Chandigarh

StateCommission

CC/309/2015

Pankaj Garg - Complainant(s)

Versus

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

Sh. Rajat Chopra, Adv.

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	309 of 2015
Date of Institution	:	18.12.2015
Date of Decision	:	26.04.2016

 

Mr. Pankaj Garg son of Late Sh. Pawan Kumar Garg R/o Flat No.17, GH-3, Mansa Devi Complex, Sector 5, Panchkula, Haryana.

……Complainant.

Versus

 

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160009.
2. Mr. Aman Malhotra, Authorized Signatory, Puma Realtors, SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160009.

….Opposite Parties.

Argued by:

 

Sh. D. S. Bainola, Proxy for Sh. Parveen Moudgil, Advocate  for  the complainant.

Sh. Ramnik Gupta, Advocate for the Opposite Parties.

 

Consumer Complaint	:	258 of 2015
Date of Institution	:	02.11.2015
Date of Decision	:	26.04.2016

 

Vikas Yadav son of Sh. Padam Kant, Resident of A-24, Officers Mess, 12 Wing, Air Force Station, Chandigarh.

……Complainant.

Versus

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160 009.
2. Ms. Sunaina Minhas, Authorised Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160 009.

….Opposite Parties.

Argued by:

 

Sh. D. S. Bainola, Advocate proxy for Sh. Parveen Moudgil, Advocate  for  the complainant.

Sh. Ramnik Gupta, Advocate for Opposite Party No.1.

Service of Opposite Party No.2 dispensed with vide order dated 27.11.2015.

 

 

Consumer Complaint	:	15 of 2016
Date of Institution	:	08.01.2016
Date of Decision	:	26.04.2016

 

1. Mr. Ashok Kumar S/o Roop Lal R/o House No.37, Village Jagatpur Bajaj, Amritsar.
2. Mrs. Seema Rani W/o Ashok Kumar R/o House No.37, Village Jagatpur Bajaj, Amritsar.

……Complainants.

Versus

1. Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160 009.
2. Ms. Sunaina Minhas, Authorised Signatory, Puma Realtors Pvt. Ltd., SCO No.6-8, 1^st & 2^nd Floor, Sector 9-D, Chandigarh – 160 009.

…..Opposite Parties.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                    SH. DEV RAJ, MEMBER.

                     MRS. PADMA PANDEY, MEMBER.

                  

Argued by:

 

Sh. D. S. Bainola, Advocate proxy for Sh. Parveen Moudgil, Advocate  for  the complainants.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

PER DEV RAJ, MEMBER

              By this common order, we propose to dispose of three complaints bearing No. 309/2015, 258/2015, and 15/2016, referred to above. Since the facts and issues involved in these complaints are almost identical, the facts are being culled from complaint case No.309 of 2015 titled as ‘Sh. Pankaj Garg Vs. PUMA Realtors Private Limited & Another’.

2.           The facts, in brief, are that in the year 2010, on the assurance of the Opposite Parties, one Ms. Ramandeep Kaur applied for the allotment of a residential plot measuring 250.59 sq. yards in the project of Opposite Parties, named, “IREO HAMLET” in Sector 98, SAS Nagar, Mohali. She was allotted Plot No.123 measuring 250.59 Sq. Yards in Sector 98 in the said Project. Plot Buyer’s Agreement dated 09.03.2012 (Annexure C-3) was executed by the Opposite Parties with Ms. Ramandeep Kaur. However, the Plot Buyer’s Agreement was endorsed in favour of the complainant on 12.03.2012 after fulfilling all the formalities in terms of Clause 14 of the said Agreement. The Basic Sale price of the plot, in question was Rs.57,63,570/- excluding EDC. The complainant paid an amount of Rs.61,70,804/- up-till the date of filing of the present complaint (Annexure C-2). Initially the complainant opted for Time Linked Payment Plan, which was subsequently changed to Development Linked Payment Plan, to which the complainant consented. Possession of the plot, in question, as per Clause 11 of the Agreement, was to be handed over to the complainant, within a period of 24 months plus 6 months grace period but not later than 30 months. As per Clause 11.3 of the Agreement, the Opposite Parties could take more 12 months extended period from the end of 30 months, for handing over possession of the plot. According to the complainant, he has already paid all the installments as envisaged under the applicable payment plan and has never been in default in respect of the Agreement. It was further stated that the Opposite Parties failed to deliver possession of the plot, in question, within the stipulated period to the complainant, which amounted to deficiency in service on their part. It was further stated that the complainant visited the site in the year 2013 but there was no development as the project lacks basic amenities and facilities in as much as there is no boundary wall or any sector road connecting to the project, no overhead tanks or water linkages to the project, no club house building is constructed, green belt is yet to be developed and there is no arrangement for water supply, sewerage, electricity etc. and no connectivity to GMADA lines/project approvals from GMADA. It was further stated that as per information obtained under Right to Information Act, 2005 (in short RTI Act 2005), (Annexures C-7, C-8 & C-9). The developers/promoters have to complete all the development works before handing over possession of the plot/flat; the project has not been provided electricity connection and rather temporary connection for construction purpose has been issued and in the new sectors, which are being developed, the sewerage and storm water drainage lines are provided on sector-dividing roads, which means that when sector dividing roads are not built as yet, therefore, the sewerage and storm water drainage lines are also not provided yet. It was further stated that notice of possession dated 04.05.2015 (Annexure C-12) was issued by the Opposite Parties to the complainant in a hurried manner without bothering to complete all development works at the project, simply to extract the balance amount of payment from the complainant. It was further stated that the Opposite Parties have not obtained completion certificate till date, as is clear from information obtained under RTI Act 2005 (Annexure C-13). It was further stated that it was intimated by the Opposite Parties that they were making all efforts to closely follow up the complete development work of roads with the Govt. vide letter dated 29.06.2015 (Annexure C-5). It was further stated that left with no alternative, the complainant served legal notice dated 25.11.2015 (Annexure C-11) for termination of the Agreement and refund was sought alongwith interest.

3.           Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.61,70,804/- alongwith interest @18% per annum from the respective dates of deposits,; pay Rs.10,00,000/- as compensation on account of mental agony, physical harassment and Rs.50,000/- as cost of litigation.

4.           Though Sh. Ramnik Gupta, Advocate appeared on behalf of both the Opposite Parties i.e. (No.1 & 2) but reply was filed only on behalf of Opposite Party No.1, stating that Opposite Party No.2, being its employee, merely executed Plot Buyer’s Agreement on its behalf and he is not personally responsible for the acts of Opposite party No.1. In reply, Opposite Party No.1 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 09.03.2012; that the complainant was not a consumer as the present complaint related to the enforcement of 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 Opposite Party No.1, as the parties did not enter into any contract for hiring the services; that the complainant did not book the plot for his personal use but for investment/commercial purpose and that the allegations in the complaint being of contractual nature, were only triable by the Civil Court.

5.           On merits, it was stated that the complainant, on the basis of selective reading of Clause 11 of the Agreement, wrongly alleged that possession of the plot was to be delivered within a period of 30 months from the date of execution of the said Agreement. It was further stated that Clause 11 has to be read in its entirety and not selectively to ascertain the real intentions of the parties. It was further stated that as per clause 11.2, the period for offering possession did not end with the efflux of 30 months but travelled beyond that. It was further stated that as per Clause 11.2, the complainant specifically agreed that if Opposite Party No.1 failed to offer possession within 30 months, then the complainant would be entitled to compensation @Rs.50/- per sq. yard of the area of the plot per month until possession is delivered. It was further stated that it was also agreed that in terms of Clause 11.3, in case Opposite Party No.1 failed to offer possession till 42 months, then the complainant would have the option to terminate the said Agreement and sought refund alongwith delayed compensation for 12 months only. It was further stated that the provisions of Clause 11.3 of the Agreement could not be invoked as Opposite Party No.1 had already offered possession of the plot, in question, to the complainant vide notice of possession dated 04.05.2015 (Annexure C-12) i.e. much before the expiry of 42 months. It was further stated that  Opposite Party No.1 has developed the project in terms of Clause 21.2 of Agreement by complying the law of land and conditions and offered the possession after developing the same having basic amenities, vide notice of possession aforesaid. It was further stated that development of the site was in full progress from its inception on 01.05.2013.

6.           It was further stated that Opposite Party No.1 is developing a Mega Housing project and Government of Punjab in furtherance of Letter of Intent dated 30.09.2005 vide its Notification dated 14.08.2008 had exempted Opposite Party No.1 from the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short ‘PAPRA 1995) except Section 32 thereof. It was further stated that Opposite Party No.1 has duly complied with the terms and conditions of the same and as such, it was under no obligation to obtain any completion/partial completion from the Authority under Section 14 of PAPRA 1995. It was further stated that development at the site is a plotted development and all the lines including but not limited to sewer lines, electrical lines, water lines, rain harvesting lines have been laid underground and are not visible from the surface of the earth. It was further stated that Opposite Party No.1 has already installed the STP and the same is fully functional at the site, as is clear from the report of the Local Commissioner. It was admitted that temporary electricity connection has been provided by PSPCL to Opposite Party No.1 at the site for construction purposes and permanent connection is to be granted only after completion of the construction and only at the start of the habitation in the building.

7.           It was further stated that Opposite Party No.1 never represented or agreed that it would be providing boundary wall to the said project. It was further stated that the rear boundary wall to be constructed by each plot owner shall ultimately serve as the boundary wall. It was further stated that the cost of boundary wall of the villas was to be borne by the allottees and further that near the entry gate, the same has been fenced by laying the grills of sufficient height and the said portion has been developed as a green area. It was further stated that the development work, as per Clause 21.2 of the Agreement was complete and offer of possession has been made only after fully developing the plot but the complainant is just seeking an escape route from discharging his contractual obligation in order to wriggle out of the said Agreement.

8.           It was denied that even today, there is no development at the site as LC report is self sufficient to negate the said allegation.  It was further stated that the sector roads were to be developed by the State Authorities in terms of Clause 21 of the Agreement. It was further stated that all basic amenities, which are required for starting construction of a residential house, are available at the site. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

9.           The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of Opposite Party No.1.

10.         The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

11.         Opposite Party No.1, in support of its case, submitted the affidavit of Sh. Rajneesh, its Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

12.         We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 

13.         It is evident, on record, that Plot No.123         measuring 250.59 sq. yards in the residential project “IREO Hamlet”, Sector 98, SAS Nagar, Mohali was allotted to one Ms. Ramandeep Kaur, the basic sale price whereof was Rs.23,000/- per sq. yard i.e. Rs.57,63,570/- besides External Development Charges (EDC) @Rs.1,275.10 per sq. yard and IFMS charges @350/- per sq. yard. Plot Buyer’s Agreement, executed between the original allottee Ms. Ramandeep Kaur and the Opposite Parties on 09.03.2012 (Annexure C-3), was subsequently endorsed in favour of the complainant on 12.3.2012. The payment against the aforesaid plot was to be regulated as per Payment Plan – Annexure-I (at Page 68 of the file). Against the total price of the plot, in question, the complainant made payment in the sum of Rs.61,70,804/-. Subsequently, Opposite Party No.1 offered change of payment plan from Time Linked Payment Plan to the Development Linked Payment Plan vide letter dated 26.09.2011. As admitted by Opposite Party No.1, the development work started at the site on 01.05.2013, almost one year after the execution of Plot Buyer’s Agreement dated 09.03.2012 (Annexure C-3). The complainant has stated that possession offered was only a paper possession and the notice of possession had no mention about final demarcation and measurement of the plot, in terms of Clause 11.5 of Plot Buyer’s Agreement. The complainant has also specifically averred on the basis of documentary evidence/RTI information (Exhibits C-5, C-6, C-7, C-8, C-9 & C-10) that since neither development was complete nor the basic amenities such as permanent electricity, roads, sewerage, drainage and storm water were provided, he served legal notice dated 25.11.2015 for termination of the Plot Buyer’s Agreement and sought refund of the deposited amount.

14.         The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration and conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015 alongiwth 12 consumer complaints, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In this context, Para 19 of Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), being relevant is extracted hereunder:-

“19.  It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

 

This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

 “Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in  terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”  

 

In view of position stated above, the plea of Opposite Party No.1 is not sustainable and the same is rejected.

15.         To defeat claim of the complainant, the next objection raised by Opposite Party No.1 was that since the complainant had purchased the plot, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Opposite Party No.1, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Party No.1, in its written reply, therefore, being devoid of merit, is rejected.  

16.         Another objection raised by Opposite Party No.1 was that since the complainant sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of Opposite Party No.1, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11.1 of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Party No.1, it was to deliver physical possession of the unit, within a period of 30 months, from the date of execution of the same (Agreement), with complete basic amenities, as provided in Clause 21.2. Section 2(1)(o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

 

 

17.         From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  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. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, the objection of Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

18.         The next question, which falls for consideration, is, as to whether the development and the basic amenities were complete at the site before offering possession vide letter dated 04.05.2015 or not. The complainant has specifically challenged the offer of possession by way of filing the instant complaint for not obtaining necessary approvals from the Competent Authorities by Opposite Party No.1 and lack of development and basic amenities at the site. The Counsel for the complainant submitted that possession of the plot, in question, vide letter dated 04.05.2015 was not complete, valid and legal possession and the same was offered by Opposite Party No.1 to cover up its deficiency and delay in offering the possession.    

19.         When we look into inter se communication between the parties, it becomes apparently clear that there was a promise to make development and then hand over possession of the plot, to the complainant. From letter dated 29.06.2015 of Opposite Party No.1 (Annexure C-5), which was issued after offer of possession, Opposite Party No.1 admitted that the following amenities were yet to be completed:-

Ø Internal roads not complete as it could be damaged on account of movement of trucks carrying heavy construction material.

Ø We are in process of completing the balance blacktopping work also.

Ø The work of roads would be taken up after considerable number of houses are constructed by the allottees.

Ø Only temporary electricity connection would be made available.

Ø External roads, networks and infrastructure are the responsibility of Government and the opposite parties are following up with the Government to do so.

Ø Sewerage treatment plant has not been constructed and will be taken when there is adequate habitation.

Ø For construction purpose water can be purchased from any authorised vendor permitted by Panchayat, Irrigation department, GMADA etc. 

Ø Features like swings etc. shall be provided in due course of time.

Thus, the averment of the complainant in Para 3 (vi) of his complaint that vide aforesaid letter dated 29.06.2015, Opposite Party No.1 admitted that there was no complete development work/amenities were not complete at the site, where the plot allotted to him (complainant) was situated, stands corroborated. Subsequently, the complainant served legal notice dated 25.11.2015 (Annexure C-11) upon Opposite Party No.1, for termination of the Agreement and refund was sought alongwith interest. Thereafter, the complainant filed the instant complaint on 18.12.2015 pointing out deficiency on the part of Opposite Party No.1 and unfair trade practice, seeking refund of Rs.61,70,804/- alongwith interest 18% interest.

20.         Though it is evident from letter/Memo No.5001 dated 7.8.2015 (Annexure OP-15), from the Chief Electrical Inspector to Govt. Punjab, Patiala that inspection of subject cited electrical installation was carried out by the Electrical Inspector and the same was found to be conforming to the relevant provisions of Central Electricity Authority (Measure relating to safety and Electric Supply) Regulations, 2010 and the installations were approved for commissioning but clearly, this approval was accorded after offer of possession vide letter dated 04.05.2015.

21.         Even the final NOC to Opposite Party No.1 for 85.25 Acres residential township in Sectors 86, 98 and 99 in Village Sambhalkhi, SAS Nagar, Mohali was accorded by Punjab State Power Corporation Limited on 8.7.2015 (Annexure OP-14), after offer of possession on 04.05.2015. Further from perusal of information obtained under RTI dated 03.07.2015, Annexure C-7 by one Sh. P. Saini, (at Page 79 of the file), it is established that the promoter was to complete the development work of the project before offering possession of the plot and as per notification issued by the Govt. bearing No.4966 dated 02.09.2014, letters had been issued to all the promoters of MEGA projects for getting completion certificate of their MEGA projects.  Further as per information obtained under RTI Act 2005 by the said Paramjit Singh Saini, dated 15.06.2015 (at page 92 of the file), vertical road sector dividing 97-88 and road dividing Sectors 86-98 are yet to be constructed and this would be done only after acquisition of the land. Further as per RTI information dated 30.06.2015 (at Page 95 of the file), sewerage and storm water drainage are constructed/laid down by GMADA on Sector dividing road in the new Sectors being established. Further, Opposite Party No.1 has itself, placed on record copy of application dated 29.06.2015 (Annexure OP-30), which clearly shows that it (Opposite Party No.1) applied for partial completion certificate for Sectors 86, 98 and 99, SAS Mohali only on 29.06.2015 that too after offer of possession of the plot, in question, to the complainant on 04.05.2015. Opposite Party No.1 has averred that it was exempted under PAPRA, except provisions of Section 32 thereof, vide notification dated 14.8.2008 and was not required to obtain completion certificate and it applied for partial completion certificate only for the benefit of the complainant. It may be stated here that as per Govt. Notification No.4966 dated 02.09.2014, all the promoters of Mega Projects were required to get a completion certificate. In the instant case, possession was offered on 04.05.2015 but Opposite Party No.1 applied for partial completion certificate on 29.06.2015. It is, thus, abundantly clear from the evidence on record that neither amenities were complete nor approvals obtained, when possession was offered.

22.         This Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd.  and  another’s  case  (supra),  in  Para  36  held that  basic facilities like roads, sewerage, drinking water, electricity, street lights, drainage etc. were to be provided by the Opposite Parties to the complainant. In the case in hand, there is also nothing, on record, that complete development, in respect of the plot, in question, and amenities at the site as promised, as per the Plot Buyer’s Agreement dated 09.03.2012, Annexure C-3, were available at the site. Had the amenities been completed at the site, then certainly Opposite Party No.1, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, its reports,  to prove that factum. Though the Counsel for Opposite Party No.1 pleaded that the basic amenities such as water lines, sewer lines, etc., were required to be provided underground and the         same have been provided, but it failed to produce any cogent and convincing evidence to the effect that all other amenities at the site, where the plot, in question, was located, were complete and necessary approvals had been obtained before it (Opposite Party No.1) offered possession vide its letter dated 04.05.2015. Even     if the contention of Opposite Party No.1 that certain underground amenities have been provided is accepted, the fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves its deficiency, as is evident from the position indicated hereinafter. It is evident from letter dated 14.5.2013 (Annexure OP-9), that the validity of NOC from Pollution Angle by Punjab Pollution Control Board was for one year from the date of its issue or till the complete development of residential colony, whichever is earlier. The same was extended vide letter dated 09.12.2014 (Annexure OP-10) up-to 13.5.2015. Opposite Party No.1 has not placed any document, on record, that it had NOC from Pollution angle beyond 13.5.2015. The same was extended subsequently vide letter dated 29.06.2015 (Annexure OP-11). Final NOC was granted by PSPCL on 08.07.2015 (Annexure OP-14) after notice of possession dated 04.05.2015. Perusal of Annexure OP-15, which is memo dated 07.08.2015 from Punjab Electrical Inspectorate, reveals that installations were approved for commissioning only on 07.08.2015. Even letter dated 18.05.2015 (Annexure OP-13) from Greater Mohali Area Development Authority (GMADA), informed Opposite Party No.1 that “…….Therefore, the arrangements for suitable provision for drinking water supply and safe disposal of sullage/storm discharge and solid waste management shall be made by promoter at his level separately and he shall obtain all necessary approvals from the concerned Authorities as per law in this regard independently. The construction work shall commence only after obtaining approvals as per law from the concerned Authorities……” Besides, number of other conditions were also required to be complied with by the promoter. Opposite Party No.1 has not stated whether it complied with the aforesaid    conditions.

23.         In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), it was held that amenities were not complete. In Abha Arora’s case (supra), this Commission in Para 47 noted with concern, a very serious deficiency committed by Opposite Party No.2, in providing service to the complainants, which is extracted hereunder:-

“As per admitted facts on record, External Development Charges (EDC) @Rs.1275.10 per square yard, are payable by the complainant to the opposite parties. Service tax is also payable by the complainant. As per record, EDC and service tax amount was paid in steps, by the complainant to the opposite parties. As per law and otherwise also, it is expected that the said amount might have been deposited by the opposite parties with the Government/Local Authorities, to provide necessary external infrastructure needed for enjoyment of the plots/units purchased by the consumers. As has been discussed in earlier part of this order, 30 months period was available without penalty, with the opposite parties to press with the Government, on payment of EDC, for providing necessary external infrastructure. Very conveniently, in Clause 21.2 it was provided by the opposite parties that they shall carry out only internal development, within the boundary of the project, which includes laying of roads, water lines, sewer lines, electric lines etc. However, the external linkages for those services, beyond the periphery of the project, is to be provided by the State Government or the Local Authorities. Even if it is presumed, only for the sake of arguments, as on today, the opposite parties may have laid down water lines, sewer lines, storm water drains, roads, electricity, horticulture etc., within the project, admittedly, those lines are not connected with the main lines, to be provided by the State Government or the Local Authorities. For a proper use of plots/units purchased, it is necessary that those lines are connected with the main lines, so that there is no hindrance in enjoying the property purchased.

       There is nothing on record to show that after depositing of EDC, as collected by the opposite parties from the consumers, the said amount was deposited with the Government, in time, and further the matter was taken up with the Government, to provide external infrastructure connecting the project with the main sewerage lines etc. The opposite parties had 30 months of time, which this Commission feels, was sufficient for the State Government or the Local Authorities to complete external infrastructure. It is bounden duty of the real estate developer/opposite parties to ensure that the external infrastructure is complete by the time, possession is to be delivered. If the Local Authorities were not acting, despite receipt of EDC, it was duty of the real estate developer, to take legal recourse. In the present case, it was not done so.  The opposite parties cannot wash of their hands by simply stating that external infrastructure will be provided by the State Government/Local Authorities. If the external infrastructure is not provided, where will the purchasers go? How their grievance will be redressed. If the requisite infrastructure is not available, the developed colonies will turn into slums, within few years. Such a development cannot be termed as regulated development. By not making any efforts, in taking up matter with the State Government/Local Authorities, to ensure that external infrastructure is provided within the stipulated period, the opposite parties have committed deficiency in providing service.”

Thus, Opposite Party No.1 cannot wash off its responsibility for non-development of external infrastructure on the ground that the same was the obligation of the State Government. When it (Opposite Party No.1) has received External Development Charges, it was duty bound to ensure by pursuing with the State Government that external infrastructure was complete by the time possession was offered. It was also obligatory on part of Opposite Party No.1 to hand over possession to the complainant complete in all respects but it miserably failed to do so. Clearly development and amenities were not complete when possession was offered vide notice of possession dated 04.05.2015 and provision contained in Clause 11.5 of Plot Buyer’s Agreement was also not complied with.

24.         The next question which falls for consideration, is, whether the complainant is entitled to refund of the entire amount deposited by him. It may be stated here that offer of possession sent vide letter dated 04.05.2015 is a mere paper possession. A similar question arose in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra) wherein this Commission in Paras 44 to 46 held as under:-

“44.  Whether the complainant is entitled to refund of the entire amount deposited by her. It may be stated here that offer sent vide letter dated 21.05.2015, has been held to be a mere paper possession and as on date, the opposite parties are not in a position to deliver possession of the plot, in question. Under these circumstances, it is justifiable for the complainant to say no to the same. It was so said by the National Consumer Disputes Redressal Commission, New Delhi in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). In the above case, possession was not delivered in time. Complaint was filed for refund of amount paid. The State Commission partly allowed it. The builder was allowed to forfeit 10% of the deposited amount, on the ground that the complainant himself rescinded the contract by asking refund of the amount, as possession of the unit had already been offered to him. The remaining amount was allowed to be returned with interest. The complainant in that case was also awarded litigation cost etc. The builder namely Emaar MGF Land Limited went in appeal, which was dismissed, wherein it was specifically observed by the National Commission, that when the promoter/builder has violated material condition in not handing over possession, in time, it is not obligatory for the purchaser to accept possession after that date. The principle of law laid in the aforesaid case, is fully applicable to the instant case. On account of that, the complainant is entitled to get refund of amount deposited by her. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to her, as also escalation in prices.

45.   It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.65,56,513/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, to the tune of Rs.65,56,513/- alongwith interest compounded quarterly @12% from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment), till realization.

46.   Further, to deny the claim of the complainant(s), it was also argued by Senior Counsel for the opposite parties/ builder that as per Clause 11.3 of the Agreement, they (complainants) could have opted for termination of the Agreement, only after the lapse of 42 months aforesaid, from the date of execution of the same (Agreement) i.e. 24 months plus (+) 6 months plus (+) 12 months, till the notice of possession is dispatched, whereas, on the other hand, in all the cases, possession has been offered, as such, the option to terminate the same (Agreement) by them (complainants) has been irrevocably lapsed.  Further, in some cases, since offer of possession has been made to the allottees, within the period of 42 months, from the date of execution of the Agreement, as such, they were barred to opt termination of the Agreement, as per Clause 11.3.

              Before discussing effect of aforesaid arguments, it is necessary to note down the provisions of Clauses 11.1 and 11.2 of the Agreement dated 19.08.2011. The provisions read thus:-

“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 the 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”.

              Perusal of aforesaid provisions, makes it very clear that as per Clause 11.1, handing over possession of the plot is subject to force majeure circumstances. Clause 11.2 stipulates that the stipulation contained therein is subject to the provisions of Clause 11.1. It is not open to the builder to get 12 months, on payment of delayed compensation, as a matter of right. It has to be shown, whether there was any circumstance, which didn’t allow providing of infrastructure at the site. No such circumstance has been added to claim above period of 12 months. Further, there is nothing on record to show that at the end of 30 months period, to get further period of 12 months, any attempt was made, to make offer of payment of delayed compensation, as envisaged in Clause 11.2 of the Agreement. Even in the notice of offer of possession, which has been held to be paper one, it is not even mentioned that payment of delayed compensation will be made to the complainant, on completion of documentation, including registration of the conveyance deed. The above said stipulation qua payment of delayed compensation amount, after registration of conveyance deed, appears to be draconian. It is totally one sided. As such, it could be termed as unfair trade practice, on the part of the opposite parties. Furthermore, in the present case, admittedly, possession of the plot was offered after the lapse of 42 months i.e. 24 months plus (+) 6 months plus (+) 12 months, as such, the above arguments need to be rejected.

       Otherwise also, as has been held in large number of cases, the payment of paltry amount of compensation, virtually would amount to no compensation for the loss caused to a consumer. The amount offered is not even equal to simple interest being offered by the Banks, against saving bank account. On account of inaction, on the part of the opposite parties, in not fulfilling their obligation under the contract, the very purpose of Agreement has failed and it is open to the complainant to claim refund of her amount, with interest, notwithstanding anything contained in Clause 11.3 of the Agreement.  The argument raised by Senior Counsel for the opposite parties, in this regard, being devoid of merit, is rejected.”   

25.         Since the Plot Buyer’s Agreement was executed on 09.03.2012, 30 months period including 6 months grace period expired on 09.09.2014. 12 months extended delay period, in terms of Clause 11.3 of the Agreement expired on 09.09.2015. The contention of Opposite Party No.1 that possession having been offered before the expiry of the extended delay period i.e. total of 42 months from the execution of agreement dated 09.03.2012, the complainant was not entitled to refund is devoid of merit. As already discussed above, without complete development and basic amenities, possession offered was only a paper possession. Despite the fact that development work and basic amenities at the site are not complete, Opposite Party No.1, to wriggle out of its responsibility and to extract more money from the complainant, offered paper possession.

26.         It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd. and other, Consumer Complaint No.427 of 2014 (alongwith other 23 connected cases), decided by the National Commission on 08.06.2015, the agreement between the flat buyers and the developers, M/s. Unitech Ltd. for payment of compensation on account of delay in completion of the construction of the apartment was fixed at the rate of Rs.5 per sq. ft. per month of the Super Area. In the aforesaid case, it was contended on behalf of the developers that the complainants were entitled only to the agreed quantum of compensation for the period the project was delayed. Rejecting the said contention, the National Commission in Para 12, inte-ralia, held as under:-

“12……..The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation, which the builder would pay to the flat buyers in the form of flat compensation. In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project. This gives credence to the allegation of the complainants that their money has been used elsewhere. Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder. Though, such a practice does not specifically fall under any of the Clauses of Section 2(r)(1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r)(1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”

 

27.       In the present case also, Opposite Party No.1 committed breach of its obligation, in not offering possession of the plot, in question, with all basic amenities and complete development at the site, where the said plot was allotted.

28.         From the aforesaid discussion, it is evidently clear that up-till 04.05.2015 when possession was offered to the complainant, neither Opposite Party No.1 had completed the development and basic amenities nor did it have all the necessary sanctions/approvals from the Competent Authorities. It is, therefore, held that Opposite Party No.1 was not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainant, before completing the basic amenities as also without obtaining the necessary sanctions/approvals. Thus, since Opposite Party No.1 failed to handover legal and valid possession of the plot, in question, with complete development and all basic amenities and after obtaining necessary sanctions/approvals, to the complainant, in view of law laid down in Emaar MGF Land Limited and another Vs. Dilshad Gill ‘s case (supra), the complainant is entitled to seek refund.

29.         The next question, which requires determination, is, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. Admittedly, an amount of Rs.61,70,804/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, for its own benefit. The obligation to refund money received and retained without right implies and carries with it, the right to interest. In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.61,70,804/- alongwith interest compounded quarterly @12% from the respective dates of deposits (less than the rate of interest charged by Opposite Party No.1), in case of delayed payment), till realization.

30.         In view of aforesaid position, Opposite Party No.1 is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

31.         In the instant case, since Opposite Party No.2 was only an employee of Opposite Party No.1, who signed the Plot Buyer’s Agreement on behalf of Opposite Party No.1, therefore, liability of any kind cannot be fastened on him. As such, complaint against him (Opposite Party No.2) is liable to be dismissed. Similarly, the other two complaints bearing No.258/2015 and 15 of 2016 are also liable to be dismissed against Opposite Party No.2 impleaded in the said cases.

32.         No other point, was urged, by the Counsel for the parties.

33.          For the reasons, recorded above, this complaint bearing No.309 of 2015 alongwith connected complaints bearing No.258/2015 and 15/2016 are partly accepted, with costs against Opposite Party No.1 only. Opposite Party No.1 (in all the three complaints) is held liable and directed in the following manner:-

Complaint Case No.309 of 2015 titled ‘Pankaj Garg Vs. M/s Puma Raltors Pvt. Ltd. & Anr.’

 

(i)    To refund the amount of Rs.61,70,804/-, to   the   complainant, alongwith interest compounded quarterly @12% per annum, from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.3,00,000/-  (Rupees              Three Lacs only), to the complainant, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of 45 days from the date of receipt of a certified copy of this order.

(iii)  To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of this order.

(iv)  In case, the payment of amounts, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Party No.1, shall pay the amount mentioned in Clause (i) above, with interest compounded quarterly @15%, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) and (iii) above, with interest compounded quarterly @12% from the date of filing the complaint till realization.

Complaint Case No.258 of 2015 titled ‘Vikas Yadav Vs. M/s Puma Raltors Pvt. Ltd. & Anr.’

 

(i)   To refund the amount of Rs.27,53,551/-, to   the   complainant, alongwith interest compounded quarterly @12%, from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.3,00,000/- (Rupees              Three Lacs only), to the complainant, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of 45  days from the date of receipt of a certified copy of this order.

(iii) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of this order.

(iv)  In case, the payment of amounts, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Party No.1, shall pay the amount mentioned in Clause (i) above, with interest compounded quarterly @15%, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) and (iii) above, with interest compounded quarterly  @12% from the date of filing the complaint till realization.

Complaint Case No.15 of 2016 titled ‘Ashok Kumar and another Vs. M/s Puma Raltors Pvt. Ltd. & Anr.’

 

(i)    To refund the amount of Rs.28,41,868/-, to   the   complainants, alongwith interest compounded quarterly @12%, from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.3,00,000/- (Rupees              Three Lacs only), to the complainants, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants within a period of 45 days from the date of receipt of a certified copy of the order.

(iv)  In case, the payment of amounts, mentioned in Clause (i), is not made, within the stipulated period, then Opposite Party No.1, shall pay the amount mentioned in Clause (i) above, with interest compounded quarterly @15%, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) and (iii) above, with interest compounded quarterly @12% from the date of filing the complaint till realization.

35.         All the Complaints bearing No.309/2015, 258/2015 and 15/2016 are dismissed against Opposite Party No.2, with no order as to costs.

36.         Certified copies of this order be placed in Consumer Complaints Nos.258/2015 and 15/2016.

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

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

Pronounced

April 26, 2016.

 

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER