Punjab

StateCommission

CC/984/2017

Pankaj Kumar - Complainant(s)

Versus

Greater Punjab Officers Cooperative House Building Society - Opp.Party(s)

Kailash Chander

06 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,   PUNJAB, CHANDIGARH.

                       Consumer Complaint No.984 of 2017

             Date of institution  :    10.11.2017

 Date of decision     :    06.08.2018

 

Pankaj Kumar son of Sh. S.K. Wangoo, resident of House No.533, Shiva Enclave, Patiala Road, Near Dhillon Marriage Palace, Zirakpur, Distt. Mohali, Punjab.

….Complainant

Versus

1. Greater Punjab Officers Cooperative House Building Society, O/o House No.175, Sector 11, Chandigarh through its President/Secretary.

2. M/s Altus Space Builders Pvt. Ltd, O/o House No.175, Sector 11, Chandigarh, through its Managing Director.

2^nd address:

          SCO No.22, Ist Floor, Phase X, SAS Nagar Mohali.

3. Reliance Property Solutions, Pvt. Ltd., SCO No.309-310, Ist Floor, Sector 35-D, Chandigarh, through its Managing Director.  

                                                                            ….Opposite Parties.

 

Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.

Quorum:- 

          Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President

                        Mr.Rajinder Kumar Goyal, Member

                        Mrs. Kiran Sibal, Member

Present:-

For the complainant :   Sh. Kailash Chander, Advocate

For the Ops No.1&2  :   Sh. Amandeep, Advocate for

                                           Sh. R.S. Pandher, Advocate

For the OP No.3        :    Sh. Tushar Arora, Advocate 

 

RAJINDER KUMAR GOYAL,  MEMBER :

          The complainant has filed this complaint, under section 17 of the Consumer Protection Act 1986, (in short, “The Act”), seeking following direction to the opposite parties:

1. to refund 12,50,000/- along with interest @ 24% per annum from the date of payment till its actual realization.
2. to pay 2,00,000/- compensation on account of harassment, mental agony and financial loss caused to him.
3. to pay litigation cost of 15,000/-

Facts of the Complaint:

2.               Brief facts, as stated in the complaint, are to the effect that the complainant was approached by Opposite Party No.3 (OP No.3) for booking of 250 square yard plot developed by OP No.2 in their upcoming township project. OP No. 3 in order to induced and allure showed complainant a CLU letter issued in favour of Op No.1 & 2 for 26.41 acres land in village Salamatpur, Dhodhemajra, Rasoolpur, Ghanduli, Bhagat Majra and Mullanpur, District Mohali, also another CLU issued in favour of OP No.2 in Village Palheri and Bhagat Majra for 127.581 acres land. OP No.3 also gave one copy of Letter of intent (LOI) issued by Punjab Urban Planning & Development Authority, Mohali (PUDA) in favour of OP No.1&2. It was also promised that the said area will be developed in a world class fashion and all world class facilities shall be provided. Induced by the rosy picture portrayed by OP No.3, the complainant booked one plot measuring 250 square yards with OP No.2 and made a payment of 12,50,000/- through cheques issued on 26.03.2012 and 11.04.2012. At the time of booking, the complainant was made to sign the proposal form for provisional registration. As per the payment schedule attached with the provisional registration form, the plot was booked at the rate of 14,500 per square yard plus CLU fees. As it was assured before booking that CLU has already been granted as such complainant was under bonefide impression that the rate of 14,500 per square yards include everything. The OP No.2 & 3 assured that the possession of the plot shall be given within one year and accordingly, the payment will be asked for. The complainant was also asked to pay 50,000/- on account of unexplained licence fee charges. On asking none of the parties were able to explain on which account licence fee was been charged.

3.                At the time of booking, it was assured that the project will start soon.  The complainant received a letter dated Nil intimating that layout plan has been submitted to appropriate authority for its approval. Again on 26.09.2013, OP No.2 intimated that the layout plan has been approved and the construction will start soon. Although no construction activity or demarcation of any kind was there on the spot. The complainant was shocked to receive a letter dated 31.01.2014 asking the complainant to deposit the entire remaining amount along with interest of 7,26,880/-.  Complainant immediately contacted OP No.2 and 3.  OP No.2 refused to entertain and stated that the interest has to be paid without giving any details regarding period of interest.  Again another letter dated 30.04.2014 was received wherein OP No.2 asked for entire payment along with 8,33,314/- interest. OP No.2 was apprised that there is no development on the spot and as such they cannot ask for the interest. No roads, sewerage, electricity or demarcation was done on the spot till date thus the delay was on the part of OP No.2 and not on the part of the complainant.

4.                No allotment letter was issued. Complainant contacted OP No.2 number of times, but they failed to give any concrete reply. The complainant arranged his hard earned money and paid the same to OP No.2. Alleging deficiency in service on the part of OP No.1 to 3, the present complaint was filed by the complainant for issuance of the above mentioned directions to the Ops.

Defence of Opposite Parties

5.                  In its reply opposite party No.1 submitted that Greater Punjab Officers Cooperative House Building Society has nothing to do with  the booking of the plot in dispute. The plot was booked by the complainant with OP No.2 only. OP No.1 is a Cooperative House Building Society and has allotted plots to its members only. Thus the present complaint is liable to be dismissed for mis-joinder of the parties.

6.                In its reply opposite party No.2 took the preliminary objections to  the effect that the complainant is not a consumer. It is averred that  complainant is already owner of house No.83 Shiva Enclave, Zirakpur and is residing there.  The complainant has filed the present complaint only after the complainant was asked to make payment of installments as per schedule given in  the proposal form submitted by the complainant and because of slump in the real estate market due to which complainant want to get refund of his money. On merits, the booking of 250 square yards plot with OP No.2, making a payment of 12,50,000/- through cheques and submission of proposal form for provisional registration admitted as a matter of record. It was in the knowledge of the complainant that the basic sale price of the plot is 14,500/- per sq. yds. Which excludes CLU, EDC, IDC, PLC and other charges applicable mentioned in the proposal form for provisional registration in Clause No.3 to 5. Op No.2 clarified everything to the complainant regarding the time frame of the project. In January 2013 wishing him Happy New Year 2013 appraised him of the development of the project. Thereafter, various letters/reminders were sent by the company to the complainant to pay the balance due payment.

7.                Development work is going at the site as per layout plan approved by the Government. The project is a residential housing project duly approved by the Government and the company has got CLU dated 10.09.2012 for the chunk of land on which plot provisionally booked by the complainant is situated and layout plan was cleared by the Chief Town Planner, Punjab on 31.03.2015. OP No.2 has already sent Plot Buyers Agreement to various purchasers  in July 2015, whereas the complainant has not cleared his due and he has been asked to pay  the same vide various letters/reminders, but the complainant has not paid the due amounts. The development work is going on the project and the possession of the plot would be handed over as stipulated in terms and conditions in the buyers’ agreement. The complainant opted for spot payment-four months payment plan as is evident from the proposal form. As per clause 8 and 9 of the proposal form in case of delay in payments, cancellation of the booked plot shall be initiated at the discretion of the company and in no case refund will be entertained. The complainant has failed to make the payment as per schedule. There is no deficiency on the part of OP No.2. In fact, the complainant has concocted the facts which are in contradiction to the terms and conditions of the proposal form. All other averments in the complaint are denied in toto. OP No.2 finally prayed to dismiss the complaint with costs.

8.                In its reply Op No.3 submitted that   the involvement of OP No.3 is only to make aware their clients regarding various building projects available for purchase/investment and beyond this they play no other role whatsoever. No consideration has been received by OP No.3 in the present transaction. The complainant has paid the amount to OP No.2 after being self satisfied. OP No.3 was not in any manner concerned with  the receipt of money or the development or the execution of the project. No agreement has been entered into with the OP No.3 nor any correspondence exchanged. The OP No.3 is not concerned with  the business of OP No.2. The present complaint is liable to be dismissed for mis-jionder of the parties. All other averments made in the complaint are denied and finally prayed to dismiss the complaint with costs qua OP No.3.               

Evidence of the parties

9.                To prove the allegations made in the complaint, the complainant tendered his affidavit dated 08.05.2018 as Ex.CA along with documents Ex.C-1 to Ex.C-26.

10.              The opposite parties No.1&2 tendered of Partap Singh, Authorized Signatory of OP No.1 as Ex.OP1/A and affidavit of Narinder Singh Sidhu, General Manager/Authorized Signatory of M/s Altus Space Builders Pvt. Ltd. as Ex.OP2/A along with documents as Ex.OP2/1 to Ex.OP2/27.

11.              The Opposite Party No.3 tendered affidavit of Sh. Umesh Sharma, Legal Manager along with documents as Ex.OP-3/1 and close the evidence.  

12.              We have carefully gone through the averments of both the sides, evidence produced by them in support of their respective averments and have heard learned counsel on their behalf.

Contentions of the Parties

13.              It has been vehemently argued by the learned counsel for the complainant that by virtue of the facts proved on the record by the oral and documentary evidence of the complainant, he is entitled to the refund of the amount so paid by him for purchasing the plot from opposite party No.2 and it is also liable to pay interest on that amount, besides compensation for the mental agony, harassment and financial loss suffered by the complainant on account of the acts on its part as detailed in the complaint and in collecting the huge amount, without developing the project and having failed to deliver the possession of the plot within stipulated period. The complainant paid 12,50,000/- in the month of March/April 2012. Whereas CLU was obtained in September 2012 and layout plan was got approved in July 2015 i.e. after launching of the project and collecting huge amounts from the complainant and other allottes, which is totally in violation of the Punjab Apartment and Property Regulation Act (in short, the “PAPRA”). The opposite party No.2 has failed to issue the allotment letter of the plot as well as buyers agreement although more than 25% payment has already been received by opposite party No.2. It has been further contended that there is no likelihood of delivery of possession of the fully developed plot to the complainant in the near future.  Therefore, complainant is entitled to the refund of the amount lying deposited with the OP No.2 along with interest, compensation and litigation costs.

14.              On the other hand, it has been vehemently argued by the learned counsel for the opposite parties No.1&2 that opposite party No.1 has nothing to do with the booking of the plot in dispute. The opposite party No.1 is a Cooperative House Building Society and has allotted plots to its members only.  Therefore, OP No.1 has been wrongly arrayed as party in the present complaint. The complaint is liable to be dismissed for mis-joinder of the parties.

15.              On the other hand, It has been vehemently argued by the opposite party No.2 that the development work is going on at the site and the company has already conducted draw of lots and plot numbers have been allotted to various purchasers. The complainant had invested in the present plot so as to earn profit as he is already owner of house No.583 Shiva Enclave, Zirakpur and is residing there. The present complaint has been filed because of the slump in the real estate market due to which the complainant wants to get refund of their money. Therefore, the complainant do not fall within the definition of the consumer as defined under the C.P. Act.  Due to some technical issues there was delay in the approval of the layout plans by the competent authority. The opposite party has already allotted plot numbers to hundreds of its purchasers and has been delivering letters of offer of possession to them subject to clearance of balance payment whichever is due. The complainant was also informed about the developments in the area along with  the due payments, but the complainant has not paid the same. There is no deficiency on the part of the opposite party and the complaint filed by the complainant is liable to be dismissed with costs.

16.              The counsel for opposite party No.3 argued that opposite party No.3 only make aware their clients regarding various building projects available for purchase/investment and beyond this they have no other role whatsoever. The complainant has paid the amount to OP No.2 after been self satisfied. Opposite party No.3 was not in any manner concerned with the receipt of money or the development or the execution of the project. No amount is paid to OP No.3 nor has any agreement entered into with opposite party No.3 nor any correspondence exchanged. Therefore, OP No.3 has been wrongly arrayed as party and the complaint is liable to be dismissed for mis-joinder of the parties.  

 

Consideration of contentions:

17.              We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides. During arguments counsel for the OP No.2 was asked whether any completion certificate of the project has been obtained from competent authority or not. The counsel denied the same and stated that development work is in progress.

18.              As per evidence on record, the complainant had booked a 250 sq. yds. Residential plot with opposite party No.2 and filed up provisional Registration Form Ex.C-7. It is also admitted that price of the plot was 38,00,000/- including CLU fees @  500/- per sq. yds and 200/- per sq. yds licence fee. The complainant had paid Rs.12,50,000/- through cheques which has been acknowledged in the provisional registration form. There is no evidence of issuing any allotment letter and subsequently buyers’ agreement by opposite party No.2 on record. Moreover, the CLU and other necessary permissions/sanctions have been obtained by OP No.2 after receiving the more than 30% of the sale price of the plot in question from the complainant in violation of the provisions of the PAPRA. It clearly means that opposite party no.2 launched the project, invited applications from the general public and collected huge amounts from them without obtaining necessary permissions/sanctions from the competent authorities in violation of PAPRA.

19.              Keeping in view the above circumstances, we hold that the opposite party has failed to comply with the provisions of the PAPRA. As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite party was required to make full and true disclosure of the nature of its title to the land, on which such colony is developed or 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 colony as approved by the prescribed authority in the case of a colony. However, the opposite party failed to comply with section 3 of the PAPRA.

20.             As per Section 5 (Development of land into Colony) of PAPRA, the opposite party was liable to obtain permission from the competent authority for developing the colony. The developer was also directed at the time of issuing CLU Ex.OP-2/1 to develop the site after taking licence under PAPRA, 1995 from the competent authority. But it failed to produce on record any such permission. So, it also violated Section 5 of PAPRA.

21.             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 it in this respect. There is no evidence or pleading on record on behalf of the opposite party in this respect. As such, the opposite party also violated Section 9 of the PAPRA.

22.             Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.

23.             As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-

17.    Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”

 24.             The opposite party had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers 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 consumers, 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 its project. Thus, the delay in not delivering the possession of plot 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.

25.             The C.P. 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 complainants have made payment of substantial amount to the opposite party with the hope to get the possession of the plot 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 plot and delivery of possession in a stipulated period.  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 his money with the opposite party, he would have invested the same elsewhere.  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 plot 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 it had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainant to book the plot, 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 building the plots, 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 they are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the opposite party in shattering their hope of getting the plot by waiting for all this period. In these circumstances, the complainant is entitled to the refund of the amount deposited by him, along with interest and suitable compensation.

26.              The complainant has claimed refund of 12,50,000/- along with interest @24%. Hon’ble National Commission in case Kamal Sood v. DLF Universal Ltd. 2007 (3) C.P.J. 7 (NC), in similar set of circumstances, where the builder was at fault in not obtaining permission for construction in advance before issuing advertisement and collected money from customers without having any licence, ordered for refund of deposited amount along with interest at the rate of 12%, besides compensation. In view of the above authority as well as Rule 17 of PAPRA, the complainants are entitled to the refund of their deposited amount, along with interest at the rate of 12%.

27.             In view of above discussion, the complaint is allowed and the following directions are issued to the opposite party No.2:

i)        to refund 12,50,000/-, to the complainant, along with interest at the rate of 12% per annum from the respective dates of deposits till realization, as per Rule 17 of PAPRA;

ii)       to pay 50,000/-, as compensation for the mental agony and     harassment suffered by them; and

iii)      to pay 10,000/-, as costs of litigation.

          So far as the role of opposite parties No.1&3 in the complaint is concerned, it is relevant to mention here that the entire transaction regarding booking of plot has been effected between the complainant and opposite party No.2 only. Opposite partyNos.1&3 has not received any payment. There is no agreement on record between complainant and opposite party No.1 & 3. So the complaint against opposite party No.1&3 is dismissed.  

28.             The compliance of this order shall be made by the opposite party No.2 within one month from the date of receipt of the certified copy of this order and failing that it shall be liable to pay interest on the said compensation amount of 50,000/- at the rate of 12% per annum from the date of this order till the date of payment.   

                                 (JUSTICE PARAMJEET SINGH DHALIWAL)

                                                           PRESIDENT     

 

 

 

                                          (RAJINDER KUMAR GOYAL)

                                                          MEMBER

 

 

         

                                                 (MRS. KIRAN SIBAL)

                                                          MEMBER

August 06 , 2018.                                                 

PK/-