DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.296 of 2016
Date of institution: 20.05.2016 Date of decision : 22.11.2017
1. A.P. Duggal son of Dharam Pal Dugal.
2. Rajni Dugal wife of A.P. Duggal,
Residents of House No.66, Phase-VI, SAS Nagar, Mohali.
……..Complainants
Versus
1. Sky Rock City Welfare Society, (Regd.), Banur Road, Back Side C.G.C. College, Landran, Sector 111-112, Mohali through its President/Authorised Signatory.
Also at Sky Rock City Welfare Society (Regd.), SCO 672, Sector 70, 1st Floor, Mohali through its President/Authorized Signatory.
2. Shri Navjeet Singh son of Daljit Singh, The President of Sky Rock City Welfare Society, resident of House No.67, Sector 69, Mohali, Punjab.
3. Smt. Parminder Kaur wife of Navjeet Singh, The General Secretary of Sky Rock City Welfare Society, resident of House No.67, Sector 69, Mohali, Punjab.
………. Opposite Parties
Complaint under Sections 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Vikrant Duggal, counsel for the complainant.
None for the OPs.
ORDER
By Ajit Pal Singh Rajput, President
Complainants A.P. Duggal and Mrs. Rajni Duggal have filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainants booked one residential plot of 100 sq. yards in the project of the OPs namely Sky Rock City Welfare Society at Sector 111-112, SAS Nagar, Mohali and paid the initial amount of Rs.10,000/- vide receipt dated 20.06.2011 towards registration/membership The complainants had also paid Rs.2,55,000/- to the OPs against receipt dated 20.06.2011; Rs.2,55,000/- against receipt dated 25.11.2011, Rs.51,000/- against receipt dated 01.03.2012, Rs.2,55,000/- against receipt dated 28.05.2012, Rs.1,02,000/- against receipt dated 10.10.2012, EDC of Rs.75,000/- vide cheque dated 02.03.2015. The complainants had paid a total sum of Rs.9,93,000/- till 02.03.2015. Share certificate bearing No.2409 was issued to the complainants on 02.12.2011. At the time of registration, the OPs had assured that the physical possession of the plot shall be handed over within two years from the date of getting membership/registration. It was also assured that in case the complainants do not want to continue even after paying some installment, the OPs would refund the entire amount with interest after one year from the date of registration/membership. The OPs had also assured that their project is approved by the appropriate authorities and all mandatory approvals, clearances i.e. developer license, promoter license, environment clearance, change of land use, municipal clearance etc. has been issued in the name of the OP. Even though the complainant had deposited 90% of the total consideration of the plot including EDC, but still the possession of the plot has not been delivered to the complainant. The balance consideration of 10% was to be made at the time of possession. As per Clause No.5 the terms and conditions provided by the OPs, the possession was to be handed over physically not later than two years of registration/requisition i.e. on or before June 2013 but till date the possession has not been delivered to the complainants. As per knowledge of the complainants, LOI was issued by the GMADA on 23.09.2013. The complainants visited the OPs many a times to enquire about the draw of lots but the OPs always postponed the matter on one pretext or the other by giving false assurance. The OPs also told the complainants that they will be eligible for draw of lots and will be allotted a plot only if he signs a provisional allotment letter and some other documents. Instead of giving possession, the OPs issued a provisional allotment letter dated 01.12.2012 whereby the OPs very cleverly changed all the terms and conditions and as per these terms and conditions, the possession of the plot was to be given within 36 months from the date of allotment. The OPs had arbitrarily changed the terms and conditions which act of the OPs amounts to unfair trade practice. The OPs vide letters dated 19.08.2015, 21.12.2015 and 05.01.2016 informed the complainants that they have been allotted Plot No.81 M by draw of lots in Sector 111-112, Mohali. In these letters, the OPs have arbitrarily raised demands of Rs.75,000/- as EDC and Rs.1,00,000/- as IDC . The complainants vide letters dated 05.10.2015 and 20.02.2016 asked the OPs to withdraw the unjustified demand of EDC/PLC/IDC and to deliver possession without any further delay. These letters have duly been received by the OPs but the OPs neither delivered possession nor gave reply to any of the letter. Now it has come to the knowledge of the complainants that the project of the OPs is illegal and unapproved. The OPs had started booking of the plots on site without obtaining any developer license and without taking any approval from the appropriate authorities. The complainants visited the site and found no development there. Hence, the complainants have prayed for directing the OPs to deliver the possession of the plot without any further delay and to pay 18% interest on the amount deposited with them w.e.f. June, 2013 till handing over of physical possession of the plot OR to refund the amount of Rs.9,93,000/- alongwith interest @ 18% per annum from the date of deposit till realisation; to refund the amount of Rs.10,000/- paid as membership; to pay Rs.1,20,000/- as compensation for mental agony, harassment and humiliation and litigation costs of Rs.30,000/-.
3. In response to the notice, Shri Ram Yash Verma, Advocate appeared and filed power of attorney on behalf of the OPs and sought reply but the OPs failed to file reply within the period as stipulated by the Hon’ble Supreme Court in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. In Civil Appeal No.10941-10942 of 2013 decided on 04.12.2015, the case was posted for evidence of the complainants.
4. In order to prove the case, the counsel tendered in evidence joint affidavit of the complainants Ex.CW-1/1; copies of registration/membership Ex.C-1; receipts/cheque Ex.C-2; share certificate Ex.C-3; demand notice Ex.C-4; provisional allotment letter Ex.C-5; demand letter Ex.C-6; letter Ex.C-7; application form Ex.C-8 and demand letter Ex.C-9. The OPs also failed to lead evidence despite imposition of costs and thus the evidence of the OPs was closed by order on 30.03.2017.
5. The learned counsel for the complainants has submitted that the complainants booked a 100 sq. yard plot in the project of the opposite parties by paying Rs.10,000/-, as membership fee, vide receipt dated 20.06.2011 Ex.C-1. The complainants had paid 90% of the amount of the plot i.e. Rs.9,93,000/- vide various receipts/cheque Ex.C-2 (colly). Learned counsel has further argued that the complainants were assured the possession of the plot was to be handed over physically not later than two years from the date of membership/registration but the opposite parties have failed to develop the plot/project or to deliver the possession of the plot to him. Learned counsel has further argued that the OPs have issued provisional allotment letter Ex.C-5 vide which plot No.G-22, in Sector 111-112, SAS Nagar, Mohali has been allotted. In letter Ex.C-5 the OPs have changed the period of handing over of possession to 36 months without consent of the complainant. As there is no development at the site, the learned counsel for the complainants has argued that the amount deposited by the complainants may be got refunded to them. None appeared on behalf of the OPs for addressing arguments.
6. We have given thoughtful consideration to the submissions of the complainants. The complainants booked a plot of 100 sq.yds. with the opposite parties, by paying Rs.10,000/-, as membership fee vide receipt dated 20.06.2011 Ex.C-1. Thereafter the complainants paid total sum of Rs.9,93,000/- with the OPs vide receipts/cheque Ex.C-2 (colly) towards 90% payment of the plot. As per the assurance given by the OPs to the complainants and as per condition No.5 of Ex.C-1, the possession was to delivered not later than two years of registration/requisition. The registration date of the plot was 20.06.2011; meaning thereby that the possession of the plot was to be delivered by 19.06.2013, but the opposite parties have failed to complete their project and to deliver the possession of the plot to the complainants within that period. However, instead of that the OPs issued provisional allotment letter Ex.C-5 dated 01.12.2012 vide which they have changed the period of possession from two years to 36 months without consent and knowledge of the complainants.
7. It is relevant to mention here that a number of cases have been filed against these very opposite parties in the this Forum as well as before the Hon’ble State Commission, in which it has been abundantly proved that the opposite parties have no requisite licences/permissions/approvals from the competent authorities for developing their project. Thus, the opposite parties have illegally pocketed the hard earned money of the various consumers, without completing their project and they have been litigating in various courts against this builder. As per section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days, notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with section 3 of the PAPRA. As per section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission, as they failed to lead any evidence. So, they also violated Section 5 of PAPRA. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. There is no evidence or pleading on record on behalf of the opposite parties in this respect. As such, the opposite parties also violated Section 9 of the PAPRA. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest. As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”
8. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of plot within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainants are to be suitably compensated. The complainants have made payment of substantial amount to the opposite parties with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of plot and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainants to book the plot, due to which the complainants have suffered mental agony and harassment. In these circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and suitable compensation. The Hon’ble Punjab State Consumer Disputes Redressal Commission in a latest decision in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
9. Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.9,93,000/- (Rs. Nine Lakhs Ninety Three Thousand only) and Rs.10,000/- (Rs. Ten Thousand only) to the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts, till the actual date of refund. We also find that complainants are entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OPs and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed.
The OPs are further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 22.11.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
