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

Consumer Complaint No.281 of 2017

                                                 Date of institution:  17.04.2017                                                         Date of decision   :  22.03.2018

Bhavdeep Singh Baidwan son of Shri B.S. Baidwan, resident of House No.905, Sector 4, Mundi Kharar, District SAS Nagar.

…….Complainant

Vs

1.     M/s. Sky Rock City Welfare Society (Regd.), Banur Road, Back side C.G.C. College, Landran, Sector 111-112, Mohali Punjab, through its President/Authorised signatory.

2.     Mr. Navjeet Singh s/o Daljit Singh, President of the Sky Rock City Welfare Society (Regd.), resident of House No.67, Sector 69, Mohali, Punjab (now in Central Jail, Patiala as per orders dated 27.03.2017 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh), through Superintendent Jail Patiala, Punjab.

3.     Greater Mohali Area Development Authority (GMADA) through its Chief Administrator, PUDA Bhawan, Sector 62, SAS Nagar, Mohali.

……..Opposite Parties.

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member

                Mrs. Natasha Chopra, Member.

Present:    Shri P.P. Singh, counsel for complainant.

                OP No.1 and 2 ex-parte.

                Shri G.S. Arshi, counsel for OP No.3.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant on being allured by the publicity made by OP No.1 through newspapers, purchased residential plot in Sector 111-112, Mohali in the project named and styled as Sky Rock City Welfare Society at village Behrampur, District SAS Nagar, but after becoming member of OP No.1 society.  Cost of the plot was Rs.6,000/- per sq. yard. Size of the residential plot was 100 sq. yard. Rs.5,000/- were paid towards membership fee vide receipt No.1482 dated 28.12.2010. Share certificate dated 29.11.2011 even was issued in favour of complainant by OP No.1. A sum of Rs.5,35,000/- being 90% of cost of land was paid vide receipts issued by OP No.1 in favour of complainant during period from 28.12.2010 to 27.08.2014. Rs.80,000/- were paid towards EDC/IDC charges. As per Clause-5 of buyers agreement, possession of the plot was to be handed over to complainant not later than two years of registration/requisition. So virtually possession was to be delivered before 28.12.2012. Complainant withheld payment of certain amounts in view of reasonable and justifiable apprehension that OPs will not fulfill their obligation. It is claimed that OPs have not done any spade work at the site for developing it and making it habitable. As per knowledge of complainant, initial licence issued by GMADA in 2011 to OP No.1 has been cancelled and conditional developer licence was issued on 23.09.2013. In view of violations committed by OP No.1, their office has been sealed recently by GMADA. Booking of the plot was done by complainant on 26.04.2011. In view of failure of OP No.1 and 2 to deliver possession by agreed time upto 26.04.2013, they have provided deficient services and even adopted unfair trade practice. Provisional letter of allotment dated 28.02.2013 was signed by complainant. OP No.1 through this letter changed all the terms and conditions. As per Clause-13 of these terms and conditions, possession of the plot was to be given within 36 months from the date of allotment letter i.e. by 28.02.2016. It is claimed that terms have been changed arbitrarily by OPs. Plot No.133/233-A was allotted to complainant vide demand allotment letters dated 11.06.2016 and 09.09.2016. Arbitrary demand of Rs.75,000/- as EDC charges and of Rs.1.00 lakh as IDC charges, but of interest amount of Rs.24,423/- raised by OPs. Representation was made to OP No.2 through registered post on 27.06.2016, but said letter received returned with remarks “not met”. More representations on 12.07.2016 and 06.10.2016 were sent for calling upon OP No.1 to provide information regarding tentative date of handing over of physical possession alongwith approved lay out plan showing location of the plot. Those representations have remained un-answered. Complainant after visiting the site personally many times and lastly in March, 2017 found that no development work had commenced on the site and the site is lying vacant. External and internal development works even have not been carried out on the spot. OPs failed to comply with the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short PAPRA) while launching and promoting the scheme because they were having no license, CLU or permission to launch. OP No.1 has not deposited the EDC/IDC charges with OP No.3, even after collection from the complainant. OP No.3 has failed to discharge its statutory obligation of monitoring the development works at the site, due to which OP No.1 failed to provide the location of plot/site to the complainant.  From the public notice issued by the OP No.3 in the press, complainant got knowledge as if OP No.1 has collected huge money from the public for booking of plots in excess of available one in the project. OP No.3 was under statutory obligation to protect the interest of the complainant, but it failed to do so and as such it remained deficient in providing services. By pleading deficiency in service and adoption of unfair trade practice, prayer made for directing the OPs to handover the physical possession of the plot without future delay and pay interest @ 18% per annum on the deposited amount with effect from October, 2013 till date and in the alternative refund of amount of Rs.6,20,000/- with interest @ 18% per annum from the date of respective deposits till realisation, is claimed. Rs.4.00 lakhs as compensation on account of mental agony and harassment and Rs.35,000/- as litigation expenses also claimed.

2.             OP No.1 and 2 are ex-parte in this case.  OP No.3 filed reply by claiming inter alia as if no relationship of consumer and service provider exists between complainant and OP No.3; complainant has no locus standi and cause of action as well as complaint bad due to mis joinder and non joinder of necessary parties. All averments of complaint regarding transactions between complainant and OP No.1 and 2 denied for want of knowledge, but by admitting that office of OP No.1 has been sealed. However, it is claimed that as per record of OP No.3 neither licence issued in favour of OP No.1 even cancelled and nor the same renewed.  However, it is admitted that OP No.3 is taking action against OP No.1 for violating the conditions of licence.  No specific allegation against OP No.3 alleged to be leveled. OP No.1 has not deposited the requisite amount of EDC charges with OP No.3. Admittedly licence of OP No.1 was issued on 06.05.2014 and that public notice was given by OP No.3 through The Tribune dated 18.02.2017 for making general public aware of the conduct of OP No.1. Through that public notice, general public was made aware as to how OP No.1 cheated the general public by booking flats/plots in excess of available one. After receipt of number of complaints against OP No.1, meeting with representative of OP No.1 society and those complainants was held. In that meeting, decision was taken that allotment letters to be issued to those 10 members who have deposited 90% payment with the society within one week. Out of remaining 86 plots, allotment letters were ordered to be issued to those members who have deposited 90% payment on first come first served basis. Plot numbers alongwith description of the sector was also to be intimated to the allottees as per approved lay out plan. Those members aspiring for refund of deposited amount, were given option to get the refund as per terms and conditions of the agreement with the society on the basis of first come first served basis.  A committee under the Chairmanship of Superintending Engineer, GMADA was to inspect the colony in question and thereafter submit the report regarding development works of colony within a period of 15 days. That committee submitted report vide letter No.959 dated 18.02.2016. As per report of the committee, OP No.1 has not got service plans approved from the competent authority. Further as per that report, a building of CGC Landran was existing on the land where plots were carved out as per approved lay out plan. Although lines of water supply, sewer and storm sewer were laid in some parts of colony, but road gullies regarding the same not constructed. Arrangement for disposal of sewer and storm sewer at the site was not made till date as per that report. OP No.1 society was informed about these irregularities through various letters from time to time. OP No.1 society was called upon to respond to the queries put to it and thereafter its representative was called for personal hearing for furnishing information regarding number of members of society; list of those members who deposited 90% amount; number of members to whom allotment letters issued and number of members to whom possession delivered and also of number of members to whom possession not delivered. No satisfactory response to these various queries was submitted. OP No.1 gave list of total 350 members registered with the society. As per list, plots of different sizes allotted to 170 members, but refund of deposited amount took place in favour of 96 members. Complete particulars were not disclosed in the list submitted by OP No.1. After grant of colony licence, OP No.1 society was required to acquire ownership of area of the colony and even to get consent letters of the land owners, but it failed to do so.  Thereafter request was sent to worthy Deputy Commissioner and SDM as well as Tehsildar, SAS Nagar for calling upon them to stop registration of sale deeds regarding plots/flats/showrooms/booths by OP No.1 society in favour of its customers. Even Estate Officer (Regulatory) GMADA made complaint dated 08.02.2017 with Senior Superintendent of Police, SAS Nagar for registration of FIR under Section 420 IPC. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-13 and thereafter closed evidence.  Counsel for OP No.3 tendered in evidence affidavit Ex.OP-3/1 of Shri Meetinder Singh Mann, District Town Planner alongwith documents Ex.OP-3/2 to Ex.OP-3/4 and thereafter closed evidence.

4.             Written arguments not submitted by any of the parties, but oral arguments heard and records gone through.

5.             Contents of affidavit Ex.CW-1/1 of complainant alongwith receipt Ex.C-2 and share certificate Ex.C-3 establishes that complainant became member of OP No.1 society w.e.f. 29.11.2011 on deposit of Rs.5,000/- as membership fee.  It was after becoming member of complainant that he deposited Rs.60,000/- as land cost through receipt Ex.C-4 with OP No.1 and other amounts. Photostat copies of receipts of other deposits mentioned in Ex.C-5 (detail of payments) also annexed with the complaint. So certainly complainant established that he deposited Rs.6,20,000/- including membership fee, EDC and land cost charges with OP No.1. Terms and conditions of allotment produced as Ex.C-6, but copy of the provisional allotment letter produced as Ex.C-7. This Ex.C-7 is signed by complainant as per his admission in the complaint, though complainant claims that provisional allotment letter Ex.C-7 got signed from him, when it was blank, but that submission certainly has no force because Ex.C-7 mostly is in print.  So case of complainant not believable that his signatures on Ex.C-7 obtained when the papers of it were blank.  As and when terms of contract reduced into writing, then parties are bound by terms and conditions thereof and as such now complainant cannot wriggle out of the terms of Ex.C-7.

6.             After going through Ex.C-7, it is made out that plot No.G-110 in the project of OP No.1 was allotted to complainant at rate of Rs.6,000/- per sq. yard with chargeable super area price, in all of Rs.6.00 lakhs exclusive of proportionate share of common areas.

7.             After going through Clause-2 of Ex.C-7, it is made out that if for any reason the whole or part of the project is abandoned or it becomes impossible for execution by operation of law or by action of any authority, then no claim will be entertained except that of refund of money without interest. Possession to be handed over as per Ex.C-7 only on payment of entire consideration alongwith other dues. That entire payment admittedly has not been made because in the complaint and the supporting affidavit itself it is mentioned that complainant on becoming apprehensive as if OP No.1 will not be in a position to deliver the possession or fulfill its obligation, withheld amount of sale consideration. Act of withholding of sale consideration amount on basis of apprehension alone is an act of deficiency on the part of complainant.

8.             OP No.1 through letter Ex.C-8 dated 11.06.2016 disclosed complainant that Rs.75,000/- payable on account of EDC charges. Thereafter complainant vide letter Ex.C-9 called upon OP No.2 to disclose the date on which physical possession of the plot can be handed over by OP No.1 society. Through Ex.C-9 itself complainant undertook to make balance payment provided the date of handing over of physical possession of the plot made known to him. So it is obvious that complainant virtually remained ready and willing to get the possession of the plot until 27.06.2016 by undertaking to deposit the balance payment.

9.             However, through un-exhibited registered letter dated 06.10.2016, complainant claimed that tentative date of handing over of physical possession be disclosed to him, so that he can make arrangement for payment of balance amount. It was through this letter dated 06.10.2016 itself that complainant in the alternative claimed that he is ready to initiate legal action if refund of the amount deposited by him with the society alongwith interest @ 18% per annum from the date of deposit, is not made.  So virtually refund of amount sought hesitantly for the first time on 06.10.2016.

10.           Application for membership of OP No.1 society by complainant submitted as Ex.C-10. As development works not carried on the spot as per the photographic depiction placed on record as Ex.C-11 of date 23.03.2017 and that is why complainant now opting for refund of the paid amount in the alternative with interest from the date of deposit. Counsel for complainant vehemently contends that as complainant was deprived of the hard earned money sufficiently for long time by OP No.1 and 2 and as such they should refund the amount with interest @ 12% per annum atleast. It is also contended that OP No.3 though was under statutory obligation to prevail upon OP No.1 and 2 to carry out the work of the project as per schedule, but it failed to perform its duty and as such OP No.3 also should be held liable. However, Shri G.S. Arshi, counsel for OP No.3 contends that no relationship of consumer and service provider exists between complainant and OP No.3 and as such OP No.3 cannot be held liable, particularly when it took pains of issue of public notice for informing general public about the cheating habits of OP No.1 and 2. After considering pros and cons of rival contentions of counsel for complainant and OP No.3, we find force in the submissions advanced by counsel for OP No.3 because relationship of consumer and service provider do not exist between complainant and OP No.3 at all. 

11.           Copy of the public notice Ex.C-12 is produced on record to establish that Chief Administrator of OP No.3 informed general public that though licence to OP No.1 society for setting up a colony has been issued, but the promoter is cheating general public by collecting crores of rupees from them in the name of booking of plots/flats in excess of available number of plots/flats approved in the project. Office of OP No.1 even was sealed by OP No.3 as per contents of affidavit Ex.OP-3/1 of Shri Meetinder Singh Mann, DTP. Ex.OP-3/2 is the same thing as is Ex.C-12 i.e. public notice. Ex.OP-3/3 is a letter written by GMADA to Revenue Authorities for calling upon them not to register sale deeds of plots/flats in the project in question because OP No.1 failed to deposit EDC and licence fee. Even the Estate Officer of OP No.3 forwarded complaint Ex.OP-3/4 to Senior Superintendent of Police, Mohali for initiating action against OP No.1 and 2 because they violated the provisions of Section 36 (1) of PAPRA Act. So certainly from this produced documentary evidence, it is made out that when OP No.3 got knowledge regarding cheating habits of OP No.1 and 2, then it made the general public aware by issuing of notice through newspapers and even took action of lodging complaint with Senior Superintendent of Police, Mohali for registration of FIR against OP No.1 and 2. In view of taking of this action by OP No.3 against OP No.1 and 2, it has to be held that virtually OP No.3 discharged its duties of controlling and regulating the activities of promoters to whom developer licence granted by it. Moreover, complainant never availed the services of OP No.3 for consideration allegedly paid or promised to be paid and as such certainly relationship of consumer and service provider did not exist between complainant and OP No.3. Being so, consumer complaint against OP No.3 is not maintainable, more so when deficiency in service on the part of OP No.3 cannot be inferred due to taking of action by it as statutory body against  OP No.1 and 2.

12.           As already referred above, Clause-2 of Ex.C-7 provides that if the project is abandoned or execution of same becomes impossible for any action of the parties, then claim for refund without interest alone is entertainable and as such in view of acquiescence of complainant for long time in not taking action against OP No.1 and 2, complainant in our view should not be held entitled to interest from the dates of deposit. In view of Clause-2 of Ex.C-7 as well as in view of Clause-4 of Ex.C-2, interest should be allowed from the date of complaint because complainant opted for refund of paid amount only on 06.10.2016 by sending un-exhibited registered notice.  As per clause-4 of Ex.C-2 if the applicant does not want to continue even after paying some installments, then he will be refunded the entire amount with prevailing interest after one year from the date of registration. Prevailing rate of interest must be taken as 12% per annum particularly when the same rate of interest permitted to be allowed under PAPRA Act even. Possession of the plot as per terms of Ex.C-7 within 36 months from the date of allotment, but subject to force majeure circumstances and reasons beyond control of the builder. Specific reference to Clause-13 of Ex.C-7 in this respect can be made. It is on the basis of this, that complainant through complaint himself claims that this possession should have been delivered by 28.03.2016. However, in this case OP No.1 stood convicted by Hon’ble State Consumer Disputes Redressal Commission Punjab as reflected by contents of paper clipping Ex.C-13 and moreover, OP No.3 initiated action against OP No.1 and 2 by lodging complaint with Senior Superintendent of Police, Mohali and even started process of sealing office of OP No.1 and as such in view of non renewal of promoter licence by OP No.3 in favour of OP No.1, the project work virtually cannot be carried out. However, earlier OP No.1 and 2 made misrepresentation about development works carried out on the spot and as such keeping in view overall facts and circumstances of the case as well as the fact that option exercised by complainant in October, 2016 for the first time for refund of the paid amount, it is fit and appropriate to direct OP No.1 and 2 to refund the received amount of Rs.6,20,000/- with interest @ 12% per annum from the date of complaint namely 17.04.2017 till payment. Complainant also entitled to compensation for mental agony and harassment and costs of litigation from OP No.1 and 2, whose liability certainly is joint and several. Complaint against OP No.3 is not maintainable, as discussed above.

14.           As a sequel of above discussion, the complaint allowed with direction to OP No.1 and 2 to pay Rs.6,20,000/- (the amount received by them) with interest @ 12% per annum from the date of complainant namely 17.04.2017 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of the complainant and against OP No.1 and 2, whose liability held as joint and several. However, complaint against OP No.3 is dismissed. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order.  Certified copies of the order be supplied to the parties free of costs as per rules.  File be indexed and consigned to record room.

Announced

March 22, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                   (Amrinder Singh Sidhu)                                                               Member

(Mrs. Natasha Chopra)

Member