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

                                      Consumer Complaint No.740 of 2016

                                                Date of institution:  28.10.2016                                         Date of decision   :  11.10.2017

1.     Harminder Kaur

2.     Daljit Singh Mahal,

Residents of House No.207, PEC Campus, Sector-12, Chandigarh.

 ……..Complainants

                                        Versus

Sky Rock City Welfare Society, Sector 111-112, SAS Nagar through its President.

                                                           ………. Opposite Party

Complaint under Sections 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Mrs. Natasha Chopra, Member.

Present:    Complainants in person. .

None for the Opposite Party.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants Harminder Kaur and Daljit Singh Mahal have 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.             The complainants became member of the OP by paying membership fee of Rs.5,000/- on 20.07.2011. The complainants booked 200 sq. yard plot in the Mullanpur project @ Rs.7500/- per sq. yard by paying 10% i.e. Rs.1,50,000/- of the total amount of the plot. Thereafter, the complainants deposited Rs.2,25,000/- vide cheque. The OP had promised to handover the possession of the plot within three years of becoming member of the society. However, till date nothing has been done by the OP at the site even after lapse of five years.  It was mentioned in the terms and conditions that in case the project does not go through or if the applicant does not wish to continue even after paying few installments, then the entire amount paid would be refunded to the applicant alongwith interest.  The complainants made several visits to the OP but it kept lingering on the matter. The complainants have also came to know that the OP does not have clearance/approval from GMADA for the project.  The OP has collected the payment from the complainants against the rules.  The complainants sent a registered letters to the OPs on 27.05.2016 and 29.06.2016 for refund of the amount but these were returned back by the post office with the remakes that ‘addressee left’. The complainants went to the site to handover the letter but the staff refused to receive it. The final notice dated 03.08.2016 sent by the complainants also received back with the report of addressee refused to accept. Hence the complainants have sought direction to the OP to refund them  the deposited amount of Rs.3,80,000/- alongwith interest @ 18% and to pay them Rs.1.00 lakhs as compensation for mental trauma and harassment. 

3.             The OP in the written statement have pleaded that  as per condition No.4 of agreed terms and conditions, the complainants shall be liable for refund only after a period of three years from the date of requisition  and prior to requisition if the complainants fail to make the scheduled payment as per condition No.9, their membership can be cancelled due to non adherence of terms and conditions.  Thus the complaint is premature and the cause of action if any arose to the complainant on 03.08.2019 for refund of their amount as they have made request for refund of the amount on 03.08.2016. Denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.

4.             In order to prove the case, the complainants tendered in evidence their joint affidavit Ex.CW-1/1; copies of payment receipt Ex.C-1 to C-3; terms and conditions Ex.C-4; letters alongwith envelope Ex.C-5 to C-7.   The OPs did not lead any evidence inspite of availing many opportunities. Hence, the evidence of the OP was closed by order on 28.06.2017.

5.             The complainants have submitted that they booked a plot in the project of the opposite parties by paying Rs.5,000/-, as membership fee vide receipt dated 20.07.2011. Thereafter they deposited Rs.1,50,000/- and Rs.2,25,000/- with the opposite parties, vide receipts dated 20.07.2011 and 06.07.2012. The possession of the plot was to be handed over physically not later than three years from the date of registration/requisition as per terms and conditions on the overleaf of receipt Ex.C-1, but the opposite parties have failed to develop the plot/project or to deliver the possession of the plot to them. The opposite party committed deficiency in service and unfair trade practice.

6.             We have given thoughtful consideration to the submissions of the complainant. Undisputedly, the complainants booked  plot of 250 sq.yds. with the opposite party, by paying Rs.5,000/-, as membership fee vide receipt dated 20.07.2011 Ex.C-1. Thereafter the complainants paid a sum of Rs.1,50,000/-  and Rs.2,25,000/- vide receipts Ex.C-2 and C-3 dated 20.07.2011 and 06.07.2012 respectively towards sale consideration of the plot to the OPs. As per condition No.4 of terms and conditions mentioned on the overleaf of receipt Ex.C-1, the possession of the plot was to be delivered not later than three years of the registration/requisition. The registration date of the plot was 20.07.2011; meaning thereby that the possession of the plot was to be delivered by 20.07.2014, but the opposite party has failed to complete the project and to deliver the possession of the plot to the complainant within that period.

7.             It is also 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 party has no requisite licences/permissions/approvals from the competent authorities for developing their project. Thus, the opposite party 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 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 party 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 party 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 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 complainant has 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.3,80,000/- (Rs. Three Lakhs Eighty thousand only) to the complainants 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.35,000/- (Rs. Thirty five thousand only) on account of mental agony due to the negligent act of the OPs The present complaint stands allowed accordingly.            

                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: 11.10.2017    

                                         (A.P.S.Rajput)           

President

(Mrs. Natasha Chopra)

Member