Chandigarh

StateCommission

CC/38/2023

NEELMANI BHARDWAJ - Complainant(s)

Versus

M S INNOVATIVE HOUSING & INFRASTRUCTURE PVT LTD. - Opp.Party(s)

VARINDER ARORA

31 Oct 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	38 of 2023
Date of Institution	:	08.05.2023
Date of Decision	:	31.10.2023

 

 

 

 

 

Sh. Neelmani Bhardwaj, aged 50 years S/o Sh. S. K. Bhardwaj, R/o House No.584, Sector 6, Panchkula (Haryana).

 

...Complainant.

Versus 

 

1]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Nirmal Kaur.

 

2]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Jagjit Singh.

 

…..Opposite Parties.

 

 

Consumer Complaint	:	39 of 2023
Date of Institution	:	08.05.2023
Date of Decision	:	31.10.2023

 

 

 

Sh. Neelmani Bhardwaj, aged 50 years S/o Sh. S. K. Bhardwaj, R/o House No.584, Sector 6, Panchkula (Haryana).

 

...Complainant.

Versus 

 

1]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Nirmal Kaur.

 

2]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Jagjit Singh.

 

…..Opposite Parties.

BEFORE:    SH. RAJESH K. ARYA, PRESIDING MEMBER

                   SH. PREETINDER SINGH, MEMBER

 

Argued By:-      

Sh. Ashish, Advocate proxy for Sh. Varinder Arora, Advocate, for the complainant.

Ms. Manisha Maggu, Advocate for the opposite parties.

PER  RAJESH  K. ARYA, PRESIDING MEMBER

                   By this common order, we shall dispose of aforesaid two consumer complaints bearing Nos.38 of 2023 and 39 of 2023 filed by the complainant, namely, Sh. Neelmani Bhardwaj against the opposite parties.

2]                 As common questions of facts and law have been emerged in above captioned complaints and the facts thereof are analogous to each other to a great extent, therefore, this Commission would like to take them together and decide with a common order. It may also be stated here that on behalf of the complainant, an application was moved for clubbing both the complaints bearing No.38 of 2023 and 39 of 2023 on the ground that both have been filed by one and the same complainant and the issue involved in these complaints is identical in nature and the plots involved in both the cases are adjoining to each other. This request for clubbing both the complaints was not opposed by the counsel opposite. Accordingly, both the complaints bearing No.38 of 2023 and 39 of 2023 were clubbed together for disposal.

Brief facts:-

3]                 However, the facts necessary for disposal of these complaints, have been taken from consumer complaint bearing No.38 of 2023 titled ‘Neelmani Bhardwaj Vs. M/s Innovative Housing & Infrastructure (P) Limited & anr.’’, as under:-

4]                The complainant was interested for a plot and the opposite parties have shown the plan of the area, where the opposite parties have started the town planning in accordance to the plans approved by the GMADA. The complainant was shown residential Plot No.422, measuring 250 Sq. Yds., in the project floated by the Opposite parties at Sector 17 & 18, New Chandigarh, District SAS Nagar (Pb.). The opposite parties conveyed that the said plot was having approximate value Rs.55.00 Lacs and a letter of allotment for residential plot was issued by the opposite parties having Ref. No.PCL/2018/1414 dated 25.07.2018, Annexure C-2, in the name of the complainant duly signed by the authorized signatory of the opposite parties. After the initial allotment and receiving the amount for the booking of the said residential plot situated in the township known as Chandigarh West Township in Village Togan & Tira, Mullanpur, LPA, New Chandigarh, the complainant was allotted the Plot number in the PCL Gateway Society and was explained the balance payment, which was to be made and the terms and conditions were understood between the parties. The complainant has already paid a sum of Rs.55.00 Lacs vide receipt (Exhibit C-1). At the time of issuance of the registration certificate, the amount of EDC was never explained by the opposite parties, hence it was not paid and upon inquiry from the opposite parties, it was stated by the officials of the opposite parties that the same would be payable by the complainant to the opposite party at the time of handing over the possession of the plot in question to the complainant.

5]                It has been further stated that the initial payment was received by the opposite parties on 28.06.2012 but the letter of allotment was issued to the complainant on 25.07.2018, which proves the fact that the plot was to be handed over to the complainant in accordance to the initial registration, however, since the terms and conditions were not executed at the time of issuance of certificate of registration, therefore, it was conveyed to the complainant through letter of allotment in respect of residential plot and in terms of the said letter of allotment in accordance to clause-8 of the same, it has been clearly stated by the opposite parties that "the company shall endeavor to make available the absolute, vacant and encumbrance free unit/ plot for possession by Nov. 30, 2019 (with a grace period of six months) subject to the allottee not being in breach of any of the terms of the application form/ letter of allotment. In the event of any force majeure situations (including but not limited to inordinate delay in issuance of NOCs/Connections/approvals/ licenses from the competent local authority and/or judicial or regulatory orders), the date of such possession for unit/plot shall stand extended accordingly".

6]                It has further been stated that none of the above conditions has been breached by the complainant, rather on the contrary the opposite parties have failed to offer the possession to the complainant from the date of certificate of registration which was executed on 28.06.2012 in favour of the complainant, which means that since 28.06.2012, maximum the possession could have been offered to the complainant within one year from the date of execution of the said receipt. However in the present case if we take otherwise and the allotment should have been done from the date of allotment in accordance to the terms and conditions of the letter of allotment, then also the possession should have been offered to the complainant by the opposite parties maximum by May, 2020, but till date the opposite parties have failed to offer the possession to the complainant, which strengthens the case of the complainant that due to unfair trade practice, the opposite parties have failed to offer the possession of the plot, for which they have already received the entire amount.

7]                It has further been stated that it was stipulated in the letter of allotment dated 25.07.2018 that in case the scheduled payment is not made, then the default shall attract interest at SBI Bench Mark Lending Rate + 2% p.a. from the date they failed to pay the dues till realization of payment. It has further been stated that this fact is also mentioned in Clause-2 of the said agreement dated 25.07.2018, which is applicable to both the parties, hence, this complaint has been filed demanding possession of plot No.422 measuring 250 Sq. Yds., situated at project known as PCL Gateway at Sector 17 & 18, New Chandigarh, District SAS Nagar (Mohali) and for demand of damages for delayed period since November, 2019 till the actual handing over of the possession of the plot in question to the complainant by the opposite parties with a further demand of damages for unfair trade practice, harassment, uncalled for litigation expenses, punitive damages @2% p.a. in accordance to the SBI Bench Mark Lending Rate of interest on the delayed payment. It has further been stated that that the complainant was/is ready to perform his part of the contract and is ready to deposit the EDC Charges, whatever is applicable at the time of handing over the possession of the plot in question to the complainant.

Reliefs claimed in CC/38/2023:-

8]                Thus, by filing this complaint, the complainant has claimed the various reliefs, such as, direction to the Opposite Parties, jointly and severally, to handover the possession of the Plot No.422, measuring 250 Sq. Yds., in the project floated by the Opposite parties at Sector 17 & 18, New Chandigarh, District SAS Nagar (Pb.).; pay interest @ SBI Bench Mark Leading Rate + 2% p.a. from the date from which the possession was delayed till the actual handing over of the possession to the complainant i.e. from the date of actual payment as the payment has been forwarded to the opposite parties on 28.06.2012 and thereafter possession was to be handed over to the complainant within 1 ½ year from the date of payment, as per the terms and conditions executed between the parties, hence the opposite parties are liable to be burdened to pay interest w.e.f. January, 2014 till its actual realization to the complainant; pay a sum of ₹5,00,000/- to the complainants for harassment, unfair trade practice, as the opposite parties have failed to deliver the possession of the plot within the prescribed period and pay a sum of Rs.1,00,000/- towards litigation expenses.

9]                However in CC/39/2023, the complainant has sought possession of Plot No.423, adjoining to plot No.422 which is subject matter of CC/38/2023, besides similar relief as sought by him in CC/38/2023.

10]              It may be stated here that notice sent to the opposite parties on 19.05.2023 through registered post was duly served upon them on 22.05.2023 and they were also served through mail on 31.05.2023 but despite due service, they did not appear before this Commission on 04.07.2023 on which date, they were proceeded against exparte. However, on 10.08.2023, Ms. Chhavi Budhiraja, Advocate appeared on behalf of the opposite parties and on permission sought by her, she was allowed to join the proceedings. The parties were given ample opportunity to file their respective written arguments, which they filed.

11]              Though in the absence of  reply, the averment made in the complaint have gone unrebutted, yet in their written arguments, the opposite parties have stated that though the complainant deposited the initial price of the plot amounting to Rs.55 Lakhs but he failed to pay a sum of Rs.12,50,000/- which was duly incorporated in the allotment letter. It has further been stated that since the complainant did not deposit the aforesaid amount, therefore, fast development could not be carried out. It has further been stated that possession of the plot was not handed over to the complainant due to his own violation and non-payment of the due amount.  It has further been stated that there is a delay of 5 years in filing the present complaint as the same is hopelessly time barred because the complainant had applied for plot in the year 2014 and thereafter, he did not intentionally fulfill the terms and conditions in depositing the relevant amount till the year 2018 as the allotment was made on 25.07.2018. Further stating that there is no element of deficiency in service, prayer for dismissal of the complaint(s) has been made. In CC/39/2023, an objection with regard to pecuniary jurisdiction has been raised.

12]              We have heard the counsel for the parties, have gone through the record and the written arguments carefully.

13]              Admittedly, despite payment of an amount of ₹55 Lakhs, the possession has still not been delivered by the opposite parties to the complainant. It was stipulated in letter of allotment dated 25.07.2018 that possession of the unit in question was to be delivered by the opposite parties by 30.11.2019 with grace period of six months i.e. latest by 30.05.2020 subject to the allottee not being in breach of any of the terms of the application/letter of allotment. In the instant case, the complainant paid hefty amount of ₹55 Lakhs  in the year 2012 i.e. vide receipts dated 28.06.2012. However, the unit was allotted to him in the July 2018 i.e. after a period of six years.  In Certificate of Registration acknowledging receipt of ₹55 Lakhs from the complainant, a Note has been appended in the last that “Allotment of this unit shall be done after the approval of Laout Plan by the Nodal Body”. Nowhere in the letter of allotment dated 25.07.2018, it has been stated that whether the layout plans were approved and on which date. Further as per Term & Condition No.1 of the letter of allotment, the balance land cost if any and govt. fee & development charges were to be paid by the complainant upon issuance of this letter of allotment.  It is pertinent to mention here that on 15.05.2023, Counsel for the complainant had alleged that the layout plan of the opposite parties was not approved and when the money was received by them, they were not having any requisite license and approval. Accordingly this Commission vide order dated 15.05.2023 directed the Chief Administrator, GMADA, SAS Nagar, Mohali to furnish the information with regard to CLU if any issued to the opposite parties. The said information was received from District Town Planner, GMADA, SAS Nagar vide letter dated 8^th August 2023. As per information received,  Permission for change of land use for Mega Residential Project of the opposite parties was granted vide letter dated 03.07.2014 by the Department of Town and Country Planning, Punjab subject to numerous conditions to be fulfilled by the opposite parties. However, nothing has been placed on record by the opposite parties to prove whether they fulfilled all the conditions stipulated in the said letter dated 03.07.2014. Further, bare perusal of letter of allotment shows that no clause qua compensating the complainant in case of delay in offering/delivering possession of the allotted plot, has been put in the said letter. Therefore, letter of allotment, so issued by the opposite parties to the complainant, is totally against the interest of the complainant and to the benefit of the opposite parties.

14]               It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove as to at what stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained from the competent Authorities to launch the said project. In case, the development/construction activities are being undertaken or complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken or complete at the site or not, but they failed to do so.

15]              Furthermore, there is nothing on record to show that opposite parties suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit was not delivered to the complainant by the committed date, referred to above, or even till date.

16]              Thus, all the allegations leveled by the complainant in his complaint and also by his Counsel during arguments have gone un-rebutted/unchallenged by the opposite parties as they chose not to appear and file written statement or evidence.

17]              During the course of arguments, when this Commission put a query to the counsel for the opposite parties as to whether the opposite parties are in a position to deliver possession of the plot in question or not, the counsel fairly stated that the complainant can take possession subject to the payment of the pending dues and EDC, to which the complainant agreed. Counsel for the complainant also stated that the complainant is ready to pay the pending dues and the pending EDC. 

18]               From the peculiar circumstances of this case, it has been proved that the builder-Company 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 he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with builder-Company and suffered financial loss, mental agony and physical harassment. All the facts established that from the very inception there was intent to induce the complainant to enter into an unfair contract and also intent to deceive him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder-Company.

19]          On account of delay in actual delivery of possession within the stipulated period, the complainant suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainant purchased the unit in question, as far as back in the year 2012. We are in October 2023 and still, the complainant is empty handed and he is forced to approach this Commission for redressal of his grievance. The opposite parties have played fast and loose with the complainant and have caused harassment and mental agony to him, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by him, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.

20]              Since fault lies with the opposite parties in not delivering the possession of the plots in question, therefore, they are not entitled to any delayed interest or penalty from the complainant. 

21]              As regards the contention raised that the complaint is time barred, it may be stated here that this argument has no force in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when actual possession of the units/plots is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected. Further as regards objections with regard to the pecuniary jurisdiction raised by the opposite parties in their written arguments filed in CC/39/2023, it may be stated here that in view of clubbing of these complaints to be decided by a common order, the counsel for the opposite parties did not press for this objection.

22]              For the reasons recorded above, both the complaints bearing Nos.38 of 2023 and 39 of 2023 are partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

Complaint No.38 of 2023:-

1. To deliver actual physical possession of Plot No.422 measuring 250 sq. yards in the project “PCL-Gateway” situated at Sector 17 & 18, New Chandigarh, Distt. SAS Nagar, (Pb.), to the complainant, complete in all respects, after obtaining occupation and completion certificate from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order.  However, it is made clear that the complainant shall also pay the remaining sale consideration, if any, to the opposite parties and pending EDC before taking over the actual physical possession of the plot in question besides paying other Govt. fees.   
2. To pay to the complainant, interest @9% p.a. on the amount deposited i.e. ₹55,00,000/- towards sale consideration, starting from 30.05.2020 (committed date for possession + six months) till 31.10.2023, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
3. To pay to the complainant, interest @9% p.a. on the amounts deposited w.e.f. 01.11.2023, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the plot, complete in all respects. 
4. To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

Complaint No.39 of 2023:-

1. To deliver actual physical possession of Plot No.423 measuring 250 sq. yards in the project “PCL-Gateway” situated at Sector 17 & 18, New Chandigarh, Distt. SAS Nagar, (Pb.), to the complainant, complete in all respects, after obtaining occupation and completion certificate from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order.  However, it is made clear that the complainant shall also pay the remaining sale consideration, if any, to the opposite parties and pending EDC before taking over the actual physical possession of the plot in question besides paying other Govt. fees.   
2. To pay to the complainant, interest @9% p.a. on the amount deposited i.e. ₹45,00,000/- towards sale consideration, starting from 30.05.2020 (committed date for possession + six months) till 31.10.2023, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
3. To pay to the complainant, interest @9% p.a. on the amounts deposited w.e.f. 01.11.2023, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the plot, complete in all respects. 
4. To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

23]              Copy of this order be placed in the file of complaint No.39 of 2023.

24]              Certified copies of this order be sent to the parties free of charge.

25]              File be consigned to Record Room after completion.

Pronounced.

31.10.2023.

[RAJESH  K.  ARYA]

        PRESIDING MEMBER

 

 

 

[PREETINDER SINGH]

MEMBER

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