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

                                           Consumer Complaint No.467 of 2016

                                                          Date of institution:  08.08.2016                                                       Date of decision   :  16.10.2017

Sanjay Bajaj son of A.N. Bajaj, resident of House No.2025-A, First Floor, Sector 66, Mohali.

 ……..Complainant

                                                Versus

1.       The Sky Rock City Welfare Society, Site Office, Sector 111-112, Near CGC College, Landran, SAS Nagar, Mohali, Punjab through its President Navjeet Singh.

2.       Navjeet Singh, President, The Sky Rock City Welfare Society, Site Office, Sector 111-112, Near CGC College, Landran, SAS Nagar, Mohali, Punjab.

                                                                      ………. Opposite Parties

Complaint under Sections 12 of

the Consumer Protection Act.

Quorum

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

Mrs. Natasha Chopra, Member.

Present:      Shri Vishal Ahuja, counsel for the complainant.

None for the Opposite Parties.

ORDER

By Ajit Pal Singh Rajput, President

                   Complainant Sanjay Bajaj 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 paid Rs.10,000/- to the OPs for membership of the OP society  and thereafter paid Rs.2,20,000/- as part payment towards costs of the plot of 150 sq. yards.  The complainant was allotted registration No.R-495.  At the time of taking membership fee and payment of installments, the complainant was assured that the OPs have all the approvals and clearances required for starting the project.  The complainant was shocked to find notice issued by the GMADA that the certificate of registration as promoter issued to OP No.1 was cancelled and no license was issued for the project Sky Rock City at Mullanpur. The complainant contacted the OPs number of times and kept on visiting the office of the OPs regarding status of the project but all in vain. Finally the complainant vide letter dated 19.01.2013 sought refund of the deposited amount from the OPs.  Initially the OPs refused to entertain the claim of the complainant but later on assured the complainant that the deposited amount would be refunded in a short span of time.  The OPs did not abide by their assurance and failed to refund the amount to the complainant  Even the OPs stopped taking telephone calls of the complainant.  The complainant sent a legal notice dated 22.06.2016 calling upon the OPs to refund the amount but the notices were received back with the remarks ‘refusal’. Hence the complainant has sought direction to the OPs to refund him the deposited amount of Rs.2,30,000/- alongwith interest @ 12% per annum; to pay him Rs.50,000/- as compensation for harassment and mental agony and Rs.20,000/- as litigation expenses. 

3.             In response to the notice, on 29.09.2016 Shri Ram Yash Verma, Advocate filed memo of appearance for the OPs and sought time to file POA/Reply. Thereafter, neither the POA nor reply was filed and in view of the decision of the Hon’ble Supreme Court dated 04.12.2015 in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., the right of the OPs to file written version was struck off.

4.                In order to prove the case, the counsel tendered in evidence affidavit of the complainant  Ex.CW-1/1; copies of receipts Ex.C-1 to C-3; public notices Ex.C-4 and Ex.C-5; letter Ex.C-6; legal notice Ex.C-7 and returned envelope Ex.C-8.  The OPs did not lead any evidence inspite of availing many opportunities. Hence, the evidence of the OPs was closed by order on 02.08.2017.

5.                The complainant has submitted that he booked a plot in the project of the opposite parties by paying Rs.10,000/-, as membership fee, vide receipt dated 21.08.2011 Ex.C-1. Thereafter he deposited Rs. 1,20,000/- and Rs.1,00,000/- with the opposite parties, vide receipts dated 02.10.2011 and 15.07.2012 Ex.C-2  and C-3. 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 mentioned on the receipt Ex.C-1, but the opposite parties have failed to develop the plot/project or to deliver the possession of the plot to him. The opposite parties committed deficiency in service and unfair trade practice.

6.                We have given thoughtful consideration to the submissions of the complainant. Undisputedly, the complainant booked a plot of 100 sq.yds. with the opposite parties, by paying Rs.10,000/-, as membership fee vide receipt dated 21.08.2011 Ex.C-1. Thereafter the complainant paid a sum of Rs. 1,20,000/- and Rs.1,00,000/- with the opposite parties, vide receipts dated 02.10.2011 and 15.07.2012 Ex.C-2  and C-3 towards part payment of the plot. As per condition No.4 of terms and conditions mentioned in 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 21.08.2011; meaning thereby that the possession of the plot was to be delivered by 20.08.2014, but the opposite parties have failed to complete their project and to deliver the possession of the plot to the complainant within that period.

7.                The OPs have initially appeared through counsel but failed to file POA and reply and accordingly their right to file reply was struck off. Thereafter the OPs further failed to rebut the evidence led by the complainant despite availing many opportunities. The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence.

8.                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 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.”

9.                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 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.

10.              Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.2,30,000/- (Rs. Two Lakhs Thirty 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: 16.10.2017        

                                               (A.P.S.Rajput)                

President

          (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member