Chandigarh

StateCommission

CC/46/2022

Jagvir Singh Kang - Complainant(s)

Versus

Greater Mohali Area Development Authority - Opp.Party(s)

Arjun Sharma & Ramandeep Kaleka Adv.

28 Feb 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Addl. Bench]

 

Consumer Complaint No.	:	CC/46/2022
Date  of  Institution	:	24/05/2022
Date   of   Decision	:	28/02/2023

 

 

 

 

 

Jagvir Singh Kang son of Sh. Inderjit Singh, Resident of V.P.O. Kotla Shamsher Ludhiana, Punjab, presently residing at H.No. 2122, Sector 15, Chandigarh.

 

…. Complainant

Vs.

 

1]     Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, S.A.S. Nagar, Mohali, Punjab, through its Chief Administrator.

 

2]     Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, S.A.S. Nagar, Mohali, Punjab, through its Estate Officer (H).

…… Opposite Parties

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

 

 

PRESENT	:	Sh. Arjun Sharma, Advocate for Complainant.
	:	Sh. Jashan Preet Singh Gill, Advocate for Opposite Parties.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

                In brief, in pursuance to the advertisement in various newspapers regarding allotment of flats on ‘Draw Basis’ in Purab Premium Apartment at Sector 88, SAS Nagar, Mohali, the Complainant applied for allotment of a apartment under general category and was declared successful allottee in the draw held on 20.03.2012. Letter of Intent (for brevity hereinafter to be referred as ‘the LOI’) was issued by the Opposite Parties on 22.05.2012 and the Complainant paid an amount of ₹6.90 lakhs as earnest money. The total cost of apartment as per the LOI was ₹69.00 lakhs. As per clause 3(ii) of the LOI, the possession of the apartment was to be handed over after the completion of development works at site within a period of 36 months from the issuance of LOI i.e. upto 21.05.2015. However, the same was offered after a delay of more than 11 months vide allotment letter dated 05.07.2016. Vide the said allotment letter, the Complainant was allotted Apartment No. 1504, Tower-4, Block-A, Floor-14, Type-3 having a covered area of 1904.67 sq. ft. It has been averred that although against the total cost of the Apartment, the Complainant paid an amount of ₹76.60 lakhs, yet the project was far from completion and it lacks basic facilities. Since the possession offered was incomplete, the Complainant approached the Opposite Parties umpteen number of times, to provide him copy of occupation certificate qua the Apartment in question, but to no avail. Eventually, the Complainant requested the Opposite Parties to refund his amount in terms of clause 3(ii) of the LOI, but after buying time on one pretext or the other, the Opposite Parties finally refused to refund the amount vide letter dated 30.03.2022. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainant has preferred the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

3.         Opposite Parties contested the claim of the Complainant, on  numerous grounds,  inter alia, that the Complainant has purchased the flat for speculation purposes and for resale. As per Clause 21 in the allotment letter and offer of possession in case of any dispute or difference arising out of terms of allotment the same shall be referred to the Sole Arbitrator i.e. Chief Administrator, GMADA, S.A.S. Nagar or any other person appointed by him. The decision of the Arbitrator shall be final and binding on both the parties. The complainant has not come before this Commission with clean hands and concealed the material facts. It has been further contended that allotment letters as well as offer of possession letters of the Apartments have already been issued to the successful applicants and the allottees are residing there. The claim of the Complainant is time barred and he is not entitled to any relief. On merits, it has been pleaded that there had been no lapse on the part of the Opposite Parties and the physical possession was offered when the project was given the completion certificate, which fact was well in the knowledge of the Complainant. The claims regarding refunds are time bound and at later stages, the same cannot be sought as per the policy. Rest all the averments as averred by the complainant in his complaint have been denied and a prayer has been made for dismissal of the complaint.

 

4.         Controverting the allegations contained in the written statement and reiterating the pleadings in the Complaint, the Complainant filed the replication.

 

5.         Parties led evidence by way of affidavits and documents.

 

6.         We have heard the learned counsel for the parties and gone through the record of the case, including the written arguments advanced on behalf of the parties.

 

7.         After scanning of record, including written arguments, our findings are as under:-

 

8.         First, we would like to deal with the objection raised by the opposite parties to the effect that in the face of existence of provision in the agreement, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with by the larger Bench of the National Commission in a case titled as “Aftab Singh  Vs. Emaar MGF Land Limited & Anr.”, Consumer Case No. 701 of 2015, vide order dated 13.07.2017, wherein it was held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard, stands rejected.

 

9.         As far as objection taken to the effect that the complainant did not fall within the definition of ‘Consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in “Kavit Ahuja vs. Shipra Estates”, I (2016) CPJ 31, but since they failed to discharge their  onus, hence we hold that the complainant is consumer as defined under the Act. Mere fact that the complainant is living in a house at Chandigarh or anywhere else, cannot be made a ground to shove him out of the definition of a consumer. Objection taken in this regard is rejected.

 

10.         The Opposite Parties raised another objection that the complaint is barred by limitation. Record show that the completion certificate for the Tower in question was issued on 05.07.2018 (Exhibit OP-2), however, Allotment Letter & Offer of Possession was made on 05.07.2016 i.e. without even getting the completion certificate for the Tower in question. Further, vide letter dated 23.10.2019, the Opposite Parties asked the Complainant to take physical possession. However, since, due to the delay caused and due to lack of amenities and facilities as promised, the Complainant wished to withdraw from the project, he approached Opposite Parties for refund of his money. In the meanwhile, pandemic of Covid-19 hit the entire world and a lockdown was imposed in March 2020 and, as such, the Complainant could not follow up with the Opposite Parties, qua refund. Thereafter, vide letter dated 28.01.2021 (Annexure C-5), the Complainant requested the Opposite Parties to refund his entire amount with interest in terms of clause 3 (i) of the LOI However, since, the OPs did not respond to the said letter, the Complainant again vide another letter dated 16.03.2021 (Annexure C-6), requested the Opposite Parties to refund his entire amount with interest in terms of clause 3 (ii) of the LOI. It was only after regular follow ups and visits to the office of the Opposite Parties, that the Opposite Parties, almost after more than one year, vide letter dated 30.03.2022 (Annexure C-7), responded to the said letter of the Complainant. Perusal whereof shows that the Opposite Parties refused to refund the amount paid by the Complainant in terms of the LOI citing the reason that, since, the allotment letter had been issued to the Complainant, therefore, the refund cannot be in terms of the LOI rather the amount paid can be refunded only by forfeiting 10% of the total consideration money in accordance with the provisions of Punjab Regional and Town Planning & Development Act, 1995, or the Complainant, after paying due amount, can take the possession of the apartment in question. It is thus amply clear that there is a continuous cause of action in the present case. Accordingly, the plea of Opposite Parties is hereby rejected.

 

11.         Now, on adverting to the merits of the consumer complaint, it may be stated here that, admittedly, Opposite Parties issued an advertisement regarding allotment flats on draw basis; the Complainant applied for allotment of apartment and was declared successful in the draw. The total cost of the apartment as per the LOI dated 22.05.2012 was ₹69,00,000/- and the possession of the apartment was to be handed over after the completion of development works at site within a period of 36 months from the issuance of LOI i.e. upto 21.05.2015. As per Property Ledger (Annexure C-3), the complainant has deposited a sum of ₹76,60,000/- as on 11.05.2022. It shows that the complainant had paid more than the cost of apartment to the Opposite Parties. On the other hand, the Opposite Parties had not proved any document, wherein it could be proved that the project in question has been completed and possession has been offered to the complainant within the stipulated period. The Opposite Parties have also not proved on record any Completion / Occupation Certificate issued by the competent authority regarding completion of development works in the project developed by the Opposite Parties. It is pertinent to note that the Completion/Occupation Certificate is required to be obtained by every promoter, before delivery of possession of the plot/flat/unit etc. to the allottee.

 

12.         Learned Counsel for the Opposite Parties argued that they proposed to build 1620 flats and during execution of the project approximately 400 allottees had defaulted in making due payments and approximately 75 allottees opted for refund of their money, which seriously prejudiced the completion schedule, as the Opposite Parties are not supposed to develop the flats of only those persons who paid the sale consideration in time. However, we are not impressed with this limb of argument for the simple reason that the scheme in question has been floated by GMADA for general public. Before undertaking such a Scheme, it has to prepare a proper framework in accordance with law and presumption is that the Scheme must have been framed, keeping in view the financial implications and other things. After considering the pros and cons, the Scheme is supposed to have been launched by the development authority, being a public authority. Taking the same into consideration, the applicant applies for allotment of a apartment in such a Scheme, specifically when such a Scheme is launched by the Government Authority for the welfare of the general public. The said Scheme was launched by the Opposite Parties for the welfare of the general public, so that needy person can have his/her own house, if he/she or his/her spouse or other dependents were not having any house. Keeping in view all these terms and conditions, complainant purchased the apartment from the Opposite Parties. However, they failed to develop the project and none of the facilities as promised have been provided. Be that as it may, the fact remains that the Opposite Parties failed to deliver possession of the apartment allotted to the complainant, along with promised facilities within the stipulated period, as per terms and conditions of the LoI and the Allotment Letter, along with Completion/ Occupation Certificate.   

 

13.         Needless to mention here that the hard earned money to the tune of ₹76,60,000/- was paid by the complainant with a hope to have his unit. However, his hopes have been dashed to the ground. From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and they may act in reliance on it. The complainant is thereby involved in disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.

 

14.         In view of the facts and circumstances of this case, we are of the considered view that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of actual physical possession of plots/units in a developed project accompanied by occupation and completion certificates by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in “Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd.”, Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan”, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in “Fortune Infrastructure Versus Trevor D’ Lima & Ors.” (2018) 5 SCC 442.

 

15.         In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that we order refund of the amount paid by the complainant alongwith interest @9% p.a. from the respective dates of deposits in view of principle of law laid down by the larger Bench of the Hon’ble National Commission in “Vinod Gupta & Anr. Vs Emaar MGF Land Limited & 3 Ors.”, Consumer Case No. 3198 of 2017, decided on 04.07.2022, that will meet the ends of justice.

 

16.         As our discussion hereafter would unfold, it is pertinent to mention here that recently the Hon’ble Supreme Court in Civil Appeal No. 3343 of 2020 titled as “Debashis Sinha & Others Vs. M/s R.N.R. enterprise Rep. by its Proprietor/ Chairman, Kolkata & Ors.”, has observed that flat-owners, who are often forced by the circumstances to take possession of apartments even if the amenities promised by the builder are not provided, do not forfeit their right to claim such services from the builder.

 

17.         No other point, was urged, by the Counsel for the parties.

 

18.         For the reasons recorded above, this complaint is partly accepted with costs. The opposite parties, jointly and severally, are directed as under:-

 

i.      Refund the amount of Rs.76,60,000/-, alongwith compensation by way of interest @9% p.a., without deducting any TDS, to the complainant, from the respective dates of deposits onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 12% p.a. (9% p.a. plus (+) 3% p.a.), from the date of default till realization.

 

ii.     Pay compensation in the sum of Rs.2,00,000/- to the complainant for causing him mental agony and physical harassment; deficiency in providing service & adoption of unfair trade practice and also cost of litigation to the tune of Rs.33,000/-, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of default till realization.

 

19.         Certified copies of this order, be sent to the parties, free of charge.

 

20.         The file be consigned to Record Room, after completion.

Pronounced

28^th February, 2023                                                           

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”