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

                                      Consumer Complaint No.606 of 2016

                                                Date of institution:  19.09.2016                                         Date of decision   :  22.11.2017

Sona Devi wife of late Puran Singh, resident of House No.330, Simran House, Street No.9, Village Dariya, Near Railway Station, Chandigarh.

 ……..Complainants

                                        Versus

Sky Rock  Cooperative House Building Society, Banur Road, Backside CGC College, Sector 111-112, Landra, District Mohali.

                                                           ………. Opposite Party

Complaint under Sections 11 to 14

of the Consumer Protection Act.

Quorum

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

Mrs. Natasha Chopra, Member.

Present:    Shri A.S. Thind, counsel for the complainant.

None for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Sona Devi has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant on the allurement and persuasion of the OP became member of the Sky Rock City Cooperative Housing Building Society by paying Rs.10,000/- vide cheque dated 19.12.2011, receipt whereof dated 20.12.2011 was issued by the OP. Thereafter, the complainant paid Rs.85,000/- to the OP vide cheque dated 19.12.2011. Again on the demand of the OP, the complainant paid Rs.1,27,500/- with the OP vide receipt dated 28.07.2012. Despite payment of Rs.2,22,500/- the OP has not allotted any residential plot to the complainant. The complainant visited the site of the project but she found that no development has been made by the OP. The complainant vide letter dated 29.06.2015 sought refund of the amount alongwith interest but to no avail. Hence, the complainant has prayed for directing the OP to refund her Rs.2,22,500/- alongwith interest; to pay her Rs.5,00,000/- on account of compensation, mental agony, harassment and costs of litigation.

3.             In response to the notice, Shri Akshay Singh, Advocate appeared and filed power of attorney on behalf of the OPs and sought reply but the OPs 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, the case was posted for evidence of the complainants.

4.             In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1; copies of application form Ex.C-1; cheque Ex.C-2; receipt Ex.C-3; cheque Ex.C-4; receipt Ex.C-5; cheque Ex.C-6; receipt Ex.C-7; letter Ex.C-8; complaint Ex.C-9 and statement of account Ex.C-10.. The OP also failed to lead evidence despite availing ample opportunities and thus the evidence of the OP was closed by order on 03.08.2017.

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/-, as membership fee, vide receipt dated 19.12.2011 Ex.C-1. Thereafter the complainant paid Rs.85,000/- to the OP vide cheque dated 19.12.2011 and receipt Ex.C-5 was issued by the OP. Learned counsel further argued that the complainant further paid Rs.1,27,500/- to the OP vide cheque and receipt Ex.C-6 and C-7.  Learned counsel has further argued that the complainant was assured by the OP that the project would be completed by 2014 and possession of the plot shall be handed over to her but the OPs failed to complete the project. The complainant vide her request dated 29.06.2015 Ex.C-8 sought refund of the amount but the OP failed to make refund despite receipt of the letter.  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 application form Ex.C-1 and paid Rs.10,000/-, as membership fee vide cheque and receipt Ex.C-2 & C-3. Thereafter the complainant paid Rs.85,000/- and Rs.1,27,500/- to the OP vide receipts Ex.C-5  and C-7 respectively. As per the assurance given by the OP to the complainant the project was to be completed and possession was to be delivered by 2014.  On failure of the OP to complete the project and handover the possession as promised, the complainant vide her request dated 29.06.2015 Ex.C-8 sought refund of the deposited amount. The complainant also moved a complaint Ex.C-9 against the OP for registration of criminal case and refund of her amount.

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.2,22,500/-     (Rs. Two Lakhs Twenty Two Thousand Five Hundred 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 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: 22.11.2017    

                                           (A.P.S.Rajput)                 

President

        (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member