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

                                           Consumer Complaint No.646 of 2015

                                                          Date of institution:  03.12.2015                                                       Date of decision   :  31.10.2017

Sukhdev Singh son of Joginder Singh resident of House No.566, Phase-11, Sector 65, SAS Nagar (Mohali).

 ……..Complainant

                                                Versus

1.       The Sky Rock City Welfare Society, (Regd. No.PB2831/2010) through its President, SCO 668, Top Floor, Sector 70, SAS Nagar (Mohali).

2.       The President of Sky Rock City Welfare Society, (Regd. No.PB2831/2010) through its President, SCO 668, Top Floor, Sector 70, SAS Nagar (Mohali).

                                                                      ………. 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 K.S. Lang, counsel for the complainant.

Opposite Parties ex-parte.

ORDER

By Ajit Pal Singh Rajput, President

                   Complainant Sukhdev Singh 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 OPs deal in the business of sale of plots/flats to the intended buyers.  The complainant became member of the OP’s society by paying Rs.10,000/- vide receipt dated 01.07.2011. Membership No.3217 was allotted to the complainant. Thereafter  the complainant applied for 100 sq. yard plot in the society of the OPs in Sector 111-112, SAS Nagar (Mohali) @ Rs.11,000/- per sq. yard. The complainant paid Rs.2,75,000/- to the OPs vide receipt dated 02.09.2011 towards cost of the land. Subsequent payment of Rs.2,75,000/- was also paid by the complainant to the OPs vide receipt dated 10.02.2012. Thus, the complainant had paid 50% of the cost of the land of the plot.  Initially the OPs had assured to issue allotment letter after receipt of 50% land cost, but no such letter was ever received by the complainant. At the time of booking the OPs assured and promised that if the complainant faces any financial crunch in purchase of the plot, then the OPs will arrange loan from the designated bank for the complainant. The complainant made several requests orally as well as in writing to the OPs to arrange loan for payment of remaining installments. The complainant even wrote letters dated 12.09.2014, 01.02.2014 and 28.01.2015 to the OPs to arrange bank loan but the OPs failed to arrange the loan.  The OPs had also assured to handover physical possession of the plot duly developed within two years of booking or to refund the payment so received alongwith interest but neither possession of the plot has been given nor refunded the amount alongwith interest. The complainant visited the OPs many a times to arrange the bank loan or to refund his deposited amounts but no satisfactory reply was given by the OPs.  The complainant even visited the site and found that the OPs have not done anything for development of the plots.  The complainant even got served a legal notice dated 07.10.2015 through registered post to the OPs.  Hence, the complainant has prayed for directing the OPs to refund Rs.5,50,000/- paid towards cost of plot and Rs.10,000/- as membership fee, alongwith interest @ 18% per annum from the date of receipt till its realisation; to pay him Rs.2,50,000/- for harassment, undue hardship, deficiency in service and mental agony and Rs.50,000/- as litigation cost.

3.             The OPs did not appear in this Forum despite service  of notice on 23.12.2016.  Accordingly, the OPs were proceeded against ex-parte vide order dated 05.02.2016.

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 alongwith terms and conditions; letters Ex.C-4 to C-6; legal notice Ex.C-7 and postal receipts Ex.C-8 and C-9.

5.                Learned counsel for the complainant has submitted that the complainant booked a plot in the project of the opposite parties by paying Rs.10,000/-, as membership fee, vide receipt dated 01.07.2011 Ex.C-1. Thereafter he deposited Rs. 2,75,000/- and Rs.2,75,000/- with the opposite parties, vide receipts dated 02.09.2011 and 10.02.2012 Ex.C-2  and C-3.  Learned counsel has further argued that the complainant was assured that if he faces any difficulty in arranging remaining amount, the OPs will arrange loan for him and accordingly the complainant vide letters dated 12.09.2013 Ex.C-4, 01.02.2014 Ex.C-5 and 28.01.2015 Ex.C-6  requested to arrange the loan but the OPs have not responded to these letters. 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 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.  As there was no development at the site, the complainant vide legal notice dated 07.10.2015 sought refund of the deposited amount which the OPs have failed to refund to the complainant. Thus the opposite parties committed deficiency in service and unfair trade practice.

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 vide receipt dated 01.07.2011 Ex.C-1. Thereafter the complainant paid Rs. 2,75,000/- and Rs.2,75,000/- with the opposite parties, vide receipts dated 02.09.2011 and 10.02.2012 Ex.C-2  and C-3 towards part payment of the plot. As per the assurance given by the OPs, the complainant vide letters dated 12.09.2014 Ex.C-4, 01.02.104 Ex.C-5 and 28.01.2015 Ex.C-6  requested the OPs to arrange the loan but they have not responded to these letters. As per condition No.5 of terms and conditions mentioned in Ex.C-1, 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 01.07.2011; meaning thereby that the possession of the plot was to be delivered by 30.06.2013, 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 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.5,60,000/-     (Rs. Five Lakhs Sixty 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: 31.10.2017        

                                                 (A.P.S.Rajput)              

President

          (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member