State Consumer Disputes Redressal Commission
Manvinder Singh vs M/S R.K.M. Housing Ltd. on 21 May, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.712 of 2017
Date of Institution : 21.08.2017
Order Reserved on : 16.05.2018
Date of Decision : 21.05.2018
Mavinder Singh son of Sh. Gurcharan Singh, resident of H.No. 881,
Phase-9, Mohali
.....Complainant
Versus
1. M/s RKM Housing Limited, Registered & Head Office at SCO
No.673, Second Floor, Sector 70, SAS Nagar, Mohali through
its Director/Managing Director/Authorized Signatory.
2. Kanwaljit Singh, Director, M/s RKM Housing Limited, Site
Office Behind C.G.C. Landran, Sector 112, SAS Nagar,
Mohali.
3. Manpreet Kaur, Director, M/s RKM Housing Limited, Resident
of H.No. 1568, Sector 34-D, Chandigarh.
4. Jagroop Kaur, Director M/s RKM Housing Limited, Resident of
H.No.1568, Sector 34-D, Chandigarh.
..... Opposite parties
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 complainant : Sh.Arun Kumar, Advocate For opposite parties : Sh.J.P.S. Sidhu, Advocate ..................................................................................
2) Consumer Complaint No.713 of 2017 Date of Institution : 21.08.2017 Order Reserved on : 16.05.2018 Date of Decision : 21.05.2018 Satish Kumar son of Bishmber Dass Bedi, resident of H.No.2365-C, SCL Society, Sector-70, Mohali.Consumer Complaint No.712 of 2017 2
.....Complainant Versus
1. M/s RKM Housing Limited, Registered & Head Office at SCO No.673, Second Floor, Sector 70, SAS Nagar, Mohali through its Director/Managing Director/Authorized Signatory.
2. Kanwaljit Singh, Director, M/s RKM Housing Limited, Site Office Behind C.G.C. Landran, Sector 112, SAS Nagar, Mohali.
3. Manpreet Kaur, Director, M/s RKM Housing Limited, Resident of H.No. 1568, Sector 34-D, Chandigarh.
4. Jagroop Kaur, Director M/s RKM Housing Limited, Resident of H.No.1568, Sector 34-D, Chandigarh.
..... Opposite parties 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 complainant : Sh.Arun Kumar, Advocate For opposite parties : Sh.J.P.S. Sidhu, Advocate ..................................................................................
3) Consumer Complaint No.714 of 2017 Date of Institution: 21.08.2017 Order reserved on: 16.05.2018 Date of Decision : 21.05.2018 Urmila Rani wife of Kuldeep Singh, aged 38 years, resident of # 3192, Ground Floor, Housing Board Colony, Sector-52, Chandigarh.
.....Complainant Versus
1. M/s RKM Housing Limited, Registered & Head Office at SCO No.673, Second Floor, Sector 70, SAS Nagar, Mohali through its Director/Managing Director/Authorized Signatory.
2. Kanwaljit Singh, Director, M/s RKM Housing Limited, Site Office Behind C.G.C. Landran, Sector 112, SAS Nagar, Mohali.
3. Manpreet Kaur, Director, M/s RKM Housing Limited, Resident of H.No. 1568, Sector 34-D, Chandigarh.
4. Jagroop Kaur, Director M/s RKM Housing Limited, Resident of H.No.1568, Sector 34-D, Chandigarh.Consumer Complaint No.712 of 2017 3
.....Opposite Parties 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 complainant : Sh. Arun Kumar, Advocate For the opposite parties : Sh. J.P.S. Sidhu, Advocate ..................................................................................
4) Consumer Complaint No.715 of 2017 Date of Institution: 21.08.2017 Order reserved on: 16.05.2018 Date of Decision : 21.05.2018
1. Rajinder Singh son of Sh. Badan Singh, resident of H.No.5039/3, Cate-3, MHC, Manimajra, Chandigarh (U.T.).
2. Pawan Kumar son of Sh. Lekh Raj, resident of 4565-A, MIG Super, Sector-70, Mohali.
3. Raman Kumar son of Sh. Lekh Raj, resident of 4565-A, MIG Super, Sector-70, Mohali .....Complainants Versus
1. M/s RKM Housing Limited, Registered & Head Office at SCO No.673, Second Floor, Sector 70, SAS Nagar, Mohali through its Director/Managing Director/Authorized Signatory.
2. Kanwaljit Singh, Director, M/s RKM Housing Limited, Site Office Behind C.G.C. Landran, Sector 112, SAS Nagar, Mohali.
3. Manpreet Kaur, Director, M/s RKM Housing Limited, Resident of H.No. 1568, Sector 34-D, Chandigarh.
4. Jagroop Kaur, Director M/s RKM Housing Limited, Resident of H.No.1568, Sector 34-D, Chandigarh.
..... Opposite parties 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. Arun Kumar, Advocate For the opposite parties : Sh. J.P.S. Sidhu, Advocate Consumer Complaint No.712 of 2017 4 ..................................................................................
AND
5) Consumer Complaint No.799 of 2017 Date of Institution: 11.09.2017 Order reserved on: 16.05.2018 Date of Decision : 21.05.2018 Ranjeet Mehra son of Sh. Kartar Mehra, resident of H.No.1614, Housing Board Colony, Sector 10-A, Gurgaon.
.....Complainants Versus
1. M/s RKM Housing Limited, Registered & Head Office at SCO No.673, Second Floor, Sector 70, SAS Nagar, Mohali through its Director/Managing Director/Authorized Signatory.
2. Kanwaljit Singh, Director, M/s RKM Housing Limited, Site Office Behind C.G.C. Landran, Sector 112, SAS Nagar, Mohali.
3. Manpreet Kaur, Director, M/s RKM Housing Limited, Resident of H.No. 1568, Sector 34-D, Chandigarh.
4. Jagroop Kaur, Director M/s RKM Housing Limited, Resident of H.No.1568, Sector 34-D, Chandigarh.
..... Opposite parties 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. Arun Kumar, Advocate For the opposite parties : Sh. J.P.S. Sidhu, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Since the above referred complaints are based upon common controversy of facts and law, hence they can be disposed of together by means of common order, which shall be pronounced by us in main complaint no.712 of 2017 titled as "Manvinder Singh Vs. M/s RKM Housing Limited & others".
Facts of Complaint No.712 of 2017:Consumer Complaint No.712 of 2017 5
2. The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OPs on the averments that he applied for residential plot in the project of OP no.1 namely "RKM City" M/s RKM Housing Limited, site office behind CGC Landran, Sector 112 SAS Nagar Mohali for his personal use as well as for his other family members.
The total cost of the plot was Rs.20,40,000/-. It is further averred that memorandum of understanding (in short "MOU") was executed between the parties on 17.11.2010. The complainant deposited a sum of Rs.9,20,000/- with OP no.1, vide receipt bearing no.647 of 19.11.2010. He further deposited a sum of Rs.1,00,000/- and Rs.60,000/- on 27.11.2010 and 17.01.2011 respectively and after receipt of the above said payments, OP no.1 issued receipt no.714 & 887 dated 27.11.2010 and 17.01.2011 in his favour. After receipt of above said amounts from him, OPs executed agreement to sell with him on 28.12.2012, wherein total cost of the plot was Rs.20,40,000/- @ Rs.10,200/- per square yard inclusive of development charges. OPs issued allotment letter bearing no.RKM-457/112/2012 dated 28.12.2012 in his favour, allotting plot no.95 measuring 200 sq. yard to him for a total consideration of Rs.20,40,000/-. The complainant applied for loan from ICICI Bank Limited and deposited the amount of Rs.7,06,000/- with OP no.1 against receipt no.3464 dated 11.01.2013. OPs issued possession letter bearing no. RKM/457/2013 dated 22.10.2013 to complainant. OP no.1 sent letter bearing no. RKM-457/2015/112 dated 16.03.2015 to him and Consumer Complaint No.712 of 2017 6 demanded the balance payment of Rs.2,04,000/- towards development charges within 25 days from the receipt of the said letter. The complainant enquired about the sale deed of the plot from them, but to no effect. The complainant came to know that one Mukesh Kumar sought information under RTI Act 2005 from GMADA Mohali and he wrote a letter dated 11.01.2016, whether OP no.1 has completed all the amenities i.e. road, sewerage, treatment plant, electricity and water required for handing over the possession, whether promoter has applied with regard to completion certificate or not, whether promoter has submitted any revised layout plan in their office or not and whether promoter has submitted any revised layout plan in their office or not. GMADA intimated to Mukesh Kumar, vide letter no.GMADA/M.E./(Elec)-2016/671 dated 22.03.2016, in response to his letter dated 16.03.2016, that OP no.1 has not applied for any layout plan or drawing in their office. In response to letter dated 03.03.2016 of Mukesh Kumar,, the office of GMADA sent letter no.GMADA/DTP/A-1/2016/1210 dated 30.03.2016 to Mukesh Kumar along with copy of conditional licence to develop a colony along with terms and conditions and intimated that till date, OP no.1 has not applied for renewal of licence for developing their colony in Sector 112 Mohali. OP no.1 has violated the terms and conditions, as laid down by GMADA Mohali. The complainant visited the spot in first week of ay 2015, in last week of December 2016 and in last week of June 2017 and found no development by OP at the site. The complainant has alleged deficiency in service and unfair trade Consumer Complaint No.712 of 2017 7 practice on the part of OPs by not developing the project and for not handing over the possession of the plot within time, despite receipt of payments and in not holding the requisite permissions from the competent authorities. The complainant has, thus, prayed that OPs be directed to refund entire deposited amount of Rs.18,36,000/- alongwith interest @24% per annum from the date of their respective deposits till actual payment; further to pay interest @10.05% per annum with regard to regular installments paid by the complainant to ICICI Bank; further to pay Rs.5 Lakhs for mental harassment; and to pay to Rs.1,00,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. OPs raised preliminary objections that complaint is not maintainable and complainant is not consumer of OPs. The complainant invested in the project as contributor and booked the plot and it was mentioned in MOU that complainant shall reserve in future the project for allotment after obtaining licenses and other requisite permissions and complainant is a defaulter due to which possession was not given to the complainant. There is arbitration clause in MOU dated 17.11.2010 and complaint is not maintainable. The complainant gave amount of Rs.18,20,000/- out of total consideration of Rs.20,40,000/- to OPs and balance amount of Rs.2,20,000/- has not been cleared by the complainant. The OPs are still ready to give the possession of the alleged plot to the complainant, provided that he pays the remaining amount to OPs. Since, the complainant has violated the conditions of Consumer Complaint No.712 of 2017 8 MOU and agreement to sell and hence he is not entitled to refund of the amount. The letters dated 22.10.2013 and 16.03.2015 were issued to the complainant to pay the balance amount, but to no effect. The complaint of the complainant is barred by time. The scheme in question is dependent on contribution of the contributors and entire project can be delayed if no payments by the contributor have been made to OPs. The OPs have got all the statutory approvals on time and given possession of residential plots to majority of allottees, who made the timely payments of their dues. The OPs have also contested the complaint of the complainant even on merits on the above referred basis. They controverted the other averments of complainant and prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 and C-21 and closed the evidence. As against it, OPs tendered in evidence affidavit of Charanjit Singh Ex.OP-A, copy of authority letter Ex.OP-B alongwith other documents Ex.OP-1 to Ex.OP-16 and closed the evidence. Facts of Complaint No.713 of 2017:
5. Satish Kumar Bedi complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OPs on the averments that he applied for residential plot in the project of OP no.1 namely "RKM City" M/s RKM Housing Limited, site office behind CGC Landran, Sector 112 SAS Nagar Mohali for his personal use and for his other family members user. The total cost of the plot was Rs.20,40,000/- and Consumer Complaint No.712 of 2017 9 complainant deposited Rs.18,36,000/- with OPs, vide different receipts. Memorandum of understanding (in short "MOU") was executed between the parties on 17.11.2010. After receipts of above said amounts from him, OPs executed agreement to sell with him on 28.12.2012 and total cost of the plot was Rs.20,40,000/- @ Rs.10,200/- per square yard inclusive of development charges. OPs issued allotment letter dated 28.12.2012 in his favour, allotting plot no.94 measuring 200 sq. yard to him for a total consideration of Rs.20,40,000/-. The complainant applied for loan from ICICI Bank Limited and deposited the amount of Rs.7,06,000/- with OP no.1. OPs issued possession letter dated 22.10.2013 to complainant. OPs sent letter dated 16.03.2015 to complainant demanding the balance payment of Rs.2,04,000/-. The complainant enquired about the sale deed of the plot from them, but to no effect. The complainant came to know that one Mukesh Kumar sought information under RTI Act 2005 from GMADA Mohali and he wrote a letter dated 11.01.2016, whether OP no.1 has completed all the amenities i.e. road, sewerage, treatment plant, electricity and water required for handing over the possession, whether promoter has applied with regard to completion certificate or not, whether promoter has submitted any revised layout plan in their office or not and whether promoter has submitted any revised layout plan in their office or not. GMADA intimated to Mukesh Kumar, vide letter no.GMADA/M.E./(Elec)- 2016/671 dated 22.03.2016 in response to his letter dated 16.03.2016, that OP no.1 has not applied for any layout plan or Consumer Complaint No.712 of 2017 10 drawing in their office. In response to letter dated 03.03.2016 of Mukesh Kumar, the office of GMADA sent letter no.GMADA/DTP/A- 1/2016/1210 dated 30.03.2016 to Mukesh Kumar along with copy of conditional licence to develop a colony along with terms and conditions and intimated that till date OP no.1 has not applied for renewal of licence for developing their colony in Sector 112 Mohali. OP no.1 has violated the terms and conditions as laid down by GMADA Mohali. The complainant visited the spot and found no development at the site. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and, thus, prayed that OPs be directed to refund entire deposited amount of Rs.18,36,000/- alongwith interest @24% per annum from the date of their respective deposits till actual payment; further to pay interest @10.05% per annum with regard to regular installments paid by the complainant to ICICI Bank; further to pay Rs.5 Lakhs for mental harassment; and to pay to Rs.1,00,000/- as litigation expenses.
6. Upon notice, OPs appeared and filed written reply on the similar lines, as pleaded by them in written reply in detail filed in consumer complaint no.712 of 2017 titled as "Manvinder Singh Vs. M/s RKM Housing Limited & others" and prayed for dismissal of the complaint.
7. Both the parties led their evidence in support of their respective averments and closed the evidence.
Facts of Complaint No.714 of 2017:
Consumer Complaint No.712 of 2017 11
8. Urmila Rani complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OPs. In this complaint, complainant applied for residential plot in the project of OP no.1 namely "RKM City" for her personal use and for hers family members. The total cost of the plot was Rs.21,00,000/- and complainant deposited Rs.11,00,000/- with OPs, vide different receipts. Memorandum of understanding (in short "MOU") was executed between the parties on 27.12.2010. After receipt of above said amounts from her, OPs executed agreement to sell with her on 15.06.2012, wherein total cost of the plot was mentioned as Rs.21,00,000/- inclusive of development charges. The complainant obtained loan of Rs.14,05,742/- from India Bulls Housing Finance Limited and deposited the amount of Rs.5,00,000/- with OP no.1. OPs issued demand-cum-possession letters dated 20.03.2013, 22.10.2013, 14.11.2013 and 11.12.2014 respectively stating that they were ready to hand over the possession of the plot to her and to clear the balance payment and to obtain non dues certificate from them. The complainant came to know that one Mukesh Kumar sought information under RTI Act 2005 from GMADA Mohali and he wrote a letter dated 11.01.2016, whether OP no.1 has completed all the amenities i.e. road, sewerage, treatment plant, electricity and water required for handing over the possession, whether promoter has applied with regard to completion certificate or not, whether promoter has submitted any revised layout plan in their office or not and whether promoter has submitted any revised layout Consumer Complaint No.712 of 2017 12 plan in their office or not. GMADA intimated to Mukesh Kumar, vide letter no.GMADA/M.E./(Elec)-2016/671 dated 22.03.2016 in response to his letter dated 16.03.2016, that OP no.1 has not applied for any layout plan or drawing in their office. In response to letter dated 03.03.2016 of Mukesh Kumar, the office of GMADA sent letter no.GMADA/DTP/A-1/2016/1210 dated 30.03.2016 to Mukesh Kumar along with copy of conditional licence to develop a colony along with terms and conditions and intimated that till date OP no.1 has not applied for renewal of licence for developing their colony in Sector 112 Mohali. OP no.1 has violated the terms and conditions as laid down by GMADA Mohali. The complainant visited the spot and found no development at the site. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and, thus, prayed that OPs be directed to refund entire deposited amount of Rs.11,00,000/- alongwith interest @24% per annum from the date of their respective deposits till actual payment; further to pay interest @10.05% per annum with regard to regular installments paid by the complainant to Bank; further to pay Rs.5 Lakhs for mental harassment; and to pay to Rs.1,00,000/- as litigation expenses.
9. Upon notice, OPs appeared and filed written reply on the similar lines, as pleaded by them in written reply in detail filed in consumer complaint no.712 of 2017 titled as "Manvinder Singh Vs. M/s RKM Housing Limited & others" and prayed for dismissal of the complaint.
Consumer Complaint No.712 of 2017 13
10. Both the parties led evidence in support of their averments and closed the evidence.
Facts of Complaint No.715 of 2017:
11. Complainants have instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OPs on the averments that they applied for residential plot in the project of OP no.1 namely "RKM City" M/s RKM Housing Limited, site office behind CGC Landran, Sector 112 SAS Nagar Mohali for their personal use and for other family members. The total cost of the plot was Rs.15,00,000/- @ Rs.7500/- per square yard and complainant deposited Rs.14,00,000/- with OPs, vide different receipts. Memorandum of understanding (in short "MOU") was executed between the parties on 24.08.2013. OPs issued clearance-cum- possession certificate dated 19.11.2013 to complainants for clearing the dues and to receive the paper possession of plot no.674. The complainants came to know that one Mukesh Kumar sought information under RTI Act 2005 from GMADA Mohali and he wrote a letter dated 11.01.2016, whether OP no.1 has completed all the amenities i.e. road, sewerage, treatment plant, electricity and water required for handing over the possession, whether promoter has applied with regard to completion certificate or not, whether promoter has submitted any revised layout plan in their office or not and whether promoter has submitted any revised layout plan in their office or not. GMADA intimated to Mukesh Kumar, vide letter no.GMADA/M.E./(Elec)-2016/671 dated 22.03.2016 in response to Consumer Complaint No.712 of 2017 14 his letter dated 16.03.2016, that OP no.1 has not applied for any layout plan or drawing in their office. In response to letter dated 03.03.2016 of Mukesh Kumar,, the office of GMADA sent letter no.GMADA/DTP/A-1/2016/1210 dated 30.03.2016 to Mukesh Kumar along with copy of conditional licence to develop a colony along with terms and conditions and intimated that till date OP no.1 has not applied for renewal of licence for developing their colony in Sector 112 Mohali. OP no.1 has violated the terms and conditions as laid down by GMADA Mohali. The complainants visited the spot and found no development at the site. The complainants have alleged deficiency in service and unfair trade practice on the part of OPs and, thus, prayed that OPs be directed to refund entire deposited amount of Rs.15,30,000/- alongwith interest @24% per annum from the date of their respective deposits till actual payment; further to pay Rs.5 Lakhs for mental harassment; and to pay to Rs.1,00,000/- as litigation expenses.
12. Upon notice, OPs appeared and filed written reply on the similar lines, as pleaded by them in written reply in detail filed in consumer complaint no.712 of 2017 titled as "Manvinder Singh Vs. M/s RKM Housing Limited & others" and prayed for dismissal of the complaint.
13. Both the parties led evidence in support of their averments and closed the evidence.
Facts of complaint no.799 of 2017:
Consumer Complaint No.712 of 2017 15
14. Ranjeet Mehra complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against OPs. In this complaint, complainant applied for residential plot in the project of OP no.1 namely "RKM City" for her personal use and for hers family members. The total cost of the plot was Rs.21,00,000/- and complainant deposited Rs.15,75,000/- with OPs, vide different receipts. Memorandum of understanding (in short "MOU") was executed between the parties on 05.12.2010. After receipt of above said amounts from him, OPs executed agreement to sell with him on 20.05.2012 and wherein total cost of the plot was mentioned as Rs.21,00,000/- inclusive of development charges. After obtaining loan from India Bulls Housing Ltd., the complainant deposited Rs.4,39,949/- with OP no.1. OPs issued possession letters dated 22.10.2013 stating that they are ready to hand over the possession of the plot to him. The complainant came to know that one Mukesh Kumar sought information under RTI Act 2005 from GMADA Mohali and he wrote a letter dated 11.01.2016, whether OP no.1 has completed all the amenities i.e. road, sewerage, treatment plant, electricity and water required for handing over the possession, whether promoter has applied with regard to completion certificate or not, whether promoter has submitted any revised layout plan in their office or not and whether promoter has submitted any revised layout plan in their office or not. GMADA intimated to Mukesh Kumar, vide letter no.GMADA/M.E./(Elec)-2016/671 dated 22.03.2016 in response to his letter dated 16.03.2016, that OP no.1 has not Consumer Complaint No.712 of 2017 16 applied for any layout plan or drawing in their office. In response to letter dated 03.03.2016 of Mukesh Kumar, the office of GMADA sent letter no.GMADA/DTP/A-1/2016/1210 dated 30.03.2016 to Mukesh Kumar along with copy of conditional licence to develop a colony along with terms and conditions and intimated that till date OP no.1 has not applied for renewal of licence for developing their colony in Sector 112 Mohali. OP no.1 has violated the terms and conditions as laid down by GMADA Mohali. The complainant visited the spot and found no development at the site. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and, thus, prayed that OPs be directed to refund entire deposited amount of Rs.15,75,000/- alongwith interest @24% per annum from the date of their respective deposits till actual payment; further to pay interest @10.05% per annum with regard to regular installments paid by the complainant to Bank; further to pay Rs.5 Lakhs for mental harassment; and to pay to Rs.1,00,000/- as litigation expenses.
15. Upon notice, OPs appeared and filed written reply on the similar lines, as pleaded by them in written reply in detail filed in consumer complaint no.712 of 2017 titled as "Manvinder Singh Vs. M/s RKM Housing Limited & others" and prayed for dismissal of the complaint.
16. Both the parties led evidence in support of their averments and closed the evidence.
Main Order:
Consumer Complaint No.712 of 2017 17
17. We have heard the learned counsel for the parties and have also examined the record of the case. The first submission of counsel for OPs is that complainants invested their money in above properties, as investors and not for their personal use as such they are not consumers. There is nothing on the record to prove this fact that complainants are property dealers, dealing in sale and purchase of the real estate market. The OPs have not substantiated this point by leading any evidence to this effect. The project launched by OPs is residential project, wherein complainants have opted to purchase the above properties, as such they are held to be consumers. The residential plot is generally purchased for personal use or for residence purposes. The next point contended by OPs in this case is that there is an arbitration clause in MOU dated 17.11.2010 executed between the parties and hence consumer complaint is not maintainable. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was Consumer Complaint No.712 of 2017 18 filed by OP before the Top Court, which has been recently dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385 that Section 3 of C.P. Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P. Act conferring the additional remedy on the consumers, we find no force in this submission of OPs.
18. The complainant has alleged that OPs have not developed the project, nor delivered the complete possession in complete form to complainants within the scheduled time and as such the OPs are deficient in service. The point in issue can be decided with reference to evidence on the record in this case. The total price of the plot is Rs.20,40,000/-. as pleaded in para no.7 of the complaint. The complainant has paid the amount of Rs.18,36,000/- to OPs out of sale price of plot of Rs.20,40,000/- inclusive of development charges. This fact is proved by receipts Ex.C-2 to C-4 and Ex.C-8 on the record. MOU was executed between the parties on 17.11.2010 vide Ex.C-1. Para no.6 of this MOU states that the process of allotment of plot shall start only after proper sanction/permissions/licenses granted by competent authorities to the party of the first part. The terms and conditions of Consumer Complaint No.712 of 2017 19 the allotment of the reserved plot by the party of the first part to the party of the second part shall be identical as applicable to the other buyers or purchasers in the future project. Agreement to sell is Ex.C-5 dated 28.12.2012 governing the terms and conditions of this allotment. It is stated in this agreement of sale that the total sale price of the plot is Rs.20,40,000/- inclusive development charges. The balance amount was to be paid at the time of execution of sale deed. The possession of plot shall be given to the second party after full payment made to first party, as per the terms and conditions of the agreement. No specific period for delivery of possession has been set out in the agreement of sale. The MOU Ex.C-1 has stipulated in clause 7 that OPs were to complete the development in 12 months, failing which they would refund the amounts to complainant as interest @10% per annum. The period specified for completing the development project in MOU in clause 7 is of 12 months. MOU was executed on 17.11.2010 between the parties. Agreement to sell was executed by OPs in favour of complainant on 28.12.2012. As per Section 6 of PAPRA Act, 1995, the promoter/builder is bound to execute the agreement of sale on receipt of 25% of the amount from the allottee in his/her favour. The receipts for payments of Rs.9,20,000/- is dated 19.11.2010, Rs.1,00,000/- is dated 27.11.2010 and Rs.60,000/- is dated 17.01.2011 have proved that OPs received the amount of more than 50% of the sale price of plot of Rs.20,40,000/- before the agreement of sale dated 28.12.2012. This is unfair trade practice of OPs in Consumer Complaint No.712 of 2017 20 violation of Section 6 of PAPRA Act, 1995. The OPs have violated Section 9 of PAPRA Act as well by not depositing the money received from complainant in a separate account in some scheduled bank.
19. The OPs issued allotment letter to complainant on 28.12.2012. OPs have already received more than 50% of the basic sale price from complainant. The OPs gave permission to complainant to mortgage the plot with ICICI Bank for raising loan vide Ex.C-7. The OPs also received Rs.7,06,000/- from complainant on 11.01.2013 vide Ex.C-8. The OPs mainly relied upon possession letter dated 22.10.2013 Ex.C-9 addressed to complainant and Ex.C-10 dated 16.03.2015, the demand notice for payment of balance amount. If OPs were to offer the possession on receipt of the entire amount, then we found no logic in issuing subsequent notice for payment of the amount by OPs to complainant vide Ex.C-10 on 16.03.2015. One Mukesh Kumar obtained the information under RTI Act with regard to the project of OPs, vide application dated 11.01.2016 Ex.C-13. The information was supplied to him by the Public Information Officer GMADA under Right to Information Act, vide Ex.C-14 dated 19.02.2016 to the effect that Mukesh Kumar could get the copy of layout plan from the office by paying the requisite fee. The EDC amount has not been deposited by the promoter and deposited Rs.169.75 only. The promoter has not applied for completion certificate of the colony and no revised layout plan was issued to the promoter. Mukesh Kumar also sought Consumer Complaint No.712 of 2017 21 information from GMADA vide Ex.C-15 and C-16 with regard to this project of OPs. It is replied in Ex.C-15 by the authorities under Right to Information Act that no layout/drawing copy has been received in the office from OP. The Promoter has not applied for renewal of license regarding development of colony in Sector 112, as per information given, vide Ex.C-16. The OPs earlier obtained license vide Ex.C-17 from competent authority to develop the colony, which was valid for the period from 07.03.2012 to 26.03.2015 only. Thereafter, no renewal of license to develop the colony has been obtained by OPs. Photographs Ex.C-19 and 20 have proved it on the record that the project is lying at development stage and has not been fully developed.
20. The OPs also tendered in evidence affidavit of Charanjit Singh Ex.OP-A on the record. He has testified the case of OPs, as pleaded in the written version on oath. He has admitted the fact that total sale price of the plot was Rs.20,40,000/- and complainant has paid the amount of Rs.18,20,000/-, out of total cost of plot of Rs.20,40,000/- to OPs so far. He has been authorized to give evidence by virtue of authority letter Ex.OP-B. Ex.OP-1 is the letter addressed to complainant by OPs for part payment of installment issued on 10.10.2012. The allotment letter dated 28.12.2012 is Ex.OP-1/A alloting plot no.95, measuring 200 square yard in Sector 112, SAS Nagar, Mohali for total sale consideration of Rs.20,40,000/-. Ex.OP-1/B is copy of reminder dated 28.12.2012 sent by OPs to complainant. Ex.OP-2 is the copy of offer for Consumer Complaint No.712 of 2017 22 possession of the plot dated 20.03.2013 issued by OPs to complainant and asked complainant to deposit Rs.2,76,900/-, as per terms of agreement followed by letter Ex.OP-3 dated 22.10.2013. Ex.OP-4 is the copy of letter from complainant to OPs that the balance amount is payable at the time of possession by ICICI Bank. Ex.OP-5 is the copy of letter dated 11.12.2014 from OPs to complainant regarding payment of installment. Ex.OP-6 is the copy of MOU executed between the parties on 17.11.2010. Ex.OP-6/A is the copy of agreement to sell. License to develop the colony under Section 3 of PAPRA Act, is from 07.03.2012 to 06.03.2015 vide Ex.OP-7 on the record. Permission for change of land user dated 26.08.2010 is Ex.OP-8 in favour of OPs, followed by memo no.2960 dated 25.04.2011 Ex.OP-9. Ex.OP-10 is the approval of layout plan on 30.09.2011 by the Forest Officer to OPs. The OPs also relied upon sale deeds executed by them in favour of other allottees in Sector 112, S.A.S. Nagar Mohali Ex.OP-14. Ex.OP-15 is the copy of application for contribution fund by complainant to OPs and Ex.OP-16 is copy of another letter dated 16.03.2015 from OPs to complainant for payment of balance amount.
21. From appreciation of entire evidence on the record, we have come to this conclusion that OPs have failed to prove that they have completed the development in the project. The OPs have not obtained any completion certificate in this case, as mandated by Section 14 of PAPRA Act. No possession can be delivered either by Promoter/Builder to the allottee unless it is completed by obtaining Consumer Complaint No.712 of 2017 23 occupancy certificate, as per requirement of Section 14 of PAPRA Act. Even the photographs Ex.C-19 and C-20 relied upon by the complainant do show that the area has not been developed by OPs fully. It is settled principle of law that without occupancy certificate, the Builder cannot deliver the possession to allottee. The area has to be developed by builder before delivery of possession to allottee by developing the project like roads, sewerage lines, water supply, electricity and son. There is nothing on the record by OPs to whom the contract for this purpose has been given and there are no such reports of those persons on record. The OPs have also not got the license to develop the colony renewed after 26.03.2015. The act of OPs is unauthorized after 26.03.2015, as no renewal of license under Section 3 of PAPRA Act has been issued to them by the authority. The information collected under RTI Act with regard to this project of OPs by Mukesh Kumar has also established that there are deficiencies in service by OPs in this case. The OPs were bound to deliver the possession by developing the project within 12 months, what to talk of 12 months, even 6-7 years period have already passed, but no completion/occupancy certificate has been obtained by OPs from the authorities. The counsel for the OPs when specifically asked to show occupancy certificate/possession certificate granted by the authorities under Section 14 of PAPRA Act, failed to produce it. The mere execution of sale deed by OPs in favour of other allottees is no ground to hold that the complainant is bound to accept incomplete possession of the plot from them. It is Consumer Complaint No.712 of 2017 24 now a settled principle of law that if the builder/developer failed to deliver the possession within agreed period of time of the allotted property, the allottee is not supposed to wait for an indefinite period and can seek refund of the deposited amount.
22. We have, thus, come to this conclusion that OPs have not completed the project and have not obtained occupancy certificate from the competent authority. This is deficiency in service on the part of OPs. The OPs have not executed the agreement of sale after receiving more than 25% of sale amount of the total basic sale price of the plots in above cases, which is violation of Section 6 of PAPRA Act, 1995. The photographs on the record showed the incomplete state of the project. The OPs have been utilizing the hard earned money of the complainants since after twelve months scheduled period from the date of MOU. The reliance of OPs on law laid down by the Hon'ble National Commission in case titled as "Randhir Singh and another Vs. Omaxe Chandigarh Extension Development Pvt. Ltd." 2015(1)CPJ-514. This authority would not be applicable in these cases due to different facts. The complainants have already paid the substantial amounts of sale consideration to OPs, but OPs failed to develop the project within the schedule time. The National Commission also held in "Emaar MGD Land Limited Vs. Karnail Singh" 2014(4)RCR(Civil)-136 that developer could not develop the plot for more than a period of three years nor could give any firm date for giving possession. Developer was directed to refund the deposited amount paid by allottee. Non delivery of Consumer Complaint No.712 of 2017 25 possession and non specification of time of delivery of possession by developer in the agreement have been held to be deficiency in service by the National Commission in this case, justifying the refund of the deposited amount from the developer. The National Commission has held in "EMAAR MGF Land Limited and another Vs. Amit Puri" II(2015)CPJ-568(NC) that non-delivery of legal physical possession of fully developed allotted plot to complainant, after receipt of full consideration tantamounts to deficiency in rendering service as also unfair trade practice. Reference be also made to law laid down in "EMMAR MGF Land Limited Vs. Parvinder Singh and another" II(2015)CPJ-359 (NC) by the National Commission, wherein it has been held that entire sale consideration deposited-non-delivery of possession- deficiency in service- unfair trade practice. The National Commission also held in "EMAAR MGF Land Limited and another Vs. Dilshad Gill"
III(2015)CPJ-329(NC) that non-delivery of possession amounts to unfair trade practice and deficiency in service. We also find support from law laid down by the National Commission in case titles as "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" IV(2015)CPJ-294(NC) that non-delivery of possession is deficiency in service and unfair trade practice.
23. As a result of our above discussions, the complainants of above referred complaints are held entitled to refund of the deposited amounts with interest @12% per annum from the date of Consumer Complaint No.712 of 2017 26 their respective deposits till actual payment under Section 12 and Rule 17 of the PAPRA Act, 1995.
24. As a result of our above discussion, we pass the following orders in all the complaints:
Consumer complaint no.712 of 2017:
We accept this complaint by directing OPs:
(i) to refund the entire deposited amounts alongwith interest @12% per annum from the date of their respective deposits till actual payment to complainant.
(ii) to pay compensation of Rs.50,000/- for mental harassment.
(iii) to pay Rs.20,000/- as litigation expenses.
These amounts shall be paid by OPs to complainant within 45 days from the date of receipt of certified copy of this order. Consumer complaint no.713 of 2017:
We accept this complaint by directing OP:
(i) to refund the entire deposited amounts alongwith interest @12% per annum from the date of their respective deposits till actual payment to complainant.
(ii) to pay compensation of Rs.50,000/- for mental harassment.
(iii) to pay Rs.20,000/- as litigation expenses to him.
These amounts shall be paid by OP to complainants within 45 days from the date of receipt of certified copy of this order. Consumer complaint no.714 of 2017:
Consumer Complaint No.712 of 2017 27
We accept this complaint by directing OP:
(i) to refund the entire deposited amounts alongwith interest @12% per annum from the date of their respective deposits till actual payment to complainant.
(ii) to pay compensation of Rs.50,000/- for mental harassment.
(iii) to pay Rs.20,000/- as litigation expenses.
These amounts shall be paid by OP to complainant within 45 days from the date of receipt of certified copy of this order. Consumer complaint no.715 of 2017:
We accept this complaint by directing OPs:
(i) to refund the entire deposited amounts alongwith interest @12% per annum from the date of their respective deposits till actual payment to complainants.
(ii) to pay compensation of Rs.50,000/- for mental harassment.
(iii) to pay Rs.20,000/- as litigation expenses.
These amounts shall be paid by OP to complainants within 45 days from the date of receipt of certified copy of this order. Consumer complaint no.799 of 2017:
We accept this complaint by directing OPs:
(i) to refund the entire deposited amounts alongwith interest @12% per annum from the date of their respective deposits till actual payment to complainant.Consumer Complaint No.712 of 2017 28
(ii) to pay compensation of Rs.50,000/- for mental harassment.
(iii) to pay Rs.20,000/- as litigation expenses.
These amounts shall be paid by OP to complainant within 45 days from the date of receipt of certified copy of this order.
25. Arguments in these complaints were heard on 16.05.2018 and the orders were reserved. The certified copies of the orders be communicated to the parties, as per rules.
26. The complaints 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 May 21, 2018.
(MM)