2. The Secretary, The Indian Cooperative House Building Society Ltd. (registered), “Suntec City” Project SAS Nagar, Mohali. Official address: Above Oriental Bank of Commerce, Chandigarh Road, Mullanpur, Garibdas, New Chandigarh, Tehsil Kharar- 140901. Contact – 0160-2254055.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH.PADAM SINGH THAKUR ……………PRESIDENT
MRS. SUKHDEEP KAUR…………………MEMBER
Present: Sh. Ashish Singla, Advocate for complainant.
Sh. Amandeep Kamboj, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ops).
2. In brief, the case of the complainant is that ops deal in construction and sale of residential plot in the area of Tricity Chandigarh and were inviting applications for allotment of its New Project namely Suntec City at Sector 22, New Chandigarh Mullanpur, Punjab. That in the month of February, 2011 complainant had applied to the ops an application form for booking of one residential plot measuring 250 Sq. yards and as per the scheme of allotment, the value of a plot of 250 Sq. Yards was Rs.22,50,000/- and a membership fee of Rs.510/- was to be paid over and above the same. It is further averred that as per the schedule of payment, the complainant had paid a sum of Rs.5,62,500/- on 15.02.2011 vide two different receipts i.e. first bearing No.066 of Rs.2,25,000/- as booking amount and second bearing No.184 for Rs.3,37,500/- as second installment. That the complainant was registered at membership no.262 in this regard and as per the schedule of payment, the complainant had further paid a sum of Rs.5,62,500/- as third installment to the ops vide receipt No.82 dated 05.05.2011 and Rs.510/- as membership fee vide receipt no.83 dated 05.05.2011 and another sum of Rs.2,25,000/- vide receipt no. 501 dated 04.06.2021 was paid as fourth installment. That by this time, the allotment process of the plot was not initiated by the ops, hence complainant was not asked to pay further installments by the ops. It is further averred that ops issued a certificate of membership to the complainant on 29.05.2012 and ops started demanding payment of next installment from the complainant without making any allotment and without offering any possession. It is further averred that on the repeated demands of the ops, the complainant had further paid a sum of Rs.2,25,000/- on 18.07.2011 vide receipt no.33, Rs.2,25,000/- on 25.08.2011 vide receipt no.112 and Rs.4,50,000/- on 02.02.2012 vide receipt no.342 and in this manner complainant had paid total amount of Rs.22,50,000/- i.e. sale price of the plot to the ops. That ops had got issued to the complainant a letter dated 01.03.2013 in this regard but surprisingly vide this letter the ops have further asked the complainant that in future she may be required to deposit amount in lieu of EDC, CLU, IDC, License Fee and enhancement charges on demand, although at the time of booking of the plot, no such demand was ever told to the complainant.
3. It is further averred that thereafter in the month of March, 2014 all of a sudden a letter was issued by the ops to the complainant vide which it was informed that Punjab Government has granted CLU to the Society but surprisingly an amount at the rate of Rs.2000/- per sq. yard was demanded by the ops from the complainant qua CLU. That complainant did not deposit the same and contacted the office of the ops whereon they did not pay any heed. On 05.07.2014 a reminder was issued to the complainant for claim of aforesaid amount and she was warned that in case of non deposit of the above said amount, the members may not get priority in the draw and by this time also allotment process of the plot was not initiated and no specific plot was allotted. On being contacted, the ops told that non payment of the aforesaid charges may amount to forfeiture of the earlier paid amount. That although this demand raised by ops was unlawful, arbitrary and illegal but complainant had paid a sum of Rs.2,50,000/- to the ops under protest vide receipt no. 144 dated 6.6.2015. It is further averred that even thereafter vide notices dated 19.12.2016 and 22.07.2016, the ops demanded payment of balance amount to manage the draw of the plot. On 17.03.2017, the ops further informed her that a sum of Rs.7,50,000/- is pending and in case of non payment, the complainant shall not be eligible for draw of first phase of plot and on pressure of ops the complainant had paid another amount of Rs.7,50,000/- to the ops under protest vide cheque no.000017 dated 12.04.2017 and in this manner as against the basic sale price of Rs.22,50,000/- the complainant had paid a sum of Rs.32,50,000/- to the ops.
4. It is further averred that on 15.04.2017, the meeting of the General Body of the Society was held in which the draw of first phase of lots for allocating the plot numbers was held and complainant was told that she has been allotted Plot No. 459 measuring 249.33 square yards and terms and conditions of the allocation were also referred to the complainant. It is further averred that as per term No.4 of the aforesaid letter, it was mentioned that “The plot will not be used for any purpose other than residential purposes and you will not raise any construction activity at site without getting possession letter from the society”. In this manner, surprisingly against a booking made in the year 2011, the plot was allocated as late as in the year 2017 but possession was not given to the complainant whereas the price was enhanced arbitrarily by the ops. That it is also surprising that the ops have booked the plot without even getting CLU, sanction of plan and required license etc. from the concerned departments in this regard which is total negligence of the ops and is a fraudulent act and amounts to deficiency in service and unfair trade practice on the part of ops. That even till date, a period of more than four years has passed after allocation of the plot but the ops are not ready to hand over the possession of the plot to the complainant. It is further averred that complainant contacted at the office of the ops a few days ago and requested them to hand over the possession of the plot and also to refund the amount excessively charged but the ops have not paid any heed to this lawful and genuine request of the complainant. Hence, this complaint.
5. On notice, ops appeared and filed written statement submitting therein that complainant had approached the society of the ops which is registered under the provisions of the Punjab Cooperative Societies Act, 1961 for the allotment of plot measuring 250 Sq. yards alongwith the application form dated 15.02.2011 and complainant was supplied with the copy of payment schedule in which it has been specifically mentioned that this excludes Development, EDC, IDC and license fees. The complainant had given undertaking that she will pay the installments, license fee, CLU, EDC, IDC and other development charges of residential plot applied by her in time as and when called by the Society as per payment schedule already provided, failing which the Society may transfer/ cancel the membership. It is further submitted that the Society was registered in the year 2011. Initially, the GMADA had issued a site plan of the area in December, 2008 but site plan of the area was changed by GMADA on 28.12.2010. Thereafter again the site plan of the area was changed in the year 2015 and finally again the site plan of the area was changed in the year 2016 and delay in allotment of the plot to the complainants was primarily due to the fact that the site plan of the area was changed frequently by the Government till 2016. It is further submitted that the Society had applied to the competent authority for the change of land use (CLU) after purchasing the land from the agriculturists. The amounts for the purchase of land and for other formalities and requisite fees to be paid to competent authority was to be collected from the members of the society since the project was self financing scheme. The Society had approached the GMADA for the change of land used which was considered and the society was granted the CLU on 04.03.2014. Thereafter, vide letter dated 04.03.2014, the Society was directed to pay the requisite fee and it was informed that the Government had enhanced the fee for CLU by 10%. Vide letter dated 14.01.2015 again the fees was revised by the GMADA for the second time. The Society had been writing to all the members to pay their share of fees to be paid to GMADA and number of members including complainant had defaulted in making the said payment and thereafter the present members of Managing Committee had arranged the amount at their own level and had paid a sum of Rs. Ten Crores approximately to the Government and thereafter the Society was informed by the competent authority vide letter dated 03.06.2016 regarding the change of land use.
6. It is further submitted by the ops that after change of land use, the op society submitted the site plan/ drawings for approval which had been approved by the competent authority vide letter dated 11.11.2016. After completing all the requisite formalities, the Society had issued an agenda of general body meeting to be held on 15.04.2017 for allocation of the plots. The complainant was allocated plot no.178 measuring 250 Sq. yards, but the complainant vide letter dated 15.04.2017 had made a request that she wants to surrender plot no.178 and requested to allocate plot no.459. Accordingly vide letter dated 28.04.2017 the complainant was allocated plot no.459 measuring 249.33 sq. yards. It is further submitted that the delay, if any caused in allotting the plots to the members is due to the reasons mentioned above and there is no default on the part of the ops Society as many members defaulted in giving their installments as per the payment schedule alongwith the application form. The Society had been pursuing its cases before the competent authorities for CLU and approval of site plan from the day one when the Society was got registered. It is further submitted that now since many members of the Societies had defaulted in paying their dues with regard to the cost of the land, CLU and other charges and since the OP Society is in need of funds which are to be recovered from the members of the Society in time, the OP Society was constrained to move a letter bearing reference No. 569 dated 26.10.2017 to this effect to the ARCS, Mohali and asked for further directions for action against such defaulter members so that the project of the OP Society may be carried on and completed in time and without break and the ARCS, SAS Nagar, Mohali replied to the same vide letter bearing No. R.C.S.R.M/ 2175 dated 6.11.2017 and in pursuance of this letter, the ops have issued letters to defaulters members including complainant that as per the payment schedule signed by the complainant, the complainant is defaulter which includes amount of land cost and the complainant is also defaulter of CLU, EDC and other charges which were to be paid to the Society within time. It has been informed that she has now become defaulter for above 90 days from the date of default and she has been directed to pay the balance amount pending till date for land cost and other charges within one month from the date of receiving the notice failing which action as per the directions of the Office of the Assistant Registrar Cooperative Societies, Mohali dated 6.11.2017 shall be taken against the defaulter members of the Society under the Punjab Cooperative Societies Act, 1961 and Rules 1963 and directions as issued from time to time by the Registrar Cooperative Societies Punjab, Chandigarh. It is further submitted that OP Society has to give information to the ARCS, Mohali regarding the action taken thereof. That ops have been able to get the license, RERA license, LOI, Layout Plan and CLU and had completed all the formalities and now the project is complete in all respect, the development had been completed and the possession of plots had been given to members who had cleared there outstanding. Preliminary objections regarding not maintainability of complaint, suppression of certain facts, jurisdiction have also been taken by the ops. It is also submitted that complainant is not consumer as the said group of members is not a company but a cooperative society which is in a project by self financing by pooling the amounts and getting plot at a cheaper rate, hence the present complaint is liable to be dismissed on this score only. The ops are not dealing in construction and sale of residential plots rather the ops is a cooperative society registered under the provisions of Act which provides residential plots only to its members at no profit basis and is totally self financing. With these averments, dismissal of the complaint prayed for.
7. The complainant in evidence has tendered her affidavit as Ex. C1 and copies of documents i.e. cost & details of payment schedule of residential plots Ex.C2, membership certificate Ex.C3, receipts/ cheque Ex. C4 to Ex.C11, ledger account statement Ex.C12, letter dated 01.03.2013 Ex.C13, reminder dated 05.07.2014 Ex. C14, receipt dated 06.06.2015 Ex.C15, notice dated 19.06.2016 Ex.C16, another notice dated 22.7.2016 Ex.C17, notice dated 17.3.2017 Ex.C18, allocation letter dated 28.04.2017 Ex.C19 and adhar card Ex.C20.
8. On the other hand, ops have tendered affidavit of Sh. N.K. Puri, Committee Member of the Society as Ex. RW1/A and copy of membership application form Ex. R1, notice Ex.R2, application for change of allocated plot Ex.R3, allocation letter Ex.R4.
9. We have heard learned counsel for the parties and have perused the case file carefully.
10. Admittedly in the month of February, 2011 the complainants had applied to the opposite parties for booking of one residential plot measuring 250 Square yards in the new project of the ops namely Suntec City at Sector 22, New Chandigarh Mullanpur, Punjab. As per scheme of allotment, the value of a plot of 250 Sq. yards was Rs.22,50,000/- and membership fee was Rs.510/-. There is no dispute of the fact that complainant had deposited total amount of Rs.22,50,000/- of the plot in question to the ops as per payment schedule and said fact is also proved from the receipts/ cheques produced on record by the complainant. The ops after deposit of the above said amount of Rs.22,50,000/-by the complainant vide letter dated 1.3.2013 demanded EDC, CLU, IDC, license fee and enhancement charges from the complainant as is evident from letter Ex. C13. According to the ops complainant being members of the society alongwith other members have to deposit the said additional charges as is evident from payment schedule placed on file by complainant as Ex.C2 as she has already given undertaking to deposit the same. Thereafter also vide letters and subsequent reminders, ops demanded amount at the rate of Rs.2000/- per sq. yard as part payment of CLU, IDC, EDC, License fee, land enhancement charges and late payment interest, if any from the complainant. On the other hand, it is the plea of the complainant that the ops were not entitled to claim the amounts in respect of CLU, IDC, EDC, license fee and land enhancement charges etc. from the complainant as ops were required to obtain CLU and license etc. from the concerned department of Punjab Government and also to get sanctioned the site plan etc. before booking of the plots and not after the bookings of the plot. According to the complainant, she was compelled and threatened by the ops to pay the above said amounts and ultimately on 06.06.2015 the complainant deposited the amount of Rs.2,50,000/- to the ops under protest and also deposited another amount of Rs.7,50,000/- as demanded by the ops under protest through cheque dated 12.04.2017. So, it is proved on record that complainant has also paid additional amount of Rs.10,00,000/- to the ops besides payment of Rs.22,50,000/- being basic price of the plot in question and according to the complainant said amount of Rs.10,00,000/- has been wrongly demanded and charged by the ops from the complainant under threat of non allocation of the plot. But however, we do not agree with the complainant in this regard because in the document of payment schedule Ex.C2, it is clearly mentioned that the price of the plot is excluding from Development, EDC, IDC, CLU and license fee charges meaning thereby that ops at the time of booking of the plot in question by the complainant made aware to the complainant that she has also to pay extra amount on account of development, EDC, IDC, CLU etc. No doubt the ops were required to avail CLU etc. from the concerned department before starting of the project but in this case the ops have clearly mentioned the condition of charging of additional amount on account of development, EDC, IDC and CLU etc. in their payment schedule and therefore, complainant cannot claim refund of the amount of Rs.10,00,000/- from the ops. The complainant agreed to pay the above said additional charges to the ops and as such she deposited the price of the plot in question to the complainant as per payment schedule as the ops had to pay huge amount of fee for obtaining CLU etc. from the concerned departments for their project. However, it is proved on record that after allotment of the plot in question to the complainant in the year 2017, the ops have caused inordinate delay in handing over the possession of the plot in question to the complainant. The total amounts of Rs.32,50,000/- were got deposited from the complainant up to 12.04.2017 and till date the ops have failed to give the possession of the plot in question to the complainant. Despite allocation of the plot to the complainant by the ops on 28.04.2017, the ops have failed to give possession of the plot in question to the complainant and have also wrongly laid down the condition upon the complainant that she will not raise any construction activity at site without getting possession letter from the society.
11. The plot in question was booked by complainant in the project of the ops in the year 2011 and we are of the considered opinion that delay in allocation of the plot in question to the complainant which was allocated in 2017 was due to non completion of formalities like availing of CLU etc. from the concerned department, but however delay in giving possession of the plot by the ops to the complainants despite charging of price of the plot alongwith additional charges and allocation of the plot in 2017 is intentional and willful because ops despite allocation of the plot in 2017 have failed to give actual possession of the plot in question to the complainant so far. No doubt the rates of construction material and manpower charges have also risen in this period of six years and as such complainant besides possession of the plot in question is also entitled to interest on the deposited amount of Rs.32,50,000/- on account of delay of six years i.e. after allocation of the plot in question and complainant is also entitled to compensation for harassment because even after filing of the present complaint in the year 2021 the ops did not come forward to hand over the possession of the plot in question to the complainant despite the fact that they have already charged amount of Rs.32,50,000/- from the complainant up to 12.04.2017. In this regard, the authority of the Hon’ble National Commission, New Delhi cited by learned counsel for complainant in case titled as Gaurav Jain & Anr. Versus Emaar MGF Land Ltd. Consumer Case No. 393 of 2020 decided on 04.05.2023 is fully applicable in which also it has been held as under:-
“As a period of more than 10 years has lapsed from the date of initial booking till the date of offer possession, I am of the considered opinion that the complainants are entitled for reasonable compensation in form of interest for the delayed period of possession from the date of Buyer’s Agreement dated 05.03.2010 till the date of possession”.
12. The contention of the ops that this Commission has no jurisdiction to entertain, try and decide the present complaint as dispute is between members and Society has no substance because the Hon’ble Supreme Court of India in case titled as Virender Jain vs. Alaknanda Cooperative Group Housing Society Limited and others, Civil Appeal No. 64 of 2010 decided on 23.04.2013 has held that dispute between Member and Society can be decided by Consumer Forum. The principle of law laid down in the aforesaid judgment is squarely applicable to the case in hand and as such it is held that present complaint is maintainable against ops under the provisions of Consumer Protection Act. More so, as per Section 100 of Consumer Protection Act, 2019, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore, the authority of the Hon’ble National Commission in case titled as Hanuman Sahakari Pani Pruvatha Sanstha Maryadit and others vs. Ramchandra Bapuso Khade & Ors. 2016 (2) CPJ 42 relied upon by learned counsel for ops is not applicable in this case.
13. Thus, as a sequel to our above discussion, we allow this complaint and direct the opposite parties to hand over the possession of the Plot bearing No. 459 in their Project Suntec City (which was allotted to the complainant vide reference No.06 dated 28.04.2017) to the complainant within a period of 45 days from the date of receipt of copy of this order. We further direct the ops to pay simple interest at the rate of @7% per annum on the amount of Rs.32,50,000/- to the complainant from 28.04.2017 i.e. date of allocation of plot till the date of the possession of plot within above said stipulated period on account of above said delay in handing over the possession of the plot in question. We also direct the ops to further pay a sum of Rs.50,000/- (Rs. Fifty thousands) as composite compensation for harassment and litigation expenses to the complainants within above said stipulated period. In case this order is not complied with by the ops within above said stipulated period, then complainant will be entitled to the simple rate of interest @10% per annum on the interest amount of Rs.32,50,000/- for the defaulting period and the complainant will be at liberty to initiate proceedings under Sections 71/72 of the Consumer Protection Act, 2019 against the ops. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member President
Dt. 16.05.2023. District Consumer Disputes
Redressal Commission, Sirsa.
JK
