DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/114 of 4.6.2015

                                      Decided on:         11.9.2015

Ms.Raksha Verma w/o Sh.Som Nath Verma, R/o H.No.733, Sector:2, Panchkula (Haryana)

                                                                   …………...Complainant

                                      Versus

1.      M/s Parsavnath Developers Limited, having Corporate Office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its Representative/s.

2.      M/s Parsavnath Developers Limited having its registered office at Parsvnath Metro Tower, Near Shahdra Metro Station, Shahadara, Delhi-110032 through its Diector/s Authorized Representative/s.

3.      M/s Parsavnath Developers Limited having its Site Office at King Citi,Rajpura, Ambala Road, Shambhu Kalan, Tehsil Rajpura, District:Patiala through its Director/s-Authorized Representative/s.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:      Sh.Bipan Sharma, Advocate

For Ops No.2&3:         Sh.Dhiraj Puri,Advocate               

                                         ORDER

D.R.ARORA, PRESIDENT

1. The complainant agreed to purchased one residential plot measuring 220 sq.yards(183.94.sq.meters) in “King City”, at Shambu Kalan, Tehsil Rajpura, District Patiala, from the Ops in respect of which she entered into Plot Buyer Agreement dated 7.4.2011 for Rs.11,62,700/- @ Rs.5285/- per sq.yard. She paid Rs.10,25,000/- for the booking of the plot. She was promised by the Ops to be provided with 7% rebate under Plan-A i.e. Down Payment Plan at the time of the execution of the agreement. The Ops also promised to deliver the possession after the payment of 90% i.e. Rs.10,25,000/- within 2-3 months. The complainant was not made to go through the contents of the agreement and therefore, she was unaware about the conditions mentioned in the Plot Buyer Agreement and she had signed the same believing the assurance given by the Ops.
2. When she read the Plot Buyer Agreement, it was transpired that the Ops had cheated her in as much as to the Ops used old Plot Buyer Agreement format and by cutting the year 2007 they had replaced the same with the year 2011. The date regarding the delivery of the possession was mentioned as 14.1.2009 although the plot was purchased by the complainant on 7.4.2011.The possession of the plot had to be given by the complainant by the Ops on 31^st July,2008 or 14^th January,2009.It was also mentioned in the agreement that the complainant had paid a sum of Rs.4,25,000/- whereas she had actually paid the amount of Rs.10,25,000/- before the execution of the agreement on 7.4.2011.
3. Although as per clause 7(a) of the Plot Buyer Agreement dated 7.4.2011, it was provided that the internal development work of the colony shall be as per the specifications detailed on Annexure-2 but a perusal of the photographs dated 15.5.2015 annexure C16 would go to show that the development work was incomplete .The complainant has been very punctual in the matter of making the payments as per the agreement as would appear from the receipts dated 4.2.2011 and 12.2.2011 issued by Op no.1 for Rs.1,75,000/-each towards the basic cost. Thereafter, Op no.1 issued letter dated 18.3.2011 vide which the payment of Rs.7,25,000/- made by the complainant was acknowledged.
4. The complainant visited the office of the Ops at  Chandigarh and requested them to show the development work being carried on at the site of the “King Citi” Rajpura but they avoided her visit to the site under one or the other pretext. Her request in that regard was finally turned down. In the month of August,2014 , the complainant visited the site of her own and came to know that no noticeable development work had taken place. During her visit at the site , she met Mr.Yogendra Singh, Marketing Agent and Sh.Amit Verma, Senior Executive Marketing who assured the complainant that the development work would recommence very shortly and she will be informed about the same. However, no communication was received by the complainant. The complainant sent letter dated 27.8.2014 through registered post to Op no.2  stating that the Ops had committed the delivery of the possession in September,2014 .She also disclosed about her visit made to the site but despite her having visited the site three years earlier no noticeable work of the development was observed. In response to her said letter, the complainant received letter dated 17.9.2014 from the Ops having informed her : “In this connection, we would like to say that area where your above plot is situated is not fully developed so far and if desire we may change your plot in that area where development is complete and you may get the plot registered also.”The complainant replied the said letter vide e-mail dated 20.11.2014 but she failed to receive any response to the same and then she sent e-mail to the Ops on 1.12.2014 asking for the refund of the amount deposited by her but she failed to receive any response. The complainant then sent e-mail dated 18.12.2014 through her husband that in case the Ops could not offer alternative site in the developed area they should refund her amount deposited by her with interest.
5. It is further averred that in response to her e-mail dated 18.12.2014, the Ops sent e-mail dated 30.12.2014 having informed her that they had some plots in phase-II where they could shift the complainant after approval from their management and also provided the details of the available plots. In response to the said e-mail , the complainant visited the site and sent the reply through her husband vide e-mail dated 1.1.2015 stating that the plots offered in Phase-II were not located at a good site as compared to the plot in phase-III and accordingly she requested the Ops to refund the money with interest. However, the ops failed to respond. The complainant then sent another letter dated 29.4.2015 asking for the refund of the money and the closure of her case.
6. It is further averred that although the stipulated time for handing over of the possession of the plot i.e. within 2-3 months from the date of the signing of the Plot Buyer Agreement had already  expired, the Ops could not obtain the occupation  certificate from the competent authority as required under Punjab Apartment and Property Regulation Act,1995  (for short PAPRA,1995) and after a considerable delay of about four years, they sent “Offer of Possession” letter dated 11.5.2015 despite the fact that they had failed to obtain the requisite certificate from the competent authority under the PAPRA,1995.The said possession letter dated 11.5.2015 was sent just to harass the complainant because the infrastructure was incomplete. The complainant has also quoted Section 3(2) of the PAPRA,1995, which provides that a promoter who develops a colony or who construct or intends to construct such building of apartments shall:-

(j) Not allow persons to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained”

7. It is further averred that the complainant had been asking  the Ops repeatedly for the refund of the money for the last eight month since when the Ops sent letters dated 17.9.2014 and 11.5.2015. Alongwith the “Offer of Possession” letter the Ops enclosed a final statement of account vide which they illegally raised the demand of charges for the facilities, which are not in existence at all, such as club membership charges, water connection charges, sewerage connection charges etc. In the final statement of account the Ops have illegally charged an amount of Rs.608/- on the delayed payment although the complainant had paid an amount of Rs.1,25,000/- on 4.2.2011 vide cheque No.4465 dated 4.2.2011 and the same had been debited from her account on 5.2.2011 but the receipt in that regard was issued by the ops on 12.02.2011 and in that way, the Ops charged the interest  for eight days illegally. To the contrary, the Ops have not paid any interest on the amount of Rs.1824/- overpaid by the complainant lying deposited with the Ops.
8. The failure on the part of the Ops despite the passing of a period of more than four years in delivering the possession of the plot is said to be a deficiency in service on the part of the Ops as also an unfair trade practice, which resulted into the harassment and the mental agony experienced by the complainant. Accordingly the complainant has brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to refund the  amount of Rs.10,25,000/- with interest @ 24% per annum from the date of the deposit; to pay her Rs.3lacs by way of compensation on account of the harassment and the mental agony experienced by the complainant; to pay her Rs.2lacs on account the Ops having indulged into an unfair trade practice and on account of deficiency of service and further to award her Rs.55000/- towards the costs of the litigation.
9. The complaint was admitted against Ops no.2&3 but despite the Ops having caused their appearance through counsel and having availed of four opportunities, they failed to submit their written version and accordingly on 17.8.2015 the proceedings were adjourned for the evidence of the complainant.
10. In support of her complaint, the complainant tendered in evidence Ex.CA, her sworn affidavit alongwith the documents Exs.C1 to C17 and her counsel closed the evidence.
11. The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
12. Ex.C1 is the copy of the Plot Buyer Agreement dated 7^th April,2011 arrived at between the Ops and the complainant vide which the Ops had agreed to sell plot No. 0275 measuring 220 sq.yard(183.94 sq.mts.) situate in King Citi” for Rs.11,62,700/- @ Rs.5285/- per sq.yard (Rs.6321.08 per sq.mts.)
13. Annexure 1 is the payment plan attached with the Plot Buyer Agreement , vide which the payments had to be made by the buyer as under:-

At the time of allotment………………………………25%

By 19.4.2007………………………………………….15%+EDC

By 18.6.2007…………………………………………..10%

By 17.8.2007…………………………………………..10%

By 16.10.2007………………………………………….10%

By 15.12.2007………………………………………….10%

By 13.2.2008……………………………………………10%

At the time of offer of possession……………………….10%

14. Apparently the Ops made a use of the old format of the Plot Buyer Agreement because the agreement was executed between the parties on 7^th April,2011 but Annexure C1 discloses the dates regarding the deposit on different dates in the year 2007 and 2008 and the balance 10%  at the time of the offer of the plot. Similarly in Clause7(a) of the Plot Buyer Agreement, it is provided:-“(a)The Promoter shall endeavor to give possession of the plot to the Buyer by 31^st July,2008/14^th January 2009 or on or before the extended period/date, as would be intimated but subject to force majeure circumstances, restrains/restrictions and/or order from any courts/authorities, disputes with contractors/work force etc. and circumstances beyond the control of the promoter and subject to timely payments by the Buyer. The internal development work of the colony shall be as per specification detailed in Annexure-II hereto”. Thus the dates mentioned in the Plot Buyer Agreement are ante the date of the execution of the agreement .The Ops for the reasons best know to them failed to disclose the exact period upto which the possession of the plot agreed to be sold by them to the complainant had to be delivered, which to our mind amounted to an unfair trade practice.
15. Clause 7(b) of the agreement provides: “The Buyer shall be entitled to the possession of the plot only after all the amounts payable by him under this Agreement have been paid. The Promoter on completion of the development work shall issue final call notice to the Buyer, who shall within 30 days thereof, remit all dues and take possession of the Plot and get the Conveyance Deed executed.”
16. The complainant had deposited 90% price of the plot. It is the plea of the complainant that she had deposited a sum of Rs.10,25,000/- with the Ops being 90% of the price of the plot having deposited a sum of Rs.1,75,000/- vide cheque No.004464 dated 30.1.2011, another sum of Rs.1,25,000/-vide cheque No.004465 dated 4.2.211 and a sum of Rs.7,25,000/- vide cheque No.004467 dated 14.3.2011 drawn on Punjab National Bank Manimajra, Chandigarh. The Ops have not come forward to rebut the said plea of the complainant. In case the complainant had already deposited 90%amount of the price of the plot by 14.3.2011, it would mean that she had become entitled to ask for the possession of the plot by the ops but despite the complainant having approached the Ops time and again, they failed to deliver the possession of the plot and rather the Ops vide their letter dated 17^th September,2014,Ex.C9 written to the complainant informed her that the area where plot no.0275 in Parsvnath King City, Rajpura was situate had not been fully developed by that time and if she so desired they could change her plot where development was complete and she could get the plot registered also. It is the plea taken up by the complainant that on receipt of the said letter she sent the reply vide e-mail dated 20.11.2014 but when she failed to receive the reply she had again sent the e-mail dated 1.12.2014 through her husband asking for the refund of the money. Ex.C10 is the e-mail dated 1.12.2014 sent by the husband of the complainant Sh.Som Nath Verma, his e-mail ID number being st December then I am free to approach Honorable Consumer Forum for recovery of amount with damages”. Then, it is the case of the complainant that in response to her said e-mail dated 18.12.2014, the Ops sent e-mail dated 30.12.2014, copy of the same being Ex.C12, whereby the Ops  informed the husband of the complainant that they had some plots in phase-II where they could shift the complainant after approval from their management and the plots available were numbering 0676,0678,0707 and 0709 of 257 sq.yard. Ex.C13 is the e-mail dated January 1,2015 sent by the complainant through her husband to the Ops having informed that the plots offered by them in Phase-II were not at a good location as compared to their plot in Phase-III where plot No.0275 of the complainant was situate and thus, they were unable to deliver the possession of the plot and the offer made by them so as to allot an alternative plot in Phase-II was not accepted by the complainant. Thus, there occurred a violation of the terms and conditions of the Plot Buyer Agreement and rather the Ops practiced an unfair trade practice in that firstly, the Ops failed to specify the exact time within which they had to develop the area wherein plot No.0275 was situate and secondly to develop the plot within a period of three years and five months and in that way they made a misuse of the amount of Rs.10,25,000/- deposited by the complainant.
17. The intention on the part of the Ops to practice unfair trade practice appeared from the very beginning in as much as in the Plot Buyer Agreement,Ex.c1, the Ops intentionally failed to specify the time within which the possession of the plot had to be delivered and rather they made a use of the old format of the agreement and secondly despite having got 90% price of the plot they failed to issue final call notice for remitting the balance price i.e. 10% within 30 days and to take the possession of the plot.
18. It was submitted by Sh.Bipan Sharma, the learned counsel for the complainant that under Section 3(2)(j) of the Punjab Apartment and Property Regulations Act,1995, it is provided that a promoter who develops a colony or who constructs or intends to construct such building of apartments shall:-

(j) Not allow persons to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained” The Ops had not ever applied for the issuance of the occupation certificate from the competent authority under the PAPRA as would appear from the information got by the husband of the complainant under the RTI Act vide letter Ex.C17 dated 16.6.2015 issued by Administrative Officer (Licencing)GMADA, SAS, Nagar concerning King Citi Ext.-3^rd .

19. It was submitted by Sh.Sharma, the learned counsel for the complainant that the Ops in order to harass the complainant sent letter dated 11.5.2015,Ex.C15 having offered possession of plot No.0275 in Parsvnath King Citi”, Rajpura alongwith the final statement of account showing the payment of Rs.10,25,000/-to have been deposited by the complainant and showing a sum of Rs.1,23,126/-to be due , also demanding club membership charges of Rs.50,000/-,service tax  on PLC & Club Membership charges @ 12.36% for Rs.6180/-,water connection charges of Rs.3000/- and sewerage connection charges of Rs.5000/- with interest on delayed payment upto 14.14.2015 of Rs.608/- without caring to see that at that time the Ops had not obtained occupation certificate as required under Section 3(2)(j) of the PAPRA and even in the letter Ex.C15, the Ops failed to disclose that they had obtained the occupation certificate. This was an attempt on the part of the Ops to avoid the refund of the amount deposited by the complainant with interest.
20. Nothing could be said by Sh.Dhiraj Puri, the learned counsel for the Ops.
21. We have considered the submissions and are of the considered view that the Ops practiced an unfair trade practice in having executed the Plot Buyer Agreement Ex.C1, without disclosing the exact time within which the possession of the plot had to be delivered and then despite the complainant having deposited 90% amount of the price of the plot, the Ops failed to deliver the possession of the plot and they further failed to obtain the occupation certificate as required under Section 3(2)(j) of the PAPRA and therefore, the complainant was justified in having demanded the refund of the amount of Rs.10,25,000/- deposited by her with the Ops but the Ops in order to wriggle out their liability issued letter Ex.C15, dated 11.5.2015 and as observed earlier, the Ops could not hand over the possession of the plot without having obtained the occupation certificate under Section 3(2)(j) of the PAPRA and therefore, we are of the considered view that the complainant has got to be refunded the amount deposited by her with the Ops .Accordingly we accept the complaint and direct the Ops to refund the amount of Rs.10,25,000/-deposited by the complainant with the Ops with interest @9% per annum from the date of the deposit till final payment.
22. We can very well understand the harassment, the humiliation and the mental agony experienced by the complainant whose dream to own house has been shattered because of the apathetic attitude of the Ops. In the light of the citation First Appeal No.200 of 2015 titled as M/s Parsvnath Developers Limited Vs. Sh.Devender Shekhar and others, decided on 21.8.2015 by the Hon’ble State Consumer Disputes Redressal Commission UT Chandigarh, wherein the learned District Consumer Forum UT Chandigarh awarded a compensation in a sum of Rs.3lacs because of the harassment and the unfair trade practice adopted by the Ops, we also award the complainant with a compensation in a sum of Rs.3lacs, which is inclusive of the costs of the complaint. The Ops are directed to comply with the order within a period of one month from the receipt of certified copy of the order.

Pronounced

Dated:11.9 .2015

                   Sonia Bansal                 Neelam Gupta                        D.R.Arora

          Member                         Member                                  President