DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                       Consumer Complaint No.320 of 2015

                                                Date of institution:  09.07.2015                                                       Date of decision   :  04.12.2017

Bharat Bhushan son of Darshan Lal, resident of H.No.90, Model Colony, Yamuna Nagar, Haryana.

                                                                     ……..Complainant

                                                Versus

Sky Rock City Welfare Society (Regd.) SCO No.672, Sector 70, First Floor, Mohali, District SAS Nagar (Mohali) through its President/Authorised signatory.

                                                              ………. Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President        

Mrs. Natasha Chopra, Member                  

Present:      Shri Jai Pal Singh, counsel for the complainant.

                   None for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                   Complainant Bharat Bhushan  has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                In response to the advertisements of the OP for sale of residential plots in the project named as Sky Rock Welfare Society at Sector 111-112, SAS Nagar, the complainant booked 100 sq. yard residential plot with the OP  @ Rs.9,500/- per sq. yard.  The complainant paid Rs.5,000/- vide receipt dated 08.06.2011 towards registration/membership of the OP. Thereafter as per terms and conditions mentioned in the registration slip, the complainant paid total amount of Rs.7,92,500/- to the OP from 08.06.2011 to 01.08.2012. The OP also issued share certificate dated 23.04.2012 to the complainant. At the time of registration of the plot, the OP assured the complainant that the physical possession of the plot shall be handed over within two years from the date of registration. It was also assured that in case the applicant does not want to continue even after paying some installments, the OP will refund the entire amount with interest after one year from the date of registration.  The OP had also assured that the project is approved by the appropriate authorities and all approvals, clearances had been issued in the name of the OP. The complainant visited  the OP many times to enquire about the draw of lots of residential plots but the OP always postponed the matter on one pretext or the other by giving false assurances. Till date the possession of the plot has not been given to the complainant. The complainant has come to know that the project is not approved by the concerned authorities. The OP had also issued provisional allotment letter dated 18.12.2012 to the complainant whereas the project was not approved by the concerned authorities. As the OP has not started construction at the site, the complainant vide notices dated 04.04.2013, 09.10.2013 and 13.05.2015 requested the OP to refund the deposited amount. However, the OP had not refunded the amount.

Hence this complaint for giving directions to the OP to refund to the complainant Rs.7,92,500/- alongwith interest @ 18% per annum from the dates of deposit till realisation;   to pay him Rs.5,00,000/- for mental agony and harassment and Rs.25,000/- as costs of litigation.

3.                The complaint has been contested by the OP by filing reply in which it has been pleaded that the complaint is pre-mature and is not maintainable. The complainant has not approached this Forum with clean hands. On merits, it is pleaded that the OP held two draws on 01.04.2015 and 25.07.2015  about which public notice was given in the newspapers.  The plots had been allotted to its eligible members.  As per the provisional allotment letter issued to the complainant, the OP is liable to give the plot the complainant within 36 months from the date of allotment after the complainant had paid all of his payments alongwith other dues. Provisional plot number has been allotted to the complainant and the complainant had agreed to terms and conditions of the society.  Thus, denying any deficiency in service on his part, the OP has 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; copies of receipts Ex.C-1 to C-6; share certificate Ex.C-7; provisional allotment letter Ex.C-8; letters for refund Ex.C-9 to C-12.  In rebuttal, the OP tendered in evidence affidavit of Navjeet Singh its President Ex.OP-1/1 and provisional allotment letter Ex.OP-1.

5.                It has been argued by learned counsel for the complainant that the complainant had agreed to purchase plot of 100 sq. yard @ Rs.9,500/- per sq. yards and had paid a total sum of Rs.7,92,500/- to the OP but the possession of the plot has not been handed over to him.  Learned counsel further argued that the OP has accepted the payment from the complainant without having the requisite permissions/sanctions. Thus by selling the plot without the requisite permissions/sanctions the OP adopted unfair trade practice.  Learned counsel further argued that the OP had assured to handover the possession within two years from the date of registration but till date no construction activity has started at the site which amounts to deficiency in service on the part of the OP.  None appeared for the OP to address arguments.

6.                We have gone through the pleadings, evidence and written arguments of the complainant and heard the oral submissions, addressed by the learned counsel for the complainant. Against the price of the plot, the complainant had paid an amount of Rs.7,92,500/- vide receipts Ex.C-1 to C-6 and thereafter the OP had issued share certificate in favor of the complainant. As per condition No.5 of terms and conditions attached with the receipt Ex.C-1, 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. 08.06.2011. Even the OP has not refunded the amount to the complainant despite his letters Ex.C-9 to C-12.

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.7,92,500/-  (Rs. Seven Lakhs Ninety Two Thousand  Five Hundred 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

(Mrs. Natasha Chopra)

Member