Punjab

StateCommission

CC/722/2018

Brij lal Gupta and another - Complainant(s)

Versus

M/s M.g. Gold pvt.ltd and another - Opp.Party(s)

Naveeen sharma and Rajnessh chadwal

10 Apr 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

 

                                      Consumer Complaint No.722 of 2018                                                        

Date of institution  :    11.09.2018  

Date of decision     :    10.04.2019

 

1.      Brij Lal Gupta S/o Sh. Tara Chand Gupta, R/o H.No.B-803, G.K.      Royal Hills, near Bansal Vista Mukhi Chowk, Debu Road, Ravet,       Pune-412101.

 

2.      Parmod Gupta W/o Sh. Brij Lal Gupta D/o Sh. Ram Niranjan, R/o     H.No.B-803, G.K. Royal Hills, near Bansal Vista Mukhi Chowk, Debu Road, Ravet, Pune-412101.

 

….Complainants

Versus

1.      M/s M.G. Gold Realtors Pvt. Ltd., Head Office at No.345, Sector      22-B, Mandi Gobindgarh, Fatehgarh Sahib, Punjab, through its           Director/Authorized Signatory.

 

2.      Director, M/s M.G. Gold Realtors Pvt., R/o Ashwani Villa, Kothi         No.1, Sector 21-C, Chander Lok, Mandi Gobindgarh, Fatehgarh          Sahib, Punjab.

                                                                                    .…Opposite Parties

 

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

Quorum:- 

          Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President

                        Mrs. Kiran Sibal, Member.

Present:-

    For the complainant      :  Sh. Naveen Sharma, Advocate

    For the opposite parties:           Ex parte.

 

JUSTICE PARAMJEET SINGH DHALIWAL,  PRESIDENT:

 

                    The complainants, who are husband and wife, have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”), against the opposite parties, seeking following directions to them:

i)        to refund the amount of ₹30,00,000/-, along with interest at the         rate of 18% per annum, compounded quarterly, from the           respective dates of deposit onwards;

ii)       to pay compensation of ₹10,00,000/- on account of mental agony   and harassment suffered by the complainants; and

iii)      to pay ₹50,000/- towards litigation expenses.

Facts of the Complaint

2.           Brief facts, as set out in the complaint, are that complainant No.1 retired on 31.08.2014, while working as Senior Manager in the Union Bank of India at Ambala City Branch, after rendering 40 years in Banking service. Thereafter, he, along with wife, had planned to earn their livelihood and, as such, they were searching for a project, in which they could get a shop/office space for running financial planning and consultancy, as he was having vast experience in Banking service. They came to know through various advertisements and representations of the opposite parties with regard to launching a mega project for construction of a Multi Utility Complex namely “M.G. Gold Family City Centre” to be established at G.T. Road, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab. The opposite parties represented that they were having all the requisite permissions and approvals from the competent authorities. Believing the representations of the opposite parties, the complainants agreed to book a space i.e. showroom/shop in the said project and Agreement to Sell was executed between the parties on 15.04.2016, wherein total price of the unit was mentioned as ₹35,00,000/-; against which the complainants paid a sum of ₹30,00,000/- and the balance amount of ₹5,00,000/- was to be paid at the time of possession. They were allotted shop No.413 on 4^th Floor in Tower Two, comprising the dimensions of 17.58*32.5 sq.ft. (total area 568 sq.ft.) in the said project; which was to be constructed in the land comprising of Khewat/Khatauni No.90/138, Khasra No.17//9/1(3-7), 17//12/1 (3-2), 17//12/2 (4-18), 17//9/2 (3-9), 17/11/1 (6-9). It was agreed that possession of the showroom/shop would be delivered within 18 months, i.e. upto 30.10.2017, from the date of signing the agreement, failing which the opposite parties were bound to pay rent to the complainants at the rate 12% per annum of the total deposited amount till delivery of possession.  In the month of September, 2017, when the complainants visited the site, the opposite parties assured them that the construction would be completed within time and the possession would be delivered by the stipulated date.  However, they failed to deliver the possession within the stipulated period and, as such, the entire planning of the complainants to earn their livelihood was shattered. The complainants earlier filed Complaint No.17 of 13.11.2017 before the Real Estate Regulatory Authority (RERA), Punjab; which was rejected, vide order dated 11.01.2018, with liberty to the complainants to file fresh complaint in the proper Forum. Thereafter, the complainants Consumer Complaint No.656 of 2018 before this Commission; which was dismissed as withdrawn, vide order dated 14.08.2018, with liberty to file a fresh one on the same cause of action. Hence, the present complaint.
3.           Initially, attempt was made to serve the opposite parties, through Registered Post A.D. Thereafter, they were served by way of publication of notice in the newspaper “Desh Sewak” dated 12.02.2019. However, the opposite parties did not appear despite their service through publication and were proceeded against ex parte, vide order dated 07.03.2019.

Evidence of the Complainants

4.           To prove their claim, the complainants, along with the complaint, filed affidavit of complainant No.1 and documents Ex.C-1 and Ex.C-2.  

Contentions of the Complainants

5.           We have heard learned counsel for the complainants and have gone through the record carefully.
6.           Learned counsel for the complainants has vehemently contended that the opposite parties failed to deliver possession of the unit, in question, within the stipulated period despite receipt of substantial amount from the complainants towards the price thereof. No development activity was started at the site and the opposite parties kept on utilizing the hard earned money of the complainants, for their own cause. It has been further contended that opposite parties have also not obtained the requisite approvals and permissions from the competent authorities before launching its project, which amounts to violation of various provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”). There is no possibility of delivery of possession of the unit, in question, in near future and, as such, the complainants are entitled to all the reliefs, as prayed for in the complaint.

Consideration of Contentions

7.            We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainants.
8.           Undisputedly, the complainants purchased the unit, in question, in the above named project of the opposite parties, in order to earn their livelihood by way of self-employment; regarding which Agreement to Sell, Ex.C-1, was executed between the parties on 15.04.2016. The total price of the unit was ₹35,00,000/-. As per terms and conditions of the agreement, possession of the unit was to be delivered after completion of work within 18 months i.e. upto 30.10.2017; failing which the opposite parties were liable to pay rent to the complainants at the rate of 12% annual interest on the total amount received from them till the delivery of actual possession. The complainants alleged that against the total sale consideration of the unit, they paid a total sum of ₹30,00,000/- to the opposite parties. However, no receipts to prove this fact have been produced on record by them. Perusal of agreement, Ex.C-1, shows that the opposite parties have already received sum of ₹25,00,000/- as first instalment along with the agreement and the rest of the amount, vide cheque No.126841 dated 15.04.2016 for ₹1,76,000/-; cheque No.126843 dated 20.04.2016 for ₹1,02,000/-; cheque No.126844 dated 25.04.2016 for ₹1,99,000/-. Thus, a total sum of ₹29,77,000/- only stood deposited by the complainants with the opposite parties against the total sale consideration of the unit, as mentioned in the agreement itself. However, the opposite parties failed to deliver possession of the unit, in question, to them within the stipulated period. Earlier, the complainants filed Complaint No.17 of 2017 before RERA, which was rejected; vide order dated 11.01.2018, being not maintainable, on the ground that the project of  the opposite parties was not registered under RERA and the complainants were given liberty to file a fresh complaint before the proper Forum. Thereafter, they filed Consumer Complaint No.656 of 2018 before this Commission, which was dismissed as withdrawn, vide order dated 14.08.2018, with liberty to file a fresh one on the same cause of action.
9.           The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. For the sake of repetition, it is relevant to mention that the opposite parties failed to appear before this Commission, despite their service and, as such, they were proceeded against ex parte. Thus, all the averments made in the complaint are deemed to have been admitted by the opposite parties and the evidence led by the complainants stands unrebutted; for which an adverse inference is to be drawn against the opposite parties. Since the opposite parties are ex parte, so no evidence has come on record, whether they have obtained the requisite approvals and permissions from the competent authorities, before launching their project.
10.           As per Section 5 (Development of land into Colony) of Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they violated Section 5 of PAPRA.

11.              As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their 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. They were 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 parties failed to comply with Section 3 of the PAPRA.

12.              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 parties to prove that any account has been maintained by them in this respect. As such, they also violated Section 9 of the PAPRA.

13.           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.”

 

14.              The Act came into being in the year 1986. It is one of the benevolent pieces 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 parties, with the hope to get the possession of the unit within a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession.  The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainants. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties, i.e. builders, knew from the very beginning that they had not complied with various provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainants to book the plot, due to which the complainants have 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 builder is bound to compensate for the loss and injury suffered by the complainants 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 complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In such circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation. The service of the opposite parties was effected through publication, for which the complainants had to incur extra expenditure and this fact is also to be taken care of while awarding the compensation.

15.   In view of the above discussion, the complaint is allowed and following directions are issued to the opposite parties:

i)        refund the entire amount of ₹29,77,000/- to the complainants,          along with interest at the rate of 12% per annum from the      respective dates of deposit till realization, as per Rule 17 of         PAPRA;

ii)       pay ₹45,000/-, as compensation for the harassment and mental      agony suffered by the complainants, including cost of litigation.

16.              The compliance of this order shall be made by the opposite parties within a period of 30 days of the receipt of certified copy of the order.

 

                                        (JUSTICE PARAMJEET SINGH DHALIWAL)

                                                                    PRESIDENT

 

 

                                                                (KIRAN SIBAL)

                                                                      MEMBER        

April 10, 2019.                                             

(Gurmeet S)