State Consumer Disputes Redressal Commission
Sneh Sood vs M/S Bajwa Developers Ltd. on 23 February, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. Consumer Complaint No. 240 of 2016
Date of institution : 03.08.2016
Date of decision : 23.02.2017
Ms. Sneh Sood wife of Late Mr. Rakesh Kumar Sood, resident of
House No.3045/U, Sector 15-D, Chandigarh.
.......Complainant
Versus
M/s Bajwa Developers Limited through its Managing Director, Shri
Jarnail Singh Bajwa, office at SCO No.17-18, Sunny Enclave, Desu
Majra, Tehsil Kharar, District Mohali.
........Opposite Party
2. Consumer Complaint No. 252 of 2016
Date of institution : 05.08.2016
Date of decision : 23.02.2017
Sukhdev Singh son of Shri Labh Singh, resident of Village Nasirpur
Jania, Tehsil and District Moga (Punjab).
.......Complainant
Versus
M/s Bajwa Developers Limited, Regd. Office at Sunny Enclave, Desu
Majra, Kharar-140 301, through its Managing Director Shri J.S.
Bajwa.
........Opposite Party
3. Consumer Complaint No.188 of 2016
Date of institution : 14.06.2016
Date of decision : 23.02.2017
Consumer Complaint No.240 of 2016 2
Amarjit Singh s/o Shri Harnek Singh, R/o Flat No.17-C, New Town
Apartment, Gharuan, Morinda (Punjab).
.......Complainant
Versus
1. Shri J.S. Bajwa, Managing Director, M/s Bajwa Developers
Pvt. Ltd., Regd. Office Sunny Business Centre, 5th Floor, New
Sunny Enclave, Greater Mohali (Punjab).
2. M/s Bajwa Developers Pvt. Ltd., through its Managing Director,
J.S. Bajwa, Regd. Office, Sunny Business Centre, 5th Floor,
New Sunny Enclave, Greater Mohali (Punjab).
........Opposite Parties
Consumer Complaints under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Shri Abhishek Bhateja, Advocate. For the opposite party : Shri T.S. Khaira, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
All the above referred Consumer Complaints are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these complaints. The facts are taken from Consumer Complaint No.240 of 2016.
2. The complainant, Ms. Sneh Sood, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the Act") for the issuance of following directions to the opposite party:-
Consumer Complaint No.240 of 2016 3
i) to either hand over the possession of the Flat or refund Rs.16,80,000/- along with interest at the rate of 18% per annum;
ii) to pay compensation of Rs.2,50,000/- for stress, harassment and mental agony caused by the opposite party; and
iii) to pay Rs.33,000/-, as litigation expenses.
3. The complainant alleged, in her complaint, that the opposite party floated a scheme of developing a housing project in Sector 74- A, Mohali by the name and style of Sunny Apartments and marketed the sale of residential flats of various specifications. The complainant purchased 2 BHK BR No.(1802) Apartment No.2702 at the Sunny Apartment F21, Mohali, Sector 74-A, 117, at Sector 74-A, Mohali, having covered area of 900 square feet at a price consideration of Rs.24,00,000/-, by paying an initial amount of Rs.3,00,000/-. The complainant made another payment of Rs.2,50,000/- on 23.6.2011, vide cheque No.737664. Again the payment of Rs.50,000/- was made on 27.6.2011. Till then total payment of Rs.6,00,000/- had been made and in furtherance thereof, the opposite party issued Buyer's Agreement dated 27.6.2011. The opposite party assured that the possession of the flat would be delivered by 27.12.2012. On 11.11.2011, the complainant made another payment of Rs.1,25,000/-, vide cheque No.683727, another payment of Rs.1,40,000/- vide cheque No.737667 and the payment of Rs.95,000/- in cash. On 10.3.2012 again the complainant made payment of Rs.1,70,000/-, vide cheque No.683731, payment of Consumer Complaint No.240 of 2016 4 Rs.60,000/-, vide cheque No.864303, payment of Rs.80,000/-, vide cheque No.43551 and Rs.50,000/- in cash. On 25.6.2012 the complainant again made the payment of Rs.1,10,000/- in cash, Rs.1,00,000/-, vide cheque No.669687, Rs.50,000/-, vide cheque No.683735 and Rs.1,00,000/-, vide cheque No.864305. In all a sum of Rs.16,80,000/- had been paid till 25.6.2012, the break-up of which has been given in para no.4 of the complaint. Rest of the instalments were not paid since no construction work or any sort of development had taken place at the actual site. A perusal of the agreement shows that sole intention of the developer was to grab the money of the purchasers and to harass them. The agreement created by the opposite party is in complete violation of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). The Statement of Objects and Reasons of abovementioned Act manifestly show that the Act was created for controlling the activities of the private colonizers engaged in the construction of apartment. The opposite party had intentionally made an agreement which does not comply with any of the relevant provisions of law enumerated in the said Act. The complainant sought information under RTI Act regarding CLU and other necessary permissions from where the complainant came to know that the opposite party did not take requisite permissions before signing the buyer's agreement. The opposite party applied for CLU in the year 2013 after signing buyer's agreement which in itself implies unfair trade practice. During last 5 years the opposite party never raised any demand of money for rest of the instalments. However, the complainant was and has always Consumer Complaint No.240 of 2016 5 been ready and willing and is still ready to make the balance payment of the flat, provided the possession of the flat is handed over to her. As per the buyer's agreement the construction of the flats was to be completed within 18 months i.e. by 27.12.2012 from the date of signing of the Agreement dated 27.6.2011. As such the possession of the complete flat should have been handed over to the complainant latest by 27.6.2012. However, nothing useful has been done on the actual site of the project. Due permissions/necessary approvals in relation to the Project in question were yet to be taken from the concerned authorities and as such the project could not take off. The complainant made a number of calls and also paid visits to the office of the opposite party but never got a satisfactory response. Feeling aggrieved, the complainant got issued a legal notice dated 5.7.2016 through registered post but even the said notice has gone unnoticed and no reply whatsoever has been sent by the opposite party. These acts and conduct of the opposite party amount to deficiency in service and adoption of unfair trade practice by them.
4. The written statement filed by the opposite party was beyond the period of 45 days from the date of receipt of the notice and, therefore, the same was not taken on record, vide order dated 12.10.2016.
5. To prove the allegations made in the complaint, the complainant proved on record her affidavit Ex.CA and documents Ex.C-1 to Ex.C-16. On the other hand, the opposite party proved on Consumer Complaint No.240 of 2016 6 record the affidavit of Jarnail Singh Bajwa, Managing Director, as Ex.OPA.
6. We have carefully gone through the averments of the complainant and the evidence produced by the parties. We have also heard learned counsel for the parties.
7. It was submitted by the learned counsel for the complainant that the complaint filed by the complainant is to be allowed on this ground itself that there was violation of the provisions of the PAPRA by the opposite party and without having the requisite permissions/sanctions of the competent authorities it received amounts exceeding Rs.25,000/- and executed the Agreement Ex.C1 regarding the flat in dispute. The Agreement is dated 27.6.2011 whereas all the alleged permissions/sanctions, by virtue of the documents proved by the opposite party, were granted by the competent authorities after that date. By selling the flat without the requisite permissions/sanctions the opposite party adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainant is no more interested in the possession of the flat and confines her request for the refund of the amount along with interest and compensation for the harassment and mental agony suffered by her. He further submitted that as per the Agreement the possession of the flat was to be given within 10 days of the payment of the amounts, which were payable in the year 2011, but was never delivered and that amounts to deficiency in service on the part of the opposite party. Consumer Complaint No.240 of 2016 7
8. On the other hand, it was submitted by the learned counsel for the opposite party that from the evidence produced on the record, it stands proved that the complainant was only an investor in the flat. He further submitted that from the evidence of the opposite party, it stands proved that it had already applied for the permissions/sanctions of the competent authorities before the Agreement was executed and, as such, there was no violation of the provisions of the PAPRA. The Project was exempted from the provisions of that Act and, as such, the complainant cannot invoke the same to get the relief claimed in the complaint. He is not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
10. According to the complainant, against the total price of Rs.24,00,300/- she paid an amount of Rs.16,80,000/-. The complainant has given the details of those payments in para no.4 of her complaint. It cannot be made out from the evidence produced on the record that the complainant invested the amount in the flat in dispute for the purposes of resale. We are not inclined to conclude that the complainant does not fall under the definition of 'consumer' as contained in Section 2(1)(d) of the Act. It is very much clear from the contents of the Agreement Ex.C-1 that the flat, which the complainant agreed to purchase, was to be constructed and the opposite party was required to execute a registered sale deed in favour of the complainant within 10 days of the payment of the total Consumer Complaint No.240 of 2016 8 sale consideration. As per the contents of the Agreement the complainant was to accept any change made in the layout plan by the competent authority and the flat which she agreed to purchase could have been changed and she was to be bound by that change of flat. Thus, she hired the services of the opposite party for a consideration and, as such, falls under the definition of 'consumer'.
11. The whole purpose of pleadings is to bring the reality to an issue. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. Thus, in the present complaint the opposite party is precluded from raising any type of plea rather contents of complaint. As such, the evidence adduced by the complainant remains unrebutted.
12. It would be apposite to refer to the relevant provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), which are as follows:
3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section.Consumer Complaint No.240 of 2016 9
(2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) 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;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the building;Consumer Complaint No.240 of 2016 10
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:-
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-
(a) the promoter holds a certificate of registration under Consumer Complaint No.240 of 2016 11 sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.
(2) The advertisement or prospectus issued under sub-
section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of
the advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true.Consumer Complaint No.240 of 2016 12
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony.
(2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee. (5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force. (8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost Consumer Complaint No.240 of 2016 13 or upon payment of actual cost of developed land, as decided by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit. (9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution. (11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority.
(12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue.
(14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the Consumer Complaint No.240 of 2016 14 allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale or transfer.
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them. (16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to the promoter.
6. Contents of Agreement of Sale:-
(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 per cent 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 form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
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. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause (b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause (c),-
Consumer Complaint No.240 of 2016 15
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended
and restriction on its use, if any;
(c) the copies of documents to be attached with the
agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a Consumer Complaint No.240 of 2016 16 co-operative society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
13. Thereafter, Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 thereof, it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.Consumer Complaint No.240 of 2016 17
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub- section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
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."
14. The opposite party had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement.
15. Except the bald statement of Jarnail Singh Bajwa, made in his affidavit Ex.OP-A, that the opposite party had applied for the issuance of Letter of Intent or for permission for Change of Land Use before the Agreement, no supporting document has been proved on the record. The contents of the documents could have been proved Consumer Complaint No.240 of 2016 18 only by the documents itself and the oral evidence produced by the opposite party cannot be relied upon. By executing the Agreement Ex.C-1 and receiving the amount more than Rs.25,000/- the opposite party violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amount to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by her. Though she had not paid all the amounts as per the Agreement, yet keeping in view the fact that the opposite party had not obtained all the permissions/sanctions as per PAPRA from the competent authorities, she was justified in not making further payments as and when these facts came to her knowledge. The opposite party cannot withhold her amount and is liable to refund the same along with interest.
16. The Consumer Protection Act came into being in the year 1986. It is one of 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. There is not an iota of evidence led by the opposite party to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite party with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of land and construction Consumer Complaint No.240 of 2016 19 in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite party is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite party, she would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite party i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules frames thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the flat, 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 amount paid by the complainant is a deposit held by the opposite party in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. 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 Consumer Complaint No.240 of 2016 20 complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that she is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite party in shattering her hope of getting the plot by waiting for all this period.
17. Under Section 12 of the PAPRA read with Rule 17 of the Rules framed thereunder, reproduced above, if the amount is to be refunded, it is to be refunded along with interest at the rate of 12% per annum.
18. In view of the above discussion, the complaint (CC No.240 of 2016) is allowed and the following directions are issued to the opposite party:-
i) to refund the amount of ₹16,80,000/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by her; and
iii) to pay ₹20,000/-, as cost of litigation.
Consumer Complaint No.252 of 2016:
Consumer Complaint No.240 of 2016 21
19. In this complaint, the complainant purchased a residential plot from the opposite party in the proposed residential colony around Village Jandpur, Sector 123, District Mohali to be known as "Sunny Enclave" situated on Chandigarh-Kharar Road, Mohali and paid total sum of Rs.49,44,800/- and the details of the payment have been given in para no.7 of the complaint. The Project has not been developed and the possession of the plot has not been delivered till the date of filing of the complaint. As such, the complainant sought a direction to the opposite party to refund the amount of Rs.49,44,800/- along with suitable interest; Rs.5 lakhs on account of mental agony, physical harassment, financial loss caused to the complainant and Rs.1 lakh as cost of litigation.
20. In this case also, the written statement filed by the opposite party was beyond the period of 45 days from the date of receipt of the notice and, therefore, the same was not taken on record, vide order dated 20.10.2016.
21. In view of the discussion held in Consumer Complaint No.240 of 2016 (Sneh Sood Vs. M/s Bajwa Developers Limited), Consumer Complaint No.252 of 2016 is also allowed and following directions are issued to the opposite party:-
i) to refund the amount of ₹49,44,800/-, along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹5,00,000/-, as compensation for the harassment and mental agony suffered by him; and Consumer Complaint No.240 of 2016 22
iii) to pay ₹20,000/-, as cost of litigation.
Consumer Complaint No.188 of 2016:
22. In this complaint, the complainant purchased a residential plot from the opposite parties bearing No.95L, which was later on changed to Plot No.939, measuring 200 square yards, Khata No.Sunny, Khasra No.Enclave, Village E10, Sector 123, Jandpur, Kharar to be known as "Sunny Enclave", vide Agreement to Sell dated 27.7.2011 for the price of Rs.36,00,000/- and paid total sum of Rs.27,60,000/- from 5.7.2011 to 1.11.2011. According to clause 2 of the Buyer's Agreement, the possession was to be delivered within two years from the date of execution of the Agreement to Sell. However, the Project has not been developed and the possession of the plot has not been delivered till the date of filing of the complaint. As such, the complainant sought a direction to the opposite parties to refund the amount of Rs.27,60,000/- along with compound interest @ 12% per annum; Rs.5 lakhs on account of physical and mental harassment suffered by the complainant and Rs.55,000/-, as cost of litigation.
23. In the written reply, the opposite parties have not denied the purchase of residential plot in the manner stated in the complaint. It is pleaded that the opposite parties did not trap the complainant; rather he being a speculator and an investor was overzealous to invest in the property of the opposite parties in spite of the knowledge that the property has yet not been sanctioned by the competent authority. The said plot has been purchased by the complainant for the purposes of investment/speculation and not for Consumer Complaint No.240 of 2016 23 his own residential use. Thus, he does not fall within the definition of 'consumer'. The Agreement to Sell relied upon by the complainant and on the basis of which the present complaint has been preferred is a nonest document. The present complaint is hopelessly time- barred. The cause of action arose to the complainant for the first time on 27.7.2011 when the alleged agreement to sell was executed and thereafter on 8.11.2012 when the last payment was made. Moreover, there is no consumer-service provider relationship between the complainant and the opposite parties.
24. It cannot be made out from the evidence produced on the record that the complainant invested the amount in the plot in dispute for the purpose of resale. We are not inclined to conclude that the complainant does not fall under the definition of 'consumer' as contained in Section 2(1)(d) of the Act. It is very much clear from the contents of the Agreement Ex.C-1 that the plot, which the complainant agreed to purchase, was to be developed and the opposite parties were required to execute a registered sale deed in favour of the complainant within 10 days of the payment of the total sale consideration. As per the contents of the Agreement the complainant was to accept any change made in the layout plan by the competent authority and the plot which he agreed to purchase could have been changed and he was to be bound by that change of plot. Thus, the complainant hired the services of the opposite parties for a consideration and, as such, falls under the definition of 'consumer'.
Consumer Complaint No.240 of 2016 24
25. According to clause 2 of the Agreement to Sell, the possession of the plot was to be delivered to the complainant within a period of 2 years from the date of Agreement to Sell. Neither the possession was delivered to the complainant nor the amount deposited by the complainant has been refunded so far. There was, thus, a continuing cause of action, in favour of the complainant to file the complaint. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the opposite party/builder. It was known to the opposite party that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon`ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The objection taken by the opposite parties, in this regard, being devoid of merit, must fail and the same is rejected. No other point has been raised before us.
Consumer Complaint No.240 of 2016 25
26. In view of the discussion held above and the discussion held in Consumer Complaint No.240 of 2016 (Sneh Sood Vs. M/s Bajwa Developers Limited), Consumer Complaint No.188 of 2016 is also allowed and following directions are issued to the opposite parties:-
i) to refund the amount of ₹27,60,000/-, along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹2,50,000/-, as compensation for the harassment and mental agony suffered by him; and
iii) to pay ₹20,000/-, as cost of litigation.
27. The opposite party shall make compliance of this order within one month from the date of receipt of the certified copy of this order.
28. If the opposite party has failed to comply with the orders in the complaints within the stipulated period, then the amount of compensation awarded, vide this order in the complaints shall carry interest at the rate of 12% per annum from the date of this order till realization.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER February 23, 2017 Bansal Consumer Complaint No.240 of 2016 26