Punjab

StateCommission

CC/131/2018

Dr. Vijay Kumar Bahri - Complainant(s)

Versus

M/s Metropolis Land Holdings Pvt. Ltd. - Opp.Party(s)

Narinder Kumar Vedehra

08 Apr 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

 

                                      Consumer Complaint No.131 of 2018                                                        

Date of institution  :    21.02.2018  

Date of decision     :    08.04.2019

 

1.      Dr. Vijay Kumar Bahri son of Rattan Lal Bahri, Resident of Bahri      Hospital, Dinanagar, Gurdaspur.

 

2.      Dr. Anju Bahri wife of Dr. Vijay Bahri, Resident of Bahri Hospital,      Dinanagar, Gurdaspur (since deceased) through her LR:-

 

          Dr. Vijay Kumar Bahri son of Sh. Rattan Lal Bahri, Resident of         Bahri Hospital, Dinanagar, Gurdaspur.

….Complainants

Versus

1.      M/s Metropolis Land Holdings Pvt. Ltd., having its Registered Office at SF-6, Nehru Shopping Complex, Lawrence Road, Amritsar.

 

2.      Metropolis Tower, near Old Central Jail, Airport Road, Amritsar,        through its Manager.

 

3.      Mr. Rajan Gill, Chairman and CEO of M/s Metropolis Land       Holdings Pvt. Ltd. & Raddison Blu Hotel, Ajnala Road State          Highway # 25, opp. International Airport, Amritsar.

 

                                                                                    .…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 complainants     :  Sh. N.K. Wadhera, Advocate

    For the opposite parties:           Sh. Gunjan Rishi, Advocate.

   

 

JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:

 

                    The complainants 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 hand over the possession of the unit, in question, to the      complainants;

ii)       to pay compensation for delay in offer of possession in the form      of interest at the rate of 18% on the amount paid by the     complainants;

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

iv)      to pay agreed assured income at the rate of ₹36,338/- from    January 2016 till date of filing of the complaint, along with        interest; and

v)      to pay ₹1,00,000/- as litigation expenses, including costs for   sending legal notice;

Facts of the Complaint

2.           Brief facts, as set out in the complaint, are that complainant No.2 was the wife of complainant No.1. She has since expired and during her lifetime, she had executed Will in favour of complainant No.1 and, as such, complainant No.1 is her legal heir. It was averred that the complainants had applied for purchase of one residential unit in the Complex known as “Metropolis Tower” situated at Ajnala Road, Airport Road, Amritsar and Memorandum of Understanding (MoU)-cum-Agreement dated 27.07.2012 for unit having super area of 850 sq.ft. for total consideration of ₹38,25,000/-  was executed between opposite party No.1 and the complainants. The complainants paid a total sum of ₹36,33,750/- (95%) to them towards the price of the said unit on different dates upto to the year 2013 and the remaining 5% amount was to be paid at the time of possession. As per terms of the MoU/Agreement, the possession was to be delivered till 31.03.2014 and as per Clause-4 thereof, the opposite parties agreed to pay assured return to the tune of ₹36,338/- per month to the complainants till the offer of possession and if the possession was to be delayed due to any reason beyond 31.03.2014, the Company was to pay the same return of ₹36,338/- per month till the delivery of possession. The complainants had received the said assured return till December, 2015 and thereafter, the opposite parties stopped paying the same, without giving any notice to them. They also failed to deliver possession of the unit to them till the date of filing of the complaint. On visiting the site, they found that the construction work of the unit was not completed, nor the unit had been furnished as per specifications and even the lifts of the buildings were not installed.  On approaching the opposite parties, no positive response was given. Ultimately on 27.09.2016, the opposite parties gave a letter to the complainants, admitting that the construction had not been completed and they asked the complainants to visit their site office between 01.12.2016 to 03.12.2016 for allotment of residential unit. The complainant visited the site office, but opposite parties failed to deliver possession of the unit, as the construction work was not completed. Thus, due to delay in delivery of possession, the opposite parties are liable to pay compensation in the form of interest at the rate of 24% per annum.  Besides this, they are also liable to pay assured return of ₹36,338/- per month from January, 2016 till date along with interest at the rate of 24% per annum.  The aforesaid act and conduct of the opposite parties amount to deficiency in service. Hence, the present complaint. 

Defence of the Opposite Parties

3.           Upon notice, earlier the opposite parties did not appear despite their service and were proceeded against ex parte, vide order dated 25.07.2018. However, later on, they appeared through counsel on 17.09.2018 and were allowed to join the proceedings thenceforth. They filed appeal (F.A. No.1676 of 2018) against the order dated 25.07.2018 before the Hon’ble National Commission; which was disposed of, vide order dated 22.09.2018, and the order dated 25.07.2018 passed by this Commission was set aside, subject to payment of ₹10,000/- to be paid to complainant No.1 before this Commission and the opposite parties were allowed to file written statement before this Commission before the next date of hearing i.e. 17.12.2018, subject to payment of further costs of ₹20,000/- to be paid to complainant No.1 by way of demand draft. In compliance of the order of the Hon’ble National Commission, the opposite parties paid a sum of ₹30,000/- to the learned counsel for the complainants, as per his statement dated 17.12.2018 and written statement/reply to the complaint was also filed on the same day.
4.           The opposite parties, in their reply, pleaded that the complainants had purchased the said unit for speculative/ investment/commercial purposes. Purchase of the unit, in question, for total sale consideration of ₹38,25,000/- and execution of MoU dated 27.07.2012 was admitted. Payment of ₹36,33,750/- made by the complainants was also admitted and it was pleaded that the balance amount was variable and was to be calculated in accordance with the super area of the flat, the possession of which was to be delivered. As per terms of the MoU, the complainants can choose the flat of their choice amongst the flats comprising of variable super area. Once the complainants finalize to take possession of a particular flat and clear the balance payment, the opposite parties will be in a position to hand over the possession immediately and to execute the sale deed. The complainants have intentionally concealed these facts from this Commission. As per Clause-7 of the MoU, possession was proposed to be delivered till 31.03.2014 and thereafter, as per Clause-16 thereof, the complainant was required to execute the lease deed whereby the allottee gives the right to the opposite parties to operate/rent out the unit to someone else. Thus, the unit was purchased with a view to rent it out and not for personal use by the complainant. It was further pleaded that on 27.09.2016, the opposite parties made offer of possession to the complainant, informing him that the project was completed and he was requested to visit the site from 1 to 3^rd December, 2016 in order to collect the Allotment/Builder Buyer’s Agreement/Maintenance Agreement of the said unit. Second intimation in this regard was sent on 24.10.2016. Perusal of letter dated 24.10.2016, makes it clear that the opposite parties, in no uncertain terms, had offered the possession of the unit to the complainant, complete in all respects.  It was denied that that the construction work of the unit was not completed or that it was not furnished as per the given specifications.  Perusal of photographs Annexure OP-2 shows that the project/unit is complete and it is the complainants, who for the reasons best known to them, are not in possession of the unit, in question. In fact, from the very beginning, the complainants had no intention to take procession of the unit. Similar pleas were raised again and again.     All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed

Evidence of the Parties

5.           To prove their claim, the complainants tendered affidavit of complainant No.1 as Ex.C-A and documents Ex.C-1 to Ex.C-3.
6.           The opposite parties, along with their reply, filed self attested affidavit of Sh. Harpinder Singh Gill, Managing Director, and documents Annexure OP-1 and Annexure OP-2.

Contentions of the Parties

7.           We have heard learned counsel for the parties and have gone through the record carefully.
8.           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 95% amount out of the total sale consideration from the complainants. 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. As per Clause-4 of the MoU, the opposite parties agreed to pay assured return to the tune of ₹36,338/- per month to the complainants till the offer of possession and in case of delay in delivery of possession beyond 31.03.2014, they agreed to pay the same till the delivery of possession. However, they paid the assured return till December, 2015 only and thereafter, stopped paying the same, without giving any notice to the complainants. It has been further contended that the construction work of the unit has not been completed, nor the same has been furnished as per the agreed specifications.  The opposite parties also admitted, vide letter dated 27.09.2016, that the construction had not been completed and they asked the complainants to visit their site office between 01.12.2016 to 03.12.2016 for allotment of residential unit. Due to deficiency in service on the part of the opposite parties, the complainants suffered mental agony and harassment and, as such, the complaint is liable to be allowed and all the directions, as prayed for therein, are liable to be issued to the opposite parties.
9.           Per contra, learned counsel for the opposite parties has vehemently contended that as per terms of the agreement, the complainants can choose the flat of their choice amongst the flats comprising of variable super area. As per Clause-7 of the agreement, possession was proposed to be delivered till 31.03.2014 and thereafter, as per Clause-16 thereof, the complainant was required to execute the lease deed whereby the allottee gives the right to the opposite parties to operate/rent out the unit to someone else. Thus, the unit was purchased with a view to rent it out and not for personal use by the complainant. It has been further contended that on 27.09.2016, the opposite parties made offer of possession, informing the complainants that the project was completed and they were requested to visit the site from 1 to 3^rd December, 2016 in order to collect the Allotment/Builder Buyer’s Agreement/Maintenance Agreement of the said unit. Second intimation in this regard was sent on 24.10.2016.  Perusal of photographs Annexure OP-2 shows that the project/unit is complete, but the complainants have not taken the possession of the unit. Thus, there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.

Consideration of Contentions

10.            We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties.
11.           The opposite parties raised the plea that the complainants purchased the unit, in question, for speculative purpose by way of renting it out and not for their personal use. In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties to prove that the complainants are/were indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact.  Hon’ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale/purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the opposite parties to prove that the complainants indulged in sale purchase of properties and that they purchased the unit, in question, for further sale or for earning profits. Therefore, the above said objection/contention of the opposite parties is rejected.
12.           Now, coming to merits of the case, admittedly, the unit, in question, was purchased by the complainants and Agreement to Sell, Ex.C-1, was executed between the parties on 27.07.2012. The total sale consideration of the unit was ₹38,25,000/-, against which the complainants deposited a total sum of ₹36,33,750/- with the opposite parties, vide receipts/cheques Ex.C-2 (colly.). Complainant No.2, who was wife of complainant No.1, died on 09.05.2016 as per Death Certificate dated 19.05.2016 and as per registered Will, placed on record, complainant No.1 is her legal heir. As per Clause-7 of the agreement, possession of the unit was proposed to be delivered by the Company to the allottee(s) till 31.03.2014 after obtaining all the necessary approvals and sanctions from the sanctioning authority, subject to payment of total consideration and other dues and force majeure circumstances. As per Clause-4 of the agreement, the allottee shall be paid as advance rental/return of ₹36,338/- per month till the offer of possession (31.03.2014) and in case of delay in offer of possession beyond that period, the Company was to pay the assured return of ₹36,338/- per month till delivery of possession. Admittedly, the possession was not delivered up to 31.03.2014. The complainants admitted in Para No.4 of the complaint that the assured return of ₹36,338/- had been received by them up to December, 2015 and thereafter, the opposite parties stopped paying the same, without issuing any notice to them.  Possession of the unit has not been delivered by the opposite parties and, as such, they are liable to pay the assured return of ₹36,338/- per month from January, 2016 onwards till actual and physical delivery of possession of the unit, complete in all respects with Completion Certificate issued by the competent authority.
13.           The opposite parties sent offer of possession/allotment letter dated 24.09.2016, Annexure OP-1 (colly.), followed by another letter dated 27.09.2016, Ex.C-3, intimating that the project was on verge of completion and complainant No.1 was requested to visit their Site Office between 1 to 3^rd December, 2016 between 10.00 A.M. to 5.00 A.M. in order to collect the Allotment/Builder Buyer Agreement/Maintenance Agreement of the said unit. Thereafter, the opposite parties sent letter dated 05.04.2018, Annexure OP-1, requesting him to chose a unit of his preference amongst the available units and clear the balance amount based on the final area by or before 15.04.2018, failing which the booking/allotment was to be cancelled. No doubt, the opposite parties produced on record photographs Annexure OP-2 (colly.), but in the absence of Completion Certificate issued by the competent authority, as envisaged under Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), it cannot be proved that the project of the opposite parties is complete in all respects or that they are in a legal position to hand over possession of the specific unit to the complainants. There is also no evidence on record to prove that the opposite parties obtained the requisite approvals and sanctions regarding their project, as per Clause-7 of the agreement. They have received the huge amount of ₹36,33,750/- from the complainants towards the price of the unit, vide receipts/cheques Ex.C-2 (colly.), but there is no evidence on record to conclude that the construction works/development works at the project have been completed. Since the opposite parties themselves failed to complete the project, so as to deliver possession of the unit to the complainants within the stipulated period, therefore, the complainants cannot be said to be at fault in withholding further payment of instalments; specifically when the opposite parties also stopped paying the monthly assured return after December, 2015. 
14.           According to provisions of Sections 3 and 4 of PAPRA, it was the duty of the opposite parties to supply the information with regard to their ownership, permissions from PUDA/GMADA, licenses and ‘Change of Land Use’ etc. The non-supply of this vital information to the complainants is against the provisions of PAPRA. They have not produced any evidence to prove that they have complied with the provisions of Sections 3 and 4 of PAPRA in letter and spirit, by making full and true disclosure of the nature of their title to the land on which such colony is developed or such building is constructed. By not complying with the above said provisions of PAPRA, the opposite parties are certainly guilty of rendering deficient services and adopting unfair trade practice.
15.           Further, 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, the opposite parties also violated Section 9 of the PAPRA.
16.        The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the unit in a reasonable period. The circumstances clearly show that they made false statement of facts about the goods and services i.e. allotment of unit and delivery of possession in a stipulated period.  The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the 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 plot/unit/flat within a reasonable period. 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. Thus, the delay in not completing the unit and delivering its possession within the stipulated period amounts to deficiency in service on the part of the opposite parties. In these circumstances, the complainants are entitled to the possession of the unit, complete in all respects, with all the agreed facilities and Completion Certificate issued by the competent authority; subject to payment of remaining sale consideration without any interest and penalty. Besides this, they are also entitled to the assured return of ₹36,338/- per month with effect from January, 2016 till actual and physical delivery of possession of the unit, complete in all respects along with Completion Certificate issued by the competent authority, as per Clause-4 of the agreement. The complainants have also prayed interest at the rate of 18% per annum on the deposited amount for delay in delivery of possession, but since the monthly assured return is being awarded as per terms of the agreement, so this prayer of the complainant is not tenable. For the mental agony and harassment suffered by the complainants, they are also required to be suitably compensated.
17.           In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties:

i)        to deliver possession of the unit to the complainants, complete       in all respects, with agreed facilities and Completion Certificate     issued by the competent authority; subject to payment of remaining sale consideration without any interest/penalty;

ii)       to pay the assured return of ₹36,338/- per month with effect from     January, 2016 till actual and physical delivery of possession of     the unit, complete in all respects along with Completion          Certificate issued by the competent authority, as per Clause-4 of         the agreement.

          It is made clear that the balance sale consideration payable by        the complainants shall be adjusted from the above said liability of          the opposite parties;

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

18.           The compliance of this order shall be made by the opposite parties within a period of 45 days of the receipt of certified copy of the order.
19.           The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases as well as due to the fact that proceeding of this complaint remained stayed as per orders passed by the Hon’ble National Commission in the appeal filed by the opposite parties.

 

                                        (JUSTICE PARAMJEET SINGH DHALIWAL)

                                                                    PRESIDENT

 

 

                                                                (KIRAN SIBAL)

                                                                      MEMBER        

April 08, 2019.                                             

(Gurmeet S)