DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.258 of 2017

                                                 Date of institution:  31.03.2017                                                         Date of decision   :  04.04.2018

Smt. Amrit Pal Khabre wife of Gurpreet Singh Khabre, resident of  # 206, Phase-11, Mohali through SPA Shri Ashutosh Hoshiarpuri son of Shri OP Hoshiarpuri, resident of # 1, Sector 4, Chandigarh.

…….Complainant

Vs

1.     Preet Land Promoters & Developers Private Ltd., through its Director, office at Sector 86, Adjacent to Sector 79, Mohali, SAS Nagar.

2.     The Akash Co-operative House Building Society Ltd., through its Secretary, Office at SCO 672, Basement, Sector 70, SAS Nagar, Mohali.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Anshuman Narula, counsel for complainant.

                Shri K.S. Lang, counsel for OP No.1.

                Shri Gurinder Singh, counsel for OP No.2

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, an NRI settled with family in Toronto Canada, has filed the present complaint through her family friend Shri Ashutosh Hoshiarpuri, in whose favour Special Power of Attorney has been executed. Complainant entered into agreement with OP No.1 for purchase of 8 Marla plot in Sector 86, Mohali and thereafter became permanent member of OP No.2 on 23.04.2009, after depositing membership fee and the  land cost. Allotment letter was duly issued in favour of complainant on 19.07.2010, as per which physical possession of the plot was to be handed over to complainant within 2-3 years.  Complainant claims to have deposited following payments including the land cost, development charges etc.:-

        Date of Deposit                Amount Deposited

        23.04.2009                       Rs.4,60,000/-

        23.04.2009                       Rs.5,110/-

        23.04.2009                       Rs.25,000/-

        27.04.2009                       Rs.1,00,000/-

        02.06.2009                       Rs.1,00,000/-           

        16.07.2009                       Rs.1,00,000/-

        27.01.2011                       Rs.1,00,000/-

        30.06.2011                       Rs.1,70,000/-

        Total:                               Rs.10,60,110/-

                So total amount of Rs.10,60,110/- alleged to be deposited by the complainant with the OPs. After receipt of full and final payment, OP No.1 executed agreement for possession dated 03.07.2014. Plot No.137 was allotted to the complainant and OP No.1 acknowledged total payment of the plot. OP No.1, however, handed over paper possession of plot No.137 to complainant vide document dated 03.07.2014. Size of the plot was reduced to 180 Sq. yards from the original size of 200 Sq. Yards. Complainant claims to have remained in India for two months specifically for getting possession of the plot in question, but OPs failed to deliver possession of the same without assigning any reason. Possession not delivered as per terms of allotment letter dated 19.07.2010 and as such by pleading deficiency in service on the part of OPs, and by claiming that the complainant has suffered mental harassment and agony, prayer made for directing OPs to hand over physical possession of plot No.137, measuring 8 marlas  to the complainant. Even directions sought to OPs to pay compensation of Rs.5.00 lakhs for causing harassment and agony. In the alternative, payer made for delivery of possession of alternate site in lieu of plot No.137.

2.             In reply submitted by OP No.1, it is pleaded inter alia as if complaint not maintainable; complaint barred by limitation; complainant has concealed true facts; complainant has no cause of action against OP No.1 and even complainant has no locus standi to file the present complaint. Complaint alleged to be filed on the basis of misrepresentation for harassing OP No.1. Complainant has not entered into agreement with OP No.1 for purchase of plot in question, but she became member of OP No.2 society as is obvious from payment receipts and the issued share certificate. OP No.2 society is in existence and having independent identity from OP No.1. OP No.2 offered plots on basis of no profit no loss to its members. Every member of society is liable for loss and profit of the society. Society has no source of income except the contributions from its members as per their shares in the society. OP No.2 gave its land to OP No.1 for developing the same and allot the plots to society members. Land of OP No.2 is lying in different parcels and as such it is difficult for OPs to collect the land of OP No.2 at one place and develop the same. On account of all this and for some other reasons, which are beyond the control of OP No.1, the later is facing technical difficulties in allotment of plots to members of OP No.2. Letter dated 14.10.2016 was issued by OP No.1 to complainant for requesting her to wait for possession of plot or in the alternative to have refund of the deposited amount. In case development works to be carried out, then OP No.1 needs funds for this purpose, collection of which required from society members. If members of the society do not pay pending dues in time to OPs, then it is not possible for OP No.1 to meet the expenses for development of the society because it is not getting any profit or rent from the land of society. OP No.1 is spending more amounts for society than the funds collected from the members of the society. As per clause 3 of the allotment letter dated 19.7.2010, balance amount of development charges of the plot can either be paid in lump sum without interest or in three equal half yearly installments. As per clause 5 of this allotment letter no separate notice will be sent for payment of half yearly installments, but payments have to be made in accordance with the schedule mentioned in the allotment letter itself.  It is claimed that complainant has not paid the whole amount in time to OP No.1 and as such she cannot get benefit of her own wrong. Sewerage, water pipes, electricity lines and roads are already lying in the sector of OP No.1. Members who had already paid full installments as per terms and conditions of the allotment letters without delay, have got possession of their plots and some of them have raised the construction of their houses and thereafter residing with the their families for enjoying those houses. OP No.1 is just an agent of OP No.2 for purpose of developing and allotting the plots. Complainant is alleged to have invested the amount in this sector as an investor for getting profit. However, due to recession in the property business now, complainant does not want to continue to go with the purchase of property. Complainant claimed many times that she has lost in this investment with OPs due to recession in the property business and that is why she has filed the false complaint. As per clause 18 of the agreement, it was settled between the parties that no suit or legal proceedings shall be instituted against OP No.1 unless and until two months notice given to OP No.1 for this purpose. Complainant herself violated this clause by filing this complaint.

3.             OP No.2 filed separate reply by pleading inter alia as if the complaint not maintainable in this Forum; complainant has not approached this Forum with clean hands because she has suppressed true facts; complaint alleged to be filed for harassing OP No.2 without any cause of action; complainant alleged to be having no locus standi to file this complaint. Moreover, it is claimed that complainant is member of OP No.2 society. After going through the complaint, it is admitted as if complainant has share upto 8 marlas of land. Complaint alleged to be not verified and nor the same alleged to be annexed with an affidavit. It is denied that Shri Ashutosh Hoshiarpuri is conversant with the facts of the case. OP No.2 Cooperative House Building Society has its office at Mohali. This society is run on no profit no loss basis. OP No.2 is having separate legal entity and it gave its land for development and allotment of plots to OP No.1. If the land is short for allotment of plots to members of society, then OP No.1 to purchase land for developing the same and allot plots to members of OP No.2. Payments alleged in the complaint admitted except the amount of Rs.25,000/- alleged to be deposited on 23.04.2009. It is claimed that no receipt regarding deposit of Rs.25,000/- produced and that complainant failed to prove deposit of this amount of Rs.25,000/-. There is no deficiency in service on part of OP No.2. Each and every other averment of complaint denied.

4.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of Shri Ashutosh Hoshiarpuri, attorney of complainant alongwith documents Ex.C-1 to Ex.C-14 and thereafter closed evidence.  On the other hand, counsel for OP No.2 tendered in evidence affidavit Ex.OP-1/1 of Shri Balbir Singh, authorised representative alongwith documents Ex.OP-2/1 and Ex.OP-2/2 and then closed evidence. Counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Charan Singh Saini, Director of OP No.1 and then tendered in evidence documents Ex.OP-1/2 to Ex.OP-1/8 and thereafter closed evidence.

5.             Written arguments in this case submitted by complainant as well as by OP No.1, but not by OP No.2. Oral arguments of counsel for the parties heard and records gone through.

6.             Undisputedly complainant is member of OP No.2 society and the same fact is even borne from copy of certificate of registration Ex.C-1. Perusal of Ex.C-1 reveals that complainant holds share to extent of 8 marlas of plot in OP No.2. She was allotted plot No.292 measuring 8 marlas approximately in Sector 86, SAS Nagar, Mohali as revealed by contents of allotment letter Ex.C-2 dated 19.07.2010. Exact size of the plot is subject to variation as per actual measurements at the time of delivery of possession is a fact borne from contents of Ex.C-2 itself. All payments through bank drafts to be made in favour of OP No.1 as per Clause-4 of Ex.C-2. Payment by cheque/cash is not to be accepted as per Clause-4 of Ex.C-2 itself. So in view of this specific Clause-4 of Ex.C-2, it has to be held that only those payments to be accepted to be made by complainant to OP No.1, as were made through bank drafts and not of any other means. All other payments except amount of Rs.25,000/- alleged to be deposited by complainant on 23.04.2009 has been admitted to be received by OP No.2 in its reply. The same fact is borne from copies of receipts produced on record as Ex.C-3 to Ex.C-9 and copy of cheque Ex.C-10. Even through agreement for possession Ex.C-11 arrived at between complainant and OP No.1, it is acknowledged as if amount of Rs.4,60,000/- paid as land cost for plot No.137 by complainant in addition to amount of Rs.5,70,000/- paid as tentative EDC/licence fee and development fund etc. At Page-2 of Ex.C-11 itself it is mentioned as if these amount of Rs.4,60,000/- and Rs.5,70,000/- acknowledged to be received by OP No.1 from complainant. So virtually amount of Rs.10,30,000/- has been acknowledged to be received by OP No.1 from complainant through this agreement for possession Ex.C-11. No receipt produced by complainant to show deposit of Rs.25,000/- on 23.04.2009 by her with OP No.1 or OP No.2. When confronted with this position, counsel for complainant claimed that amount of Rs.25,000/- was paid in cash. However, as already referred above, while referring to Clause-4 of Ex.C-2, payments through bank drafts alone to be made and as such it is obvious that virtually complainant failed to prove that she deposited Rs.25,000/- on 23.04.2009. In view of fault of complainant to establish that she deposited Rs.25,000/- on 23.04.2009,  it has to be held that this amount actually has not been deposited by complainant with any of the OPs. As and when a society is floated then its rules and bye laws are formulated. Copy of those bye laws are produced on record as Ex.OP-2/2. Accounts of the society are subject to audit by auditors and as such certainly OP No.2 will not accept any amount in cash and nor complainant will pay the same in cash until receipt is issued for the same.  Ledger, cash book, proceeding book, register of sureties and stocks etc. are to be maintained by OP No.2 society as per Clause-42 of Ex.OP-2/2. Moreover, as per this Clause-42, a passbook for each member and depositor is to be issued. However, no copy of such pass book by complainant as member of the society is produced. So plea of cash payment of Rs.25,000/- is not believable, more so when specific plea in this respect not taken in the complaint or in the supporting affidavit of attorney of complainant.

7.             Even if complainant able to prove by way of admission of OPs about deposit of the mentioned amounts except amount of Rs.25,000/- on date 23.04.2009, despite that she can get physical possession of the plot No.137 measuring 8 marlas only as per terms and conditions of the allotment letter or the agreement for possession only. Certainly after going through Clause-6 of allotment letter Ex.C-2 dated 19.07.2010, it is made out that on payment of entire consideration with due interest, the allottee shall execute the deed of conveyance in the prescribed form and thereafter he will be offered to have possession of the site after development of whole sector, which may take approximately 2-3 years. In view of this Clause-6 of Ex.C-2, it is vehemently contended by counsel for complainant that complainant was entitled to have possession of the site by 18.07.2013. That submission of counsel for complainant again has no force because in Clause-6 itself it is specifically mentioned that offer for possession of the plot to be given to complainant only after development of the whole sector, which may approximately be completed within 2-3 years. So, approximate time of 2-3 years alone was granted through Clause-6 of Ex.C-2. Moreover, only on development of whole sector, possession of the site of plot No.292 was to be offered to complainant. Further as per Clause-7 of Ex.C-2, if during demarcation or at any other stage after allotment, the area of the said plot is found to be under litigation, or development could not be done due to litigation, or possession delayed due to litigation, or any other reason, then in that case either the allottee (complainant) has to wait for possession of the plot till some decision is taken by competent authority and the development works are completed in the  pocket in which the plot falls or he/she can seek refund of the amount paid upto that date with interest @ 12% per annum.  It is mentioned in Clause-7 of Ex.C-2 itself that in either case the allottee will not have right to claim alternative plot. Likewise in agreement for possession Ex.C-11 arrived at between complainant and OP No.1, it is mentioned in Clause-4 that during development of the project or at any other stage after the allotment is made, if the area of the site project/plot is found under litigation, or development is delayed due to litigation or any other reason, then in that case the allottee shall have to either wait till the time some decision is taken by competent authority  and the development works are completed or he/she can seek refund of the amount paid upto that date with interest of 12% per annum. Further as per Clause-4 of Ex.C-11 itself, in either case the allottee shall not have any right to claim any alternative plot. So joint reading of Clause-7 of Ex.C-2 and Clause-4 of Ex.C-11, unequivocally lays that the allottee will have no right to claim alternative plot. So claim for alternative plot put forth through complaint or written submissions or oral submissions of complainant is not sustainable as per terms and conditions of the allotment letter Ex.C-2 and agreement for possession Ex.C-11. Whatever is not provided by terms reduced into writing between the parties, the same relief cannot be granted. So certainly relief for allotment of alternative plot cannot be granted in these proceedings at all because of the specific prohibition laid down in Clause-7 of Ex.C-2 and Clause-4 of Ex.C-11.

10.           Undisputedly paper possession was handed over to complainant by OP No.1 on 03.06.2014 through writing Ex.C-12 and as such virtually acknowledged reduction of size of plot of 200 sq. yards to 180 sq. yards too place through document Ex.C-12. This Ex.C-12 was executed in pursuance of agreement for possession Ex.C-11 and as such virtually both the parties agreed for change of terms and conditions of allotment letter Ex.C-2. In view of this consensus between complainant and OP No.1 arrived at through agreement Ex.C-11, now complainant can base her claim for actual physical possession only as per terms of Ex.C-11, latest agreement in line. Clause-17 of Ex.C-11 reads as under:

“Further allottee(s) hereby agrees and accepts that he/she/they is/are well aware of the following pending issues/works and shall wait for their provision/settlement and shall not approach any “Higher Authority” or “Law of Court” against GMADA or the company in any manner for their non provision and the present possession of residential plot is being given to him at his/her/their request. These issues are-:

(a)    Approval of revised Layout Plan and Zonal planning of Sector 86 from CTP/GMADA.

(b)    Road connectivity to Project site at Sector 86 and thus subsequent affected storm water line and sewerage line outlet of Sector 86 with the main sewerage line of GMADA at 85 & 86 Dividing Road.

(c)    Provision of Electricity sub station/connection for the residential plots by the PSPCL/GMADA, as applicable.

(d)    Internal ongoing development work at few patches related to laying of sewerage/storm water lines, water pipe lines, erection of electricity connections etc.

(e)    Clearance of reserved Plots affected by Revenue Pathways (Rasta) etc. till the time subject land is acquired by the Company after completion of necessary formalities with the Govt. of Punjab/GMADA/Competent authority.

(f)     However, the company will not have any objection if the allottee (s) makes his/her/their own arrangements for the said facilities and in that case company will issue a “No Objection” certificate to him/her/them.

11.           After going through this Clause-17 it is made out that complainant was made aware about the pending issues/works. Further complainant through clause-17 of Ex.C-11 itself was made aware that she will have to wait for possession till the pending issues settled by authorities concerned. All this have not been settled till date as revealed by produced documents on record as Ex.OP-1/3 to Ex.OP-1/8 and as such certainly fault does not lay with OP No.1 or OP No.2 in completing the project.

14.           Ex.OP-1/3 is sanction order regarding change of land use obtained by OP No.1 from Govt. of Punjab for developing the project in question in Sector 86. Ex.OP-1/4 shows that OP No.1 obtained sanction from Govt. of Punjab for setting up residential project in question alongwith projects in Sector 85 and 87 of SAS Nagar. Ex.OP-1/5 is NOC obtained by OP No.1 from GMADA regarding sewerage connection and solid waste disposal arrangements. In Ex.OP-1/5 it is specifically mentioned that OP No.1 will have to make its own arrangement for treatment and disposal of sewage generated till the time requisite infrastructure is provided by GMADA. In Ex.OP-1/5 itself it is mentioned that GMADA has formulated a proposal for laying outfall sewer and the sewage load of present project of OP No.1 in Sector 86. Further contents of Ex.OP-1/6 dated 22.08.2014 establishes that OP No.1 was informed by GMADA as if water supply network in the project in question has not been laid, but OP No.1 can make its own arrangement for drinking water supply till the time requisite infrastructure is provided by GMADA. Ex.OP-1/7 is the revised NOC of electricity connection got released by OP No.1 from PSPCL. Further Ex.OP-1/8 is approval got by OP No.1 regarding the project in question from Chief Town Planner, PUDA regarding the project in question. Sanction regarding rain water harvesting and solar water heating system etc. was granted subject to conditions mentioned in Ex.OP-1/8. Perusal of this document reveals that OP No.1 had been taking steps for getting the requisite approvals/sanctions from GMADA/PSPCL and other authorities for developing the sector in question.  However, those sanctions yet to be received finally and that is why OP No.1 through letter Ex.OP-1/2 informed complainant as if full clearance in all respects due to unavoidable technical reasons and circumstances beyond control of OP No.1 could not be obtained. Through this letter Ex.OP-1/2 dated 14.10.2016, complainant even was informed that OP No.1 is trying its best to get the approvals/sanctions obtained from the Govt. authorities as early as possible. In this letter Ex.OP-1/2 it is mentioned that complainant should wait for some more time, but in case she  cannot wait, then OP No.1 ready to refund the entire deposited amount. Contents of letter Ex.OP-1/2 are not incorrect because as already referred above, OP No.1 had been taking steps for getting requisite approvals/sanctions from GMADA and other authorities. In view of specific terms of Ex.C-2 and Ex.C-11, complainant has to wait till development works are carried out in the project in question. Complainant is not aspiring for refund of the paid amount with interest at rate of 12% per annum as per Clause-7 of Ex.C-2 or Clause-4 of Ex.C-11 and the alternative plot cannot be allotted to her because of specific bar of these clauses and as such the only remedy available with complainant is to wait till decision is taken by competent authorities regarding pending development works.

12.           After going through Clause-17 (f) of Ex.C-11 it is made out that OP No.1 company has no objection, if the allottee makes his/her own arrangement for facilities shortlisted in sub clause (a) to (c) of Clause-17 of Ex.C-11 and as such if complainant willing to make her own arrangement regarding sewerage and water pipe lines or electricity connection, then and only then she can seek no objection certificate from OP No.1. Such certificate is not sought by complainant from OP No.1 as per sub clause (f) of Clause-17 of Ex.C-11 and as such the complainant has to wait till shortfall of the development works approved by Governmental authorities including GMADA.

13.           After going through Clause-1 of agreement for possession Ex.C-11, it is made out that OP No.2 society has transferred the land in the project in question to OP No.1 for development of area and allotment of residential plots to its members.  In view of this responsibility of allotment of plots and of development of area is of OP No.1 and that is why OP No.1 through Ex.C-11 arrived at with complainant, allotted Plot No.137 after acknowledging receipt of Rs.10,30,000/-, but subject to terms and conditions contained therein. After going through bye laws 14 (iv) of OP No.2 society, produced on record as Ex.OP-2/2, it is made out that the society to raise funds by way of accumulation of profits. Such funds even may be generated by issue of shares of value of Rs.100/- each or by acceptance of deposits from the members and non members or by raising loans etc. So certainly submissions advanced by counsel for OP No.2 has force that OP No.2 after collecting the deposits from members alone can hand over the development charges to OP No.1. As actual physical delivery of possession not possible because of pending development works regarding which request for sanction/approval has already been submitted and as such by keeping in view specific terms of agreement between complainant and OP No.1, as referred above, it has to be held that OPs have not rendered deficient services at all, more so when OP No.1 is taking steps by contacting the authorities concerned for getting requisite sanctions/approvals.

14.           As a sequel of above discussion, the complaint merits dismissal and the same is hereby is dismissed without any order as to costs. Certified copies of the order be supplied to the parties free of costs as per rules.   File be indexed and consigned to record room.

Announced

April 04, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member