Chandigarh

StateCommission

CC/214/2019

Kartar Singh - Complainant(s)

Versus

Parsvnath Developers Ltd. - Opp.Party(s)

Vivek Singla, Vikas Thakur Adv.

07 Jul 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	214 of 2019
Date of Institution	:	19.09.2019
Date of Decision	:	07.07.2021

 

Kartar Singh aged about 65 years, son of Sh.Dhanpal, resident of House No.3118, Sector 15, Sonepat, Haryana.

…… Complainant

V e r s u s

1. Parsvnath Developers through its Chairman-cum-Managing Director, Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi.
2. The Director, Parsvnath Developers Limited, SCO No.1, Sector 26, Madhya Marg, Chandigarh.
3. Marksmen Facilities Pvt. Ltd., Parsvnath Metro Towers, Near Shahdara Metro Station, Delhi.

…..Opposite parties.

BEFORE:-            JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                             Sh.Vivek Singla, Advocate for the complainant.

                             Sh.Satpal Dhamija, Advocate for opposite parties no.1          and 2.

                             Opposite party No.3 exparte vide order dated       30.10.2019.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT 

                   This complaint has been filed by the complainant seeking refund of amount paid by him, to the tune of Rs.23,72,480/-  to opposite parties no.1 and 2 towards purchase of plot bearing no.0615, measuring 293 square yards, in their project named ‘King Citi’, Rajpura Patiala, Punjab, on the ground that they failed to offer actual physical possession thereof, for dearth of development work and basic amenities. It is the case of the complainant that in the absence of development work and basic amenities, opposite parties no.1 and 2  offered possession of the plot in question vide letter dated 30.10.2013, Annexure C-3, as such, he did not take over the incomplete possession. It has been averred that, on the other hand, opposite parties no.1 and 2 started asking him to get the sale deed executed. Even opposite party no.3 started raising demands towards maintenance charges in the absence of taking over possession of the plot in question. Hence this complaint has been filed by the complainant, seeking directions to the opposite parties to refund the entire amount paid alongwith interest, compensation, litigation expenses etc.

2.           The claim of the complainant has been contested by opposite parties no.1 and 2 on numerous grounds, inter-alia, that this Commission did not vest with pecuniary jurisdiction to entertain and decide this complaint; that no cause of action accrued to the complainant to file this complaint; that this complaint is not maintainable before this Commission, proceedings before which are summary in nature, as complicated questions of facts and law are involved in this case; that only civil court can entertain this complaint; that the complainant  being investor did not fall within the definition of consumer; that possession of the plot in question, complete in all respects, was offered to the complainant, vide letter dated 30.10.2013 but he failed to take over the same and also failed to get register the sale deed, despite the fact that reminder in that regard was also sent to him; that he was defaulter in making payment towards registration charges of the said plot; that the present complaint is not maintainable as it was a sale of land/plot only and not a flat; that the complaint filed is barred by limitation; that no illegal demand of amount was ever raised by the opposite parties; that opposite party no.3 being maintenance agency was providing services relating to security, housekeeping etc. within the project in question, as such, maintenance charges were rightly demanded from the complainant. Remaining averments have been denied being wrong. Prayer has been made to dismiss the complaint with cost. 
3.           None put in appearance on behalf of opposite party no.3, as a result whereof, it was proceeded against exparte vide order dated 30.10.2019.
4.            In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those of the written reply filed by opposite parties no.1 and 2.
5.           The contesting parties led evidence in support of their case. The complainant filed written arguments and Counsel for opposite parties no.1 and 2 submitted that the written statement filed by him on behalf of  opposite parties no.1 and 2, be treated as their written arguments also.
6.           We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments filed by the complainant, very carefully.
7.           First, we will deal with the objection taken by opposite parties no.1 and 2, to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence; as such, the onus shifts to opposite parties no.1 and 2 to establish that the complainant has purchased the plot in question to indulge in ‘purchase and sale of plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but they failed to discharge their onus. Since, they failed to do so, hence we hold that the complainant falls under the definition of consumer, defined under the Act. In this view of the matter, objection taken by opposite parties no.1 and 2 stands rejected. 
8.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the plot in dispute i.e. Rs.23,72,480/-; plus other reliefs claimed i.e. interest on the deposited amount; compensation for mental agony and harassment etc., are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has pecuniary Jurisdiction to entertain and decide this complaint, as per CPA 1986, under which this complaint has been filed. Thus, the objection taken by opposite parties no.1 and 2 in this regard, stands rejected.
9.           There is no dispute with regard to the fact that the complainant had paid the entire sale consideration of Rs.23,72,480/-  to opposite parties no.1 and 2, towards purchase of the plot in question, in the project aforesaid. It has also not been disputed that when possession of the said plot was offered to the complainant vide letter dated 30.10.2013, the same was not taken over by him.

                   At the time of arguments, Counsel for the complainant contended with vehemence that since possession so offered vide letter dated 30.10.2013, was a paper possession, as the same was offered in the absence of development work and basic amenities, as such, the complainant was not obliged to take over the same.

                   On the other hand, Counsel for opposite parties no.1 and 2 contended with vehemence that when possession of the plot in question was offered, the project was complete in all respects, yet, the complainant failed to take over the same, despite sending reminder to him, in the matter.

10.           Thus, at this stage, the moot question which needs to be decided by this Commission is, as to whether, possession of the plot in question, so offered vide letter dated 30.10.2013 was a genuine one. It is significant to mention here that to prove his case that there was no development at the project site, the complainant has placed on record photographs Annexure C-5 colly. of the project  site, which show that the project is as good as a jungle and in no way it can be said to be habitable. On the other hand, opposite parties no.1 and 2 have failed to place on record any evidence to challenge the said photographs. It may be stated here that 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. As stated above, it is very strange that in the present case not even an iota of evidence has been placed on record by opposite parties no.1 and 2 to prove that development works and basic amenities were completed at the project site, in the year 2013. In case, the development/construction activities were undertaken and completed at the project site by October 2013 or even thereafter, then it was for opposite parties no.1 and 2, 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 completed at the site or not but they failed to do so. During pendency of this complaint also, this Commission vide order dated 23.09.2019, directed the opposite parties to produce on record the following documents, duly authenticated, to apprise it, as to whether, the Company was competent to launch the project and sell units/plots therein to the general public including the complainant or not:-

1. “Registration Certificate of the project with the competent authority.
2. Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
3. Change of Land Use (CLU) pertaining to the project in question.
4. Letter of Intent (LOI).
5. Copy of approved site plan of the project.
6. Completion Certificate of the project.
7. Latest photographs of the site/unit in dispute.
8. Current list of Managing Director/Director(s) of the Company.
9. Detail of Bank Accounts of the Company.
10. List of properties both moveable and immoveable of the company and its Managing Director/Director(s) which can be attached in execution of the decree. ”

 

However,  it is significant to mention here that even thereafter also during pendency of this complaint, despite the fact that number of opportunities were available with the opposite parties to place on record the aforesaid documents, yet, they failed to furnish the same for the reasons best known to them. Under these circumstances, we are of the considered view that by not placing on record the aforesaid documents, the opposite parties have attracted an adverse inference that the project in question had been launched by them in contravention of the relevant Rules and  Regulations and also Punjab Apartment and Property Regulation Act, 1995 i.e. they have failed to obtain necessary approvals/sanctions for launching the said project and selling the units/plots therein to the prospective buyers.

11.            Not only as above, it is settled law that before offering possession of the residential unit/plot, the builder/development is legally bound to obtain completion certificate from the competent authorities. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the completion certificate. It was so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

 

12.           The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

 

13.           Furthermore, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificate from the competent authority, which reads as under:

14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

 

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."

14.           However, in the present case, no completion certificate, if any, issued by the competent authority has been produced by opposite parties no.1 and 2 on the record, which itself is violation of above reproduced Section 14 of PAPRA. Even till the date of arguments in this complaint, no completion certificate has been produced before this Commission. Thus, in view of the law laid down by the Hon'ble National Commission in the above noted authorities, without issuance of such a certificate by the competent authority, opposite parties no.1 and 2 cannot be said to be in a legal position to hand over possession of the unit, in question, to the complainant.

                   Thus, in view of findings given above, we are of the considered opinion that in the absence of any evidence to prove that the project in question was complete in all respects by October 2013 and also in the absence of any completion certificate, it can safely be said that the possession so offered vide letter dated 30.10.2013, was nothing but a paper possession, which is not sustainable in the eyes of law and is accordingly quashed. It is therefore held that the complainant was not obliged to take over the said incomplete possession and was also right in not getting the sale deed executed in respect of the plot in question. Plea taken by opposite parties no.1 and 2, in this regard stands rejected.  

15.           As far as objection taken by opposite parties no.1 and 2 to the effect that since it was only a sale of plot and not a flat, therefore this consumer complaint is not maintainable, it may be stated here that the Hon’ble Supreme Court of India in in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), has clearly held that even the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services, what to speak of private builders like the opposite parties. Relevant part of Haryana Agricultural Marketing Board’s case (supra) is reproduced hereunder:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder:

 

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

16.           In the present case also, since the opposite parties had received the entire sale consideration from the complainant towards the plot in question and they were to provide possession of the said plot, after developing the project in question, including the basic amenities as provided in the agreement, the nature of such transaction is covered by the expression ‘service’. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description.
17.           Furthermore, because, as stated above, opposite parties no.1 and 2 have failed to prove on record that genuine possession of the plot in question was offered to the complainant and, on the other hand, it has been proved to be a paper possession, as such, it can very well be said that there is a denial  of service to the complainant on the part of the opposite parties no.1 and 2. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993,  wherein the Hon’ble Supreme Court held that where the developer is at fault in not delivering possession of a property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. Objection taken by opposite parties no.1 and 2 in this regard, as such, stands rejected.  
18.           From the peculiar circumstances of this case, it has been proved that opposite parties no.1 and 2 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 opposite parties no.1 and 2 and suffered financial loss, mental agony and physical harassment. Representations/ statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the transaction in question, and by not honouring the commitments made, the said act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 and 2.
19.           As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it has been proved on record that actual physical possession of the plot in question has not been offered and delivered to the complainant, even by the date when this complaint had been filed before this Commission or thereafter, for dearth of development activities and basic amenities, and also completion certificate, as explained above, as such, objection taken with regard to limitation is not sustainable in view of principle 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 possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer.  In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay

                   Furthermore, since, opposite parties no.1 and 2 are still utilizing the amount paid by the complainant and have not refunded the same; in that event there is a continuing cause of action in his favour, in view of observations made by the Hon’ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016, in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount.  

20.           At the same time, since in the present case, neither  the payments made by the complainant, in respect of the plot in question, are disputed nor the documents placed on record by him are disputed; nor there is any documentary evidence, wherefrom it can be proved that any fraud or cheating has been done by him with opposite parties no.1 and 2, as such, it is held that there are no complicated questions of facts and law involved in this complaint. It is a simple case of non-offer and non-delivery of actual physical possession of the plot in question by opposite parties no.1 and 2 to the complainant, despite the fact that entire sale consideration stood paid by him, and, on the other hand, offering of paper possession by the company,  in the absence of development activities, basic amenities and also completion certificate, has caused financial loss, mental agony and harassment to the complainant. In this view of the matter, this Commission is competent to decide this complaint and the same cannot be relegated to the civil court. Objection taken by opposite parties no.1 and 2 in this regard therefore stands rejected. 
21.           As far as plea taken by opposite parties no.1 and 2 to the effect that  the complainant is a defaulter, it may be stated here that in our considered opinion, when the complainant saw that paper possession has been offered to him by opposite parties no.1 and 2 and the project was not habitable, he was right in not taking over paper possession and making payment of stamp duty charges for getting the sale deed registered. In this view of the matter, the complainant cannot be termed as defaulter. Plea taken by opposite parties no.1 and 2 in this regard stands rejected.
22.           For the reasons recorded above, this complaint is partly accepted with costs and opposite parties no.1 and 2, jointly and severally, are directed as under:-

1. To refund the amount of Rs.23,72,480/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.23,72,480/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

           

23.           Complaint against opposite party no.3 is dismissed with no order as to cost. However, all the demand letters sent to the complainant by opposite party no.3, towards maintenance charges are ordered to be quashed.   
24.           It is made clear that in case the complainant has availed housing loan from any Bank(s)/financial institution(s) for making payment towards price of the plot in question, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.  
25.           Certified Copies of this order be sent to the parties, free of charge.
26.           The file be consigned to Record Room, after completion.

07.07.2021

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg