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

                                            Consumer Complaint No. 12  of 2016

                                                          Date of institution:  06.01.2016                                                       Date of decision   :  11.10.2017

Sanjeev Kumar son of  Madan Lal, resident of House No.2411, Sector 24-C, Chandigarh

                                                                    ……..Complainant

                                                Versus

1.       Sky Rock City Welfare Society through its President/General Secretary/Executive Members, SCO No.668, Sector 70, Mohali, Punjab.

2.       Sky Rock City Welfare Society through its President/General Secretary/Executive Members, Landran Road, Opposite Chandigarh College, Mohali.

                                                                      ………. Opposite Parties

Complaint under Sections 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                                      Mrs. Natasha Chopra, Member.

Present:      Shri Aseem Gupta, counsel for the complainant.

None for the Opposite Parties.

ORDER

By Ajit Pal Singh Rajput, President

                   Complainant Sanjeev Kumar 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 was interested to buy a residential plot for his personal living and he visited the OPs. Believing the  assurance given by the OPs, the complainant became interested in the project and applied for allotment of a residential plot. As per the terms and conditions, the OPs on the date of booking i.e. 20.06.2011 demanded Rs.10,000/- as membership fee and the remaining amount was to be paid in installments till completion of the project i.e. within two years from the date of booking. The OPs allotted residential plot measuring 100 sq. yards @ Rs.10,500/- per sq. yard to the complainant vide allotment/registration No.2470. As per the terms and conditions, the OPs were to handover the possession of the plot to the allottee within a period of two years from the date of booking i.e. 20.06.2011. The complainant paid a total sum of Rs.8,72,500/- to the OPs vide various cheques but later on the complainant came to know that the OPs did not have the necessary sanctions to develop the project and then the complainant stopped paying the installments and requested the OPs to refund the amount. The OPs issued letter dated 09.08.2014 to the complainant for payment of installments. Till date, period of more than four years have passed but the OPs have failed to develop the site and handover the possession. Now the complainant is not interested for the plot and he requested the OPs for refund of the amount alongwith interest. The complainant got issued a legal notice dated 02.12.2015 to the OPs through registered post which was duly received by the OPs.  The OPs failed to refund the amount to  the complainant. Hence the complainant has sought direction to the OPs to refund him the deposited amount of Rs.8,72,500/- alongwith interest @ 18% per annum; to pay him Rs.2.00 lakhs  each as compensation for mental trauma and harassment and deficiency in service and unfair trade practice and Rs.25,000/- towards unwarranted litigation expenses. 

3.             The complaint has been contested by the OPs by filing written statement. The OPs in the preliminary objections have pleaded that the complainant himself is guilty of concealed material facts from the Forum. On merits, the OPs have denied the averments of the complainant and have pleaded that the physical possession would only be handed over when the complainant had paid all the installments alongwith other dues with the OPs. As per Clause 4 of the terms and conditions if the applicant does not want to continue even after paying some installments, he will be refunded the entire amount paid with 8% interest p.a. after three years from the date of requisition. The OPs have thus sought dismissal of the complaint against them.

4.                In order to prove the case, the counsel tendered in evidence affidavit of the complainant  Ex.CW-1/1; copies of certificate of registration Ex.C-1; certificate of registration as Estate Agent Ex.C-2; site plan Ex.C-3; application form for membership Ex.C-4; payment plan Ex.C-5; payment receipts Ex.C-6 to C-9; letter Ex.C-10; legal notice Ex.C-11; original five postal receipts Ex.C-12 to C-16 and returned envelope Ex.C-17 and C-18. In rebuttal counsel for the Ops tendered in evidence affidavit of Navjeet Singh their President Ex.OP-1/1; three orders of the Hon’ble National Commission Mark-A to Mark-C and order of the Hon’ble State Commission, Punjab Mark-D and license to develop colony Ex.OP-1.

 5.               The 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 20.06.2011 Ex.C-1. Thereafter he deposited total sum of Rs.8,62,500/- with the OPs vide various receipts from 23.08.2011 to 12.06.2012. 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 Ex.C-5, 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 20.06.2011 Ex.C-6. Thereafter the complainant paid total sum of Rs. 8,62,500/- with the opposite parties towards part sale consideration of the plot vide receipts Ex.C-7  to C-9. As per condition No.5 of terms and conditions mentioned in Ex.C-5, 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 20.06.2011; meaning thereby that the possession of the plot was to be delivered by 19.06.2013, 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.                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 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.

9.                Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.8,72,500/-     (Rs. Eight Lakhs Seventy 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 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: 11.10.2017        

                                               (A.P.S.Rajput)                

President

(Mrs. Natasha Chopra)

Member