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

                                      Consumer Complaint No.567 of 2015

                                                Date of institution:  20.10.2015                                         Date of decision   :  31.10.2017

Rekha Sood wife of Ved Parkash Sood, Sood Vatika, Dhobi Ghat Road, Solan (HP).

 ……..Complainant

                                        Versus

1.     The Sky Rock City Welfare Society, (Regd.) through its President, SCO 672, First Floor, Sector 70, SAS Nagar (Mohali).

2.     The President of Sky Rock City Welfare Society, (Regd.) Banur Road, Back Side CGC College, Sector 111-112, Landran, District Mohali.

                                                           ………. Opposite Parties

Complaint under Sections 12  & 13

Of the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. Natasha Chopra, Member.

Present:    Shri Arun Kumar, counsel for the complainant.

None for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Rekha Sood 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 applied for allotment of plot in resale in the project of the OPs namely ‘Sky Rock City Welfare Society, Mullanpur) at a total cost of Rs.12,00,000/-. The plot was purchased by the complainant for her use and for the use of her family members. Shri Ved Parkash Sood husband of the complainant withdrew a sum of Rs.5,00,000/- from his account on 14.07.2012 and paid a sum of Rs.3,00,000/- to the OPs on 14.07.2012, receipt whereof was issued by the OPs but the OPs intentionally wrote cheque No.246167 on the receipt.  Thereafter, the complainant deposited a sum of Rs.3,00,000/- vide cheque dated 16.07.2012 but the OPs on receipt No.1281 mentioned the date as 06.07.2012. Another amount of Rs.3,00,000/- was deposited by the complainant through inter bank transaction on 17.06.2013. In all the complainant deposited Rs.9,00,000/- with the OPs from 14.07.2012 to 17.06.2013. The complainant was shocked to note that the OPs issued receipt No.8562 dated 12.06.2012 for a sum of Rs.3,00,000/- in the name of husband of the complainant against cheque No.246167 dated 18.06.2012 for a sum of Rs.3,00,000/- and on the other hand, OPs also issued receipt No.2145 dated 06.09.2011 in the name of the complainant wherein they have mentioned that an amount of Rs.3,00,000/- was deposited by the complainant against cheque No.246167 dated 09.06.2012. Actually Rs.3,00,000/- was deposited in cash in the ledger account of the complainant and not by cheque as mentioned by the OPs.  This was done by the OPs to grab the money deposited by the complainant.  The OPs also issued receipt No.743 dated 06.09.2011 for Rs.10,000/- as membership fee and receipt No.1300 dated 06.09.2011 for Rs.25,000/- on account of transfer fee. However, the complainant became member in July 2012 and not in September, 2011 and first installment of plot was paid alongwith membership fee in cash on 14.07.2012.  Plot No.E-2/316 in Part II Sky Rock City Mohali at Mullanpur has been allotted to the complainant without issuing any allotment letter, permission of change of Land Use, and other approvals from the GMADA. The OPs have failed to obtain requisite sanctions till now.  The OPs had promised to hand over physical possession in three years but nothing has been done by the OPs.  The complainant got issued legal notice dated 09.09.2015 which was received back undelivered.  Hence, the complainant has prayed for directing the OPs to pay interest @ 8% on the amount of Rs.9,00,000/- till physical possession is handed over to her; to pay her Rs.5,000/- per sq. yard i.e. the prevalent market rate of the plot at Mullanpur for 200 sq. yards;  to pay her compensation of Rs.5,00,000/- for mental torture, harassment and damages; Rs.1,00,000/- for issuing fake entry receipts to the complainant and Rs.50,000/- as legal expenses.

3.             The complaint has been contested by the OPs by filing written statement. The complainant is not consumer as she has booked two plots in the society one in her name and other in the name of her husband. The motive of the complainant is that she has booked the plot for the purpose of resale and for commercial purpose. The complainant herself is guilty of concealing material facts from the Forum. On merits, the OPs have denied the averments of the complainant and have pleaded that the complainant made the first payment of the plot with cheque No.246167 for Rs.3,00,000/-.  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 account statement Ex.C-1; receipts Ex.C-2 to C-3; statement of accounts Ex.C-4; receipt Ex.C-5; cheque Ex.C-6; receipts Ex.C-7 to C-10; legal notice Ex.C-11; postal receipts Ex.C-12 and C-13; returned envelope Ex.C-14; provisional allotment letter Ex.C-15 and cheque Ex.C-16.  In rebuttal, the counsel for the OPs tendered  in evidence affidavit of Navjeet Singh, President of the OPs Ex.OP-1/1; copy of promoter license Ex.OP-1.

5.             The learned counsel for the complainant has submitted that the complainant booked 200 sq. yard plot in the project of the opposite parties by paying Rs.10,000/-, as membership fee, vide receipt dated 06.09.2011 Ex.C-8. Learned counsel has further submitted that an amount of Rs.25,000/- was also deposited by the complainant with the OPs vide receipt dated 06.09.2011 Ex.C-9.  Thereafter the complainant deposited a total sum of Rs.9,00,000/- with the OPs vide various receipts dated 06.09.2011 Ex.C-2; dated 06.07.2012 Ex.C-3 and dated 12.06.2012 Ex.C-5. Learned counsel has further argued that the OPs vide letter Ex.C-15 provisionally allotted plot No.E-2/316 in Part-II Sky Rock City, Mohali. Learned counsel for the complainant has argued that as there is no development at the site and the OPs have received the payment from the complainant without having requisite sanctions from the concerned authorities, the complainant is not interested for the plot and the amount deposited by her may be got refunded to her.  The OPs have neither filed written arguments nor anyone appeared on behalf of the OPs to address oral arguments.

6.             We have given thoughtful consideration to the submissions of the complainant. The complainant booked a plot of 200 sq.yds. with the opposite parties, by paying Rs.10,000/-, as membership fee vide receipt dated 06.09.2011 Ex.C-8 and another amount of Rs.25,000/- was also paid by the complainant to the OP vide receipt dated 06.09.2011 Ex.C-9. Thereafter the complainant paid total sum of Rs.9,00,000/- with the OPs vide various receipts dated 06.09.2011 Ex.C-2; dated 06.07.2012 Ex.C-3 and dated 12.06.2012 Ex.C-5 towards part payment of the plot. As per the assurance given by the OPs, the possession of the plot was to be delivered not later than three years. The registration date of the plot was 06.09.2011 as per Ex.C-8 but the complainant has stated that she became member of the OPs on 14.07.2012; meaning thereby that the possession of the plot was to be delivered by 13.07.2015, but the opposite parties have failed to complete their project and to deliver the possession of the plot to the complainants within that period. During the course of arguments, learned counsel for the complainant has prayed that the amount deposited by the complainant with the OPs may be got refunded to her.  

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 complainants are to be suitably compensated. The complainants have 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.9,00,000/-     (Rs. Nine Lakhs 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: 31.10.2017    

                                           (A.P.S.Rajput)                 

President

        (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member