State Consumer Disputes Redressal Commission
Anil Kumar Singla vs Royal Empire on 20 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. Consumer Complaint No.726 of 2017
Date of institution : 23.08.2017
Date of decision : 20.03.2018
Anil Kumar Singla, aged 58 years, son of Shri Chiranjee Lal, resident
of H.No.11B, Ajit Nagar, Patiala, Tehsil and District Patiala.
.......Complainant
Versus
1. Royal Empire through its M.D. registered office H.No.909,
Sector-9, Panchkula.
2. Royal Mansions through its M.D., registered and site office
Peer Muchhalla (Adjoining Sector-20, Panchkula), Zirakpur,
District SAS Nagar, Mohali.
........Opposite Parties
2. Consumer Complaint No.727 of 2017
Date of institution : 23.08.2017
Date of decision : 20.03.2018
Dr. Puran Chand Gupta, aged 66 years, son of Shri Chiranjee Lal,
resident of House No.2, Maan Colony, Sangrur, Tehsil and District
Sangrur.
.......Complainant
Versus
1. Royal Empire through its M.D. registered office H.No.909,
Sector-9, Panchkula.
2. Royal Mansions through its M.D., registered and site office
Peer Muchhalla (Adjoining Sector-20, Panchkula), Zirakpur,
District SAS Nagar, Mohali.
........Opposite Parties
Consumer Complaint No.726 of 2017 2
Consumer Complaints under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Ms. Anna Bansal, Advocate for Shri Suvir Kumar, Advocate.
For opposite party No.1 : Ex Parte.
For opposite party No.2 : Shri Parveen Gupta, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
Both 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.726 of 2017.
Facts of the Complaint:
2. Brief facts, as set out in the complaint, are that various advertisements appeared in various newspapers offering allotment of flats by opposite party No.1. The complainant was also allured and fell into the trap of colourful advertisements and as such, deposited a sum of ₹5 lakh as earnest money, vide Pay Order No.961655 dated 17.4.2011 against receipt No.014 dated 17.4.2011 issued by the authorized signatory for Royal Empire. On receipt of the said earnest money, Flat No.303 having covered area of 1800 square feet approximately and super area of 2550 square feet approximately in Block-E of the project called Royal Empire (Project Royal Mansions) was allotted to him for a total cost of ₹47 lakh including the cost of furniture and fixtures. Thereafter another sum Consumer Complaint No.726 of 2017 3 of ₹4,50,000/- was paid to opposite party No.1, vide cheque No.753081 dated 25.6.2011 against receipt No.180 issued by opposite party No.1. It is averred that possession of fully furnished flat was to be delivered within 21 to 24 months from the date of allotment and the balance amount as agreed was to be paid in instalments with regard to proportionate construction to be raised by opposite party No.1. It is further averred that in the month of February 2012 a letter was received from opposite party No.1 that there was an overdue amount of ₹18 lakh towards the complainant and that a fresh agreement be executed with new owners of Royal Mansions. However, the complainant was astonished and stunned to receive the said letter. No agreement was earlier executed by the complainant nor he was asked to execute any such agreement.
Thereafter the complainant visited the site and was disappointed to see that no construction had been started by opposite party No.1. Various efforts were made to contact one Mr. Jiwan, who was alleged to be the owner of opposite party No.1 but he could not be contacted. It is further averred that then the complainant received a letter from opposite party No.2 that the amount of ₹9,50,000/- had been forfeited and the allotment of the flat had been cancelled. In the said letter it has also been mentioned that opposite party No.2 had taken over the project from opposite party No.1 and, as such, opposite party No.2 was entitled to the balance payment from the complainant. Opposite party No.2 had no right or authority to issue any such letter as it had taken over the project without the knowledge and consent of the complainant. It is further averred that Consumer Complaint No.726 of 2017 4 construction was not started by either of the opposite parties in time. It is further averred that the opposite parties had no right to forfeit the amount or cancel the allotment as the complainant was not at fault and it was the opposite parties, who were at fault and negligent in not raising the construction in time. As such, no further payment could be demanded from the complainant and he was/is ready to pay the balance instalments in proportion to the construction to be raised by opposite party No.1. It is further averred that the complainant was compelled to file a suit for declaration on 30.4.2012 to the effect that the letter issued by the opposite parties cancelling the allotment of Flat No.303 and the act of forfeiting the earnest money was wrong, illegal, void, ineffective, result of fraud and was liable to be set aside and further the complainant continued to be the allottee of the aforesaid flat, which was registered as Civil Suit No.73 of 30.4.2012. During the pendency of the said suit the opposite parties alleged that they had sold the said flat to somebody else, which resulted in the amendment of the plaint and further a declaration was sought that further allotment letter dated 20.4.2012 issued by opposite party No.2 in favour of one Ashok Jindal was illegal and collusive and did not affect the rights of the complainant. The said suit was decreed on 10.10.2016 by the Court of Civil Judge (Senior Division), Dera Bassi. In view of the decree passed by the Civil Court the complainant continues to be the allottee of the flat and is entitled to possession of the same. It is further averred that after passing of the said judgment the complainant sent a notice to the opposite parties to intimate him the date of offer of possession so Consumer Complaint No.726 of 2017 5 that he could pay the balance amount before taking possession. However, they did not take any action nor delivered possession of the flat to him. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties the present complaint has been filed for issuance of following directions to them:-
i) to hand over possession of Flat No.303, Block No.E in the said project on receipt of balance sale price i.e. ₹37,50,000/-;
ii) to pay ₹20 lakh as compensation for mental harassment and agony; and
iii) to pay ₹33,000/- as cost and litigation expenses.
Defence of Opposite Party No.2:
3. Notice was issued to both the opposite parties. Opposite party No.1 was served through publication. However, it did not put in appearance despite service. Therefore, it was proceeded against ex parte. Opposite party No.2 appeared through counsel and filed its reply taking preliminary objections to the effect that the flat in question was booked by the complainant in the said project after depositing the earnest money of ₹5 lakh on 20.4.2011 and on the same day Agreement to Sell containing detailed terms and conditions was also signed. The complainant had purchased the said flat through his middleman and there were signatures of his middleman on the said Agreement to Sell. If the complainant is denying this Agreement dated 20.4.2011, then he has no claim over the said flat. As per sub clause (e) of clause 3 of the said Agreement, in case the instalment is not paid within 6 months of due Consumer Complaint No.726 of 2017 6 date, the first party, shall have a right to cancel the allotment and to forfeit the total amount deposited. M/s Royal Empire was a partnership firm and it had launched the project for the booking of the flats and its construction at Peermuchhalla, Zirakpur, Mohali.
Since there was some problem amongst its partners, the entire project was transferred by M/s Royal Empire (opposite party No.1) to M/s Royale Mansions (OP No.2) in year 2012, vide MOU dated 20.1.2012. The amount of ₹9.50 lakh against the total cost of ₹47.00 lakh was received by opposite party No.1 and not by opposite party No.2. As per MOU, fresh agreements were required to be signed by the individual Flat buyers with opposite party No.2 as there was change of the management. However, even after signing of the fresh agreements, there was no change in the time of handing over of the possession of the flats as also in the specifications as mentioned in the first agreement. Accordingly almost all the individual Flat buyers have already signed fresh agreements with opposite party No.2 and paid the due instalments. They are living in the said flats for the last 2-3 years after taking over possession. Since the complainant had not signed fresh agreement with opposite party No.2, therefore, letter sent by courier dated 6.2.2012; registered letters dated 20.2.2012 and 13.4.2012 were sent to him by opposite party No.1 and not by opposite party No.2. The complainant did not make payment of overdue instalment towards the price of the flat in question. On merits, the booking/purchase of the flat in question in the manner stated in the complaint has been admitted. The payment of ₹5,00,000/- as earnest money and Consumer Complaint No.726 of 2017 7 thereafter the payment of ₹4,50,000/- was admitted. It is, however, averred that the complainant has virtually admitted his own fault in not paying the instalments and also not agreeing to sign the fresh agreement with opposite party No.2. The flats have been completed in the record period of 2 years and the same were allotted to all the allottees, who have occupied the same. The complainant should approach opposite party No.1 and if still any flat is available, then the complainant has to pay pending instalments + interest @ 18% p.a. Denying all other allegations made in the complaint a prayer for dismissal of the complaint against opposite party No.2 was made. Evidence of the Complainant
3. To prove his case, the complainant tendered in evidence his own affidavit as Ex.C-A and documents Ex.C-1 to Ex.C-8. On the other hand, opposite party No.2 tendered in evidence affidavit of Ashok Kumar Singla, Partner of OP No.2 as Ex.OP-A along with documents Ex.OP-1 to Ex.OP-6.
Contentions of the Parties:
4. We have heard learned proxy counsel for the complainant and the learned counsel for opposite party No.2. We have also gone through the record carefully.
5. Learned counsel for the complainant has vehemently contended that against the total cost of the flat, i.e. ₹47,00,000/-, the complainant deposited the total sum of ₹9,50,000/- against receipts. The possession of the flat was promised to be delivered within a period of 21 to 24 months from the date of allotment and the balance amount as agreed was to be paid in instalments with regard to the Consumer Complaint No.726 of 2017 8 proportionate construction to be raised by opposite party No.1. However, the opposite parties failed to complete/develop the flat, in question, and to hand over its possession to the complainant within the said period. On account of this reason, the complainant withheld the further payment of instalments. The opposite parties themselves were at fault by not completing the flat, in question, within the agreed period. The action of the opposite parties in cancellation of the flat and the forfeiture of the amount deposited by the complainant has been set aside by the Civil Court. It has been further contended that the complaint be allowed and all the directions, as prayed for therein, be issued to the opposite parties.
6. On the other hand, it has been vehemently argued by learned counsel for opposite party No.2 that the fault lies with the complainant, who has failed to adhere to the payment schedule and did not make the payment towards the price of the flat in question. He paid ₹9,50,000/- only against the total sale price of ₹47,00,000/-. He also failed to sign fresh Agreement to Sell with it. The project is complete in all respects and a number of allottees, who have paid the entire instalments and have signed fresh Agreements, have already taken over possession of their respective flats and are living there for the last two-three years. The entire project was transferred by opposite party No.1 to opposite party No.2 in the year 2012, vide MOU dated 20.1.2012. It is further argued that the complainant should approach opposite party No.1 and if at all any flat is still available, the complainant has to pay the pending instalments along with interest at the rate of 18% per annum. There is no deficiency in Consumer Complaint No.726 of 2017 9 service or adoption of unfair trade practice on the part of opposite party No.2. He prayed that the complaint be dismissed against opposite party No.2.
Consideration of Contentions
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
8. The present matter is squarely covered by the earlier verdict given by this Commission in case "Mr. G.K. Pathania & Anr. v. M/s Royale Empire & Ors." Consumer Complaint No.232 of 2016, decided on 29.08.2017 and another case "Mrs. Veena Chadha v. M/s Royale Empire and others" Consumer Complaint No.231 of 2016 decided on 30.10.2017. So, we intend to dispose of these complaints, in view of the decision given in the above noted cases.
9. Undisputedly, the flat, in question, was allotted to the complainant by the opposite parties, vide allotment letter dated 20.4.2011, Ex.C-2, regarding which Agreement to Sell, Ex.OP-2, was executed between the parties on the same day (though the complainant denied execution of Agreement to Sell but opposite parties pleaded that the same was executed through middleman of the complainant). Be that as it may, the fact remains that the total cost of the flat was ₹47,00,000/-, against which the complainant deposited a total sum of ₹9,50,000/-. As per clause 7 of Agreement to Sell, Ex.OP-2, the possession of the flat, in question, was to be delivered to the complainant within 21 to 24 months from the date of booking. The complainant booked the flat on 20.4.2011 and as such, the possession of the flat, complete in all respects, was to be Consumer Complaint No.726 of 2017 10 delivered to the complainant upto 20.4.2013. However, the opposite parties failed to complete/develop the flat, in question, and to hand over its possession to the complainant within the said period. The complainant withheld further payment of instalments, as the opposite parties failed to fulfil their commitments, as per the Agreements to Sell. One G.K. Pathania even sent complaint to the SSP, Mohali, for registration of case U/s 420/406/461/468 IPC against the opposite parties, keeping in view the inaction on their part. It is relevant to mention here that opposite party No.1 has chosen to remain ex parte and, thus, there is no rebuttal to the above discussed evidence of the complainant.
10. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. 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. In the present case, opposite party No.1 did not appear despite its service. As such, the evidence adduced by the complainant remains unrebutted so far as opposite party No.1 is concerned.
Consumer Complaint No.726 of 2017 11
11. So far as the plea of opposite party No.2 that the entire project had already been transferred by opposite party No.1 to opposite party No.2 in the year 2012, vide MOU dated 20.1.2012 (Ex.OP-3) is concerned, the same is not tenable. A perusal of receipt dated 17.4.2011 (Ex.C-1) for ₹5,00,000/- clearly indicates that the same was issued by Authorised Signatory for Royal Empire (Royale Mansions). Similarly the allotment letter dated 20.4.2011 (Ex.C-2) was also issued by Royal Empire (Royale Mansions). Another receipt dated 25.6.2011, Ex.C-3, was also issued by the Authorized Signatory for Royal Empire (Royale Mansions). The letter for cancellation of the flat in question and forfeiture of the amount of ₹9,50,000/- deposited by the complainant was also issued by opposite party No.2 i.e. Royale Mansions, which was later on set aside by the Civil Court, vide judgment dated 10.10.2016, Ex.C-5. A collective perusal of all these documents would make it clear that all the acts had been done by Royal Empire and Royale Mansions jointly. There is no mention of the names of the partners of both the parties in the said MOU, Ex.OP-3. Only signatures have been put by the Authorized Signatories of the opposite parties. Even the names and addresses of the witnesses have also not been mentioned. The said MOU, Ex.OP-3, has also not been got registered from the competent authority and it is just an eyewash. Even after the execution of the said MOU no progress was made in the construction of the project. Both the opposite parties are hand in glove with each other. Moreover, no consent was ever taken by them before transferring the project. Therefore, it is held that Consumer Complaint No.726 of 2017 12 opposite parties Nos.1 and 2 were jointly and severally liable to construct the project, complete in all respects and to deliver possession of the flat in question to the complainant. However, they failed to do so. The complainant has categorically stated in his complaint and affidavit that he was/is ready to pay the balance amount towards the price of the flat. However, when he visited the site, he found that no construction was going on. He made various efforts to contact one Jiwan, who was alleged to be the owner of opposite party No.1 but he could not be contacted. Therefore, he was left with no other option but to stop making further payments. The opposite parties have not produced on record any partial completion/completion/occupation certificate in respect of the project in question from the concerned competent authority, in the absence of which, it cannot be presumed that the project is complete in all respects and the flat in question is ready for delivery to the complainant. Therefore, it is held that the complainant was well within his rights not to make further payments when there was no progress in the construction at the site. The act and conduct of the opposite parties in not raising construction at the site in time and not delivering possession of the flat in question to the complainant, complete in all respects not only amount to deficiency in service but also adoption of unfair trade practice on their part.
12. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to deliver the possession of the flat, in question, with all the promised specifications and amenities along with Consumer Complaint No.726 of 2017 13 completion/occupation certificate from the competent authority, subject to payment of remaining amount by the complainant towards the price of the flat;
ii) to deliver Possession Certificate of the flat, in question;
iii) to pay compensation of ₹50,000/- for mental tension and harassment; and
iv) to pay ₹22,000/-, as litigation expenses.
13. It is made clear that if the possession of the flat, in question, is not delivered by the opposite parties within three months from the receipt of the certified copy of the order, then in that eventuality, the complainant will be entitled to refund of the amount deposited by him i.e. ₹9,50,000/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization besides litigation expenses as awarded above, within further one month. Consumer Complaint No.727 of 2017:
14. In this case the complainant purchased Flat No.203 in Block E in the said project for a total sale consideration of ₹52,00,000/-, vide allotment letter dated 20.4.2011 and deposited earnest money of ₹5,00,000/- against receipt No.017 dated 18.4.2011. Thereafter on the demand of opposite party No.1 another sum of ₹5,00,000/- was paid to it, vide cheque No.392728 dated 8.5.2011. The complainant further deposited sum of ₹4,50,000/- to opposite party No.1, vide cheque No.394730 dated 16.6.2011 against receipt No.166 dated 16.6.2011. In all the complainant deposited ₹14,50,000/- towards the total sale price of the flat in question. Rest of the averments made in this case are almost same as have been made by the Consumer Complaint No.726 of 2017 14 complainant in CC No.726 of 2017. Opposite party No.1 in this case also did not choose to appear and was proceeded against ex parte, vide order dated 21.12.2017. Opposite party No.2 also appeared in this case and took similar pleas in its reply as have been taken by it in CC No.726 of 2017. Similar arguments have been raised by the learned counsel for the complainant as well as opposite party No.2 as have been raised by them in CC No.726 of 2017.
15. In view of the findings recorded in CC No.726 of 2017, this complaint is also allowed in same terms and following directions are issued to the opposite parties:-
i) to deliver the possession of the flat, in question, with all the promised specifications and amenities along with completion/occupation certificate from the competent authority, subject to payment of remaining amount by the complainant towards the price of the flat;
ii) to deliver Possession Certificate of the flat, in question;
iii) to pay compensation of ₹50,000/- for mental tension and harassment; and
iv) to pay ₹22,000/-, as litigation expenses.
16. It is made clear that if the possession of the flat, in question, is not delivered by the opposite parties within three months from the receipt of the certified copy of the order, then in that eventuality, the complainant will be entitled to refund of the amount deposited by him i.e. ₹14,50,000/-, along with interest at the rate of 12% per annum from the respective dates of deposit till realization besides litigation expenses as awarded above, within further one month. Consumer Complaint No.726 of 2017 15
17. The complaints could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 20, 2018 Bansal