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

                                      Consumer Complaint No. 99 of 2016

                                                Date of institution:  18.02.2016                                         Date of decision   :  30.10.2017

Mrs. Rajni  Verma wife of Shri Shailandera Randev, House No.203, Randev Niwas, Inderprasth, New Railway Road, Jaladhar City.

 ……..Complainant

                                        Versus

1.     The Sky Rock City Welfare Society, (Regd.), SCO 668,  Sector 70, First Floor, Mohali, District SAS Nagar, Mohali through its President/Authorised Signatory.

2.     Shri Navjit Singh, President, Sky Rock City Welfare Society, (Regd.), SCO 668,  Sector 70, First Floor, Mohali, District SAS Nagar, Mohali.

                                                           ………. Opposite Parties

Complaint under Sections 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                 

Mrs. Natasha Chopra, Member.

Present:    Shri Pawan Kumar Sharma, counsel for the complainant.

None for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Mrs. Rajni Verma has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant booked one residential plot of 100 sq. yards in the project of OPs namely Sky Rock Welfare Society, Part-II, Mullanpur, Punjab by paying Rs.10,000/- on 14.03.2012 as membership fee. Membership No.675 was allotted to the complainant by the OPs.  At the time of booking, the OPs informed and assured the complainant that the physical possession of the plot shall be handed over within two years from the date of membership/registration.  It was also assured that in case the applicant does not want to continue even after paying some installments, the OPs will refund the entire amount with interest P.A. after one year from the date of registration/membership.  The OPs had also assured that their project is approved by the appropriate authorities and all the mandatory approvals, clearances i.e. developer license, promoter license, environment clearances, change of land use, municipal clearances etc. had been issued in the name of the society/OPs.  The complainant had deposited a total sum of Rs.2,22,500/- with the OPs i.e. Rs.10,000/- in cash on 14.03.2012 and Rs.85,000/- as first installment vide cheque dated 14.03.2012 and Rs.1,27,500/- vide cheque dated 14.07.2012.  When the complainant visited the OPs, they informed him that the project is near completion and again demanded the pending installments.  The complainant many times visited the OPs to enquire about the draw of lots but the OPs always postponed the matter on one pretext or the other. The complainant booked the plot on 14.03.2012 but till date the OPs have not given the physical possession of the plot to the complainant. The complainant vide letters dated 13.11.2014 and 09.03.2015 asked the OPs to handover the possession or refund the amount of Rs.2,22,500/- with upto date interest. The complainant also got issued legal notice dated 11.01.2016 which has been received back with the report of refusal. Now it has come to the notice of the complainant that the project of the OPs is illegal/unapproved.  The OPs started the booking of the plots on the site without obtaining any developer license and other approvals from the appropriate authorities.  Hence, the complainant has prayed for directing the OPs to refund Rs.2,22,500/- alongwith interest @ 12% per annum from the dates of deposit till its realisation; to pay her Rs.1,50,000/- for harassment and mental agony and Rs.25,000/- as litigation cost.

3.             The complaint has been contested by the OPs by filing written statement. The OPs in the preliminary objections have pleaded that the complainant himself is guilty of concealed material facts from the Forum. On merits, the OPs have denied the averments of the complainant and have pleaded that the refund shall be given as per Clause 4 of the terms and conditions if the applicant does not want to continue even after paying some installments, she will be refunded the entire amount paid with 8% interest p.a. after three years from the date of requisition. The OPs have thus sought dismissal of the complaint against them. 

4.             In order to prove the case, the complainant tendered in evidence her affidavit Ex.CW-1/1; copies of application form Ex.C-1; intimation letter Ex.C-2; letters Ex.C-3 & C-4; envelope Ex.C-5; legal notice Ex.C-6; terms and conditions Ex.C-7 and letter Ex.C-8. On failure of the OPs to lead evidence despite availing several adjournments, the evidence of the OPs was closed by order on 21.08.2017.

5.             The learned counsel for the complainant  has submitted that the complainants booked a 100 sq. yard plot in the project of the opposite parties by paying Rs.10,000/-, as membership fee as is mentioned in application form Ex.C-1. Thereafter she  paid a sum of Rs.85,000/- to the OPs vide cheque which is evident from the entry of passbook attached alongwith Ex.C-1. Payment of Rs.1,27,500/- was paid by the complainant vide receipt dated 14.07.2012.  Learned counsel has further argued that the complainant was assured that the possession of the plot was to be handed over physically not later than two years from the date of registration/requisition as per terms and conditions Ex.C-7 but the opposite parties have failed to develop the plot/project or to deliver the possession of the plot to her.  As there was no development at the site, the complainant vide letters dated 13.11.2014 Ex.C-3, letter  Ex.C-5 sent through registered post on 09.03.2014 and  legal notice dated 11.01.2016 Ex.C-6  sought refund of the amount which the OPs have failed to refund to the complainant. Thus the opposite parties committed deficiency in service and unfair trade practice.  None appeared on behalf of the OPs for addressing arguments.

6.             We have given thoughtful consideration to the submissions of the complainant. The complainant booked a plot of 100 sq. yds. with the opposite parties, by paying Rs.10,000/-, as membership fee as is mentioned in application form Ex.C-1. Thereafter she paid a sum of Rs.85,000/- to the OPs vide cheque which is evident from the entry of passbook attached alongwith Ex.C-1. Payment of Rs.1,27,500/- was paid by the complainant vide receipt dated 14.07.2012.   As per the assurance given by the OPs, the complainant vide letters dated 13.11.2014 Ex.C-3, letter  Ex.C-5 sent through registered post on 09.03.2014 and  legal notice dated 11.01.2016 Ex.C-6  sought refund of the amount which the OPs have failed to refund to the complainant. As per condition No.5 of terms and conditions mentioned in Ex.C-7, the possession of the plot was to be delivered not later than two years of the registration/requisition. The registration date of the plot was 14.03.2012; meaning thereby that the possession of the plot was to be delivered by 13.03.2014, but the opposite parties have failed to complete their project and to deliver the possession of the plot to the complainants within that period.  Thus, the OPs did not make refund of the amount to the complainant.

7.             It is 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 parties have no requisite licences/permissions/approvals from the competent authorities for developing their project. Thus, the opposite parties have illegally pocketed the hard earned money of the various consumers, without completing their 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 parties 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 parties are 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 complainant is 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.2,25,000/-     (Rs. Two Lakhs Twenty Five 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 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: 30.10.2017    

                                           (A.P.S.Rajput)                 

President

(Mrs. Natasha Chopra)

Member