke (Guj) Pvt. Ltd. reported in 2009(9) SCC 403. We have examined this authority. The Apex Court in some civil suit held that where parties voluntarily agreed to subject to jurisdiction of Kolkata Courts although Gujarat Courts also had the jurisdiction, such agreement was valid. Since Consumer Protection Act is a special act enacted by legislature with sole aim of redressal of grievances of the aggrieved parties on speedy footing and additional remedy has been provided by CP Act by Section 3 and as such we find that cited authority is distinguishable from the fact situation of the case. We, thus, hold that this Forum has also statutory jurisdiction to try the case.
13. The next objection of OPs is that there was no privity of contract between the parties and as such OPs are not bound by the same. We find no substance in this submission of counsel for OPs on this count. The complainants are the beneficiaries as they have stepped into the shoes of original allottees by purchasing the plot allotted to them by the OPs . They are certainly the beneficiaries and even otherwise buyers agreement was executed by the OPs with the complainant which estoppes the OPs from taking such like plea.
14. We have come across these findings after evaluation of evidence on the record and hearing respective submissions of counsel for the parties that completion certificate has not been obtained by the OPs. Dead line for delivery of possession was uptill 03.08.2014 because OPs have failed to substantiate any force majeure circumstances on the record proving that it made the situation out of their control to complete the possession. In the circumstances of the case, OPs have not yet obtained the completion certificate and the inference is that they have not yet completed the project. Mere execution of few conveyance deeds as heavily relied by OPs wound be inconsequential to prove the factum of construction. Consequently, we hold that in view of Section 12 of the Punjab Apartment and Property Regulation Act, 1995, the complainants are entitled to refund of the amount.
15. As a corollary of our above discussion, we allow the complaint by holding that complainants are entitled to refund of the deposited amount of Rs.46 lac (Rupees fourty six lac only) along with interest @ 12% per annum as held by National Commission in National Commission in Inderjit Singh Bakshi (supra) . We also award the amount of Rs.40,000/- as costs of litigation to the complainant. We direct the OPs to refund the amount of Rs.46 lac (Rupees fourty six lac only) along with interest @ 12% per annum and to pay Rs.40,000/- as costs of litigation to the complainant within 45 days from the date of receipt of certified copy of this order.
16. Arguments in this complaint were heard on 02.01.2017 and the order was reserved. Now the order be communicated to the parties.
17. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER January 4, 2017 (ravi)