Chandigarh

StateCommission

CC/72/2015

Bhushan Sood - Complainant(s)

Versus

PUMA Realtors Pvt. Ltd. - Opp.Party(s)

Sanjeev Sharma, Adv.

22 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

                                   

Consumer Complaint No.	72 of 2015
Date of Institution	16.04.2015
Date of Decision	22/06/2015

 

Bhushan Sood son of Sh.Bhagwant Lal resident of H.No.A5-102, Nirmal Chhaya Tower, VIP Road, Zirakpur, Mohali.

 

….…Complainant

 

V E R S U S

 

1. Puma Realtors Pvt. Ltd., a Company Incorporated under the Companies Act 1956 (An IREO Ground Company) having its Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh 160009 (India) through its Managing Director.

 

2. The Managing Director, Puma Realtors Pvt. Ltd., a Company Incorporated under the Companies Act 1956 (An IREO Ground Company) having its Registered Office at No.5, Dhanraj Chambers, 1st floor, Satbari, New Delhi 110074.

.….. Opposite Parties

 

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

       

Argued by:   

 

Sh.Sanjeev Sharma, Advocate for the complainant.

Sh.Ramnik Gupta, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

              In brief, the facts of the case are that the Opposite Parties had launched the project by the name of “IREO HAMLET PROJECT” in Sector 98, Mohali, Punjab, whereby, they had propagated to provide residential space, the epitome of distinctive style and assured high quality of residential complex. The complainant, who was looking for a decent residential plot at Mohali, got allured by the advertisement and promotions of the Opposite Parties regarding the project and, as such, he booked a residential plot in their project and also paid a sum of Rs.6,50,000/- vide cheque dated 26.05.2011. It was stated that the Opposite Parties provisionally allotted  Plot No.265, measuring 307.77 sq. ft. in Sector 98, Mohali, for a total sum of Rs.76,94,250/- to the complainant vide provisional allotment letter dated 26.05.2011 (Annexure C-1) and he (complainant) opted for the Time Linked Payment Plan. After the provisional allotment, the Opposite Parties further raised a demand and, as such, the complainant paid a sum of Rs.5,04,138/- vide cheque No.039524 drawn on Allahabad Bank, Mohali. It was further stated that the Agreement was executed between the parties at Chandigarh on 01.07.2011. However, while signing the Agreement, the Opposite Parties unilaterally changed the payment plan and made it Construction Linked and when the complainant protested, they threatened to forfeit the entire money deposited by him. It was further stated that the Opposite Parties assured to complete the project and hand over possession within 24 months from the date of signing of the Agreement i.e. 01.07.2011. Further, the Opposite Parties assured that the complainant need not pay any further amount till the development of the project started and he had no option but to accede their unfair and illegal tactics.

2.           It was further stated that at the time of execution of Buyer Agreement, the complainant inquired from the Opposite Parties about the requisite permissions/approvals, layout plans, availability of water and electricity connections and they verbally assured that they got all the permissions/approvals for the project and also assured to get completion certificate and hand over possession before December, 2013. It was further stated that the complainant got suspicious about the conduct of the Opposite Parties and visited the site, in question, on 12.01.2013, wherein, the plot was allotted and found that there was no approach/connecting roads, proper internal roads, water and drainage system and street lights/poles. There was not even a semblance of any development being carried out at the project. The land at the site was filled with pits, ditches and the area was inundated with water and there was no likelihood of possession being offered in the near future also. Thereafter, the complainant received a letter dated 22.01.2013 (Annexure C-3) from the Opposite Parties, vide which, they cancelled the allotment and illegally forfeited the entire payment made by him, without actually even starting the development after a period of 2 years from the allotment. The complainant was told by the Opposite Parties that in case he wanted the revocation of cancellation, he was to pay the amount of Rs.12,90,717/- towards due amount and delayed payment interest calculated @20% amounting to Rs.3,66,477/-, which was duly paid by him alongwith service tax of Rs.4755/- and the plot was restored vide letter dated 04.02.2013 (Annexure C-4). At the time of restoration, the Opposite Parties asked the complainant to hand over the original Buyer Agreement dated 01.07.2011 and they would return the same after endorsing on it regarding the restoration of the plot but they did not return the said Agreement, despite repeated requests. It was further stated that the Opposite Parties adopted unfair trade practice and deceptive practice by handing over to the complainant a new Agreement dated 12.02.2013.   The Opposite Parties further raised a demand, for which, the complainant made the payment of Rs.9,00,000/- on 28.05.2013. The Opposite Parties again asked vide letter dated 12.07.2013 (Annexure C-5) for payment of amount without starting any development at the project site, and he made the payment of Rs.3,95,473/- to them.

3. It was further stated that the complainant requested the Opposite Parties for the statement of account, which was duly supplied by them vide (Annexure C-6), wherein, it was shown that he had paid a sum of Rs.37,45,084/- out of the demanded amount of Rs.50,40,557/- and further paid a sum of Rs.3,66,477/- as delayed interest @20% for delayed payment, as such, he paid a total sum of Rs.41,11,560/- to the Opposite Parties. The complainant claimed the deposited amount alongwith interest from the Opposite Parties, as they failed to complete the project and handover possession of the plot to him. It was further stated that the complainant failed to return the Agreement dated 01.07.2011 and sent a new Agreement dated 12.02.2013 (Annexure C-9), which was not binding on the parties, as the earlier/original Buyer Agreement was never cancelled. Ultimately, the complainant sent a legal notice dated 16.02.2015 (Annexure C-8) to the Opposite Parties to refund the amount but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

4.           In their written statement, the Opposite Parties, took-up certain preliminary objections, to the effect that the complaint was liable to be dismissed due to existence of arbitration clause No.33 in the Plot Buyer’s Agreement dated 12.02.2013; that the complainant was not a consumer as the present complaint related to an agreement to sell/purchase of a residential plot i.e. an immoveable property and hence, was not covered under the Act; that the complainant did not hire any services of the Opposite Parties as the parties did not enter into any contract for hiring of the services; that the complainant did not book the plot for his personal use but for investment/commercial purposes; that the allegations in the complaint being of contractual nature, were only triable in a Civil Court and that this Commission has no jurisdiction to entertain and try the complaint.

5.           On merits, it was denied that the complainant was allured by the advertisements and promotions made by the Opposite Parties, as alleged by him. It was stated that the complainant examined all the documents with respect to the title, approvals, sanctions, layout plan etc. and authority of the Opposite Party. After satisfying himself about all the aspects of the project, he exercised his own discretion to apply for the plot, in question. It was further stated that the complainant vide recital No.’K’ of the said Agreement himself represented that he was not influenced by any kind of sales brochures, advertisements, representations, warranties etc. and he had relied upon his own independent investigations while deciding to purchase the plot, in question. It was denied that at the time of submitting the application for booking, the complainant was assured that the development activity at the site had started in full swing and possession would be handed over within a period of 2 years. It was admitted that the complainant was provisionally allotted Plot No.265, in their project but it was specifically stated that besides the amount of basic sale price, PLC, EDC, IFMS charges towards stamp duty, registration charges and the Government taxes/levies were also agreed to be paid by him as per Clause 3 of the Agreement. It was further stated that the Opposite Parties offered change of payment plan to all of their allottees including the complainant from ‘Time Linked Payment Plan’ to ‘Development Linked Payment Plan’ vide its letter dated 26.9.2011 and the Development Linked Payment Plan was annexed as Schedule-I.  It was further stated that possession was earlier agreed to be handed over within a period of 24 months from the date of execution of the Plot Buyer’s Agreement dated 01.07.2011 and besides the aforesaid period of 24 months, they were further entitled to a further period of 6 months as grace period and, thereafter, compensation for delay was agreed to be paid to the complainant, after the expiry of extended period of 12 months. It was further stated that the Opposite Parties had been granted exemption from the provisions of the Punjab Apartment and Property Regulation Act, 1995 by the Government of Punjab vide notification dated 14.08.2008 (Annexure OP-7).

6.           It was further stated that the complainant failed to make the payment of the demand raised vide demand note dated 29.07.2011 with respect to 2nd installment followed by 1st reminder dated 29.08.2011 and 2nd reminder dated 13.09.2011. Therefore, the Opposite Parties issued final notice dated 06.03.2012 and, thereafter, a letter dated 22.11.2002 (In fact 22.11.2012) demanding therein the aforesaid defaulted amount/installment but he failed to pay the same and the allotment was cancelled vide termination/ cancellation advice dated 22.01.2013 (Annexure OP-14). It was further stated that the complainant concealed the fact regarding non making of the payment of due installments, which ultimately resulted in cancellation of the Plot Buyer’s Agreement dated 01.07.2011. It was further stated that the Opposite Parties were now offering possession of the plot to their allottees. After cancellation of the plot, the complainant himself approached the Opposite Parties with a letter dated 31.01.2013 and requested for restoration of the unit by admitting therein that the payment of the due installments could not be made due to business loss and they (Opposite Parties) as a special case restored the plot vide letter dated 04.02.2013. The complainant returned the earlier Agreement dated 01.07.2011 to the Opposite Parties and executed a fresh Plot Buyer’s Agreement on 12.02.2013 and copy of the same was duly received by him. The allegations of the complainant were denied that the Opposite Parties took the original Agreement dated 01.07.2011 on the pretext that they would return the same to him. Copies of the request letter dated 31.01.2013, restoration letter dated 04.02.2013, cancelled Plot Buyer’s Agreement dated 01.07.2011 and receipt of copy of the said Agreement dated 12.02.2013 are Annexure OP-15 and OP-18 respectively.   

7.           It was further stated that the said Agreement was executed on 12.02.2013 and as per the payment plan therein, the next installment of Rs.12,95,472.66 was agreed to be paid by the complainant on the start of site development and out of the said amount, Rs.9,00,000/- were paid by him vide cheque dated 27.05.2013. Thereafter, the Opposite Parties issued reminder dated 31.05.2013 requesting for balance amount of Rs.3,95,473.66 but he did not make the said payment, despite receipt of the another reminder dated 21.06.2013. It was further stated that when the complainant did not make the payment then the Opposite Parties sent final notice dated 12.07.2013 and lastly, they provided another opportunity to him to rectify his default and accordingly  sent last and final opportunity letter dated 05.11.2013, thereby specifically stating that in case of further default in making the payment of the due installment, the allotment would be cancelled and the said Agreement would be terminated. After receipt of the said final opportunity letter dated 05.11.2013, the complainant paid the balance of the installment amount of Rs.3,95,473.66 on 11.11.2013 i.e. after delay of 168 days from the due date of the payment. It was further stated that the complainant again willfully defaulted and delayed the payment of due installment in time. Thereafter, the next installment demanded by the Opposite Parties vide demand note dated 16.01.2014, followed by the reminders dated 16.02.2014 & 10.03.2014 and final notice dated 31.03.2014 for making the payment of Rs.12,95,471.84 was not complied, by the complainant, and the Opposite Parties granted yet one last and final opportunity to him vide letter dated 13.06.2014, but he failed to make the payment and ultimately the said Agreement was terminated and allotment was cancelled vide termination/cancellation dated 05.01.2015 by applying the forfeiture clause strictly as per the terms of the Agreement. It was further stated that the complainant deliberately and with malafide intention concealed the factum of cancellation of the allotment and termination of the said Agreement dated 12.02.2013. After the cancellation of the Agreement dated 12.02.2013, the complainant was left with no right, title or interest of any nature whatsoever in the said plot.

8.           It was further stated that as per terms and conditions of the Agreement dated 12.02.2013, the period of offering possession of the plot would expire on 11.08.2015 (In fact 11.08.2016) (Commitment period + Grace period) and, thereafter, the Opposite Parties were further entitled for further extended delay period of 12 months on payment of compensation to the complainant. Thus, it would be seen that the period for, offering possession of the plot had not expired as on date. It was further stated that the Opposite Parties were granted exemption from PAPR Act and hence, no Completion Certificate was required to be obtained by them from any Authority. It was further stated that the complainant sent a legal notice dated 16.02.2015, which was duly replied to by the Opposite Parties vide letter dated 11.04.2015 (Annexure OP-19 & OP-20). It was further stated that the period of offering the possession of the plot had not expired as on date and no cause of action had accrued to the complainant to seek refund of the amount and, as such, he was not entitled to refund of the same.  It was further stated that due to inadvertence and clerical error in the cancellation advice dated 05.01.2015, the date of Plot Buyer’s Agreement stood mentioned as 01.07.2011 instead of 12.02.2013. It was further stated that since the development at the site had commenced on 01.05.2013 and was being carried out at fast pace and hence, the Opposite Parties started making offer of possession of the plots to their allottees in the month of May, 2015 and also executed and got registered the conveyance deeds thereof. Copies of one such notice of possession with respect to Plot No.129 and registered conveyance deed thereof are Annexure OP-22 and OP-23 respectively. It was further stated that due to declining real estate market, the complainant was not interested in purchasing the plot, in question, and every time he delayed the payment of the due installments, which resulted in cancellation on two occasions.  It was further stated that the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

9.           The complainant, filed rejoinder to the reply of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

10.         The Parties led evidence, in support of their case.

11. We have heard the Counsel for parties, and have gone through the evidence and record of the case, carefully. 
12. The Counsel for the complainant submitted that the complainant applied for the allotment of a residential plot in the project of the Opposite Parties, the total price whereof was Rs.76,94,250/-. He further submitted that the complainant was allotted Plot No.265 in the project of the Opposite Parties (Annexure C-1). He further submitted that Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 01.07.2011. He further submitted that the complainant opted for Payment Linked Plan and in all, paid a sum of Rs.41,11,560/-. He further submitted that the provisional allotment was cancelled vide letter dated 22.01.2013 (at page No.28 of the file) and, thereafter, the Opposite Parties restored the same vide letter dated 04.02.2013 (Annexure C-4). He further submitted that after the restoration of the plot, another Agreement dated 12.02.2013 was executed between the parties. He further submitted that there was no development at the site and neither the Opposite Parties offered possession of the plot nor refunded the amount alongwith interest etc., which amounted to deficiency in service, and unfair trade practice on their part.  
13.        On the other hand, Counsel for the Opposite Parties, admitted regarding the booking of the plot and provisional allotment of the plot to the complainant, in the project of the Opposite Parties. He further submitted that Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 01.07.2011 but the same was cancelled, as the complainant failed to make the payments, in time. He further submitted that new Plot Buyer’s Agreement dated 12.02.2013 was executed between the parties and as per terms and conditions of the Agreement, possession was to be delivered by 11.08.2016 and, as such, no cause of action accrued to the complainant by 16.04.2015 when the complaint was filed, as such, prayed for dismissal of the complaint on the ground of being premature.
14.        The core question, which falls for consideration, is, as to whether cause of action had arisen to the complainant, to file this complaint. No doubt, the complainant sought refund of the amount deposited by him with the Opposite Parties. Earlier, the Plot Buyer’s Agreement was executed between the parties on 01.07.2011 (Annexure OP-17) and, thereafter, the same was cancelled vide termination/ cancellation notice dated 22.01.2013 (Annexure OP-14), as the complainant failed to make payment of installments, in time, despite repeated letters/notices/reminders dated 29.07.2011, 29.08.2011, 13.09.2011, 06.03.2012  (Annexure OP-8 to OP-11) and letter dated 22.11.2012 (Annexure OP-13). Thereafter, the complainant sent a letter dated 31.01.2013 (Annexure OP-15) to the Opposite Parties for restoration of his Plot No.265 because he did not make the payment due to business loss and, thereafter, deposited the amount of Rs.12,95,472.68 alongwith delayed interest of Rs.3,66,477.32. As per the request of the complainant, the Opposite Parties restored the allotment vide letter dated 04.02.2013 (Annexure OP-16). Thereafter, a new Plot Buyer’s Agreement dated 12.02.2013 was executed between the parties, at Chandigarh (Annexure OP-2). When the earlier Agreement dated 01.07.2011 (Annexure OP-17) was terminated/cancelled and the new Agreement dated 12.02.2013 (Annexure OP-2) was executed between the parties, they became bound by the terms and conditions contained in the latter. Clauses 11.1, 11.2 and 11.3 of the Plot Buyer’s Agreement dated 12.02.2013 read as under :-

 

11.1	Subject to Force Majeure, as defined herein, and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement, and not being in default of any provision(s)  of this Agreement including but not limited to the timely payment of all dues and charges including the total Sale Consideration, registration charges, stamp duty and other charges, and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the company proposes to hand over the possession of the said Plot to the Allottee within a period of 24 (Twenty Four) months from the date of execution of this Agreement (“Commitment Period”). The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 6 (Six) months (“Grace Period”) after the expiry of said Commitment Period.
11.2	Subject to Clause 11.1, if the Company fails to offer possession of the said Plot to the Allottee by the end of the Grace Period, it shall be liable to pay to the Allottee compensation calculated at the rate of Rs.50/- (Rupees Fifty only) per sq. yd. of the area of the said Plot (“Delay Compensation”) for every month of delay until the actual date fixed by the Company for handing over of possession of the said Plot to the Allottee. The Allottee shall be entitled to payment against such ‘Delay Compensation’ only after completion of all documentation including registration of the Conveyance Deed.
11.3	Subject to Clause 11.1, in the event of delay by the Company in handing over the possession of the said Plot beyond a period of 12 months from the end of the Grace Period (such 12 month period hereinafter referred to as the “Extended Delay Period”), then the Allottee shall become entitled to opt for termination of the Allotment/ Agreement and refund of the actual paid up installment(s) made against the said Plot after adjusting the interest/penalty on delayed payments along with Delay Compensation for 12 months. Such refund shall be made by the Company within 90 days of receipt of intimation of this effect from the Allottee, without any interest thereon. For removal of doubt, it is clarified that Delay Compensation payable to the Allottee who is validly opting for termination, shall be limited to and calculated for the fixed period of 12 months only irrespective of the date on which the Allottee actually exercised the option for termination. This option of termination may be exercised by the Allottee only up till dispatch of the Notice of Possession by the Company to the Allottee whereupon the said option shall be deemed to have irrevocably lapsed. No other claim, whatsoever, monetary or otherwise shall lie against the company nor be raised otherwise or in any other manner by the Allottee.

 

It is evident from the combined reading of the aforesaid extracted clauses of the Plot Buyer’s Agreement dated 12.02.2013 that possession could be delivered within 42 months of the execution thereof. Period of 42 months from 12.02.2013 was to expire on 11.08.2016. Cause of action for filing the complaint seeking refund could arise to the complainant only after 11.08.2016. No cause of action had, thus, arisen to the complainant to file the complaint on 16.04.2015. The complaint filed by the complainant, is, thus, premature. It is, thus, liable to be dismissed, being pre-mature.   

15.         For the reasons recorded above, the complaint is dismissed being premature, at this stage, and, as such, not maintainable, with no order as to costs.  

16.         Certified Copies of this order be sent to the parties, free of charge.

17.         The file be consigned to Record Room, after completion.

Pronounced.

22.06.2015                                                                                                                                                  Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

rb

                                     

                                      STATE COMMISSION

Consumer Complaint No. 72 of 2015

(Bhushan Sood Vs.  PUMA Realtors Pvt. Ltd. & Anr. )

 

Argued by:   

Sh.Sanjeev Sharma, Advocate for the complainant.

Sh.Ramnik Gupta, Advocate for the Opposite Parties.

 

Dated _the 22^nd    day of  June, 2015

                                                -.-

                  Counsel for the Opposite Parties had moved an application under Section 8 read with Section 5 of the Arbitration and Conciliation Act, 1996 (as amended upto date) for referring the parties to resolve the matter through arbitration in terms of Clause 33 of the Plot Buyer’s Agreement dated 12.02.2013, entered into between the parties.    However, the same was opposed by the Counsel for the complainant by filing reply thereto. 

2.             After going through the contents of the application and the reply thereto, we are of the considered view that the same is liable to be dismissed simply because since the remedies provided under Section 3 of the Consumer Protection Act, 1986 are in addition to and not in derogation  of any other law for the time being in force. Accordingly, the same is dismissed.

3.             On 11.06.2015 an application for additional documents (Annexure OP-25 to OP-30) alongwith supporting affidavit thereof have been filed by the Opposite Parties on the ground, that the same was essential for the just decision of the appeal.

4.             The Counsel for the complainant did not file any reply to the said application.

5.             We have gone through the contents of the application and have heard the Counsel for the parties. It may be stated here, that, in case, at this stage, the application for placing, on record, the documents ((Annexure OP-25 to OP-30), by way of additional evidence, is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing on record (Annexure OP-25 to OP-30), by way of additional evidence, at this stage. The application is accordingly dismissed.

6.             Arguments, in the main complaint already heard.

7.             Vide our detailed order of the even date, recorded separately, this complaint, filed by the complainant, has been dismissed being premature, at this stage, and, as such, not maintainable, with no order as to costs.  

8.             Certified copies of the order be sent to the parties free of charge. .        

       

            Sd/-                                        Sd/-                                                    Sd/-

[DEV RAJ] MEMBER

[JUSTICE SHAM SUNDER (RETD)] PRESIDENT

[PADMA PANDEY] MEMBER