State Consumer Disputes Redressal Commission
Satnam Singh vs Ireo Waterfront Pvt. Ltd. on 19 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 212 of 2014
Date of Institution : 28.11.2014
Date of Reserve : 15.01.2018
Date of Decision : 19.02.2018
Satnam Singh son of Sh. Kartar Singh, resident of House No.
233/2, Street No. 2, Nirmal Nagar, Dugri, Ludhiana.
....Complainant
Versus
1. IREO WATERFRONT PVT. LTD., 5th Floor, Orchid Center,
Golf Course Road, Sector-53, Gurgaon.
2. IREO WATERFRONT PVT. LTD., SCO No. 16-17, Basement
Fortune Chambers, Opposite Ludhiana Stock Exchange, Feroze
Gandhi Market, Ludhiana.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 212 of 2014 2
Present:-
For the complainant : Sh. Nimanyu Gautam, Advocate
For the opposite party : Sh. Mukesh Pandit, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Ops gave advertisement/brochure that residents of Ludhiana can discover the global town situated at short drive alongwith Sidhwan Canal Highway Turning of NH-95, Near Ludhiana-Ferozepur Road with beautiful layout, green environment, clean water and air cutting edge technology etc with villas and plots. It was having its layout plan duly approved by GLADA and further promised to give various facilities like club house, entertainment centre, primary health centre, multispecialty hospital, community centre, gyms, primary and higher secondary schools, business parks and commercial zone etc. Accordingly, the complainant submitted an application to purchase a plot bearing 094-G measuring 157.49 sq. yds. and complainant deposited a sum of Rs. 2,83,000/- as a booking amount vide cheque No. 416902 dated 16.10.2011. The terms and conditions were already given in the form of printed performa wherein blank words were filled up by the agent of the Ops, therefore, the complainant has no option but to sign on the dotted lines. The complainant received Consumer Complaint No. 212 of 2014 3 letter dated 21.11.2011 from Ops whereby the Ops had accepted the proposal for sale of plot to the complainant and it was also attached with payment plan. The colony was approved under PAPRA, 1995. Thereafter, an agreement was signed by the Ops in duplicate to be signed by the complainant and thereafter to be sent back to the Ops. The Ops further called upon the complainant to pay the balance earnest money of Rs. 3,18,917/-, which was paid vide cheque No. 416903 dated 15.12.2011, however, the clauses in the agreement are beyond the terms and conditions prescribed under the PAPRA, 1995. According to Section 6 of the Act, the date by which the possession of the plot was to be handed over to the allottee was required to be mentioned in the agreement of sale. However, in the agreement to sell, it was vaguely mentioned that the possession will be delivered within a period of two years, which may further be extended to six months and 95% of the payment was to be received within a period of 21 months from the date of booking whereas the payments should have been linked with the development work. The terms and conditions contained in the agreement are one sided, unilaterally and oppressive against the PAPRA, 1995. The Ops have no right, title and interest to change the interest of the delayed period of the installments fully knowing for years together, the Ops will not be in a position to fully develop the colony and offer the possession to the complainant. The colony is still undeveloped and lacking basic facilities. The Ops sent a letter dated 29.3.2014 calling upon the complainant to pay all amounts due and arrange for stamp duty, registration charges etc. Consumer Complaint No. 212 of 2014 4 for registration of the conveyance deed and further unilaterally changed the size of the plot from 157.49 sq. yards to 175.97 sq. yards. Aggrieved with the illegal and perverse demand of the Ops, the complainant sent a representation dated 25.4.2014 stating that he has not given any consent for increasing the area of the plot and same has been done without his consent. Therefore, he is not ready to purchase this plot. Ops sent a letter and offered an alternative plot at a different location. Aggrieved with the stand taken by the Ops, the complainant feel himself being cheated and sent a legal notice dated 30.7.2014 through his counsel that he is ready to take the plot regarding which the bargain was originally struck and has paid a substantial amount of Rs. 29,34,417/- and now Ops have no right to wriggle out of the said commitment. Ops sent reply to the legal notice wherein they offered the possession of plot No. G-094 measuring 175.97 sq. yards on the payment of due amount alongwith notice of possession dated 29.3.2014 instead of plot measuring 157.49 sq. yards. The said act of the Ops is totally illegal, perverse, null and void and violation of PAPRA Act and Rules. The complainant thereafter sent a rejoinder to the reply of the notice calling upon Ops to withdraw letter dated 29.3.2014 to refund the amount received by the Ops on account of delayed payment @ 12% and pay interest on the deposited amount till the colony is developed according to PAPRA, 1995. Complete the development work, obtain the completion and occupation certificate after providing all the amenities promised. The Ops also did not attach the documents required under Section 6(3)(c) of the Act with Consumer Complaint No. 212 of 2014 5 the agreement. It also came to the notice of the complainant that original layout plan was revised by Ops on 8 occasions without any intimation and consent of the complainant. The Ops had also promised to open a University in the colony, which was lateron abandoned. Further the Ops have not taken exemption under Section 44 of the PAPRA. The lake/ waterfront is still to be completed. No boundary wall has been constructed till date. Street lights are yet to be provided. Under Section 9 of the PAPRA Act, the Ops were duty bound to maintain separate account in any scheduled bank of the sums collected by the Ops. The stand taken by the Ops that in the event of termination or due to failure on the part of allottee, the earnest money shall stand forfeited is also illegal. The complainant after running from pillar to post many a times visited the office of the Ops to know the ground status of the plot but the Ops kept on delaying the matter on one pretext or the other, therefore, the Ops are responsible for adopting unfair trade practice. Alleging unfair trade practice as well as deficiency in services on the part of Ops, the complainant has filed this complaint seeking following directions against the Ops:-
(i) That, the opposite parties may be directed to refund the complainant to the extent of Rs. 29,34,417/- which amount has illegally and unlawfully detained by the opposite parties alongwith interest @ 18% per annum from the date of respective payments made by the complainant till the date of actual realization of the same.Consumer Complaint No. 212 of 2014 6
(ii) Rs. 10,00,000/- on account of compensation towards escalation in costs of construction material and price rise in land.
(iii) Rs. 5,00,000/- on account of mental harassment, trauma and discomfort caused to the complainant.
(iv) That, the opposite parties may be directed to pay the cost of litigation to the tune of Rs. 1,00,000/-.
AND/OR
(v) Withdraw the letter dated 29.3.2014 with immediate effect.
(vi) To refund the amount of interest recovered by respondents/opposite parties on the pretext of delayed payment along with interest at the rate of 12% per annum from the date of receipt by respondents/opposite parties till repayment on the sums paid by complainant to respondents/opposite parties.
(vii) Further pay the interest on the amount collected by respondents/opposite parties from complainant till the colony is fully developed and respondents/opposite parties obtains a completion as well as occupation certificate from the competent authority under the PAPRA Act, 1995.
(viii) To complete the development work in the entire colony.
(ix) To obtain a completion and occupation certificate under section 14 of the PAPRA Act before calling upon Consumer Complaint No. 212 of 2014 7 complainant to get a conveyance deed executed from complainant.
(x) To restore all the amenities which were initially promised by respondents/opposite parties in the advertisement/brochures in the colony and in case of failure to provide the amenities, pay compensation to complainant for the loss suffered by complainant.
(xi) To rectify all the shortcomings.
(xii) Rs. 10,00,000/- on account of mental harassment, trauma and discomfort caused to the complainant.
(xiii) That, the opposite parties may be directed to pay the cost of litigation to the tune of Rs. 1,00,000/-.
AND/OR Any other relief to which the complainant are found entitled to in the peculiar facts and circumstances may also be granted.
2. Upon notice, Ops appeared and filed the written reply through their authorized representative Mr. Rajneesh taking the preliminary objections that jurisdiction objection taken by the Ops should be decided first before proceeding with the complaint; the agreement contains arbitration clause Condition No. 32 of the Buyer's Agreement under which in case of any dispute the matter was to be referred to the Arbitrator; the complainant is not a consumer because he has not purchased the goods or services for his personal use because the present complaint relates to an agreement to sell/purchase of residential plot i.e. immoveable Consumer Complaint No. 212 of 2014 8 property, therefore, it is not covered under the Act; the agreement is a contingent contract of future sale and Ops have agreed to sell the developed plot in its IREO Waterfront project to the complainant, subject to timely payment of the sale consideration in installments; Ops are owners of the land and are developing the project in accordance with the approved layout plan/permissions/sanctions/exemptions under PAPRA, 1995; the complainant had booked a plot for investment/commercial purposes. The allegations in the complaint are of contractual nature and as such only triable by the Civil Court; there is no deficiency in service or any unfair trade practice on the part of Ops; the compensation can be paid to the complainant as per under Section 14(a)(d) of the Act and that the compensation demanded by the complainant is exorbitant and untenable. On merits, it was stated that no false representation, inducement at the time of agreement was given by the Ops to the complainant. Both the parties are governed by the agreement clauses. It was denied that any layout plan as approved by the GLADA was shown to the complainant showing various facilities just like club house, entertainment centre, primary health centre, multi speciality hospital, community centre, gyms, primary and higher secondary schools, construction of business park, commercial zone besides university campus etc. Clause K of the agreement provides that allottee acknowledges that Company had readily provided complete information and clarifications as required by the allottee. The complainant has submitted duly filled in application for provisional booking dated Consumer Complaint No. 212 of 2014 9 16.10.2011 out of his free will. All the terms and conditions of the booking are clearly laid down in the said application. It was denied that the complainant had no option but to sign on the dotted lines. There was no element of compulsion of any sort upon the complainant to purchase the plot. Ops are not governed by the provisions of the PAPRA, hence, the question of applicability of any non-compliance of any of its provision does not arise. Issuance of provisional allotment letter dated 21.11.2011 is a matter of record. After that the plot buyer's agreement in duplicate for execution was sent to the complainant and complainant was requested for payment of the balance due and complainant did not comply and made the payment towards the balance of his contractual obligations. The possession of the plot was offered and complainant had raised the objection against the terms of the agreement, which amounts to resiling from his contractual obligation. Since the exemption of the PAPRA has been given to the Ops, therefore, provisions of PAPRA does not apply to the Ops. The payment of installments was not contingent on the development work at the site. The development of a township as big as IREO Waterfront project is to be done in a phase-wise manner. Vide letter dated 29.3.2014, the Ops offered the possession of the plot to the complainant but the complainant instead of taking the possession sent a letter dated 25.4.2014 raising only one concern regarding increase in the area. Ops had offered an alternative plot with an area of 155 sq. yards but the complainant instead of taking possession of the offered plot again Consumer Complaint No. 212 of 2014 10 sent a notice. Instead of taking the possession, he sent a notice dated 30.7.2014 through his Advocate on similar grounds which stand already replied vide their reply dated 26.8.2014. With regard to increase in the area of the plot, it was submitted that the area had increased during the course of development and the complainant had agreed vide Clause 10 of the agreement vide which it was inter-alia specifically agreed by the complainant that the Ops are still in process of developing the IREO Waterfront of the location, layout size of dimensions and sizes of the plots are tentative and subject to change at the sole discretion of Ops. It was denied that the demand of Ops was illegal or perverse or that area of the plot was unilaterally changed. The legal notice dated 30.10.2014 and 29.9.2014 sent by the complainant are in furtherance of his attempted to seek escape route from the agreed terms and conditions of the agreement. So far as the payments as made by the complainant are a matter of record. The community centre is proposed to be constructed and the Ops are committed for the same but construction of community centre is not a sine qua non for offering the possession of the plot. Similar plea was taken with regard to the other amenities. It was denied that there was any unfair trade practice or deficiency in service. Ops have acted, inter- alia, in accordance with the terms of the agreement between the parties, therefore, there is no merit in the complaint, the same be dismissed.
3. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in his evidence Consumer Complaint No. 212 of 2014 11 has tendered her affidavit Ex. C-A and documents Ex. C-1 to C-15. On the other hand, Ops have tendered affidavit of Rajiv Bhatia as Ex. OP-A, resolution Ex. Op-A/1 and documents Exs. Op-1 to Op-
12.
4. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
5. Before taking the complaint on merits, some preliminary objections have been taken by the Ops, those are required to be dealt before taking the discussion on merits of the complaint. An objection has been taken by the Ops that under Clause No. 32 of Plot Buyer's Agreement, there is provision that in case of any dispute between the parties, the matter is required to be referred to the Arbitrator. A specific application under Section 8 read with Section 5 of the Arbitration and Conciliation Act was moved by the Ops that was dismissed by this Commission vide order dated 8.3.2017, therefore, now the Ops cannot raise this issue again that there is arbitration clause and the matter should be referred to the Arbitrator.
6. It has been argued by the counsel for the Ops that the complainant is not a consumer as he has not bought the goods and has not hired any service from Op No. 1 and that the Ops are developing the project on its own line. The agreement is in the nature of an agreement to sell and does not create any right, title or interest in the property in favour of the buyer. In this regard, it is Consumer Complaint No. 212 of 2014 12 pertinent to refer the definition of the consumer as defined under Section 2 (1)(d) of the CP Act:-
"2. Definitions. - (1) In this Act, unless the context otherwise requires,--
(d) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;Consumer Complaint No. 212 of 2014 13
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-
employment;"
No doubt that the complainant has not purchased the goods but his case is covered as he has availed the services from the Ops and that too for consideration because under the agreement Ex. OP-2 dated 9.3.2012 executed between the Ops and Satnam Singh for Plot Type-G, Plot No. 094 and after that various payments were received by the Ops and in total the complainant has paid a sum of Rs. 29,34,417/-. Under agreement Ex. Op-2, Ops have agreed to deliver the possession of Plot No. 094-G after developing it within a period of 24 months. The definition of the services has been defined under Section 2(1)(o) of the Act, which reads as under:-
"2. Definitions. - (1) In this Act, unless the context otherwise requires,--
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;Consumer Complaint No. 212 of 2014 14
It includes the housing construction, therefore, in case the Ops have agreed to develop a plot in his property for the complainant for consideration, it comes under the definition of housing construction duly covered under the definition of the service and in case a service has been obtained for consideration as defined under Clause 2(1)(d) of the Act then the complainant comes under the definition of the consumer. We do not agree with the plea raised by the counsel for the Ops that it is just an agreement to sell creating contractual liability. It is just not an agreement to sell because in that event, the plot would have been sold as it is but it is mega project under which all the development works are to be carried out by the Ops enabling its allottees to raise the construction. Therefore, it is more than agreement to sell and it is duly covered under the definition of services as referred above.
7. It has been further contended by the counsel for the Ops that the plot was booked for speculative purposes and that the complainant is not a consumer, therefore, he is not covered under the definition of consumer according to definition attached to Section 2(1)(d) of the Act. In case we go through the contents of the complaint, the complainant had booked only one plot and when the complainant had gone to the site to inspect it, he was surprised to see that it is not feasible to construct a house or reside in their colony as a lot of development work was to done there, which makes it clear that the intention of the complainant is to raise the construction and to reside there, therefore, it is not proved that the complainant had booked the plot for speculative purposes. The Consumer Complaint No. 212 of 2014 15 Ops have not been able to place on the record that the complainant is trading in the real estate. They have not referred that he has any other property in the vicinity of Ludhiana or that he was earlier used to sell or purchase the plots. In case the Ops have not been able to prove these things on the record then it cannot be said that the complainant had purchased the property for speculative purposes. We are fortified by the judgment of 2017(3) CLT 459 (NC) "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Therefore, we do not agree with the plea raised by the counsel for the Ops that the complainant is not a consumer as he had booked the plot for commercial purposes.
8. It has been further alleged that the allegations in the complaint are contractual in nature and as such only triable in a Civil Court. No doubt that there is a contract between the parties and under that contract the Ops have agreed to develop the colony in which the Plot No. 094-G has been allotted and the possession has been agreed to be given after development work at the site. We have dealt in detail this point in para No. 6 that complainant is a consumer as defined under the CP Act and under Section 3 of the Act, the Consumer Foras have a right to entertain the complaint, Consumer Complaint No. 212 of 2014 16 therefore, in consumer disputes this Commission has a right to entertain the consumer complaint and the plea raised by the counsel for the Ops that it is triable only before the Civil Court is not a correct preposition.
9. It has been argued by the counsel for the complainant that complainant booked plot bearing No. 094-G of 157.49 sq. yards and deposited a sum of Rs. 2,83,000/- as booking amount. On 21.11.2011, a welcome letter was received from the Ops while confirming the booking of Plot No. Type-G-00-G094 having an area of 157.49 sq. yards and on the same day, the provisional allotment letter of this plot was issued in favour of the complainant. It was further stated that the terms and conditions of the agreement shall be final and shall prevail over those contained in the application. Even Ops demanded an amount of Rs. 3,18,917/-, which was paid vide receipt dated 21.12.2011 Ex. C-5. Then plot buyer's agreement Ex. C-6 was executed between the parties alongwith Annexure-I site plan of the plan and payment plan in which the nett rate of the plot has been mentioned as Rs. 30,86,608/-. According to the complainant a sum of Rs. 29,34,417/- have been paid, which has not been denied by the Ops because in their written statement, they have admitted that the payment made by the complainant as alleged in the complaint is a matter of record. However, the dispute arose when the Ops issued notice of possession dated 29.3.2014 vide which they offered the plot measuring 175.97 sq. yards. However, the complainant vide his letter dated 25.4.2014 wrote to Ops that he has received a notice dated 29.3.2014 intimating to Consumer Complaint No. 212 of 2014 17 take possession of plot measuring 175.97 sq. yards instead of 157.49 sq. yards, which was given in the provisional allotment letter and the site plan attached with the agreement and that he is not interested to purchase the plot measuring 175.97 sq. yards and he be given the plot No. 094 Type-G of the area measuring 157.49 sq. yards in which they had intimated the complainant that they are willing to offer him an alternative plot of 155 sq. yards at the same rate at a different location vide letter dated 3.7.2014 Ex. C-10. However, the complainant got issued a legal notice dated 30.7.2014 Ex. C-11 that he had specifically chosen the site and plot No. 094 Type-G of the area measuring 157.49 sq. yards and has made a payment of Rs. 29,34,417/-, therefore, he is entitled only to get possession of plot No. 094, Type-G, measuring 155 sq. yards. Otherwise, his deposited amount be returned alongwith interest and compensation. Its reply was given by the Ops to his counsel Mr. Harminder Singh, Advocate dated 26.8.2014 (ex. C-12) in which he has referred to Clause 10, under which variation in plan, location and size is there, which is reproduced as below:-
"Clause 10. Variation in plans, location and size:-
10.1 The Company is in the process of constructing and completing the IREO Waterfront in accordance with the Layout Plans of the plotted colony. The Allottee has clearly understood that there could be changes, alterations, modifications in the Site Plan, Layout Plans, dimensions etc. of the said Plot that are necessitated during the completion of the plotted colony or as may be required by ant statutory Consumer Complaint No. 212 of 2014 18 authoritiy(ies) or otherwise and the Allottee undertakes not to raise any objection thereto.
10.2 The final measurement of the said Plot shall be determined only after the plotted colony has been completely laid out. After accounting for changes, if any, on the date of possession, the final and confirmed areas shall be incorporated in the Conveyance Deed."
No doubt that in the agreement, there is Clause 10 with regard to variation in plan, location and size but how it can be affected. However, the counsel for the complainant has referred to Clause 6
(b) & (c) of the PAPRA, which reads as under:-
"(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, it 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 apartment is constructed or is to be constructed; and Consumer Complaint No. 212 of 2014 19
(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."
10. According to that at the time of entering into agreement in the case of plot, the agreement shall be attached the copies of the documents specified in Clause (c) above, therefore, once he has given a copy of the site plan with the agreement as Annexure-I, giving the dimensions of the plot and ground coverage and F.A.R. according to the Zoning plan of Plot No. G-094, then counsel for the Ops have not referred any other layout plan how the area of the plot was increased. In case there is any change in the layout plan and its dimensions then atleast consumer should be intimated for that and unilaterally the layout plan cannot be changed. In case the complainant had chosen a particular plot number after seeing the layout plan then the Ops at a later stage cannot say that they will allow another plot at a different location of the same area. In case the Ops are changing the agreement clause of their own, in that eventuality, the complainant has a right to withdraw from the scheme of the Ops.
11. He has further contended that as per Clause 11.3 of the agreement, the possession of the plot was to be given within a period of 24 hours from the date of execution of the agreement with a grace period of 180 days and in case the possession is not delivered and after passing of 12 months from that period, the complainant will have a right to terminate the agreement. In this case, the agreement was executed on 9.3.2012 and 2 years are Consumer Complaint No. 212 of 2014 20 complete by 9.3.2014 and after adding 6 months grace period it comes to 9.9.2014, therefore, before 9.9.2014, they were required to deliver the possession of the plot as agreed. No doubt that notice of possession was delivered by the Ops on 29.3.2014 but it was of a plot of different dimensions and the complainant vide his letter dated 25.4.2014 Ex. C-9 and in the legal notice dated 30.7.2014 (Ex. C-11) has specifically stated that he wanted the possession of plot No. G-094 of 157.49 sq. yards and the plot of 175.97 sq. yards is not acceptable to him and plot of same measurement at a different location is also not acceptable to him. The counsel of the Ops has not been able to explain how the change occurred in the plot area of the complainant when it was on the basis of approved layout plan from the Competent Authority.
12. Mere offer of possession is not sufficient. It should be accompanied by a completion certificate from the Competent Authority as provided in the terms 3(j) where it has been provided as under:-
"(j) not allow persons 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;"
In this regard, a reference can be made to the judgment of the Hon'ble National Commission in the judgment 2017(1) CPR 292 "Harinder Singh versus Unitech", in which it was held that in the absence of completion certificate, complainant cannot be Consumer Complaint No. 212 of 2014 21 compelled to take possession of the plot. In another judgment reported in 2017(1) CPR 168 (NC) "Sanjay Kumar versus Sahara Prime City Limited & others" it was held that allottee is entitled to withdraw from the scheme in the event of delay in completion of the project. These judgments have not been rebutted by the counsel for the Ops. Therefore, even if there is a notice of possession letter issued by Ops that too after completion of period of 24 months and with grace period of six months as referred in Clause 11.3 of the agreement, there is no completion certificate, which is still pending with the Competent Authority, therefore, without completion certificate, the complainant cannot be compelled to take the possession.
13. The counsel for the Ops have referred that there is a notification dated 14.10.2009 (Ex. Op-5) under which there is exemption under Section 44 of the PAPRA to follow the procedure but it is in favour of M/s Var Realtors. It has been stated that the Ops has come in the footsteps of Var Realtors but in this regard no notification of the Ops has been placed on the record. Then there is a letter/notification dated 13.10.2009 issued by Government of Punjab, Department of Housing and Urban Development, Housing II Branch under which it has been stated that Mega Housing Project has been approved under PAPRA, 1995, however, the present frame work does not provide the clear procedure to issue completion or partial completion to such projects, which causes hardships to promoters and residents of such projects for the maintenance and upkeep of public utilities and services. To stream Consumer Complaint No. 212 of 2014 22 line the issue of completion/ partial completion certificate of PAPRA project, falling outside Municipal Limits, its procedure and time frame has been worked out. Therefore, the completion/partial completion certificate is required to be obtained by the Ops under the scheme issued by the Government of Punjab vide its letter dated 2.9.2014 but no completion certificate has been placed on the record and in view of the judgment referred above, the Ops cannot compel the complainant to get the possession of the plot without getting the completion certificate. The Ops have also not placed on the record, the sanction of the layout plan and CLU under which the various conditions and NOCs are required to be taken from the various departments. Those are very necessary documents, however, it seems that intentionally those documents have not been brought on the record because various NOCs are required to be taken from various departments have not been obtained by the Ops that is why the completion certificate has not been applied for. There is no document that the work of street light or provision for light is complete because no letter from the PSPCL is there. There is no evidence with regard to completion of water and sewerage lines, STP etc. and without provision of these amenities, offer of possession letter cannot be issued, therefore, offer of possession letter is just a farce issued only with an intention to avoid the penal clauses. NOC from Punjab Pollution Control Board, Roads, provisions of utilities to provide general amenities as per the policy of the Government/agreement, to provide electricity from PSPCL, NOC from Forest Department, leveling of roads, Consumer Complaint No. 212 of 2014 23 water supply, sewerage lines etc. construction of LD system for releasing the connection by PSPCL. Therefore, without proper amenities offer of possession letter cannot be issued by the Ops. In this way, the offer of possession letter has not been issued then impliedly it can be taken offer of possession has not been issued within the specified time given in the buyer's agreement.
14. It has been argued by the counsel for the Ops that in case refund is to be given then penalty as per the terms in the agreement can be imposed upon the Ops. In this regard, he has referred to Clause 11.2 of the agreement, which reads as under:-
"11.2 Notwithstanding any other provisions of this Agreement, the Allottee agrees that if it fails, ignores or neglects to take the possession of the said Plot in accordance with the Notice of Possession sent by the Company within the stipulated period mentioned therein, the Allottee shall also be liable to pay additional charges equivalent to Rs. 50/- (Rupees Fifty only) per sq. yd. per month of the area of the said Plot ("Holding Charges"). The Holding Charges shall be a distinct charge in addition to the maintenance charges and not related to any other charges/consideration as provided in this Agreement."
However, in view of the judgment of the Hon'ble National Commission in 2017(3) CLT 520 (NC) "Ankur Goswami versus Supertech and another" that this clause in the allotment letter would be applied to the case where allottee is seeking possession Consumer Complaint No. 212 of 2014 24 of the flat and where allottee is not seeking refund of the amount. However, in the present case, the allottee is seeking the refund, therefore, the penalty @ Rs. 50/- per sq. yards will not be applicable. Further under Rule 17 of PAPRA rules i.e. Rate of Interest on refund of advance money upon cancellation of agreement under Punjab Apartment and Property Regulation Rules, 1995, 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."
In the above rule it has been observed to refund the amount alongwith interest @ 12% p.a. Therefore, to be just and reasonable, the complainant will be entitled to interest @ 12% on the deposited amount.
15. With regard to applicability of Section 14 of the CP Act, it is a services agreed by the Ops to be provided to the complainant under the agreement and the Ops have defaulted to provide the services as agreed in the agreement and in view of the detailed discussion referred above, the complainant has a right to withdraw from the scheme and to seek for the refund and further under Clause 14(d) the Fora has a right to award such amount as compensation to the complainant for any loss or the injury suffered Consumer Complaint No. 212 of 2014 25 by the complainant due to the negligence of the Ops for which provision is there under the PAPRA under which Housing Project of Ops was sanctioned and under the rules of the said Act, there is a provision that in case of refund, the amount be refunded alongwith interest @ 12% p.a. and further some compensation can also be allowed with regard to mental and physical harassment to the complainant for awaiting a long period and to visit the site to check the development at the site.
16. In view of the above, we are of the opinion that there is a deficiency in service on the part of the Ops, accordingly, we allow the complaint and direct the Ops as under:-
(i) To refund a sum of Rs. 29,34,417/- alongwith interest @ 12% p.a. from the various dates of deposit of the amount till payment;
(ii) Rs. 1 Lac as compensation for physical and mental harassment; and
(iii) Rs. 21,000/- as litigation expenses.
The above directions be complied by the Ops within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant will be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
17. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
18. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Consumer Complaint No. 212 of 2014 26 Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 19, 2018.
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