Punjab

StateCommission

CC/117/2018

Harjinder Kaur - Complainant(s)

Versus

Shiwalik Planners Pvt. Ltd. - Opp.Party(s)

Peeush Gagneja

08 Mar 2019

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                           PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.117 of 2018

 

                                                          Date of Institution:    16.02.2018

                                                          Order Reserved on:  05.03.2019  

                                                          Date of Decision  :    08.03.2019

 

1       Harjinder Kaur wife of Sr.Raghuvir Singh, resident of House No. 748, Samrala Road, Khanna, District Ludhiana.

 

2       Raghuvir Singh, son of Sr.Desa Singh, both residents of House No. 748, Samrala Road, Khanna, District Ludhiana.

 

                                                                                                                 …..Complainants

                                                Versus

 

1       Shiwalik Site Planners Private Limited, through its   

Chairman/Managing Director/Manager/Responsible Person, Head     Office, SCO 510, Sector 70, SAS Nagar, Mohali.

 

2.      Amardeep Singh Hira @ Amarpreet Singh Hira, Chairman-cum-Managing Director, Shiwalik Site Planners Private Limited, Head Office, SCO 510, Sector 70, SAS Nagar, Mohali.

 

3.      Daljit Singh, Shiwalik Site Planners Private Limited, Head Office, SCO  510, Sector 70, SAS Nagar, Mohali.

 

4.      Shiwalik Site Planners Private Limited, through its Branch Manager/Responsible person, Branch Office, SCO 105-106, Phase 10,SAS Nagar, Mohali.

 

5.      Shiwalik Site Planners Private Limited, through its Site Manager/Responsible Person, Shiwalik Avenue, Sector 125, Greater Mohali, SAS Nagar, Mohali.

 

                                                                                 ..Opposite parties                                                                                                                       

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Sh. Rajinder Kumar Goyal, Member.

 

Present:-

          For the complainants  :  Sh.Peeush Gagneja, Advocate

          For opposite parties    :  Sh.Munish Goel, Advocate.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            

                                      AND

 

                   Consumer Complaint No.214 of 2018

 

                                                          Date of Institution:    23.03.2018

                                                          Order Reserved on: 05.03.2019  

                                                          Date of Decision    : 08.03.2019

 

1. Uma Vasudeva w/o Sh. P.K. Vasudeav, Corresponding Address :     House No. 59, Sector 8,Panchkula.

 

2. Gaurav Vasudeva s/o Sh. P.K. Vasudeva, through his GPA Holder Namely Smt. Uma Vasudeva.          

                                                                                                               …..Complainants

                                                Versus

 

1. Shiwalik Site Planners Pvt. Ltd. , Head Office-SCO 510, Sector 70, Mohali through its Director/Managing Director/Authorized representative

 

IInd Address :-

 

Sh.Amandeep Singh Heera, Managing Director, Shiwalik Site Planners Pvt. Ltd.,Branch Office :- SCO 105-106, Sector 70, Mohali through its Director/Managing Director/Authorized representative.

 

2. Shiwalik Realtech Pvt. Ltd., Head Office SCO 510, Sector 70, Mohali through its Director/Managing Director/Authorized representative.

 

IInd Address :-

 

Sh. Amandeep Singh Heera, Managing Director, Shiwalik Realtech Pvt. Ltd., Branch Office:- SCO 105-106, Sector 70, Mohali through its Director/Managing Director/Authorized representative.

                                                                                                                                                                                      ….Opposite Parties

 

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

               Sh.Rajinder Kumar Goyal, Member.

 

Present:-

 

          For the complainants  :  Sh. Sandeep Bhardwaj, Advocate

          For opposite parties    :  Sh.Munish Goel, Advocate.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                               

                    Since common controversy of facts and law is involved in the above referred complaints and as such, they are being disposed of by this common order, which shall be pronounced in Consumer Complaint no. 117 of 2018 titled as Harjindder Kaur etc versus Shiwalik Site Planners Private Limited and others.

Facts of Consumer Complaint No.117 of 2018

 

2.             Complaint No.117 of 2018 has been filed by complainant Harjinder Kaur and her husband Raghuvir Singh U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that they booked a residential plot bearing no. 52 measuring 250 sq. yard (30’x75’)  in Shiwalik Estates Sector 116 @ Rs.17,000/- per sq. yards for total sale consideration of Rs.42,50,000/-. Buyers agreement was executed between the parties on 23.01.2012 in this regard on the basis of resolution passed by OPs in the meeting of Board of Directors held on 21.12.2011. The complainants, who are husband and wife, paid the total amount of Rs.42,50,000/- to OPs on different occasions as sale price of the plot. The entire sale amount has been paid by the complainants to OPs on the same day when buyers agreement was executed. OPs agreed to deliver the possession of the allotted plot to complainants by 26.05.2012  and further agreed to execute the sale deed of the plot in favour of the complainants, as per buyers agreement. OPs agreed to execute the sale deed as per approved site plan and with further provision of water, sewerage and all other basic amenities to the allotted plot. As per buyers agreement, if OPs failed to execute the sale deed or deliver the possession of the allotted plot to them, then in that eventuality, the OPs would refund the amount of Rs.42,50,000/-  to complainants with interest @ 12% per annum and no EDC charges would be claimed thereon. OPs issued ‘no due certificate’ dated 23.01.2012 to complainants, stating that full and final payment has been received against plot no. 52 from them. Amarpreet Singh Hira was appointed by OPs, vide resolution no.SSPL/10/23.01.12/237 to execute the sale deed of the plot in favour of the complainants on their behalf. Possession was not offered by OPs to complainants. OPs informed the complainants that due to some unavoidable technical reasons, they re-allotted new plot    no. P-02 measuring 250 sq. yard to complainants and the latter were sought to give consent in that regard. OPs changed number of plot from 52 to 02 unilaterally and arbitrarily, without any consent of the complainants. The allotment letter was issued by OPs on 09.07.2014, vide SSPPL/Mohali/02 dated 09.07.2014, asking them to sign buyers agreement for allotment of the another plot.  They visited the spot and found that there were no development of any kind in place and no specific number of plots were shown and even demarcation of the plots were not carried out. The complainants alleged deficiency in service on the part of OPs. They seek below noted relief against OPs :-

1. OPs be directed to refund the total amount of Rs.42,50,000/- to them along with 12% per annum, besides compensation for mental harassment and cost of litigation.

3.                  Upon notice, OPs no.1,2,4 and 5 appeared and filed their written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable, as matter can be adjudicated by civil court only due to its complexity. The possession is complete in all respects, subject to clearance of all dues of the allotted plot by allottees, but the dues have not been cleared by the complainants. The complainants never came forward to receive the possession or for execution of the conveyance deed of the plot in their favour. The complainants purchased the plot for resale purposes only and are not consumers of OPs. They have already their house in their name at Khanna and they have no genuine need to purchase this plot for their self-occupation. The possession was to be delivered to them as per their pleadings on 26.05.2012 and the complaint has been filed in January 2018 after six years period therefrom and is barred by time. On merits, OPs are reasserted above averments and prayed for dismissal of the complaint.

4.                OP no.3 filed his own written reply raising objection that he has no role in the management of M/s Shivalik Site Planners Pvt. Ltd. He is not the Managing Director /Director of the said concern. He has already resigned from the post of Director of the said concern in the year 2014. After his resignation from the post of Director of the said concern, he is not liable, as he has not been looking day to day affairs of the OP's concern. He prayed for dismissal of the complaint against him.

5.                The complainant no.1 tendered in evidence her affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-11 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh.Ghansham Sharma Managing Director of Shivalik Site Planners as Ex.OP-A, affidavit of Amardeep Singh as Ex.OP-B, affidavit of Daljit Singh as Ex.OP-C along with copies of documents Ex.OP-1 to Ex.OP-3 and closed the evidence.

Fact of Consumer Complaint No.214 of 2018

 

6.                Complaint No.214 of 2018 has been filed by complainant Uma Vasudeva and her son Gaurav Vasudeva U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that they agree to purchase independent residential plot in the project of OPs. They purchased plot for their residential purposes only and are thus consumers of OPs. They paid amount of Rs.6 lac  to OPs vide receipt no.2228 dated 12.11.2011. After receiving the amount, OPs entered into buyrs agreement dated 07.02.2012 with regard to sale of the plot in their favour, wherein OPs acknowledge the receipt of amount of Rs.15 lac from the complainants. The date of execution of the sale deed of the plot was stipulated as on 10.03.2012. The total sale price of the plot was Rs.33 lac, out of which, OPs gave discount of Rs.2 lac to complainants. OPs contravened the provisions of PAPRA Act 1995 and received consideration from the complainants as stated below :-

 

Cheque No.       Amount              Date                    Receipt No.

465496                Rs.6,00,000/-      12.11.2011                   2228

465498                Rs.4,00,000/-      05.12.2011                   2242

377532                Rs.5,00,000/-      07.02.2012                   2224

034216                Rs.5,00,000/-      05.03.2012                   2358

                             Rs.5,00,000/-                                           2625

542669                Rs.5,00,000/-      28.06.2013                   2617

542675                Rs.1,00,000/-      05.08.2013                   2630

OPs issued allotment letter and no due certificate dated 01.07.2013 to the complainants. The allotment letter issued by OPs was silent on the development and scheduled date of delivery of possession of the allotted plot. The complainants found on the spot that no development work has been started by OPs. OPs received the amount of Rs.31 lac from complainants without obtaining any permissions or approvals from the competent authority for development of this project. The complainants alleged violation of the provisions of PAPRA Act 1995 in this case by OPs. The complainants further averred that OPs have not delivered the physical possession of the plot to them since payment of the amounts paid by them. They further averred that both are co-allottees being mother and son in the plot. They prayed for below noted reliefs against OPs :-

1. OPs be directed to refund the amount of Rs.31 lac to complainants along with interest @ 15% from the date of their respective deposits till realization.
2. OPs be directed to pay Rs.2 lac as compensation for mental harassment and Rs.1 lac as litigation expenses.

7.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is not maintainable. The allotment was made in the name of Uma Vasudeva  and Gaurav Vasudecva, whereas the present complaint is filed and signed by Uma Vasudeva. The complainants are not ‘consumers’ of the OPs. Since there is contractual obligation in controversy in this case and matter can be adjudicated by the competent civil court only and not by Consumer Forum in summary jurisdiction. The possession was ready for delivery with OPs in the year 2013 of the allotted unit,  whereas complainants purchased the plot in the year 2011 when they have made the total payment of the plot to OPs. Even on merits, OPs stated that the complainants paid the last payment on 15.08.2013 when they have issued allotment letter dated 01.07.2013. The complainants have not taken the possession of the plot despite offering by OPs. OPs controverted the averments of the complainant and prayed for dismissal of the complaint.

8.                The complainant tendered in evidence her affidavit Ex.C-1 along with copies of documents Ex.C-1 to Ex.C-15 and closed the evidence. As against it; OPs tendered in evidence affidavit of Ghansham Sharma Managing Director of OPs as Ex.OP-A along with copy of document Ex.OP-1 and closed the evidence.

Findings of Consumer Complaint No. 117 of 2018

9.                We proceed to decide this complaint as instituted by Harjinder Kaur and her husband Rahguvir Singh against OPs in this case. The pleadings of the parties and evidence adduced on record by them have been carefully appraised by us, besides hearing arguments of counsel for the parties at length. OPs/Shiwalik Site Planners Private Limited concern passed resolution Ex.C-1 and Ex.C-2 authorizing Amardeep Singh its Managing Director and Daljit Singh Director in this case to pursue the case. Ex.C-3 is allotment letter of plot no.52 to complainants by OPs on 23.01.2012 in the above project. The complainants paid the amount to OPs, which fact is evidenced on record vide receipt Ex.C-4 dated 23.01.2012 to the tune of Rs.15 lac. Buyers agreement was executed between the parties in this case, vide Ex.C-15. OPs agreed to deliver the possession of the allotted plot to complainants by 26.05.2012, as stipulated in it. Total sale price of the plot has been  set out as Rs.42,50,000/-. The complainants paid entire sale amount to OPs and this fact is admitted by OPs in the ‘no due certificate’ dated 23.01.2012 Ex.C-6, admitting therein that full and final payment has been received of plot no. 52 from complainants. The document (no due certificate) Ex.C-6 dated 23.01.2012 has proved this fact that complainants paid entire amount of sale price to OPs by 23.01.2012. OPs unilaterally re-allotted the plot no.P-02 to complainants instead of originally allotted plot no.52, vide re-allotment of the plot dated 09.07.2014 Ex.C-7 on the record. The complainants never give consent to allotment of new plot no.P-02 to them instead of already allotted plot no.52 to them. The OPs did it unilaterally on the back of the complainants, which fact is proved by fresh allotment of the plot no.P-02 dated 09.07.2014 Ex.C-8 on the record. OPs again issued no due certificate dated 09.07.2014 with regard to plot no. P-02 having received full and final payment thereof from complainants. The complainants sent legal notice to OPs Ex.C-10 on 26.12.2017, pointing out deficiency in service on the part of OPs, supported by postal receipt Ex.C-11 on the record. This Commission  has held in “Surinder Juneja versus M/s Shiwalik Infrastructure and others”  in Consumer Complaint No. 1089 of 2017 decided on 04.02.2019  and Consumer Complaint no. 395 of 2017 case titled as “Mrs. Kiran Singh versus Shivalik Infrastructure & Development Pvt.Ltd. and others.”, decided on 16.03.2018 that OPs deficient in service on their failure to deliver the possession of the allotted plot to allottee by relying upon law laid down by National Commission in EMAAR MGF Land Limited and another versus Dyal Singh, Gurdev Singh Badial reported in 2015(v) CPJ 294(NC) and EMMAR MGF Land Limited and another vs. Dishad Gill reported in III(2015) CPJ 329 (NC).

10.              To refute this evidence of complainants, OPs relied upon affidavit of Ghansham Sharma Managing Director of OPs as Ex.OP-A , affidavit of Amardeep Singh Hira as Ex.OP-B. Ex.OP-1 is resolution and affidavit of Daljit Singh Ex.C-3 Director on the record, being OP no.3 stating that he has already resigned from the post of Director of the said Company. This is only evidence on record by OPs in rebuttal.    

11.              The contention of OPs is that complainants are not consumers is without substance. This is residential project and complainants pleaded this fact that they purchased it for their residence and OPs produced no rebuttal that they are either property dealers dealing in sale and purchase of the plots. When a person purchases any plot in residential project, he always purchases it for his residence. Consequently, they are held to be consumers of OPs and contention of OPs is dispelled on this point. We further find from pleaded case of the parties and evidence on record that OPs agreed to allott plot no. 52 to complainants. They received the entire sale consideration amount of this plot from them, but they failed to deliver possession of plot no. 52 to them by 26.05.2012 as per buyers agreement Ex.C-5. OPs unilaterally allotted another plot  to complainants on 09.07.2014, vide Ex.C-7 and re-allotment of plot, vide Ex.C-8 after scheduled date of delivery of possession of plot no. 52. This act of OPs is unilateral without any consent of the complainants and it indicates towards unfair trade practice by them. Once, complainants have cleared the entire sale consideration amount to OPs and OPs failed to deliver the possession of the allotted plot to complainants in all respects by due date 26.05.2012, hence it is deficiency in service on the part of OPs. The complainants/allottees cannot wait for an indefinite period for seeking physical possession of the plot and cause of action in this case is continuing one and it cannot be said that complaint is barred by time. Consequently, deficiency in service on the part of OPs and unfair trade practice as well stands established because they received the entire sale consideration amount from complainants, but they failed to deliver the possession of plot by due date i.e. 26.05.2012. OPs unilaterally allotted another plot to complainants without their consent which fact also points out deficiency in service and unfair trade practice on the part of OPs,  justifying the refund of the deposited amounts to complainants with interest thereupon. Deficiency in service and unfair trade practice on the part of OPs is proved on the record in this complaint.

12.              Daljit Singh /OP no.3 has moved an application that he is not authorized signatory of Shiwalik Site Planners Private Limited and others  and has resigned from his post of Director on 05.07.2014 and hence he submitted that he be exempted in this case by dismissing the complaint against him. We find that he was Director before scheduled date of delivery of possession and receipt of sale amount from the complainants. The entire transaction has been completed during his tenure of directorship, so now he cannot be absolved from the same, when he was Director of the OPs on the above referred time. His contention is not accepted on this point and his application for dismissal of the complaint against him is rejected.

Findings of Consumer Complaint No.214 of 2018

13.              We proceed to decide this complaint no. 214 of 2018 filed by Uma Vasudeva and another versus Shiwalik Site Planners Pvt. Ltd in this case. Both complainants are mother and son respectively and they are co-allottees of the plot. One co-allottees can bring complaint on behalf of another co-allottee and there is no legal controversy of this matter. Even if, GPA given by OP no.2 is not in order, then complaint filed by one of the co-allottees is competent. Without commenting on the validity of this GPA, we hold that complaint is maintainable. OPs allotted the plot to complainants for sale amount of Rs.33 lac  measuring 150 sq. yard. The allotment letter of the plot no. 209 issued to complainants is dated 01.07.2013. The complainants have paid the entire sale consideration amount to OPs and OPs admitted this fact in the ‘no due certificate’ dated 01.07.2013, vide Annexure C-9 on the record. Buyers agreement was executed between the parties on 07.02.2012 vide Annexure C-3. No specific time for delivery of possession has been given in the buyers agreement and it violates the mandatory provisions of Section 3(ii)(g) and Section 6(iii)(i) of PAPRA Act 1995. The promoter/builder is mandated by the statutory provisions of above Act to specify the time in writing for delivery of possession to allottee, which has not been done either in allotment letter or in buyer’s agreement in this case. This is unfair trade practice on the part of OPs. OPs received  sale amount of the plot from complainants by virtue of receipts Annexure C-4 to Annexure C-7 on the record. No due certificate Annexure C-8 dated 01.07.2013 acknowledged the full and final payment by OPs executed by Amardeep Singh Hira. Annexure C-1 is site plan on the record. Amount of  Rs.6 lac was received by OPs from complainants, vide receipt Annexure C-2. Photographs of the project are Ex.C-3 to Ex.C-5 on the record. Buyers agreement is dated 07.02.2012 is Ex.C-7 which specifies no time for delivery of possession despite statutory provision to that effect in PAPRA Act 1995. The receipt of the amounts paid by complainants to OPs are Ex.C-8 to Ex.C-11 on the record. The complainant- Uma Vasudeva sent letter to OPs dated 07.07.2015 Ex.C-14 for delivery of possession and demarcation of the plot, as soon as possible, which has not been done by OPs. This Commission  has held in “Surinder Juneja versus M/s Shivalik Infrastructure and Developers Pvt. Ltd and others”  in Consumer Complaint No. 1089 of 2017 decided on 04.02.2019  and Consumer Complaint no. 395 of 2017 case titled as “Mrs. Kiran Singh versus Shivalik Infrastructure & Development Pvt.Ltd., and others”, decided on 16.03.2018 that OPs held deficienct in service on their failure to deliver the possession of the allotted plot to allottee by relying upon law laid down by National Commission in EMAAR MGF Land Limited and another versus Dyal Singh, Gurdev Singh Badial reported in 2015(v) CPJ 294(NC) and EMMAR MGF Land Limited and another vs. Dishad Gill reported in III(2015) CPJ 329 (NC).

14.              OPs relied upon affidavit of Ghansham Sharma Managing Director of OPs as Ex.OP-A in this regard to the effect that complaint is not maintainable, which point has already been  settled by us, because even one co-allottees can file complaint on behalf of allottees. The complaint pertains to residential project, which is meant for residence purpose only. There is no rebuttal evidence by OPs that complainants are property dealers and have been dealing in sale purchase business of the property. We find that OPs are deficient in service and guilty of unfair trade practice in not specifying the time for delivery of possession in allotment letter or buyers agreement to the allottee. The complainants paid the full amount to OPs, but they failed to deliver the possession of the allotted plot to them. Even three years reasonable period for delivery of possession from the date of allotment has already expired in this case. The allottee cannot be expected to wait for an indefinite period for receiving the possession of the allotted property. OPs has been utilizing the hard earned money of the complainants without performing their corresponding obligation of developing the project and delivery of possession to complainants, which is an enigmatic factor in this case. The complainants wrote letter Ex.C-14 dated 07.07.2015  to OPs for delivery of possession, which went unanswered and unresponded by them. Deficiency in service on the part of OPs is, thus, established in this, complaint justifying seeking refund of the deposited amounts by complainants from OPs.

Decision of Consumer Complaint no. 117 of 2018

15.              This complaint titled as Harjinder Kaur and another versus Shiwalik Site Planners Pvt. Ltd and others is accepted and OPs are directed to refund the entire deposited amount of Rs.42,50,000/- with interest @ 12% per annum from the date of their respective deposits till their actual payment. The complainants are also held entitled to the amount of Rs.75,000/- as compensation for mental harassment and cost of litigation from OPs in this case.

Decision of Consumer Complaint no. 214 of 2018

16.              This complaint titled as Uma Vasudeva and another versus Shiwalik Site Planners Pvt. Ltd and others is accepted and OPs are directed to refund the entire deposited amounts of Rs.31,00,000/- with interest @ 12% per annum from the date of their respective deposits till actual payment to complainants. The complainants are also held entitled to Rs.75,000/- as compensation and cost of the litigation.

17.              Arguments in the above complaints were heard on 05.03.2019 and the order were reserved. Certified copies of the order be communicated to the parties under rules.

18.              The above complaints could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                        PRESIDING JUDICIAL MEMBER

 

 

                                                           (RAJINDER KUMAR GOYAL)

                                                                             MEMBER

 

March 8,  2019                                                           

(ravi)