DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.188 of 2016
Date of institution: 07.04.2016 Date of decision : 04.12.2017
Harjinder Singh son of Gurmukh Singh, resident of village Jaisinghpura, Post Office, Sector 26, Panchkula, Tehsil and District Panchkula.
……..Complainant
Versus
The President, Sky Rock City Welfare Society, SCO No.672, Sector 70, Mohali.
2nd Address:
Sky Rock City, SCO No.2, First Floor, Phase-II, Mohali, Punjab.
………. Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Mrs. Natasha Chopra, Member.
Present: Shri Ishant Negi, counsel for the complainant.
None for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Harjinder Singh has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section qwof the Consumer Protection Act. The brief facts of the complaint are as under:
2. On coming to know that the OP is selling residential plots of different sizes in its society, the complainant approached the OP for purchase of a plot measuring 100 sq. yards in the year 2011. The consideration amount of the plot was fixed at Rs.12,000/- per sq. yard and the complainant deposited a token of Rs.10,000/- for booking of plot vide receipt dated 01.08.2011. Thereafter, as per demand of the OP, the complainant paid Rs.3,00,000/- on 20.12.2011 vide receipt dated 20.12.2011. On assurance of the OP to conduct draw of lots for allotment of residential plots and demand of the OP, the complainant deposited Rs.3,00,000/- with the OP vide receipt dated 16.03.2012. Thereafter, the complainant kept on approaching the OP to held a draw of lots but the OP failed to fulfill its promise. After waiting for a long period, the complainant demanded refund of his amount vide letter dated 09.09.2015. The OP has been lingering on the matter on one pretext or the other and lastly the OP refused to refund the money. Hence, the complainant has prayed for directing the OP to refund him Rs.6,10,000/-; to pay him Rs.2,00,000/- on account of mental agony and harassment with interest @ 18% per annum till actual realisation and Rs.20,000/- as costs of litigation.
3. In response to the notice, Shri Vikas Cuccria Advocate appeared and filed power of attorney on behalf of the OP and sought time to file reply but the OP 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, and the case was posted for evidence of the complainant.
4. In order to prove the case, the complainant tendered in evidence his affidavit Ex.CW-1/1; copies of receipts Ex.C-1 to C-3; share certificate Ex.C-4 and request letter Ex.C-5. The OP also failed to lead evidence despite availing ample opportunities and thus the evidence of the OP was closed by order on 17.05.2017.
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 01.08.2011 Ex.C-1. Thereafter the complainant paid Rs.3,00,000/- to the OP vide receipt dated 20.12.2011 Ex.C-2 and on assurance of the OP that the draw would be conducted and further demand the complainant also paid Rs.3,00,000/- vide receipt 16.03.2012 Ex.C-3. Learned counsel further argued that the OP failed to conduct any draw for allotment of plot to the complainant. Hence the complainant vide his letter dated 09.09.2015 Ex.C-5 duly received by the OP, sought refund which has not been made forcing the complainant to file the present complaint. None appeared on behalf of the OP for addressing 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 vide by paying Rs.10,000/- vide receipt dated 01.08.2011 Ex.C-1 and paid total Rs.6,00,000/- vide two receipts dated 20.12.2011 and 16.03.2012 Ex.C-2 and C-3 respectively. At the time of demanding Rs.3,00,000/- which the complainant paid vide receipt dated 16.03.2012 Ex.C-3, the OP had assured him to conduct the draw of lots for allotment of residential plots but the OP did not fulfill the promise and had not conducted draw of lots. Ultimately when the complainant sought refund of his deposited amount vide letter dated 09.09.2015 Ex.C-5 which was duly received by the OP, 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.6,10,000/- (Rs. Six Lakhs Ten Thousand) 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
