State Consumer Disputes Redressal Commission
Nihal Singh Saini vs M/S Land Twishters on 9 April, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No.780 of 2018
Date of Institution : 03.10.2018
Date of Reserve : 02.04.2019
Date of Decision : 09.04.2019
1. Nihal Singh Saini S/o Sh.Manohar Singh, Resident of
H.No.638, GF, Happy Homes, Ansal API Sector 114, Kharar
Landran Road, Mohali (Punjab).
2. Gurpreet Singh Saini S/o Sh.Nihal Singh, Resident of
H.No.638, GF, Happy Homes, Ansal API Sector 114, Kharar
Landran Road, Mohali (Punjab).
....Complainants
Versus
M/s Land Twisters, Head Office : Opp. Ansal Golf Links-II, Kharar-
Landran Road, Sector-115, Mohali, Punjab through its proprietor/
Managing Director, Pankaj Sood, Phone No.9803002030 /
9501002030, Email ID : [email protected]
Corporate Office Address : Shop No.24A, Apple's Height, VIP Road,
Zirakpur, (Punjab).
Branch Office : Opposite SBP Homes, Extension 3, Sector 126,
Chandigarh-Kharar Road, Mohali (Punjab).
Email ID : [email protected]
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Mr. J.S.Klar, Presiding Judicial Member,
Mr.Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh.Rachit Kaushal, Advocate For the opposite party : Sh.Rahul Rampal, Advocate Consumer Complaint No 780 of 2018 2 RAJINDER KUMAR GOYAL, MEMBER :
The complainants have filed this complaint, under Section 17 of the Consumer Protection Act 1986, (in short, "the Act"), for issuance of the following directions to the opposite parties:
I. to refund Rs.8,58,000/- deposited towards sale consideration;
II. to pay interest at the rate of 15% per annum on the deposited amount;
III. to pay Rs.5,00,000/- as compensation on account of mental agony and harassment;
IV. to pay Rs.50,000/- as litigation expenses; and V. to pass any other direction which this Commission deems fit. Facts of the Complaint:
2. Brief facts, as set out in the complaint, are that the complainants came across the advertisement in local newspapers by the opposite party, wherein it advertised for the sale of 2 and 3 BHK flats in its project named 'Land Twisters Homes'. Being allured by the assurances of the opposite party, the complainants booked one flat and made payment of Rs.50,000/- vide cheque No.925388 dated 15.11.2015 and again made a payment of Rs.4,56,000/-. On 25.11.2015, an allotment letter was issued to the complainants wherein flat No.370/FF, measuring 1125 sq.ft. was allotted to them for a total sale consideration of Rs.25,22,000/-. Thereafter, on the same date, a Buyers Agreement was executed between the parties. In the agreement, the opposite party acknowledged receipt of the amount of Rs.5,06,000/-. The complainants chose Construction Linked Plan. Consumer Complaint No 780 of 2018 3
As per Article 4 of the agreement, the possession of the unit was to be handed over on or before 31.05.2018, with further extended period of 6 months to the allottee. It is further averred that in case of delay in handing over the possession of the apartment, the builder would be liable to pay the amount of Rs.3/- per sq. foot per month to the complainants. The opposite party has not complied with the terms and conditions of the agreement. It was assured to the complainants that the possession of the flat would be handed over to them within 18 months i.e. 31.05.2017, however, they were shocked to see the date of delivery in the agreement as 31.05.2018. The complainants with hope to get the possession of the flat, paid next instalments as per the demand of the opposite party. In this way, the complainants have paid a sum of Rs.8,58,000/- to the opposite party. Thereafter, no further demand was raised by the opposite party after 17.08.2016. To make the timely payments, the complainants got sanctioned a housing loan of Rs.23,00,000/- from HDFC Bank. When the complainants lost their hope to get the possession of the flat, they requested the opposite party to refund their amount, to which the opposite party put off the matter on one pretext or the other. After sometime, the opposite party issued a cheque No.001002 dated 20.08.2018 amounting to Rs.2,00,000/- and promised the complainants to return the remaining amount. The opposite party took the signatures of complainant No.1 on the receipt of the said cheque. The same was dishonoured by Bank vide memo dated 30.08.2018. The complainants number of times visited the site of the project, but still the construction was not started. Thereafter, a legal Consumer Complaint No 780 of 2018 4 notice was served upon the opposite party, but no reply has yet been received. This act and conduct of the opposite party amounts to deficiency in service and unfair trade practice. Hence, the complainant filed the complaint seeking above said reliefs.
3. Upon notice, opposite parties appeared and filed their written statement by taking preliminary objections that the present complaint is not maintainable. The project in which the flat was allotted to the complainant was approved by GMADA and the opposite party has all the requisite approvals. The complainant till date has paid only a sum of Rs.8,58,000/-, whereas there is an outstanding dues of more than Rs.16,64,000/- towards the complainants. The opposite party clearly agreed to the terms and conditions of the buyer's agreement and is still ready to adhere to the penalty clause of the agreement. The possession of the flat was to be delivered only once the complainants makes the complete payments due towards the flat. The opposite party has already delivered possession to large number of buyers and their respective flats have been occupied. Also the sale deeds have also been executed in their favour by the opposite party. On merits, it is admitted that a buyer's agreement was executed between the parties. It is contended that the complainants have failed to pay the balance sale consideration which is more than Rs.16,64,000/-. It is admitted that the complainants paid a sum of Rs.8,58,000/-. Rest of all the averments as averred by the complainants in their complaint are denied and opposite party prayed to dismiss the complaint being devoid of merits.
Consumer Complaint No 780 of 2018 5
4. To prove their claim, the complainants placed on record the affidavit along with documents Ex.C-1 to Ex.C-6.
5. On the other hand, opposite party has placed on record the affidavit of Gaurav Chhibber, authorized representative along with documents Ex.R-1 to Ex.R-4.
6. We have heard the learned counsel for the parties and have also perused the record carefully.
7. Learned counsel for the complainants argued that the complainants booked one flat in the project of the opposite party for a total sale consideration of Rs.25,22,000/-. Against that, a sum of Rs.8,58,000/- was paid by the complainant as per demand raised by the opposite party. The complainant chose Construction Linked Plan. On 25.11.2015, an allotment letter was issued to the complainants; wherein flat No.370/FF, measuring 1125 sq.ft. was also allotted to them. Thereafter, a Buyers Agreement was also executed between the parties. It was assured by the opposite party that the possession of the flat would be handed over to them within a period of 18 months with an extended period of 6 months, whereas in the agreement, the date of possession of the unit was changed to 31.05.2018, with further extended period of 6 months. The opposite party has not paid any penalty charges to the complainants as per the agreement The opposite party is not in possession of requisite approvals and permissions for development of this project. The cheque issued by the opposite for refunding the amount of Rs.2,00,000/- was dishonored by Bank when listed for encashment. Also no reply to the legal notice was given, which amounts to deficiency in service and Consumer Complaint No 780 of 2018 6 unfair trade practice on the part of the opposite party and complainant prayed the allow the complaint against the opposite party and relief be given to the complainants as prayed for.
8. Per contra, learned counsel for the opposite party argued that the complainants have not complied with the terms and conditions of the agreement, as they have failed to deposit the sale consideration as per schedule and has paid only a sum of Rs.8,58,000/-. The project has been approved by GMADA and the opposite party has all the approvals. The possession of the flat was to be delivered only when the complainants make the complete payment due towards them. The opposite party has already delivered possession to large number of buyers and their respective flats have been occupied by them as well. Also the sale deeds have also been executed in their favour. There is no deficiency in service or unfair trade practice on its party. Complaint is alleged to be without merit and sought be dismissed with costs.
9. We have given our thoughtful consideration to the contentions raised by the counsel for the parties.
10. Admittedly, the complainant was allotted a flat bearing No.370, 1st Floor, having super built area of 1125 sq.ft. in the project called 'Land Twisters Homes', Sector 116, Mohali. An agreement was executed between the parties on 25.11.2015, Ex.C-3. As per the agreement, the total cost of the apartment was agreed as Rs.25,22,000/-. Further, a Construction Linked Plan was provided in the agreement and the same is reproduced as under:- Consumer Complaint No 780 of 2018 7
Instalment Due Date Amount
1st At the time of Booking 50,000/-
2nd In 15 Days of Booking 4,56,000+S.Tax
3rd On Completion of 10% of the BSP+S.Tax
Foundation Work
4th On Casting of 1st Floor Roof 10% of the BSP+S.Tax
Slab
5th On Casting of 2nd Floor 10% of the BSP+S.Tax
Roof Slab
6th On Casting of 3rd Floor Roof 10% of the BSP+S.Tax
Slab
7th On Completion of Flooring 10% of the BSP+S.Tax
8th On Completion of Internal 10% of the BSP+S.Tax
Plumbing
9th On Completion of External 10% of the BSP+S.Tax
Plumbing
10th On Offer of Possession 10% of the BSP+S.Tax
Total 25,22,000/-+S.Tax
11. The complainant had already paid an amount of Rs.5,06,000/- before the execution of the agreement and further paid an amount of Rs.3,52,000/- in instalments. As such, the complainant has paid a sum of Rs.8,58,000/- to the opposite party. As per Article 4 of the Buyer's agreement, the possession of the flat was agreed to be handed over before 31.05.2018.
12. It is not disputed that the complainant has paid a sum of Rs.8,58,000/- to the opposite party as admitted by the opposite parties in para no.4 of their reply under preliminary objections. Further, as per the Construction Linked Plan, further instalment was to be paid on casting of the 1st Floor Roof Slab. There is no evidence on record that the opposite party had informed about the status of the construction and to deposit of the due instalment to the complainant. In a Construction Linked Plan, the builder is to inform the allottees about various stages of construction to deposit the due instalments. In the instant case, there is no evidence produced by the opposite party that they have written any letter to the complainant intimating Consumer Complaint No 780 of 2018 8 the stage of construction and deposit of instalments on that basis. The complainant in his complaint has averred that the opposite party issued a cheque No.001002 dated 20.08.2018 amounting to Rs.2,00,000/- on account of the refund of the deposited amount and also promised the complainant to return the remaining amount but the same cheque was dishonored vide Bank Memo dated 30.08.2018, Ex.C-5. On the other hand, the counsel for the opposite party stated that they had issued this cheque as security. As the possession of the flat was to be delivered by May, 2018, the counsel for the opposite party was asked to place the status of construction and the counsel replied that possession can be delivered in May, 2019. As the possession was to be delivered in May, 2018 and still the project is incomplete, there is thus deficiency in service on the part of the opposite party besides unfair trade practice also. Firstly agreed to refund the deposited amount and issued a cheque of Rs.2,00,000/- in the name of the complainant which was bounced by the Bank due to 'insufficient funds'. It is also pertinent to mention here that without raising any demand by the opposite party, the complainant was not liable to pay any instalments of the sale consideration, therefore, it cannot be said that the complainants have not played their part.
13. Keeping in view of the above circumstances, we hold that the opposite party has failed to comply with the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties was required to make full and true disclosure of the nature of his title to the land, on which such project is developed or Consumer Complaint No 780 of 2018 9 such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. It was also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, opposite party failed to comply with Section 3 of the PAPRA.
14. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite party to prove that any account has been maintained by them in this respect. As such, the opposite party also violated Section 9 of the PAPRA.
15. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment/space/unit by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
16. 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:-
"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 Consumer Complaint No 780 of 2018 10 of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
17. The opposite party had been collecting huge amounts from the buyers for the development of the project. The amounts received from the complainant-buyer were required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The Opposite party is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumer, it is to be bound by the reciprocal promises of performing its part of the agreement. The Opposite party has failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit, in question, within the agreed period amounts to deficiency in service on the part of the opposite party, for which the complainant is to be suitably compensated.
18. The Consumer Protection Act came into being in the year 1986. It is 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. The complainant has made payments of substantial amounts to the opposite party with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of flat and delivery of possession in a stipulated period. The act and conduct of the opposite party is a clear case of Consumer Complaint No 780 of 2018 11 misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant 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 party i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and hence would not be able to deliver the possession within the stipulated period and thus by misrepresentation 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 party in trust of complainant and it should be used for the purpose of building the plots, 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 time bound 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 complainant have to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and compensation. Consumer Complaint No 780 of 2018 12
19. In view of our above discussion, the complaint is allowed against the opposite party and following directions are issued against the opposite party:-
i) to refund the amount of Rs.8,58,000/- along with interest at the rate of 12% per annum from the respective dates of payments till realization, as per Rule 17 of PAPRA.
(ii) to pay Rs.21,000/-, as compensation for the mental agony and harassment suffered by the complainants as well as litigation expenses.
20. The compliance of this order shall be made by the opposite party within a period of 45 days of the receipt of certified copy of the order.
21. Arguments in this complaint were heard on 02.04.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
22. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J.S.KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER April 09, 2018 parmod