State Consumer Disputes Redressal Commission
Brij Bala vs Pearls Infrastructure Projects Ltd. on 10 January, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No. 127 of 2016 Date of Institution : 22.04.2016 Order Reserved on : 09.01.2018 Date of Decision : 10.01.2018 1. Brij Bala w/o Sh. Krishan Kumar, r/o 2138-A, Sector 42-C, Chandigarh. 2. Krishan Kumar s/o Late Sh. Suraj Bhan, r/o 2138-A, Sector 42-C, Chandigarh ....Complainants Versus Pearls Infrastructure Projects Ltd., SCO 6, Sector 69, Mohali through its Managing Director/Authorized Signatory. ...Opposite party Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh. S.S.Gill, Advocate For opposite party : Ex-parte
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that they booked a residential plot for their personal use, measuring 200 sq. yards for basic sale price of Rs.46,80,000/- in Pearls City Sector 100 Mohali. They paid Rs.4,60,000/-, as booking amount, vide receipt no. 12790 dated 15.02.2011 and thereafter OP allotted plot no. 84 to them on 15.02.2011. Subsequently, another amount of Rs.4,60,000/-, vide receipt no. 13999 was paid to OP on 04.04.2011, vide receipt no. 13999. The buyers agreement was executed between the parties on 13.05.2011. The complainants made the payments to OP, as detailed in para no. 2 of the complaint. As per clause 10 of the buyers agreement, the OP was to deliver the possession of the plot within three years from the date of signing the buyers agreement i.e. 13.05.2011. The complainants have paid the payment of more than 95% i.e. Rs.44,08,672/- towards sale consideration for the said plot. But, the OP has not delivered the possession of the above plot to them till date and there is a delay of almost two years from the stipulated date for possession i.e. 13.05.2014. As per notification dated 02.09.2014, the developer can offer the possession only, if they have obtained partial/full completion certificate of the project. According to Section 14(ii) of PAPRA Act 1995, the promoter has to obtain a completion certificate of the colony from the competent authority. The said certificate can only be issued if the developer has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads etc. to the satisfaction of GMADA. The OP is still to obtain the completion certificate from the competent authority and has not completed all the development work on the site. The complainants were promised to be provided club facility in Section 100 as per brochure, but OP has charged club membership charges in advance, whereas according to Clause 18 of the agreement, it was the discretion of the complainants to become member of the club and they were not given the option to exercise his discretion. Later on, it was told to them that Sector 100 and Sector 104 , which would have common club and said club was developed in Sector 104, which would also take time to be completely built. The club facility has still not been developed in Sector 104 as well. Moreover, later on the complainants were also told that the water tank supplying water to Sector 100 would be built in Sector 104 and it would be catering to Sector 100 and 104 respectively. Moreover, sewage treatment plant has not yet been operationlized in Sector 100 Mohali. The promise of high tech 24x7 security promise , as per brochure was also not genuine. No water works arrangement has been made in Sector 100 Mohali by OP. There were no transformers and feeders installed in the said township as well. The time given by PUDA to OP to complete the project has already elapsed about six months ago. The OP charges 18% per annum on account of delay in making payments for the plot, but the buyers agreement does not contain a penalty clause in regard to handing over the possession of the plot. The possession of the plot has already been delayed by almost two years and site of the project has also not been developed as per promises made by OP in their brochure. Therefore, they prayed that OP be directed to refund the total amount of Rs.44,08,672/- paid to OP along with interest @ 18% p.a. from the date of deposit till realization, Rs.5 lac as compensation for mental harassment and Rs.1,00,000/- as costs of litigation.
2. OP was set exparte by this Commission, vide order dated 21.07.2016. OP filed First Appeal No. 1219 of 2016 before National Commission, which was accepted on Rs.25,000/- as costs. Cost has not been deposited by OP and hence order of the National Commission has not inured being conditional order only.
3. The complainant tendered in exparte evidence affidavit of Krishan Kumar Ex.C-A, affidavit of Brij Bala Ex.C-B along with copies of documents Ex.C-1 to Ex.C-6 and closed the evidence.
4. We have heard learned counsel for the complainants as OP was set exparte in this case and have also examined the pleadings and evidence of the complainant on the record.
5. The complainants seeks refund of their deposited amount with OP on the ground that they failed to carried out any development work in the project and thereby failed to deliver the possession of allotted plot to complainants within scheduled time.
6. Considering the pleadings of the parties, we have examined the evidence on the record. Krishan Kumar tendered in evidence his affidavit Ex.C-A and similarly complainant Brij Bala w/o Sh. Krishan Kumar tendered in evidence her affidavit Ex.C-B on the record. It has been proved by above witnesses in their testimonies that they booked plot with OP by paying booking amount of Rs. 46,80,000/-, vide receipt no. 12790 dated 15.02.2011. Plot no. 84 was allotted to them on 15.02.2011 and allotment letter was also issued. It has also transpired in their testimonies that they deposited the amounts as noted below :-
Sr.No. Receipt No. Date Amount (Rs.) 1 15102 18/05/2011 Rs.4,60,000/-
2.
17360 24/08/2011 Rs.3,45,000/-
3. 19404 17/11/2011 Rs.3,45,000/-
4. 21214 18/02/2012 Rs.3,60,000/-
5. 22986 16/05/2012 Rs.3,45,000/-
6. 23805 25/06/2012 Rs.3,672/-
7. 24809 18/08/2012 Rs.2,30,000/-
8. 26506 17/11/2012 Rs.2,30,000/-
9. 28085 18/02/2013 Rs.2,30,000/-
10. 29530 18/05/2013 Rs.2,30,000/-
11. 30564 19/08/2013 Rs.2,30,000/-
12. 31713 19/11/2013 Rs.2,30,000/-
13. 32690 19/02/2014 Rs.2,30,000/-
As per Clause 10 of buyer's agreement, the possession was agreed to be delivered within three years from the date of execution of buyers agreement on 13.05.2011. They further proved this fact in their respective testimonies that they paid more than 95% of the sale amount i.e. Rs.44,08,672/- with OP. OP builder has not obtained any completion certificate, as mandated by Section 14 of PAPRA Act from the competent authority so far. The said certificate can only be issued if the builder has completed the execution of storm water, drinking water, sewage system, HT electrical network including transformer, street lighting, roads etc to the satisfaction of GMADA. It has appeared in their evidence on the record that OP agreed to charge for club membership, as provided in the brochure and as per Clause 18, it was optional for complainants to become a member of the club. OP no.1 charged it compulsorily from complainants and failed to develop club in Sector 104. Only common club would be provided for both Sectors 100 and 104 by OP no.1 to the allottees. Even water tank would be built in Sector 104, which would further cater to residents of Sector 100 and 104 jointly. Sewage treatment plant has not yet been operationlized in Sector 100 and only sewage treatment plant of Sector 104 has been catering to Sector 100, which is also in a bad shape. OP misrepresented in the brochure to provide high-tech 24x7 security promise to the allottee. The community center is also in a deplorable state without any street lights therein. Even transformers and feeders are not installed in the said township. Only powerhouse of Sector 104 is to cater to Sector 100 for the time being. OP no.1 has failed to complete the basic amenities in the project. This fact has been proved on the record by above referred complaints in their respective affidavits on the record. Allotment letter is Ex.C-1 dated 15.02.2011 allotting plot no. 84 of 200 sq. yards for basic sale price of Rs.46.00,000/- to complainants. Buyer's agreement was executed between the parties on 13.05.2011. Period has already expired, as agreed between the parties to deliver the possession, but OP failed to deliver the possession complete in all respects to complainants. The complainants have made the payment of more than 95% to OP, but OP has yet not obtained completion certificate for this project, which fact is proved on the record, vide information supplied under RTI Act pursuant to information sought by one Mohan Dutt with regard to Sector 100 Mohali. It is, thus, clear as per information no. 3229 dated 10.09.2015 that completion certificate has not been applied for by OP as enjoined by Section 14 of PAPRA Act 1995. Even no such completion certificate, as contemplated by Section 14 PAPRA Act of has been brought on record by OP. It is, thus, clear from perusal of record that OP received 95% consideration amount from the complainant for this project, which fact is evident from the receipts Ex.C-3 (colly) on the file. OP failed to develop the project by providing basic amenities, as evidenced of the complainants has gone un-rebutted on the record.
7. From perusal of the buyer's agreement Ex.C-2 on the record, it is evident that PACL Ltd is also promoter of this project and has got interest in the project. As per order of Hon'ble Apex Court in Civil Appeal no. 13301 of 2015 titled as Subrata Bhattacharya Vs. Securities & Exchange Board of India that where PACL Limited is concerned in any dispute or before any court. SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for purchase of the land. Hon'ble Mr. Justice R.M Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the incharge of funds collected and shall have liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc, wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited herein this case, PACL Limited is also a party to prior agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case, as per direction of the Hon'ble Supreme Court for recovery of the amount or sale of property of PACL Ltd.
8. As a result of our above discussion, on account of deficiency in service of OP, the complaint is exparte accepted and complainants are held entitled to refund of the amount deposited by them with it along with interest @ 12% p.a. from the date of deposit till actual payment. The complainants are also held entitled to compensation of Rs.2 lac for mental harassment and exemplary damages for unfair trade practice. The complainants are also awarded Rs. 30,000/- as costs of litigation. Recovery shall be effected by complainants through SEBI Committee in case the interest of PACL Ltd in the property, if any, is proved.
9. Arguments in this complaint were heard on 09.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 10 , 2018 (ravi)