State Consumer Disputes Redressal Commission
Damyanti Kareer vs Parkwood Developers Pvt. Ltd. on 16 February, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Misc. Application No.2155 of 2016
In/and
Consumer Complaint No.135 of 2016
Date of institution : 03.05.2016
Date of decision : 16.02.2017
Damayanti Kareer wife of Harmesh Kareer, resident of Chestnuts, 54
Watnall Road, Nuthall, Nottingam, U.K.
.......Complainant
Versus
Parkwood Developers Private Limited through its Managing Director,
registered office 1001, Hemkunt Chambers, 89, Nehru Place, New
Delhi.
2nd Address:
Parkwood Developers Private Limited through its Managing Director,
Parkwood Glade, Pocket-C, Sante Majra, Kharar-Landran Road,
Mohali, Punjab.
......Opposite Party
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President.
Shri Vinod Kumar Gupta, Member.
Shri Harcharan Singh Guram, Member.
Present:-
For the complainant : Shri A.S. Walia, Advocate. For the opposite party : Shri Dipinder Singh, Advocate for Shri I.P. Singh, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
M.A. No.2155 of 2016:
This application has been filed by the opposite party for placing on record Demand Letters Ex.O-12 to Ex.O-18 by way of additional evidence.
2. No reply to this application has been filed by the complainant. In the interest of justice this application is allowed and the demand Consumer Complaint No.135 of 2016. 2 letters Ex.O-12 to Ex.O-18 are taken on record by way of additional evidence.
Main Case:
3. The complainant, Damayanti Kareer, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the Act") for the issuance of following directions to the opposite party:-
i) to refund the amount of ₹25,49,301/-, along with interest at the rate of 21%;
ii) to pay compensation at the rate of ₹5/- per square foot per month of the super area of the Flat; and
iii) to pay ₹5,50,000/-, as compensation and costs of litigation.
She alleged therein that she was allotted residential Unit No.A-508, Block/Tower No.A, Fifth Floor with super built area of 1260 square feet (in short, "the Flat") in Project Parkwood Glade, being developed by the opposite party, for a price of ₹29,03,040/-. After the allotment the Buyer's Agreement was executed between them on 26.4.2012 and she opted for the construction linked payment plan. She paid an amount of ₹4,46,700/- on 28.03.2012, at the time of booking; which was acknowledged, vide clause 6(a) of the Agreement. Till the filing of the complaint she had paid ₹25,49,301/- to the opposite party as per the demands raised by it in accordance with Schedule I contained in the Agreement. As per Clause 19(a) of the Agreement it was to deliver the possession of the Flat to her by 30.11.2014 but has failed to do so. The Project is stuck at the stage of brick work since 2013 and it will take a long time for its completion. The last Consumer Complaint No.135 of 2016. 3 instalment was paid by her in October 2013 when the demand was made on the commencement of the brick work and thereafter no demand was raised. The opposite party was liable to pay compensation at the rate of ₹5/- per square foot per month of the super area of the Flat as per Clause 20(b) of the Agreement but it failed to do so. She is a NRI and had booked the flat so that she and her family could stay in the flat when they visit India. She along with her husband visited the office of the opposite party in Mohali several times asking for the status of the Project but did not receive any satisfactory reply. She asked it several times to refund the money as she was no longer willing to retain the Flat but it refused to do so. These acts on its part constitute unfair trade practice, negligence and deficiency in service. For that deficiency in service she is entitled to ₹2,50,000/- and for the mental harassment and agony suffered by her she is entitled to another amount of ₹2,50,000/- and is also entitled to ₹50,000/-, as cost of litigation.
2. After the complaint was admitted, notice was issued to the opposite party and it came present after the service of that notice but failed to file any written reply.
3. For proving the allegations made in the complaint the complainant proved on record her affidavit Ex.C-A and documents Ex.C-1 to Ex.C-7. For rebutting that evidence of the complainant the opposite party proved on record the affidavit of its Assistant General Manager, Manminder Pal Singh, Ex.OPA and documents Ex.OP/1 to Ex.OP/16. The opposite party also tendered Demand Letters Ex.O- 12 to Ex.O-18 by way of additional evidence.
Consumer Complaint No.135 of 2016. 4
4. We have carefully gone through the evidence produced by both the sides and have heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that from the evidence of the complainant, it stands proved that all the payments were made by her in pursuance of the demand letters received from the side of the opposite party and as per the Schedule of Payment, which was part of the Agreement Ex.C-2. After those payments the possession of the Flat was to be delivered to her on 30.11.2014 as per clause 19(a) of the Agreement, Ex.C-2, but it failed to do so. From the evidence produced by the complainant, it also stands proved that the construction of the Project has been stopped at the stage of brick work and there is no possibility of the completion thereof and delivery of possession of the Flat to the complainant in near future. This act on the part of the opposite party amounts to deficiency in service and on that account the complainant has become entitled to the refund of the amount so deposited by her, in addition to the compensation so claimed in the complaint and interest.
6. On the other hand, it was submitted by the learned counsel for the opposite party that being NRI, the complainant is not a 'consumer'. He referred to the judgment of the Hon'ble National Commission dated 1.2.2016 passed in Consumer Case No.1326 of 2015 (MANOHAR DAMECHA v. LAVASA CORPORATION LIMITED). Learned counsel for the opposite party further submitted that from the documents proved on the record by the opposite party, it stands proved that the payments were not made in time by the Consumer Complaint No.135 of 2016. 5 complainant in-spite of issuance of various demand letters Ex.O12 to Ex.O18 and she never became entitled to the possession of the Flat as per the terms of the Agreement. Therefore, the complainant is not entitled to the refund of the amount so deposited by her nor she is entitled to any interest or compensation.
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
8. So far as the complainant being an NRI is concerned, she has specifically mentioned in para no.6 of her complaint that she is an NRI and booked the present flat so that she and her family could stay in the flat when they visit India. The opposite party has failed to deliver the flat as per the terms of the Flat Buyer's Agreement and the complainant still has to stay in her relatives place or the Hotels on her visit to India. On the other hand, nothing contrary to this, has been proved by the opposite party by placing on record any document. Even otherwise, the mere fact that it was a residential flat, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant, might be on or off while she visits to India or her family. There is nothing on the record that the complainant is a property dealer. Thus, in the absence of any cogent evidence, in support of the argument raised by the learned counsel for the opposite party, the same cannot be taken into consideration. At the same time, no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission in a case titled as "Smt. Reshma Consumer Complaint No.135 of 2016. 6 Bhagat & Anr. vs. M/s Supertech Ltd." Consumer Complaint No.118 of 2012, decided on 4.1.2016 held as under:-
"We are unable to clap any significance with these faint arguments. It must be borne in mind that after selling the property at Bangalore, and in order to save the money from riggers of capital gain tax, under Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India. There is not even an iota of evidence that they are going to earn anything from the flat in dispute. From the evidence, it is apparent that the same had been purchased for the residence of the complainants. Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a 'rule of thumb' that every NRI cannot own a property in India. NRIs do come to India, every now and then. Most of the NRIs have to return to their native land. Each NRI wants a house in India. He is an independent person and can purchase any house in India, in his own name."
9. So far as the judgment in Manohar Damecha's case (supra) is concerned, there was 6th house, which was purchased by an NRI in that case. As such, the facts of that judgment are not applicable to the facts of the present case. Hence, it is held that the complainant is a 'consumer' as defined under the Act.
10. The whole purpose of pleadings is to bring the reality to an issue. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence.
Consumer Complaint No.135 of 2016. 7
11. All the allegations made in the complaint stand supported by the deposition made by the complainant in her affidavit Ex.C-A. She specifically deposed therein that till the filing of the complaint she paid ₹25,49,301/- to the opposite party as per the demands raised by it in accordance with the Schedule. That deposition of the complainant was not rebutted by the deposition made by Manminder Pal Singh in his affidavit Ex.OP/A. He only deposed to the effect that it is a matter of record. The opposite party proved on record the copy of the ledger pertaining to the complainant as Ex.OP/1. As per the entries of that ledger all the payments due as per the Schedule from the complainant upto the commencement of the brick work, were duly paid by her. The entries of that ledger duly corroborate the deposition made by the complainant in her affidavit Ex.CA.
12. As per Clause 19(a) of the Agreement Ex.C-2, the possession of the Flat was to be delivered to her by 30.11.2014. Admittedly the same was not given to her. The contention of the learned counsel for the opposite party that the payments due from the complainant were not made in time and she never became entitled to the possession of the Flat falls on the ground in view of the above discussed evidence.
13. It would be apposite to refer to the relevant provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), which are as follows:
3. General Liabilities of Promoter:-
(1) Notwithstanding anything in any other law for the time being in the force, a promoter, who develops a colony or who constructs or intends to construct a building of apartments, shall, in all transactions with persons taking or intending to take a plot or an apartment on ownership basis, be liable to Consumer Complaint No.135 of 2016. 8 give or produce, or cause to be given or produced, the information and the documents mentioned hereinafter in this section.
(2) A promoter who develops a colony or who constructs or intends to construct such building of apartments shall,-
(a) make full and true disclosure of the nature of his title to the land on which such colony is developed or such building is constructed or is to be constructed, such title to the land having been duly certified by an attorney-at-law or an advocate of not less than seven years standing, after he has examined the transactions concerning it in the previous thirty years ; and if the land is owned by another person, the consent of the owner of such land to the development of the colony or construction of the building has been obtained;
(b) 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;
(c) give inspection on seven days, notice or demand,-
(i) of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony; and
(ii) of the plan and specifications of the building built or to be built on the land as well as of the common areas and facilities and common services provided (including supply of electricity and water, sewerage and drainage systems, lifts, fire-fighting equipment), such plans and specifications being in accordance with the provisions of the building regulations, and approved by the authority which is required so to do under any law for the time being in force, indicating thereon what parts of the building and the appurtenant areas are intended to be kept as common areas and facilities in the case of apartments :
Provided that the number and sizes of the apartments shall conform to such building regulations, and the area of an apartment shall not exceed such limit as may be fixed by the competent authority;
(d) display or keep all the documents, plans and specifications or copies thereof referred to in clauses (a), (b) and (c) of this sub-section at the site and in his office and make them available for inspection to persons taking or intending to take a plot or an apartment and after the association is formed, he shall furnish the association a copy of these documents and of the sanctioned plan of the building;
(e) disclose the nature of fixtures, fittings and amenities, including the provision for one or more lifts, provided or to be provided;
(f)disclose on reasonable notice or demand, if the promoter is himself the builder, the prescribed particulars as respects the designs and the materials to be used in construction, and, if the promoter is not himself the builder, disclose all agreements entered into by him with the architects and Consumer Complaint No.135 of 2016. 9 contractors regarding the design, materials and construction of the building;
(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly;
(h) except where there are no agreements about specific plots or apartments and allotment is made by draw of lots, prepare and maintain a list of plots or apartments with their numbers, the names and addresses of the parties who have taken or agreed to take plots or apartments, the price charged or agreed to be charged therefor, and the terms and conditions, if any, on which the plots or apartments are taken or agreed to be taken;
Provided that the competent authority may direct that,-
(i) in the case of residential apartments, if the total number of apartments is one hundred or more, ten percent of the apartments; and
(ii) in the case of colony, if the total area of the colony is forty hectares or more, ten per cent of the area under residential plots and houses, be reserved for being sold or leased to such person belonging to such economically weaker section of society, in such manner and on such terms and conditions as may be prescribed;
(i) state in writing, the precise nature of and the terms and conditions governing the association to be constituted of persons who have taken or are to take the apartments;
(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained;
(k) make a full and true disclosure of all outgoings, including ground rent, if any, municipal or other taxes, charges for water and electricity, revenue assessment, interest on mortgages or other encumbrances, if any;
(l) give the estimated cost of the building and the apartments proposed to be constructed, or colony to be developed, and the manner in which escalation in such cost for valid reasons may be approved by mutual agreement ;
(m) make a full and true disclosure of such other information and documents in such manner as may be prescribed; and
(n) give on demand and on payment of reasonable charges true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed.
4. Issuing of Advertisement or Prospectus:-
(1) No promoter shall issue an advertisement or prospectus, offering for sale any apartment or plot, or inviting persons who intend to take such apartments or plots to make advances or deposits, unless,-Consumer Complaint No.135 of 2016. 10
(a) the promoter holds a certificate of registration under sub-section (2) of section 21 and it is in force and has not been suspended or revoked, and its number is mentioned in the advertisement or prospectus; and
(b) a copy of the advertisement or prospectus is filed in the office of the competent authority before its issue or publication.
(2) The advertisement or prospectus issued under sub-
section (1) shall disclose the area of the apartments or plots offered for sale, title to the land, extent and situation of land, the price payable and in the case of colonies, also layout of the colony, the plan regarding the development works to be executed in a colony and the number and the validity of the licence issued by the competent authority under sub-section (3) of section 5, and such other matters as may be prescribed.
(3) The advertisement or prospectus shall be available for inspection at the office of the promoter and at the site where the building is being constructed or on the land being developed into a colony, alongwith the documents specified in this section and in section 3.
(4) When any person makes an advance or deposits on the faith of the advertisement or prospectus, and sustains any loss or damage by reason of any untrue statement included therein, he shall be compensated by,-
(a) the promoter, if an individual;
(b) every partner of the firm, if the promoter is a firm;
(c) every person who is a director at the time of issue of
the advertisement or prospectus, if the promoter is a company :
Provided, however, that such person shall not be liable if he proves that,-
(a) he withdrew his consent to become a director before the issue of the advertisement or prospectus; or
(b) the advertisement or prospectus was issued without his knowledge or consent, and on becoming aware of its issue, he forthwith gave reasonable public notice that it was issued without his knowledge or consent; or
(c) after the issue of the advertisement or prospectus and before any agreement was entered into with buyers of plots or apartments, he, on becoming aware of any untrue statement therein, withdrew his consent and gave reasonable public notice of the withdrawal and of the reasons therefor. (5) When any advertisement or prospectus includes any untrue statement, every person who authorised its issue, shall be punished with imprisonment for a term which may extend upto one year or with fine which may extend upto five thousand rupees, or, with both, unless he proves that the statement was immaterial or that he had reason to believe and did upto the time of issue of the advertisement or prospectus believe that the statement was true.Consumer Complaint No.135 of 2016. 11
5. Development of Land into Colony:
(1) Any promoter, who desires to develop a land into a colony, shall make an application in the prescribed form alongwith the prescribed information and with the prescribed fee to the competent authority for grant of permission for the same and separate permission will be necessary for each colony.
(2) On receipt of the application under sub-section (1), the competent authority, after making enquiry into the title to the land, extent and situation of the land, capacity of the promoter to develop the colony, layout of the colony, conformity of the development of the colony with the neighbouring areas, plan of development works to be executed in the colony and such other matters as it may deem fit, and after affording the applicant an opportunity of being heard and also taking into consideration the opinion of the prescribed authority, shall pass an order, in writing, recording reasons either granting or refusing to grant such permission.
(3) Where an orders is passed granting permission under sub-section (2), the competent authority shall grant a licence in the prescribed form, after the promoter has furnished a bank guarantee equal to twenty five percent of the estimated cost of the development works certified by the competent authority and the promoter has undertaken to enter into an agreement in the prescribed form for carrying out completion of development works in accordance with the conditions of the licence so granted.
(4) The licence granted under sub-section (3) shall be valid for a period of three years and will be renewable from year to year on payment of prescribed fee. (5) The promoter shall enter into agreement undertaking to pay proportionate development charges for external development works to be carried out by the Government or a local authority.
(6) The competent authority shall determine the proportion in which, and the time within which, the estimated development charges referred to in sub-section (5) shall be paid to the State Government, or the local authority, as the case may be.
(7) The promoter shall carry out and complete the development of the land in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33 of 1976) and other laws for the time being in force. (8) The promote shall construct or get constructed at his own cost schools, hospitals, community centres and other community buildings, on the land set apart for this purpose or transfer such land to the State Government either free of cost or upon payment of actual cost of developed land, as decided Consumer Complaint No.135 of 2016. 12 by the State Government, which shall be at liberty to transfer such land to any local authority or any person or institution on such terms and conditions as it may deem fit:
Provided that if, having regard to the amenities which exist or are proposed to be provided in the locality, the competent authority is of the opinion that it is not necessary to provide one or more of such amenities, it may exempt the promoter from providing such amenities, either wholly or in part, on such terms and conditions as it may deem fit. (9) The promote shall, where the total area of the colony is forty hectares or more, reserve upto ten per cent of the area under residential plots and apartments as the competent authority may direct, for being sold or leased to such persons belonging to such economically weaker sections of society, in such manner and on such terms and conditions, as may be prescribed.
(10) The promoter shall carry out all directions issued by the competent authority for ensuring due compliance of the execution of the layout and the development works therein and to permit the competent authority or any officer authorised by it to inspect such execution. (11) The promoter shall be responsible for the maintenance and up keep of all roads, open spaces, public parks and public health services until the date of transfer thereof, free of cost to the State Government or the local authority.
(12) In the event of the promoter contravening any provisions of this Act, or rules made thereunder or any conditions of the licence granted under sub-section (3) the competent authority may, after giving an opportunity of being heard, cancel the licence and enforce the bank guarantee furnished by the promoter under the said sub-section(3). (13) When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue.
(14) The liability of the promoter for payment of development charges referred to in-sub section (13) shall not exceed the amount the prompter has actually recovered from the allottees less the amount actually spent on such development works, and that of the allottees shall not exceed the amount which they would have to pay to the promoter towards the expenses of the said development works under the terms of the agreement of sale or transfer entered into between them:
Provided that the competent authority may, recover from the allottees with their consent, an amount in excess or what may be admissible under the aforesaid terms of agreement of sale Consumer Complaint No.135 of 2016. 13 or transfer.
(15) Notwithstanding anything contained in this Act, after development works have been carried out under sub-section (13), the competent authority may, with a view to enabling the promoter, to transfer the possession of, and the title to, the land to the allottees within a specified time, authorise the promoter by an order to receive the balance amount, if any, due from the allottees after adjustment of the amount which may have been recovered by the competent authority towards the cost of the development works and also transfer the possession of, and the title to, the land to the allottees within aforesaid time and if the promoter fails to do so, the competent authority shall on behalf of the promoter transfer the possession of, and the title to, the land to the allottees on receipt of the amount which was due from them. (16) After meeting the expenses on development works under sub-section (13), the balance amount shall be payable to the promoter.
6. Contents of Agreement of Sale:-
(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots. (2) The promoter shall not cancel unilaterally the agreement of sale entered into under sub-section (1) and if he has sufficient cause to cancel it, he shall give due notice to the other parties to the agreement and tender a refund of the full amount collected togetherwith interest at the rate as may be prescribed.
(3) The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as hereunder specified in clause (a) in respect of apartments and as specified in clause (b) in respect of plots in a colony and to such agreement shall be attached the copies of the documents specified in clause (c),-
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of the promoter to construct the building according to the plans and Consumer Complaint No.135 of 2016. 14 specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is intended and restrictions on its use, if any;
(b) particulars in the case of plots in a colony,-
(i) the date by which the possession of the plot is to be handed over to allottee;
(ii) the area and price of the plot; and
(iii) the statement of the use for which the plot is intended
and restriction on its use, if any;
(c) the copies of documents to be attached with the
agreement,-
(i) the certificate by an attorney-at-law or advocate referred to in clause (a) of sub-section(2) of section 3;
(ii) certified copy from any relevant revenue record showing the nature of the title of the promoter to the plot or the land on which the building of apartments is constructed or is to be constructed ; and
(iii) the plans and specifications of the apartment as approved by the authority which is required so to do under any law for the time being in force.
9. Accounts of sums taken by promoter:- The promoter shall maintain a separate account in any scheduled bank of sums taken by him from persons intending to take or who have taken apartments or plots, as advance, towards sale price or for any other purpose, or, deposit, including any sum so taken towards the share capital for the formation of a co-operative society or a company, or towards the outgoings(including ground rent, if any, municipal or other local taxes. charges for water or electricity, revenue assessment, interest on mortgages or other encumbrances, if Consumer Complaint No.135 of 2016. 15 any, stamp duty and registration fee for the agreement of sale and the conveyance); and the promoter shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes including for the construction of apartments and, in the case of colonies, for meeting the cost of development works, and shall on demand, in writing, by the competent authority make full and true disclosure of all transactions in respect of that account and shall not utilize for any other purpose the amounts so collected for a particular purpose.
12. Refund of Amount:-If the promoter,-
(a) fails to give possession, in accordance with the terms of his agreement, of a plot or an apartment duly completed by the date specified, or any further date agreed to by the parties; or
(b) for reasons beyond his control and of his agents, is unable to give possession of the plot or the apartment by the date specified, or the further agreed date; the promoter shall be liable on demand, but without prejudice to any other remedies to which he may be liable, to refund the amounts already received by him in respect of that plot or apartments with simple interest at the rate as may be determined by the competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded, and the amounts and the interest shall be a charge on the land on which a plot is to developed, or a building is or was to be constructed and the construction, if any, thereon shall be subject to any prior encumbrances.
14. Thereafter, Punjab Apartment and Property Regulation Rules, 1995 were framed under Section 45 of the PAPRA and according to Rules 7, 8 & 17 thereof, it has been provided as under:-
"7. Disclosure regarding registration and licence - The promoter shall disclose the number of his certificate of registration granted under sub-section (2) of section 21 and, in the case of a colony, also the validity of licence issued under sub-section (3) of section 5 and display the certificate of registration and the licence so granted at a conspicuous place in his office and make it available for inspection to the persons taking or intending to take an apartment or a plot in the colony and to a person authorized by the competent authority.
8. Supply of copies of documents. - The promoter on demand shall supply true copies, on payment of reasonable charges, of the following documents, namely :-
(a) Title deed of land, certificate of the attorney at-law or an advocate of not less than seven years standing, referred to in clause (a) of sub-section (2) of section 3 and copies of the advertisement issued under section 4;Consumer Complaint No.135 of 2016. 16
(b) Copy of the consent of the land owner, if the land does not belong to the promoter as referred to in clause (a) of sub- section (2) of section 3;
(c) Design of apartment, agreement with an architect and a contractor, referred to in clause (f) of sub-section (2) of section 3;
(d) Copy of occupation certificate referred to in section 14; and
(e) Certificate of registration granted under sub-section (2) of section 21 and in case of colony, the permission granted under sub-section (2) of section 5.
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."
15. The opposite party had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement.
16. It is the categorical deposition of the complainant in her affidavit that the Project is stuck at the stage of brick work. However, there is no denial of this fact by Manminder Pal Singh in his affidavit Ex.OP/A nor any reply to the averments made in the complaint has been filed by the opposite parties. From the evidence of the complainant, it stands proved that no progress has been made by the opposite party for the completion of the Flat and for delivering the possession thereof to her. Thus, the delay in not delivering the possession of the flat within the agreed period amounts to deficiency Consumer Complaint No.135 of 2016. 17 in service on the part of the opposite party. The complainant cannot be made to wait for all the time to get the possession and on account of the said delay on the part of the opposite party she has become entitled to the refund of the amount so deposited by her, along with interest at suitable rate.
14. The Consumer Protection 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 party to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite party with the hope to get the possession of the plot in a reasonable time. The circumstances clearly show that the opposite party 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 party is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite party, she would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and Consumer Complaint No.135 of 2016. 18 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 it 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 complainant to book the flat, due to which the complainant has 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 complainant is a deposit held by the opposite party in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant 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 complainant has to wage a long drawn and tedious legal battle. As such, the complainant was 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 complainant, are also required to be taken into consideration for awarding compensation. In addition to that she is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by her on account of the betrayal by the opposite party in shattering her hope of getting the plot by waiting for all this period. Consumer Complaint No.135 of 2016. 19
17. The relevant portion of clause 20(b) of the Agreement, Ex.C-2, is reproduced below:-
"If there is any delay solely attributable to the Developer in the delivery/possession of the said Premises to the Purchaser (s) beyond the period mentioned hereinabove, the Purchaser shall be entitled to receive for the period of delay, compensation from the Developer @ Rs.5/- per sq. ft. per month for the period of such delay after allowing the Developer a grace period of 90 days from the date of expiry of the stipulated period provided the Purchaser (s) has paid all payments punctually as per agreed terms."
A minute perusal of this clause makes it very much clear that these delay charges were payable only if the delay was solely attributable to the opposite party. Admittedly the possession of the Flat was to be delivered to the complainant by 30.11.2014 and if we allow grace period of 90 days, it comes to 1.2.2015. The built-up area of the flat is 1260 square feet. As such for the delay in delivering the possession of the Flat, the opposite party is liable to pay Rs.6,300/- per month. Till today there is total delay of 24 months and if we allow Rs.6,300/- per month, it comes to Rs.1,51,200/-. However, keeping in view all the facts and circumstances of the present case, we allow Rs.2,00,000/-, as compensation, which shall also take care of mental agony and harassment suffered by the complainant. Consumer Complaint No.135 of 2016. 20
18. Under Section 12 of the PAPRA read with Rule 17 of the Rules framed thereunder, reproduced above, if the amount is to be refunded, it is to be refunded along with interest at the rate of 12% per annum.
19. Accordingly the complaint is allowed and following directions are issued to the opposite party:-
i) to refund the amount of ₹25,49,301/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment;
ii) to pay ₹2,00,000/-, as compensation for the harassment and mental agony suffered by her; and
iii) to pay ₹,20,000/-, as cost of litigation.
The compliance of this order shall be made by the opposite parties within one month from the date of receipt of the certified copy of this order and failing that they shall be liable to pay interest on the said amount of ₹2,00,000/- at the rate of 12% per annum from the date of this order till the date of payment.
17. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (HARCHARAN SINGH GURAM) MEMBER February 16, 2017 Bansal Consumer Complaint No.135 of 2016. 21