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

                                           Consumer Complaint No.566 of 2015

                                                          Date of institution:  20.10.2015                                                       Date of decision   :  31.10.2017

Ved Parkash Sood son of Puran Chand 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 Ved Parkash 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, Sector 111-112, Mohali at a total cost of Rs.10,00,000/-. The plot was purchased by the complainant for his use and for the use of his family members. The complainant withdrew a sum of Rs.2,50,000/- from his account on 14.07.2012 and paid the same to the OPs on 14.07.2012.  Thereafter, the complainant deposited a sum of Rs.2,50,000/- vide cheque dated 17.07.2012 but the OPs on receipt No.7000 dated 21.07.2012 mentioned that a sum of 25,000/- has been deposited by the complainant vide cheque dated 80855 on 21.07.2011.  Again the OPs issued receipt No.8561 dated 12.06.2012 wherein they have mentioned that the complainant had deposited a sum of Rs.2,50,000/- vide cheque dated 14.07.2012.  Again in order to cheat the complainant, the OPs issued receipt No.8760 dated 01.08.2012 wherein they have mentioned that the complainant had deposited a sum of Rs.2,50,000/- vide cheque dated 17.07.2012.  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 the complainant against cheque No.246167 dated 18.06.2012 and on the other hand they have also issued receipt No.2145 dated 06.09.2011 in the name of wife of the complainant wherein they have mentioned that an amount of Rs.3,00,000/- was deposited by wife of the complainant against cheque No.246167 dated 09.06.2012. This is a clear cut case of fraud and forgery committed by the OPs.   This was done by the OPs to grab the money deposited by the complainant from time to time.   The complainant withdrew a sum of Rs.5,00,000/- from his account and deposited Rs.3,00,000/- in cash in the ledger account of wife of the complainant namely Rekha Sood which was duly received by the OPs. The complainant paid a sum of Rs.16,25,000/- w.e.f. 09.06.2012 to 20.07.2012 i.e. Rs.10,00,000/- as actual amount, Rs.1,50,000/- as EDC, Rs.2,00,000/- as IDC and Rs.2,75,000/- as PLC. The complainant also deposited Rs.1,25,844/- on 28.08.2015 on account of IDC with the OPs.   In the draw of plots conducted on 01.04.2015 the name of the complainant was not mentioned. The complainant enquired from the OPs who felt sorry but did not redress the grievance of the complainant.  The membership certificate was issued by the ops to the complainant on 14.07.2012 when he had deposited the amount in excess of 50%. The OPs also issued allotment letter dated 07.08.2015 wherein the name of the complainant was wrongly mentioned. The OPs allotted Plot No.618 vide allotment letter dated 07.08.2015 without attaching with it approved site plan depicting Plot No.618. The OPs also promised to handover the possession of the developed plot within two years from the date of registration/acquisition which was mentioned in Clause No.5 of the terms and conditions but till date they have not handed over the physical possession. 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 @ 15% on the deposited amount from the date of deposit till handing over possession; to refund Rs.5,50,000/- deposited by the complainant on 14.07.2012 alongwith interest @ 15% till actual refund;   to pay him Rs.5,00,000/- for damage caused to the reputation of the complainant; to pay him compensation of Rs.3,00,000/- 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 he has booked two plots in the society one in his name and other in the name of his wife. The motive of the complainant is that he has booked the plot for the purpose of resale and for commercial purpose. The complainant himself is guilty of concealing material facts from the Forum. On merits, the OPs have pleaded that the complainant has paid Rs.12,00,000/- i.e. Rs.10,74,156/- towards sale price of the plot and Rs.1,25,844/- as EDC. The OPs have thus denied the averments of the complainant and have  sought dismissal of the complaint against them. 

4.                In order to prove the case, the complainant tendered in evidence his affidavit Ex.CW-1/1; copies of  cheque Ex.C-1; statement of accounts Ex.C-2; certified cheques Ex.C-3 and C-4; statement of accounts Ex.C-5; receipt Ex.C-6; statement of accounts Ex.C-7 to C-9; receipts Ex.C-10 to C-14; statement of accounts Ex.C-15 to C-16;  application form for membership Ex.C-17; share certificate Ex.C-18; provisional allotment letter Ex.C-19; envelope Ex.C-20; legal notice Ex.C-21; postal receipts Ex.C-22 and C-23; returned envelope Ex.C-24; provisional allotment letter Ex.C-25; notice for depositing pending installments Ex.C-26 and C-27; provisional allotment letter Ex.C-28; intimation letter regarding payment of EDC Ex.C-29 and installment schedule Ex.C-30. 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 and copy of plot allotment agreement Ex.OP-2.

5.                We have gone through the pleadings, evidence and written arguments of the parties and have heard learned counsel for the complainant.  The complainant has purchased 200 sq. yards plot from the OP @ Rs.5,000/- sq. yards in resale and submitted application  Ex.C-17 for membership. The complainant has made various payments to the OPs against the sale consideration of the plot. In the evidence, the complainant has produced various cheques/bank statements/receipts issued by the OPs to prove the payment but the perusals of these documents show that. the complainant has proved more than one document to show that he has made payment of such an amount to the OPs towards sale consideration of the plot. For example, the complainant has made payment of Rs.3,00,000/- to the OPs firstly vide cheque Ex.C-1 and thereafter the complainant has produced bank statement Ex.C-7 and receipts issued by the OPs Ex.C-13 and C-14 to prove payment of this very amount to the OPs. So the averments of the complaint and the documents tendered in evidence are not making it clear as to how much amount has been paid by the complainant to the OPs.  However, the OPs in the written statement in Para No.6 of the written statement have admitted receipt of payment of Rs.12,00,000/- including payment of Rs.1,25,844/- towards IDC from the complainant.  Thus, when the pleadings of the complainant are not clear towards payment of exact amount to the OPs, it can be safely concluded on the basis of admission of the OPs that the complainant has paid Rs.12,00,000/- to the OPs towards the sale consideration and other charges of the plot.  As per condition No.5 of  terms and conditions Ex.C-30, the possession of the plot was to be handed over to the complainant not later than two years from the registration/requisition. As per the application form Ex.C-17 the complainant became member of the OPs on 09.06.2016 when he made payment of Rs.3,00,000/- vide cheque No.246167 dated 18.06.2012.  Thus, as per condition No.5 of Ex.C-30, the possession of the plot was to be handed over to the complainant on or before 08.06.2014. However, the OPs have failed to develop the project and handover the possession of the plot to the complainant by 08.06.2014. Thus, the complainant is entitled to refund of his deposited amount of Rs.12,00,000/- (as per admission of the OPs) w.e.f. 08.06.2014 as the complainant has failed to prove the exact amount of payment to the OPs with exact date.

6.                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.”

7.                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.

8.                Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.12,00,000/-     (Rs. Twelve Lakhs only) to the complainant alongwith interest @ 12% per annum  w.e.f. 08.06.2014, 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