JUSTICE SUDIP AHLUWALIA, MEMBER

         The Appeals bearing Nos. 897 of 2017 and 898 of 2017 have been filed by the Appellant/ Opposite Party against Respondents(s)/ Complainant(s) challenging the common impugned Order dated 23.03.2017 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh, in Complaint Case bearing Nos. 859 of 2016 and 860 of 2016 respectively. Vide such Order, the State Commission had partly allowed the Complaints.

2.      The Appeal bearing No. 1436 of 2016 has been filed by the Appellant/ Opposite Party against the Respondent/ Complainant challenging the impugned order dated 27.09.2016 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh, in Complaint Case bearing No. 252 of 2016. Vide such Order, the State Commission had partly allowed the Complaint.

3.      The said Appeals are being decided by this common order as these have been preferred by the same the Opposite Party–M/s Manohar Infrastructure and Construction Pvt. Ltd.; involving the same Project, same questions of law and contain only minor variations in facts like the plot no., total consideration, sum paid, etc. Therefore, for the sake of brevity, FA 897 of 2017 is being treated as the lead case and the facts have been taken therefrom.

4.      The brief facts of the case are that the Complainant No.3 had booked a plot measuring 250 sq. yards with the Opposite Party on 16.02.2012 for a basic sale price of Rs.45,00,000/- in Opposite Party’s project namely, ‘Palm Spring’ situated at Mullanpur (New Chandigarh) for the welfare of his son/ Complainant No.1 and his daughter-in-law/ Complainant No.2. Thereafter, the Complainant No.3 had transferred the said plot in the joint name of Complainant No.1 and 2 on 22.05.2014. Consequently, the Opposite Party had also acknowledged the said change vide acknowledgement dated 22.05.2014. At the time of booking, a payment of Rs.13,50,000/- (being 30% of the basic sale price) was deposited by the Complainant No.3 and it was represented that the possession would be handed over within a period of two years. It was averred that as per Section 6 of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), the Opposite Party could not collect more than 25% of the total cost of the plot without first entering into a Written Registered Agreement for Sale with the Complainant and specifying therein the date by which the possession of the plot is to be given.

5.      It was further the case of the Complainants that at the time of transfer of ownership, it was again represented that the possession would be handed over within one year, however, neither the possession has not been offered till the date of filing of the Complaint nor any plot number has been allotted. The Complainants averred to have paid Rs.22,50,000/- despite which no Agreement to Sell has been executed by the Opposite Party, consequently, failing to specify the due date. It was further averred that the Opposite Party failed to obtain all the necessary approvals and obtained all the sums of money, illegally from the Complainants. It was submitted that as per Letter of Intent, no money could be collected from general public for allotment of any space without taking necessary approvals and neither any exemption has been obtained u/s 44 of PAPR Act, 1995 till the date of filing of Compliant nor the license to develop the colony has been obtained. Thereafter, Complainants sent a letter dated 05.10.2016 to the Opposite Party seeking refund of all their money along with interest @ 18% p.a. It was also stated that the Opposite Party vide letter dated 25.10.2016 admitted that  they  do  not have  exemption under section 44 of the PAPR  Act. Consequently, the Complainant lost faith in the Opposite Party and therefore, filed the Complaint before the Ld. State Commission alleging unfair trade practice on its part in failing to deliver the possession by the promised time of delivery seeking refund of the deposited amount i.e., Rs.22,50,000/- along with interest @ 18% p.a. w.e.f. the date of deposit till its realization, compensation of Rs.4,00,000/- and litigation charges of Rs.50,000/-.           

6.      The Opposite Party appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complaint is bad for mis-joinder of parties as the Complainant No.3 has already surrendered his rights in the plot; that the Complainants had surrendered their expression of interest shown vide Annexure-C-1 regarding the plot measuring 250 sq. yds. in Palm Garden Project, thus, they cannot seek any relief pertaining to that expression of interest; that the Opposite Party was having all the approvals pertaining to its Project when the Application of the Complainants was acknowledged; that the Opposite Party had issued an Allotment Letter dated 10.01.2017 and it had further requested the Complainants to come forward for signing of the Apartment Buyer’s Agreement, however, the Complainants failed to respond and it is an established law that in such cases, the Complainant is neither entitled to any interest nor compensation; that the Complainants were allotted plot No. 1040 as per the Allotment Letter; that the Opposite Party’s Project which is Mega Project had been duly approved by the competent Authority and as per the Policy of the Punjab Government, Mega Project which fulfils the requisite terms is exempted from the applicability of Punjab Apartment and Property Regulation Act,1995, as is also mentioned in the notification dated 25.01.2017; that the subject plot was booked by the Complainants for speculative purposes; that the Project was approved by the Government on 22.03.2013 and thereafter, an Agreement was signed and executed with the Government on 14.06.2013 and the Opposite Party had got more land added to this Project and the latest Supplementary Agreement in this regard was executed on 16.06.2016; that the Competent Authority had granted completion period for the entire Project upto 13.06.2018; that the lay-out plans stood approved and CLU was sanctioned by Competent Authority; that the Opposite Party had incurred expenditure keeping in mind the bookings and instalments from customers and had further arranged funds by raising loans and how the Complainants could be allowed to be in a WIN-WIN situation by first booking a plot for earning profits and now seeking refund when the real estate market falls; that the delay was due to Force-Majeure conditions; that it would be difficult for the Opposite Party to continue with the Project in case majority of its customers seek refund; that interest demanded in the Complaint is very high being without any basis; that the construction activities of the multi-storied flats are in ‘ready-to-move’ category and the sewerage, water supply, etc. have been completed in the first phase of the Project. Therefore, the Opposite Party prayed for dismissal of the Complaint with costs seeking direction to the Complainants to execute Buyer’s Agreement and make balance payment.  

7.      A rejoinder to the said reply was filed by the Complainants contending that neither there has been any waiver nor any relinquishment of any rights by the Complainants. The letter of expression of interest has been transferred and not cancelled and the payment made by the Complainant No.3 was adjusted towards the plot.

8.      The Ld. State Commission vide its first common impugned order dated 23.03.2017 had decided CC No.775 of 2016, CC No. 859 of 2016 and CC No. 860 of 2016 together. The Ld. State Commission had observed that the Project was sold without any permission/sanction from the Competent Authorities violating provisions of Section 6 of PAPRA as there was nothing on record to show that after granting exemptions from applicability of PAPRA, any permission was available with the Opposite Party to sell the Project. It was further observed that the Application seeking exemption from applicability of PAPRA was granted only in 2017 and not even a single permission was available with the Opposite Party when the Project was sold. The Project of the Opposite Party was approved only on 22.03.2013 whereas the first payment was received 19.10.2011. Moreover, the exemption given was conditional. It was also observed that in 2012, the activities of the Opposite Party of selling the Project without sanction were noticed by the Competent Authority on 18.08.2012 and a Notice was given stating that such activity was illegal. Moreover, the Buyer’s Agreement has not been offered for signing in a reasonable time. It was further observed that the Opposite Party also failed to convince the Ld. State Commission of existence of any Force Majeure conditions. It was observed that the Opposite Party as unable to deliver possession of the Unit for want of development/construction, basic amenities, etc. and a firm date for delivery of possession also could not be given, therefore, the Complainant could not be made to wait for an indefinite time and can seek refund. Therefore, the Ld. State Commission directed the Opposite Party to refund Rs.22,50,000/- to Complainants No.1 and 2 along with interest @13% p.a. from the  respective dates of deposits; to pay compensation of Rs.1,25,000/- and Rs.33,000/- as cost of litigation in CC/859/2016 and refund Rs.40,42,500/- to the Complainants along with interest @13% p.a. from respective dates of deposits; compensation of Rs.2,00,000/- and Rs.33,000/- as litigation costs in CC/860/2016.

9.      The Ld. State Commission vide its second impugned Order dated 27.09.2016 which is under challenge in FA/1436/2016 had partly allowed the Complaint and directed the Opposite Party to refund Rs.25,72,500/- along with interest @13% p.a. from the respective dates of deposits; compensation of Rs.2,00,000/- and litigation costs of Rs.50,000/-.

10.    Aggrieved by the above two Orders, the present Appeals have been filed before this Commission which are being decided by this common order.

11.    Heard the Ld. Counsel for Appellant and Respondent(s). Perused the material available on record.

12.    All the three Appeals before us are squarely covered by the judgment dated 19.12.2022 of this Commission passed in FA/1144/2018 which was based on the judgement dated 17.05.2022 of this Commission passed in FA/185/2020. It had been observed by this Commission in its judgment dated 19.12.2022 inter alia:

“7.       While impugning this order, learned counsel for the Appellant has contended that State Commission while ordering refund has granted interest @ 13% p.a which is on the higher side.  It has also contended that besides granting compensation in the form of interest has also awarded compensation under the head of mental agony and physical harassment, which is contrary to the findings of the Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt Limited  Vs. D.S.Dhanda Etc. Etc. (2020) 16 SCC 318.

8.       Learned counsel for the complainant has relied on the findings in the case M/s Manohar Infrastructure and Constructions Pvt. Ltd. & Anr. Vs. Ankit Jain, First Appeal No. 185 of 2020 decided on 17.05.2022 and submitted that it is covered matter.  It is submitted that project Palm Garden and Palm Springs are part of one project called “Palm Spaces” and there is no difference in the project Palm Garden and Palm Springs.

9.       I  have  heard the arguments of learned counsels for the parties and have perused the record.  The appellant has raised a similar arguments which has already been considered and rejected by the State Commission.  I found no infirmity in the findings of the State Commission regarding deficiency in service on the part of the Appellant.    From the facts, it stands duly proved on record that at the time when the project was promulgated and applications were invited for booking the residential plots by the Appellant, it did not have the requisite permission from the concerned authorities and, therefore, they had acted in violation of the expressed provisions of the rules and regulations governing them.  The fact that Appellant  did not have the requisite permission was never brought to the notice of the complainant who believed that project was having a requisite sanction and applied for booking of the residential plot.  It certainly amounts to unfair trade practices and also amounts to deficiency in service. The complainant had been left in limbo for many years without being sure whether he would get the residential plot or not.  After waiting for considerable time, the complainant had opted for refund of his money and, therefore, findings of the State Commission on this count cannot be said to be suffering with any illegality or infirmity.    It is a settled proposition of law as held by Hon’ble Supreme Court in Dhanda’s case ( supra ) that where compensation in terms of interest is awarded, no compensation under any other head should be granted. Compensation awarded towards mental agony etc. is, therefore, quashed.

10.     It is apparent that it is a covered case, covered by the case of Ankit Jain ( supra).  This Commission in that case while ordering the refund of the deposited amount had granted interest @ 9% p.a. and penal interest @ 12% p.a.. 

11.     I, therefore, partly allow the present Appeal and issue the following directions:

1.       The Appellant is directed to refund deposited amount of Rs.41,10,000/- to the respondent / complainant along with interest @ 9% p.a. from the respective dates of deposit till the date of payment.

2.       To pay cost of litigation to the tune of Rs.33,000/- as awarded by the State Commission.

3.       While disposing of the present Appeal, I also award a litigation cost of Rs.50,000/- to the complainant.

4.       The entire payment shall be made within four months from the date of this order, failing which it will attract penal interest at the rate of 12% per annum.

12.     The Appeal is partly allowed.”

13.    Therefore, these Appeals are disposed off in terms of the same directions as passed in the earlier matter i.e.

i)    The Appellant is directed to refund to the Complainant(s) the sum deposited by Respondents/Complainants i.e. Rs. 22,50,000/- in FA No. 897 of 2017; Rs. 40,42,500/- in FA No. 898 of 2017; and Rs. 25,72,500/- in FA No. 1436 of 2016, along with interest @9% p.a. from the respective dates of deposits till the date of final payment;

ii) The Appellant is directed to pay compensation and litigation costs as awarded by the Ld. State Commission, in all the complaints;

iii)The Appellant is also directed to pay litigation costs of Rs. 50,000/- each towards the present Appeals and;

iv) The entire payments shall be made within 04 months from the date of this Order, failing which it will attract a penal interest @ 12% p.a.    

14.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.