DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.271 of 2016
Date of institution: 12.05.2016 Date of decision : 04.12.2017
Ashwani Sood son of Sant Kumar Sood, resident of House No.1761, Sector 39-B, Chandigarh.
……..Complainant
Versus
M/s. Sky Rock City, through its President, Sky Rock City Cooperative House Building Society, SCO No.672, First Floor, Sector 70, Mohali.
2nd Address:
The President, Sky Rock City, Sky Rock Cite Cooperative House Building Society, Sky Rock Welfare Society (Regd.), SCO 26, First Floor, Phase-2, Mohali.
3rd Address:
The President, Sky Rock City, Sky Rock Cite Cooperative House Building Society, Sky Rock Welfare Society (Regd.), Sector 111-112, Back side of CGC College.
………. Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President
Shri Amrinder Singh Sidhu,
Mrs. Natasha Chopra, Member.
Present: Shri Nakul Kapoor, counsel for the complainant.
None for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Ashwani Sood has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section of the Consumer Protection Act. The brief facts of the complaint are as under:
2. On 20.05.2011 the complainant submitted application form for membership of the OP society and also booked a plot measuring 100 sq. yards @ Rs.8,000/- per sq. yard through the same application form. The complainant made payment of Rs.10,000/- towards membership fee through cheque. At the time of booking it was represented to the complainant by the OP that the physical possession of the plot would be handed over not later than two years from the registration/requisition. Also there was specific clause in the terms and conditions provided by the OP that the possession of the plot would be handed over physically not later than two years of registration/requisition. The complainant made another payment of Rs.80,000/- to the OP through cheque dated 05.02.2012 and third payment of Rs.1,20,000/- was made by the complainant to the OP through cheque dated 20.07.2012. Thus the complainant made a total payment of Rs.2,10,000/- to the OP. There was also a clause in the terms and conditions that if the complainant does not want to continue with the allotment after paying installments, he will be refunded the amount alongwith interest @ 8% per annum after three years from the date of requisition. The complainant came to know that no land has been allotted to the OP for its onward allotment of its members. After that the complainant several times requested the OP to refund the amount alongwith interest. The complainant had lost trust in the OP society as the OP failed to hand over the possession of the plot within two years from the registration i.e. before 19.05.2013. The complainant had been demanding refund from the OP but the staff of the OP completely refused to refund the amount. Hence, the complainant has prayed for directing the OP to refund her Rs.2,10,000/- alongwith interest @ 8% per annum from the date of registration till filing of the complaint and future interest @ 18% per annum on Rs.2,10,000/- and interest so worked out @ 8% per annum from December, 2011 till the filing of the complaint; to pay her Rs.2,00,000/- on account of mental agony and harassment and Rs.25,000/- as costs of litigation.
3. The complaint has been contested by the OP and it has pleaded in the preliminary objections that the complaint is misconceived and premature as the complainant has not applied for refund and has also not made a requisition till date. As per condition No.4 the complainant shall be liable for refund after a period of three years from the date of requisition. Furthermore, prior to requisition if the complainant fails to make scheduled payment as per condition No.9, the membership can be cancelled due to non adherence of the terms and conditions of the allotment. On merits, the OP has denied the averments of the complaint an sought dismissal of the complaint.
4. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1; affidavit of Abhishek Sood Ex.CW-1/2; copies of application form Ex.C-1; terms and conditions Ex.C-2; receipts Ex.C-3 to C-5; letter dated 26.11.2013 Ex.C-6 and newspaper cutting dated 28.02.2017 Ex.C-7. The OP failed to lead evidence despite availing ample opportunities and thus the evidence of the OP was closed by order on 03.08.2017.
5. The learned counsel for the complainant has submitted that the complainant booked a 100 sq. yard plot in the project of the OP by paying Rs.10,000/-, vide receipt dated 21.08.2011 Ex.C-3. Thereafter the complainant paid Rs.80,000/- to the OP vide receipt dated 21.10.2011 Ex.C-4 and further paid Rs.1,20,000/- vide receipt dated 28.07.2012 Ex.C-5. As per condition No.5 of terms and conditions Ex.C-2 the possession of the plot was to be handed over physically not later than two years of registration/requisition. Learned counsel has argued that the OP has failed to handover possession of the plot within the agreed period of two years. Then the complainant sought refund of the deposited amount but the OP flatly refused to refund the amount to the complainant. Learned counsel for the complainant has thus prayed for allowing the complaint. None appeared for the OP to address oral arguments.
6. We have given thoughtful consideration to the submissions of the counsel for the complainant. The complainant booked a plot of 100 sq.yds. with the OP by paying Rs.10,000/- vide receipt dated 21.08.2011 Ex.C-3 and paid total amount of Rs.2,00,000/- vide two receipts Ex.C-4 and C-5 respectively. As per condition No.5 of terms and conditions Ex.C-2 the possession of the plot was to be handed over physically not later than two years of registration/requisition. The OP did not offer possession to the complainant within two years from the date of registration i.e. 21.08.2011. When the complainant sought refund of his deposited amount, the OP refused to refund the amount of the complainant.
7. It is relevant to mention here that a number of cases have been filed against this very OP in this Forum as well as before the Hon’ble State Commission, in which it has been abundantly proved that the OP has no requisite licences/permissions/approvals from the competent authorities for developing the project. Thus, the OP has illegally pocketed the hard earned money of the various consumers, without completing the project and they have been litigating in various courts against this builder. As per section 3 (General Liabilities of Promoter) of the PAPRA, the OP was 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. The OP was 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 OP failed to comply with section 3 of the PAPRA. As per section 5 (Development of land into Colony) of PAPRA, the OP was liable to obtain permission from the competent authority for developing the colony, but it failed to produce on record any such permission, as it failed to lead any evidence. So, it 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 OP to prove that any account has been maintained by it in this respect. There is no evidence or pleading on record on behalf of the OP in this respect. As such, the OP 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 OP 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 OP is 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 OP has 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 complainant is to be suitably compensated. The complainant has made payment of substantial amount to the OP with the hope to get the possession of the plot in a reasonable period. The circumstances clearly show that the OP 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 OP 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 OP i.e. builder knew from the very beginning that it 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 complainant to book the plot, due to which the complainant has suffered mental agony and harassment. In these circumstances, the complainant is entitled to the refund of the amount deposited by her, 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 OP to refund the deposited amount of Rs.2,10,000/- (Rs. Two Lakhs 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 complainant is 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 OP is 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: 04.12.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
