DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.370 of 2015
Date of institution: 27.07.2015 Date of decision : 17.10.2017
Sukhwinder Singh son of Bhajan Singh resident of village Durali, PO Manauli, Tehsil and District, Mohali.
……..Complainant
Versus
Sky Rock City Welfare Society, SCO 668, First Floor, Sector 70, Mohali through its President.
………. Opposite Party
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 Jashanpreet Singh Gill, cl. for the complainant.
None for the Opposite Parties.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Sukhwinder has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant applied for membership of the OP vide application dated 12.01.2012. He also paid Rs.10,000/- as membership fee on 12.01.2012. After becoming member, the complainant opted for allotment of 100 sq. yard residential plot which was allotted to the complainant @ Rs.12,000/- per sq. yard. On direction of the OP, the complainant paid Rs.3,10,000/- i.e. 25% of the price of the plot and Rs.10,000/- as membership fee to the OP vide cheque dated 12.01.2012. As per terms and conditions, the amount was to be paid in five installments. Share certificate was also issued to the complainant on 10.03.2012 showing membership No.3331 of the complainant. The complainant deposited 2nd installment of Rs.3,00,000/- on 25.02.2012. 3rd installment was also deposited by the complainant on 14.06.2012 vide cheque which was to the tune of Rs.3,00,000/-. On demand of the OP, the complainant also paid Rs.75,000/- as EDC charges on 09.08.2012. Thus, by August, 2012 the complainant had paid Rs.9,75,000/- to the OP i.e. almost 81% of the allotment price. The complainant approached the OP in January 2014 for handing over the possession. The OP informed the complainant that development work is complete and that the plot shall be delivered by March, 2014. In April, 2014 again the OP assured the complainant that process of marking the plot numbers is going on and soon the complainant shall receive the letter from the OP. The complainant visited the OP in September 2014 and he was informed to complete 90% deposit of the total value of the plot and also deposit the EDC charges and then draw of lots for allotment of plot shall be conducted. Believing the assurance of the OP, the complainant on 17.09.2014 deposited Rs.1,80,000/- with the OP vide cheque dated 17.09.2014. Then the OP issued provisional allotment of Plot No.G-119 in Sector 111-112 to the complainant. However, physical possession of the plot was not given to the complainant. As per terms and conditions, the possession was to be handed over within 2 years and the complainant became member on 12.01.2012 but till date the OP has not handed over the possession despite having received 90% of the value of the plot. The complainant has also come to know that even the development work is not complete at the site and PUDA has refused to issue certificate regarding completion of development works on the site. Because of non handing over the possession by the OP, the complainant could not raise the construction. Cost of construction is increasing day by day and if the OP is not in a position to handover the possession of the plot, the OP either pay him interest on the deposited amount or pay to the complainant Rs.25/- per sq. feet per month as rent. Hence the complainant has sought direction to the OPs to either handover the actual possession of the plot to him or in the alternative refund the entire amount with penal interest @ 15% per annum and further to pay him Rs.5,00,000/- as damages for harassment and litigation cost.
3. The OP in the written statement has pleaded that the complaint is premature and not maintainable and that the complainant has concealed material facts from this Forum. On merits, it is pleaded that the provisional allotment letter was issued to the complainant on 17.06.2013 whereas the complainant had completed 90% of the payment on 17.09.2014 and the physical possession cannot be handed over to the complainant because he has not deposited full amount to the OP. Denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.
4. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1; copies of terms and conditions Ex.C-1; receipts dated 01.08.2011, 31.12.2011, 10.02.2012, 12.06.2012, 17.08.2012, 26.11.2014 Ex.C-2 to C-4; Ex.C-7; Ex.C-9; Ex.C-11 and Ex.C-13; cheques dated 12.01.2012, 25.02.2012, 14.06.2012, 09.08.2012, 17.09.2014 Ex.C-3, C-6, C-8; C-10/A and Ex.C-12; share certificate Ex.C-5; demand/intimation letter dated 20.07.2013 Ex.C-10; provisional allotment letter Ex.C-14 and account statement Ex.C-15. In rebuttal, counsel for the OP tendered in evidence affidavit of Navjeet Singh, its President Ex.OP-1/1 and thereafter on failure of the OP to conclude its evidence, the same was closed by order on 08.12.2016.
5. The complainant has submitted that he booked a plot in the project of the OP by paying Rs.10,000/-, as membership fee, vide receipt Ex.C-2. Thereafter he deposited various amounts with the OP, vide receipts Ex.C-4, C-7, C-9, C-11, C-13. 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 Ex.C-2, 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 Ex.C-2. Thereafter the complainant paid various amounts vide receipts Ex.C-4, C-7, C-9, C-11 and Ex.C-13 towards sale consideration of the plot to the OPs. As per condition No.5 of terms and conditions Ex.C-4, the possession of the plot was to be delivered not later than two years of the registration/requisition. As per terms and conditions mentioned in the receipts Ex.C-4, C-7, C-9, C-11 and Ex.C-13, the possession of the plot was to be handed over physically not later than three years of the registration/requisition. Terms and conditions mentioned in Ex.C-1 have not been signed by either of the party. Thus, the period of handing over physical possession of the plot is to be taken from the conditions mentioned in the receipts Ex.C-4, C-7, C-9, C-11 and Ex.C-13 which is three years from the date of registration/requisition. The registration date of the plot was 12.01.2012; meaning thereby that the possession of the plot was to be delivered by 11.01.2015, but the opposite parties have failed to complete their project and to deliver the possession of the plot to the complainant within that period. The complainant has sought directions to the OP for handing him over possession of the plot or in the alternative refund him the deposited amount.
7. 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 in this regard. 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 complainant-buyer 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 the 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 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 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 him, 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.11,55,000/- (Rs. Eleven Lakhs Fifty Five 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 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: 17.10.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
