State Consumer Disputes Redressal Commission
Krishan Gopal vs M/S Barnala Builders And Property ... on 6 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.831 of 2017
Date of institution : 20.09.2017
Date of decision : 06.02.2018
1. Krishan Gopal s/o Shri Urbi Datt,
2. Laxmi Sharma w/o Shri Krishan Gopal,
Both residents of H.No.1637, Saini Vihar, Phase-3, Baltana,
Zirakpur, SAS Nagar (Mohali), Punjab.
.......Complainants
Versus
1. M/s Barnala Builders & Property Consultants, SCO No.1,
Opposite Yes Bank, Zirakpur-Patiala Road, Zirakpur, SAS
Nagar (Mohali), Punjab.
2. Mr. Satish Jindal, Managing Director of M/s Barnala Builders &
Property Consultants, SCO No.1, Opposite Yes Bank,
Zirakpur-Patiala Road, Zirakpur, SAS Nagar (Mohali), Punjab.
........Opposite Parties
Consumer Complaint 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 complainants : Shri Satyaveer Singh, Advocate For the opposite parties : Shri Ambrish Sharma, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainants, Krishan Gopal and Laxmi Sharma, who are husband and wife, have filed this complaint under Section 17(1)(a)(i) Consumer Complaint No.831 of 2017 2 of the Consumer Protection Act, 1986 (in short, "C.P. Act") for the issuance of following directions to the opposite parties:-
i) to refund the entire amount paid by the complainants to the opposite parties along with interest at the rate of 20% per annum from the date of receipt of the amount till the date of payment;
ii) to pay ₹20,00,000/-, as compensation for un-earned
premium, harassment and mental agony; and
iii) to pay ₹3,30,000/- as litigation expenses.
Facts of the Complaint:
2. Brief facts, as set out in the complaint, are that the complainants in good faith and relying on the assurances of the opposite parties initially booked 2 BHK Flat No.404, Block D-6, IVth Floor, measuring 1307 square feet for a total sale consideration of ₹38,00,233/- in their project "Maya Garden City", Zirakpur in 2011 by investing their hard earned money and life-time savings to have their own flat from November 2014 onwards. It is averred that initially the complainant was allotted a flat on the fourth floor, vide offer letter dated 24.9.2011 but thereafter on their request 2 BHK Flat No.102 in Block D-4, Ist Floor, measuring 1307 square feet was allotted to them, vide offer for allotment dated 8.9.2012 for which Agreement to Sell dated 19.9.2012 was executed between the parties. The complainants opted for construction linked payment plan (Option-B) and the opposite parties assured them that they will hand over the possession of the flat by 30th of November 2014. The complainants received letter dated 14.11.2014 from the opposite parties to the Consumer Complaint No.831 of 2017 3 effect that the flat is ready for possession and asked them to take the possession by clearing all dues, i.e. balance cost of the flat, interest, service tax and maintenance charges. They immediately requested the opposite parties to clarify regarding the charges demanded by them in the said letter and to provide completion certificate and explanation regarding interest so that they could make the payment.
However, till the date of filing of the complaint neither any explanation regarding the interest nor any completion certificate of the project had been provided/shown to them to make payment and to take possession of the flat. The complainants then sent a legal notice to the opposite parties but no response was given by them. It is further averred that the complainants made payment of ₹6,99,434/- even before signing the Agreement to Sell dated 12.9.2012. Thereafter the complainants paid amount of ₹10,10,671.00, as per the demand made by the opposite parties on, 1.10.2012. They made another payment of ₹7,60,046/-, as per the demand made by the opposite parties, on 12.12.2012. Thereafter the complainants received another letter dated 11.2.2013, vide which they were asked to make payment of ₹7,09,054/-. However, no due date was mentioned in the letter. The complainants contacted opposite parties but no satisfactory reply was received. However, the complainants made payment of ₹65,000/-, ₹1,00,000/- and ₹4,05,035/- to the opposite parties. Then the complainants received another letter dated 29.7.2013 and they were asked to make payment of ₹3,80,000/-. The complainants immediately paid a sum of ₹80,000/- on 29.7.2013 and ₹3,00,000/- on 5.8.2013. As such, Consumer Complaint No.831 of 2017 4 the complainants paid 90% of the amount of the agreed price. The remaining 10% of the agreed amount + Stamp Duty + IBMS + Car Parking Charges and any other charges shall be payable at the time of completion of the project. The complainants had been requesting the opposite parties for completion certificate of the project so that the remaining amount could be paid along with service tax and maintenance charges but the same was not provided. The representatives of the opposite parties were harassing the complainants unnecessarily even by using filthy language and threatening them that in case they do not make payment, then they will cancel their allotment and forfeit the amount, which is totally illegal. It was agreed by the opposite parties that in case they do not hand over the possession on or before 30.11.2014 then they shall be liable to pay charges @ ₹5/- per square foot per month to them. The complainants fulfilled their obligation by making payment of 90% as agreed but opposite parties failed to hand over the possession of the complete flat. It is further averred that the opposite parties do not even have Completion Certificate till the date of filing of the complaint and hence they cannot offer possession and demand balance 10% amount towards the price of the flat in question. The complainants served legal notice dated 3.3.2015 upon the opposite parties regarding the deficiency in service on their part for not handing over the possession of the flat, complete in all respects, within the stipulated period. However, they did not respond. It is further averred that thereafter the complainants filed a consumer complaint before the District Consumer Disputes Redressal Forum, Consumer Complaint No.831 of 2017 5 SAS Nagar (Mohali) bearing No.CC/263/2015 on 4.6.2015 against the opposite parties, which was partly allowed by the President, vide order dated 25.1.2016. However, the other two Members gave dissenting view and did not agree fully with the order passed by the President of the District Forum. The complainants as well as opposite parties filed appeals before this Commission against the order dated 25.1.2016 passed by the District Forum, Mohali. The appeal filed by the opposite parties (FA No.227 of 2016) was dismissed in limine by this Commission, vide order dated 5.4.2016, whereas the appeal filed by the complainants (FA 247 of 2016) for modification of the order was remanded back, vide order dated 1.6.2017 with a direction to Members, who gave dissenting opinion, that the opinion should be clear. The opposite parties filed Revision Petition No.2444 of 2016 and the same was dismissed as withdrawn by the Hon'ble National Commission, vide order dated 6.7.2017. It is further averred that the District Forum, Mohali also decided the complaint afresh, vide order dated 18.7.2017. The complaint of the complainants was allowed and held that all the interest and maintenance charges demanded by the opposite parties from the complainants are wrong and cannot be demanded while further holding that the opposite parties have indulged in unfair trade practice and rendered deficient service. It is further averred that the complainants have now come to know that the opposite parties have been using the flat of the complainants for their own use as office space for a long time and that they had invested their hard earned money to buy a new home (flat) but the flat in question is not new Consumer Complaint No.831 of 2017 6 anymore as it has been used by the opposite for a long time. Hence the complainants are no more interested in taking the possession of the flat and want to get refund of the entire amount paid to them along with interest, compensation and litigation expenses. It is further averred that the opposite parties did not have any approval when they offered the flat in question to the complainants. All the permissions for construction were obtained much later after getting huge amounts from them for booking the flat in question. The opposite parties neither have occupation certificate nor No Objection Certificate for constructing the flat in question from Air Force. It is further averred that the complainants have obtained a loan from Oriental Bank of Commerce for the purpose of payment of flat in question and they are paying heavy interest for the same. In all, the complainants made a huge deposit of about ₹34,20,186/- and despite that possession of the said residential flat has already been delayed by more than 33 months. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties the present complaint was filed by the complainants for issuance of above mentioned directions to the opposite parties. Defence of the opposite parties:
3. The opposite parties in their joint written statement raised preliminary objections to the effect that the complaint is barred by limitation as the cause of action was started on 14.11.2014 on the day when the opposite parties issued offer of possession and on the said cause of action the complainants filed earlier Complaint i.e. CC No.263 of 2015 before the District Forum, Mohali and appeal i.e. FA Consumer Complaint No.831 of 2017 7 No.637 of 2017 is still pending before this Commission. As such, the present complaint has been filed without any cause of action. It is settled law that appeal is the continuity of suit/complaint/previous proceedings. Moreover, in view of Section 24 of the C.P. Act the order passed in CC No.263 of 2015 is not final as appeal against said order is still pending and the present complaint has been filed by the complainants during the pendency of earlier complaint on the basis of same cause of action and the complainants were very much aware of these facts but they intentionally concealed the facts about the pendency of the appeal. The present complaint has been supported by so many forged and fabricated documents and, thus, intricate questions of facts arise, whether these documents are genuine or forged one, which can only be decided by Civil Court as it involves the exercise of examination and cross-examination of witnesses and the expert evidence. This question cannot be decided during the summary proceedings under the C.P. Act. The complainants are investors and are not 'consumers' as the complainants purchased the flat in question for investment purposes only and not for personal use. The complainants have raised many disputes on the basis of terms and conditions as settled between the parties. The nature of dispute is an inter-se dispute between the parties based on a contract i.e. Agreement to Sell. In view of the settled terms and conditions specified in application form and clause 29 of the Agreement to Sell, any dispute between the parties qua the flat in question, at first instance, shall be settled amicably by mutual discussion, failing which the same shall be settled through arbitration Consumer Complaint No.831 of 2017 8 proceedings, which shall be governed under the Arbitration & Conciliation Act, 1996 at Zirakpur but in the present complaint, the complainants straightway approached this Commission without complying with the agreed terms and conditions. It was also pleaded that the complainants indulged into "Supresso Veri" and "Sugestio Falsi" and have not approached this Commission with clean hands.
They concealed material facts from this Commission and the contents contained in the body of complaint amount to falsification. The complainants also filed one false affidavit, which contains so many false facts and the same amounts to criminal act. As such, the complainants are liable to be prosecuted in view of the relevant provisions of IPC and Cr.P.C. The complaint is not maintainable in the eyes of law as not filed in proper form. The present complaint has been filed by the complainants with mala fide intention and bad motive just to get undue advantage against the opposite parties and as such, the same deserves to be dismissed with costs. On merits, the purchase of the flat in question in the manner stated in the complaint and the payments as mentioned in the complaint have been admitted. It is averred that the complainants were required to deposit 90% cost of flat i.e. ₹34,20,210/- but they made their last payment on 5.8.2013 and till date they only deposited ₹34,20,186/-, which is very much less than 90% cost of the flat. They are big defaulters and gross negligent in making the payment. It is also admitted that earlier flat No.404, Block D-6 was allotted to them but later on the same was changed to Flat No.102, Block D-4 on their request. However, it is averred that the complainants did not book Consumer Complaint No.831 of 2017 9 the flat in question for their personal use and the same was booked just for investment purpose for earning much more money on invested amount. As per the settled terms and conditions, the opposite parties offered possession of the flat on 14.11.2014 to them but instead of taking over the possession, the complainants filed Consumer Complaint No.263 of 2015 before the District Forum, SAS Nagar, Mohali against them on the basis of same cause of action upon which the present complaint has been filed. It is further averred that the complainants were required to deposit 90% cost of flat within 410 days from the date of booking of the flat i.e. from 24.11.2011 but they failed to clear their all dues within due time. As such, the complainants are defaulters and are liable to pay agreed interest @ 20% per annum on late payments. Therefore, in offer of possession letter the opposite parties rightly demanded interest from them and there is no illegality in demanding interest. It is wrong that service tax, maintenance charges and balance cost of the flat were to be paid on completion of project. The complainants are required to clear their all dues before taking over the possession of the flat and without clearance of all the dues the opposite parties are not bound to execute the sale deed of the flat in their favour. Moreover, service tax is due to the Government and the same had to be cleared by the complainants along with each and every instalment as paid by them in lieu of cost of their flat but they did not pay any service tax on paid cost of flat. It is further averred that at no stage the complainants demanded the completion certificate from the opposite parties and they have already applied for the same with the Consumer Complaint No.831 of 2017 10 concerned authority. As and when the opposite parties will get the completion certificate, copy of the same will be provided to the complainants. It is further averred that in compliance of the terms and conditions of the Agreement to Sell, the opposite parties issued offer of possession dated 14.11.2014 to the complainants but they did not come forward to take over the possession of their flat. Therefore, the opposite parties have already shown their good intention to deliver the possession of flat to the complainants by issuing offer of possession and it is the complainants who are not interested to take over the possession of the flat and not ready to execute the sale deed. It is further averred that the opposite parties had started giving possession of flats on 10.11.2014 and till the date of filing of reply, possession of almost 1500 flats had been delivered to their respective allottees out of 1600 allottees. At present the entire housing project is fully equipped with all the facility like water, electricity, lifts and other basic amenities. It is further averred that in view of clause 22 of the Agreement to Sell, the opposite parties are still owner of the flat till the execution of sale deed in favour of the complainants and before execution of the sale deed the opposite parties have full right to use the flat in question being owner of flat. It is the mere excuse of the complainants to take over the possession of the flat. If the complainants are ready to take over the possession of their flat, they undertake to hand over the flat in question, complete in all respects, to full satisfaction of the complainants. The complainants are not entitled to any refund of their deposited amount along with interest and compensation, as till date they have not got Consumer Complaint No.831 of 2017 11 cancelled the flat in question by submitting the required documents and as the complainants themselves have backed out from the deal, so the opposite parties are entitled to deduct 10% of deposited amount in view of clause 9 of the Agreement to Sell. The complainants neither want to take over the possession of the flat nor they are interested in cancelling the same which shows that they are not ready to fulfill their part of the contract. Denying all other averments made in the complaint a prayer for dismissal of the complaint has been made. It is also prayed that the complainants be prosecuted under the relevant provisions of IPC and Cr.P.C for filing the false affidavit in judicial proceedings.
4. To prove their case, the complainants tendered in evidence affidavit of complainant No.1 as Ex.CA along with documents Ex.C-1 to Ex.C-19. On the other hand, opposite parties tendered in evidence affidavit of their Manager, Sh.Sandeep Bansal as Ex.OP-A along with documents Ex.OP-1 to Ex.OP-11.
Contentions of the Parties
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case. We have also gone through the written arguments submitted by both the parties.
6. Learned counsel for the complainants has vehemently argued that the opposite parties have been deficient in rendering service to the complainants and they have adopted unfair trade practice in the present complaint, pleading that the possession has not been handed over despite the fact that the complainants have made over 90% of the total consideration of the flat in question to the opposite Consumer Complaint No.831 of 2017 12 parties. As per the agreement, project was to be completed in November 2014. The offer of possession was made on 14.11.2014 but without obtaining the completion and occupancy certificate from the concerned Government Department. It has also been argued that the opposite parties after accepting the huge amount from the complainants are further raising illegal demand of ₹2,44,794/- towards interest. Since the complainants have made payment of 90% of the amount of the agreed price of the above mentioned flat upto 5.8.2013, this demand of the opposite parties is illegal and it resulted into loss of faith due to deficiency in service. It has further been argued that the complainants were always ready and willing to perform their part of the contract but the opposite parties have adopted unfair trade practice by demanding unreasonable amounts which were never otherwise due from them. The intention of the opposite parties is to extort as much money as possible from the complainants by putting them under pressure. The complainants even offered to pay the remaining amount of 10% and other charges except the interest although the same are liable to be paid only upon completion of the project, just to get the possession of the flat but they used extortion tactics by refusing to deliver the possession of the same even by all efforts made by the complainants. It has been further argued that the opposite parties have not obtained completion certificate from the concerned authority in respect of the project in question and as such, it is not possible for the complainants to take possession. Moreover, the flat in question is being used by the opposite parties as their office space, which is Consumer Complaint No.831 of 2017 13 clear from the photographs produced by the complainants in their evidence. Now, the complainants do not want to take possession of the flat as the opposite parties have grossly failed in their duties and have indulged in unfair trade practice. It has further been argued that previous complaint filed by the complainants was on separate cause of action as that was regarding providing of Completion Certificate, withdrawing of interest demanded by builder and to invoke penalty clause in Agreement to Sell as per clause V thereof. At that point of time when the previous complaint was filed, the complainants could not have asked for the possession, as the possession was not ready and most importantly the opposite parties did not have the occupation/completion certificate to give the possession. The complainants had been asking the opposite parties to show the completion certificate so that they could take the possession of the flat in question but the opposite parties have miserably failed in showing the completion certificate and never showed the same to the complainants due to which the possession could not be taken. However, in the present complaint the complainants are seeking refund of the entire amount deposited by them along with interest and compensation due to non-providing of completion certificate and non-handing over of possession of the flat in question for more than 3 years and further for using the flat in question as their office space. It has further been argued that the earlier complaint has already been withdrawn by complainant No.1 in F.A. No.637 of 2017 filed by opposite party No.1 against the impugned order dated 18.7.2017 passed by District Forum, SAS Consumer Complaint No.831 of 2017 14 Nagar, Mohali, vide order dated 25.1.2018 passed by this Commission. Moreover, the principle of res judicata under Order 2 Rule 2 of the Code of Civil Procedure is not applicable in consumer proceedings. The learned counsel has further argued on similar lines as averred in the complaint and prayed for allowing the complaint as already mentioned in the prayer clause.
7. Per contra it has been vehemently argued by learned counsel for the opposite parties that the present complaint is barred by limitation as the cause of action accrued on 14.11.2014 i.e. on the day when the opposite parties issued offer of possession to the complainants and on the basis of said cause of action they filed earlier complaint bearing No.CC/263/2015 before the District Forum, SAS Nagar, Mohali. The present complaint is hit by the principle of res judicata under Order II Rule 2 Sub Rule 2 of the Code of Civil Procedure. In the present complaint the complainants claim that they sent a legal notice dated 3.3.2015 to the opposite parties. However, in the earlier complaint they claimed that they sent legal notice on 15.4.2015, which clearly shows the falsification of the complainants. The legal notice and the postal receipts annexed with the present complaint as Ex.C-8 and Ex.C-9 are false and fabricated documents and same have been created by them just to get undue advantage. It has further been averred that the complainants are investors, as they purchased the flat in question for the investment purposes only and not for personal use. As such, they are not 'consumers' as defined under the C.P. Act and the complaint is not maintainable. It has been further argued that the rights of the Consumer Complaint No.831 of 2017 15 complainants are very much protected under the provision of the Arbitration and Conciliation Act, 1996 and the dispute in the present case is liable to be referred to an Arbitrator. It has further been argued that in clause no.18 of the Application Form it has been very much clear that the possession of flat will be delivered to the complainants only on the clearance of all the dues. The complainants are required to clear all their dues before taking over the possession of the flat. The opposite parties are not bound to execute the sale deed of the flat in favour of the complainants without getting all the dues from them. Moreover, there is no illegality in demand of service tax as under the provisions of Finance Act, 1994, "service tax" is levied on "taxable service" only and not on "service provider". In view of clause (iv) of the Application Form, it was the duty of the complainants to furnish all necessary details and documents for execution of Agreement to Sell within 30 days from the date of allotment but they failed to comply with the said clause and not executed the Agreement to Sell within fixed time. Moreover, in view of Section 6(1) of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") the complainants were required to deposit 25% of the sale amount before execution of the Agreement to Sell. The Agreement to Sell was executed on 19.9.2012 and till that date the complainants only paid ₹6,99,434/- instead of ₹9,50,058/-, which was very much less than 25% of sale price. Moreover, the complainants did not make the payments in accordance with the payment plan. The complainants were required to deposit 90% cost of flat within 410 days from the date of booking Consumer Complaint No.831 of 2017 16 of the flat i.e. till 7.1.2013 but they failed to clear all the dues within due time. As such, in view of clause 4 and 17 of the Agreement to Sell the complainants are liable to pay agreed interest on late deposits. Therefore, in the offer of possession letter the opposite parties rightly demanded interest from them and there is no illegality in the demand of interest. The complainants are defaulters in making the payment towards the price of the flat and for want of payment the possession could not be delivered to them. The complainants only paid ₹34,20,186/- instead of ₹34,20,192/- to complete their 90% payment, still they were issued offer of possession letter dated 14.11.2014 but they did not come forward to take possession of the flat. It is the complainants who are not interested in taking possession of the flat and to execute the sale deed. Even in the present complaint the complainants are not seeking any direction against the opposite parties for delivery of possession of the flat, which clearly shows their bad intention. It has further been argued that the opposite parties in their written statement have categorically replied to each and every averment made by the complainants with regard to the receipts, service tax, amenities provided, transfer of title, disputed amounts etc. and denied all other allegations of the complaint. He has further argued that the opposite parties had already applied for the permissions/sanctions of the competent authorities regarding completion and occupancy certificate and as such, there is no violation on their part. It has been prayed that there is no merit in the present complaint and the same be dismissed with costs. Consumer Complaint No.831 of 2017 17 Consideration of Contentions
8. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
9. So far as the plea of the opposite parties that the complainants did not book the flat in question for their personal use and the same was booked just for investment purpose for earning much more money on invested amount and as such, they are not consumers under the C.P. Act, is concerned, this matter is no more res integra. There is nothing on record that the complainants are property dealers and deal in the sale and purchase of property, on regular basis, and as such, the flat in question was purchased by them by way of investment, with a view to resell the same as and when there was escalation in the prices thereof. Thus, in the absence of any cogent evidence in support of the objections raised by the learned counsel for the opposite parties, mere bald assertion i.e. simply saying that the complainants have invested in the flat for earning profits, did not fall within the definition of consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ Consumer Complaint No.831 of 2017 18
316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house."
10. Similar question came up for adjudication before the Hon'ble National Commission in First Appeal No.237 of 2015 (Akshay Sood Consumer Complaint No.831 of 2017 19 v. M/s Pal Infrastructure & Developers Pvt. Ltd. & Anr.) decided on 2.1.2017, in which the complaint of the appellant/complainant was dismissed by the State Commission on the ground that he is not a 'Consumer' within the meaning of Section 2(1)(d) of the C.P. Act as he had initially booked three flats, later on changed to two flats, all in his name. The State Commission has come to the conclusion that if a 'consumer' purchases more than one residential unit, he knocks himself out of the ambit of the term 'consumer'. Hon'ble National Commission has held that onus to prove that the flats in question had been purchased by the complainant for the sole purpose of trading in them was on the Developer, which it has failed to discharge. It has been held in para no.7 as under:-
"7. In view of the above and in the light of several decisions by this Bench, including orders dated 21.07.2015 and 05.11.2015 passed in Sai Everest Developers & Anr. v. Harbans Singh Kohli & Ors. (First Appeal No.530 of 2015) and other connected Appeals and Rajesh Malhotra & Ors. V. Acron Developers Pvt. Ltd. & Ors., II(2016) CPJ 125 (NC), wherein it has been held that unless it is shown by bringing on record some cogent material that the purchaser is engaged in the purchase and sale of flats/houses on regular basis, with a view to make profit by sale of flats/houses, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purpose, the decision of Consumer Complaint No.831 of 2017 20 the Fora below, laying down an abstract proposition that if more than one residential unit is purchased by one person, he ceases to be a 'consumer', cannot be sustained."
No such evidence has been adduced by the opposite parties in the present complaint. The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the C.P. Act. Such an objection, raised by the opposite parties; being devoid of merit, is rejected.
11. So far as the point of limitation is concerned, it has now been settled upto Hon'ble Supreme Court in a number of cases that the dispute between the consumers and the builders is a continuing cause of action. Therefore, there is no force in this objection also and the same is hereby rejected.
12. So far as the application of principle of res judicata under Order II Rule 2 of the CPC is concerned, the earlier complaint was filed by complainant No.1 before the District Forum, SAS Nagar, Mohali, with regard to completion certificate, withdrawing of illegal demand of interest and invoking penalty clause but in the present complaint the complainants are seeking for the refund of the entire amount paid by them on account of non-providing of completion certificate and non-handing of possession of the flat in question for more than three years. Moreover, complainant No.1 had withdrawn the said complaint in FA No.637 of 2017 (M/s Barnala Builders & Property Consultants v. Krishan Gopal), which was allowed by this Commission, vide order dated 25.1.2018. Therefore, as on today Consumer Complaint No.831 of 2017 21 there are no parallel proceedings going on between the parties on the same cause of action. Moreover, the cause of action in the earlier complaint and the cause of action in the present complaint are altogether different and, as such, the principle of res judicata is not applicable in the present case. This objection is also rejected being devoid of merit.
13. So far as the objection of the opposite parties that as per Clause-23 of the agreement to sell, Ex.C-5, the dispute between the parties is triable by the Arbitrator is concerned, it is relevant to mention that the Hon'ble Supreme Court has held in so many judgments that the remedy, provided under Section 3 of Act is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the complaint, filed by the consumer. Accordingly, the said objection of opposite parties is hereby rejected.
14. No other point has been raised before us.
15. Now coming to the merits of the case. Admittedly, the complainants in good faith and relying on the assurances of the opposite parties initially booked 2 BHK Flat No.404, Block D-6, IV th Floor, measuring 1307 square feet for a total sale consideration of ₹38,00,233/- in their project "Maya Garden City" Zirakpur in 2011 but thereafter on their request 2 BHK Flat No.102 in Block D-4, Ist Floor measuring 1307 square feet was allotted to them, vide offer for allotment dated 8.9.2012 for which Agreement to Sell dated 19.9.2012, Ex.C-5, was executed between the parties. The Consumer Complaint No.831 of 2017 22 complainants opted for construction linked payment plan (Option-B) and admittedly the complainants made payment of ₹34,20,186/- i.e. about 90% of the total sale price of the flat in question. As per clause 18 of the agreement, the possession was to be handed over on 30.11.2014 but the offer for possession was made on 14.11.2014, Ex.C-7 i.e. within the stipulated period asking them to take the possession by clearing all dues i.e. balance cost of the flat, interest, service tax and maintenance charges. The complainants immediately requested the opposite parties to clarify regarding the charges demanded by them in the said letter and to provide completion certificate and explanation regarding interest so that they could make the payment. However, till the date of filing of the complaint neither any explanation regarding interest nor any completion certification of the project had been provided to them to make payment and take possession of the flat in question. Admittedly at the time of offer of possession to the complainants on 14.11.2014 the opposite parties were not in possession of completion certificate/occupancy certificate from the competent authorities. Constrained with the circumstances complainant No.1 served legal notice dated 3.3.2015, Ex.C-8, upon the opposite parties to withdraw all the demand letters and hand over possession of the flat. However, the opposite parties did not respond to the same. Admittedly about 90% of the total sale price of the flat in question i.e. ₹34,20,186/- is lying deposited with the opposite parties since 5.8.2013 and the opposite parties are enjoying the fruits of the same. At the time of offer of possession i.e. on 14.11.2014 Consumer Complaint No.831 of 2017 23 admittedly the opposite parties were not having any completion/partial completion or occupation certificate with regard to the project in question and in the absence of the same, the offer of possession was only eyewash. Neither the possession of the flat in question was delivered nor the amount deposited by the complainants was returned to them. The complainants cannot be made to wait for an indefinite period of time for the delivery of possession of the flat in question.
16. Admittedly, the amount has been utilized by the opposite parties, which is trust money, for earning profits in their business. The opposite parties have also violated the provisions of the PAPRA by not obtaining the necessary sanctions/permissions from the competent authority before launching the scheme and collecting money from the people. Therefore, the opposite parties violated Sections 3, 5, 9 and 12 of PAPRA.
17. The opposite parties had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement.
18. By executing the Agreement Ex.C-5 and receiving the amount more than ₹25,000/- without obtaining the requisition permissions/sanctions from the competent authorities, the opposite Consumer Complaint No.831 of 2017 24 parties violated the provisions of PAPRA. They were not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite parties amount to adoption of unfair trade practice. In these circumstances the complainants are entitled to the refund of the amount so paid by them. The opposite parties cannot withhold their amount and are liable to refund the same along with interest.
19. The C.P. 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 parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite parties, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainants have suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The Consumer Complaint No.831 of 2017 25 complainants 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 parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the flat, due to which the complainants have 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 complainants is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of developing the flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were 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 complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by Consumer Complaint No.831 of 2017 26 them on account of the betrayal by the opposite parties in shattering their hope of getting the flat by waiting for all this period.
20. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, 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."
21. In view of above referred discussion, and perusal of the record, the complaint is allowed and following directions are issued to the opposite parties:-
(i) to refund ₹34,20,186/- along with interest @ 12% from the respective dates of deposit; and.
(ii) to pay ₹55,000/-, as compensation including litigation expenses.
22. Compliance of the order shall be made within 30 days of the receipt of copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER February 06, 2018 Bansal Consumer Complaint No.831 of 2017 27