Chandigarh

StateCommission

CC/27/2012

Col. Rajinder Singh - Complainant(s)

Versus

Taneja Developers & Infrastructure Ltd. - Opp.Party(s)

Sh. B.S.Mangat, Adv. for the complainant

16 May 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	27 of 2012
Date of Institution	:	09.05.2012
Date of Decision	:	16.05.2024

 

Col. Rajinder Singh, Aged about 54 years son of Sh. Iqbal Singh, resident of House No.1607 (HIG), Phase 9, Mohali, Punjab.

...Complainant

Versus

1. Taneja Developers & Infrastructure Limited, through its Director, SCO No.1098-1099, 1^st Floor, Sector 22, Chandigarh-160022.
2. The Director, Taneja Developers & Infrastructure Limited, Registered and Corporate Office, 9, Kasturba Gandhi Marg, New Delhi – 110001.

…..Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                      MR. RAJESH K. ARYA, MEMBER

 

Present:-       Sh.Amit Mahajan, Advocate for the complainant alongwith complainant in person.

Sh.Puneet Tuli, Advocate for the opposite parties.

                  

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

PRELUDE:-

                   This case involves an Ex-Army Officer, who is a Kargil War veteran, embroiled in a prolonged litigation over the possession of a plot he purchased in the project of the opposite parties, in resale. The dispute has spanned over a decade and seen multiple legal proceedings. Earlier, on 18.05.2011, the complainant had filed consumer complaint bearing no.214 of 2011 before the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Commission), seeking possession of the plot in question, which was dismissed by it vide order dated 30.03.2012 for want of pecuniary jurisdiction. Thereafter, the complainant filed this complaint before this Commission on 09.05.2012, which was dismissed by this Commission vide order dated 06.11.2012. Feeling aggrieved against the order dated 06.11.2012, the complainant preferred First Appeal No.69 of 2013 before the Hon’ble National Commission, wherein, vide order dated 11.03.2019, the case has been remanded back to this Commission  for deciding this consumer complaint afresh, after giving an opportunity to the parties to produce additional documents including the allotment letter if any, issued to Mr. Pradeep Kumar Gupta and Mr. Sanjeev Maheshwari and the demand letters, if any, issued to the complainant by the opposite parties, from time to time. Thereafter,  this Commission vide order dated 15.01.2020 directed the opposite parties to  furnish following information:-

1. Registration Certificate of the project with the competent authority.
2. Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
3. Change of Land Use (CLU) pertaining to the project in question.
4. Letter of Intent (LOI).
5. Copy of approved site plan of the project.
6. Completion Certificate of the project.
7. Latest photographs of the site/unit in dispute.
8. Current list of Managing Director/Director(s) of the Company.
9. Detail of Bank Accounts of the Company.
10. List of properties both moveable and immoveable of the company and its Managing Director/Director(s) which can be attached in execution of the decree.

The said order dated 15.01.2020 was also challenged by the opposite parties by way of filing First Appeal No.149 of 2020, wherein the Hon’ble National Commission vide order dated 27.01.2020 held that this Commission shall not pass final order in the consumer complaint pending before it and there shall be an ad-interim stay of the impugned order dated 15.1.2020, though this Commission could proceed with the consumer complaint in terms of the order of this Commission dated 11.3.2019. Accordingly, this Commission has proceeded with this consumer complaint in terms of order dated 11.03.2019 passed by the Hon’ble National Commission

 

Other facts of the case:-

2.           The facts in brief are that, initially, a plot measuring 250 Sq. yards in the upcoming township/project of the opposite parties in Balongi, Mohali was purchased by Sh. Pradeep Kumar Gupta and Sh. Sandeep Maheshwari, who had submitted Advance Registration Form (Annexure R-1) dated 30.06.2005 for registration and allotment of a residential plot measuring 250 square yards on making payment of Rs.3 lacs as registration deposit by way of three cheques, Payment schedule was give to them as under:-

 

	At the time of Booking	20%
	2 Month from the date of launch	10%
	4 Month from the date of launch	10%
	6 Month from the date of launch	10%
	8 Month from the date of launch	10%
	10 Month from the date of launch	10%
	12 Month from the date of launch	10%
	14 Month from the date of launch	10%
	At the time of offer of possession	10%

 

3.           Thereafter, Sh. Pradeep Kumar Gupta and Sh. Sandeep Maheshwari had transferred their rights qua the plot in question, in favour of the complainant-Col. Rajinder Singh and he paid them the entire amount paid by them to the opposite parties. Apart from it, he also made some payments to the opposite parties and as such, the plot in question stood transferred in his name. On 26.04.2008, the opposite parties issued demand regarding payment, to the complainant, which reads as under:-

“………Subject:- Intimation regarding due payment.

Dear Sir(s)/Madam,

Pursuant to your Advance Registration Form for allotment of a Residential Plot in our future township Project, we offered you a Residential Plot of 250 sq. yd. in our project TDI CITY MOHALI, Punjab on Chandigarh - Kharar road (Ν.Μ.-21)

The said offer stipulates Schedule of Payments. Time being the essence of payments, you were bound by the terms of the same by making timely payments.

An amount of Rs.2,06,250.00 (Rupees Two Lakh Six Thousand Two Hundred Fifty only) is due against tentative E.D.C. i.e. 1650/- per sq. yd. on your plot.

You are requested to make payment of above said amount within 10 days of date of this letter.

Further this is to remind you that an amount of Rs.1,62,500.00 (Rupees One Lakh Sixty two Thousand Five Hundred only) is due on 22nd May 2008 against your plot as next installment.

Thanking you, assuring you of our best services at all times.

Note (You may ignore this letter, in case you have already paid the above said amount.)

Yours faithfully,

for TANEJA DEVELOPERS & INFRASTRUCTURE LTD.

(Authorised Signatory)…..”

4.           It has been stated by the complainant that as he was to avail loan in order to pay the balance amount, he requested the opposite parties to give him the allotment letter and other required documents of the plot in question but they kept on delaying the matter on one pretext or the other. However, as per demand raised, he paid another amount of Rs.62,500/- to the opposite parties on 01.06.2009 vide receipt (Annexure C-4).  Because allotment letter was required for getting housing loan from the bank concerned, the complainant made number of requests to the opposite parties to provide him the allotment letter in respect of the plot in question but to no avail.   However, on the other hand, the opposite parties vide their letter dated 06.08.2009 (Annexure C-6), illegally and in an arbitrary manner, cancelled the allotment of the plot in question. Numerous requests made by the complainant for withdrawal of cancellation letter was not acceded by the opposite parties.  The complainant got the loan approved from LIC Housing Finance Limited for the balance amount of the plot in question but the opposite parties did not pay any heed to his request. According to the complainant, despite paying 50% of the cost of the plot in question including the transfer charges, the act of the opposite parties in canceling the allotment, amounts to deficiency in service as well as unfair trade practice on their part. Hence, he has filed this complaint seeking following directions to the opposite parties:-

 

1. To handover the relevant documents and the Allotment Letter of the plot to the complainant.
2. To allot and hand over possession of a plot of 250 Sq. Yards in TDI Balongi (MPP-1 MOHALI) project.
3. To pay a sum of Rs.5,00,000/- as compensation for mental agony and harassment.
4. To pay a sum of Rs.25,000/- as costs of litigation.

 

 

Written version of the opposite parties:-

5.           This complaint has been contested by the opposite parties by filing joint written version wherein, while admitting the factual matrix of the case regarding purchase of the plot in question by the complainant, in resale, in the manner, stated in his complaint, numerous objections have been taken as under:-

1. that this complaint is based on misrepresentation of material facts;
2. that the complainant being investor did not fall within the definition of consumer and that he has also purchased the rights of another plot in the project in question i.e. of Smt.Raj Bala, in the name of his wife-Smt.Loveleen Kaur, registration whereof has also been cancelled for nonpayment of the remaining amount;
3. that consumer complaint filed by wife of the complainant stood dismissed by the District Commission, Mohali, vide order dated 02.03.2012;
4. that this Commission is not vested with territorial and pecuniary jurisdiction to entertain and  decide this complaint;
5. that this complaint is barred by limitation;
6. that after the plot in question was transferred in the name of the complainant, he failed to follow the payment schedule as prescribed in the application form itself;
7. that when after sending various reminders to the complainant for making the payment due, did not yield any result, registration of the plot in question was cancelled by the opposite parties;
8. that the transactions depicted in Annexures C-1 and C-2 has nothing to do with the transfer of rights of  plot in the name of the complainant;
9. that the letter Annexure C-7 issued by the LIC Housing Finance is of no consequence, as registration of the plot in question stood already cancelled by the opposite parties;

 

Evidence of the parties:-

6.           The contesting parties led evidence in support of their case and also filed additional documents including written arguments/submissions.
7.           We have heard the contesting parties and have gone through the record of the case, including the written arguments/submissions filed by parties concerned, very carefully.

 

Observations/findings of this Commission:-

 

Pecuniary Jurisdiction:-

8.           First coming to the objection taken by  the  opposite parties  with regard to pecuniary jurisdiction of this Commission qua this complaint, it may be stated here that this complaint had been filed in the year 2012, when the provisions of Consumer Protection Act, 1986 were in vogue. As per Section 17 (1) (a) (i) of CPA 1986,  the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. Relevant part of the Section 17 is reproduced hereunder:-

 

“….17. Jurisdiction of the State Commission.—(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction— (a) to entertain— (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and..”

 

In the present case, the complainant has sought  directions to the opposite parties to deliver possession of the plot in question value whereof is Rs.16,25,000/- over and above compensation to the tune of Rs.5 lacs. As such, if we add the value of the goods and also the compensation claimed, it exceeds Rs.20 lacs but does not exceed rupees one crore. In this view of the matter, this Commission has pecuniary jurisdiction to entertain and decide this complaint. As such, objection taken by the opposite parties  in this regard stands rejected.

 

Complainant is a consumer:-

9.           As far as objection taken by the opposite parties  that the complainant is an investor and as such he is not a consumer, it may be stated here that this objection is not supported by any documentary evidence, except bald assertions. The Hon’ble National  Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the residential units/plots are purchased for the personal use of the family members, the onus is on the opposite parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In this complaint, the  complainant is seeking directions to the opposite parties, to deliver possession of his plot. At the same time, the mere fact that the wife of the complainant has also purchased another plot in the project of the opposite parties is not a ground to shove the complainant, out of the purview of the consumer. Since  the opposite parties   failed to discharge their onus to prove that the complainant is an investor, hence we hold that the complainant is a consumer as defined under the Act, 1986, under which this complaint has been filed. As such, objection taken in this regard also stands rejected.

 

Territorial Jurisdiction:-

10.           Now we will like to deal with the objection taken by the opposite parties  with regard to territorial jurisdiction.  Section 17 (2) of CPA 1986 deals with the territorial jurisdiction of the State Commission, relevant part whereof is reproduced hereunder:-

“(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises…”

 

It may be stated here that perusal of following documents reveals that the same have been issued by the opposite parties from their Chandigarh Regional Office i.e. SCO No.1098-1099, 1^st Floor, Sector 22-B, Chandigarh:-

 

1. Payment receipt dated 30.01.2008, Annexure C-3 in the sum of Rs.287500/-
2. Payment receipt dated 31.01.2008, Annexure C-3 in the sum of Rs.187500/-
3. Payment receipt dated 31.01.2008, Annexure C-3 in the sum of Rs.100000/-
4. Payment receipt dated 01.06.2009, Annexure C-4 in the sum of Rs.62500/-

 

Under above circumstances, it can easily be said that the opposite parties were having their Regional Office at Chandigarh, where they have received payments from the complainant and his predecessor, as such, this Commission has territorial jurisdiction to entertain and decide this complaint in view of the provisions of Section 17 (a) to (c) to the CPA 1986. As such, objection of territorial jurisdiction taken by the  opposite parties being devoid of merit, stands rejected.

 

Cancellation of plot by the opposite parties:-

11.           Now the question arises, as to whether, the opposite parties were justified in cancelling the plot in question vide letter dated 06.08.2009 (Annexure C-6) only the ground that the complainant failed to follow the payment schedule in the application form dated 03.06.2005, Annexure R-1. We have gone through the payment plan forming part of Annexure R-1, and found that at the time of booking, 20%  of the total price of the plot i.e. of Rs.16,25,000/- was to be paid by the applicants and thereafter 10% of the sale consideration was to be paid, as per time mentioned therein. The said payment plan is reproduced hereunder:- 

	At the time of Booking	20%
	2 Month from the date of launch	10%
	4 Month from the date of launch	10%
	6 Month from the date of launch	10%
	Month from the date of launch	10%
	10 Month from the date of launch	10%
	12 Month from the date of launch	10%
	14 Month from the date of launch	10%
	At the time of offer of possession	10%

 

In the Schedule-1 of this payment plan, it is mentioned that that booking amount for the  plot in question measuring 250 square is Rs.3 lacs, which  amount admittedly stood received by the opposite parties from predecessor of the complainant vide cheques dated 03.06.2005 as acknowledged by them in the application form, Annexure R-1 itself.

                  It is further coming out from para no.(a) of the said application form that the opposite parties committed to issue offer of allotment letter for the plot in question within a period of six months i.e. on or before 02.12.2005.  Relevant part of the said application is reproduced hereunder:-

 

“..(a) That your offer of allotment of a residential plot in your future scheme shall be made to you on or after 6 months of my registration application made herein..”

 

Thus, after making payment of booking/registration amount of the plot in question, the next amount  to the extent of 10% of the sale consideration was payable at the time of launching the project in question and allotment of residential plot therein. It is significant to mention here that though the opposite parties have stated in para no.2 of their preliminary objection that they made offer of allotment letter of plot in the said project to the predecessor of the complainant, yet, no evidence in this regard has been placed on record. This fact also stood noted by the Hon’ble National Commission in the order dated 11.03.2019 having been passed in  FA No.69 of 2013 titled as Col. Rajinder Singh Vs M/s Taneja Developers and Infrastructure Ltd. which had been filed by the complainant/appellant against the order dated 06.11.2012 passed by this Commission, whereby this complaint had been dismissed. The Hon’ble National  Commission in its order dated 11.03.2019 has clearly held that no evidence has been led by the parties to prove the date on which the project in question wherein the plot is situated, was launched. It was further observed by the Hon’ble National Commission that though the opposite parties have contended that they had issued allotment letter to the predecessor-in-interest of the complainant as is stated in the written version filed before the State Commission, yet, no copy of the said allotment letter seems to have been placed before the State Commission.  As such, it was  ultimately held by the Hon’ble National Commission that the project can be said to have been launched latest by the date on which the allotment letter was allegedly issued to the predecessor-in-interest of the complainant and therefore, it would be necessary to consider the allotment letter issued, in order to find out by which date the complainant was required to pay the installments stipulated in the registration form and then decide whether there was any default on his part in making payment to the respondent or not.  As such, the case was remanded back to this Commission with the specific directions to decide this complaint afresh, after giving due opportunities to the parties to produce additional documents including the said allotment letter, if any, issued by the opposite parties to either the complainant or his predecessor.  Relevant part of the order of the Hon’ble National Commission is reproduced hereunder:-

 

“…..Two persons namely Pradeep Kumar Gupta and Mr. Sanjeev Maheshwari had registered with the respondent for allotment of a plot admeasuring 250 sq. yards, paying a sum of Rs.3 lacs to the respondent.  

2.   The payment plan given in Schedule-1 annexed to the registration form reads as under:

1. At the time of Booking 20%  Rs…………….
2. 2 Months from the date of Launch 10%  Rs………………
3. 4 Months from the date of Launch 10%  Rs………………
4. 6 Months from the date of Launch 10%  Rs………………
5. 8 Months from the date of Launch 10%  Rs………………
6. 10 Months from the date of Launch 10%  Rs………………
7. 12 Months from the date of Launch 10%  Rs………………
8. 14 Months from the date of Launch1 0%  Rs………………
9. At the time of offer of possession 10%  Rs………………

 3.      It would thus be seen that the registrant was required to pay 20% of the sale consideration at the time of booking.  Since the basic price of the plot was Rs.16,25,000/-, as is evident from Schedule-1 annexed to the registration form, the basic per sq. yard price being Rs.6,500/- and the size of the plot being 250 sq. yards, about Rs.3,25,000/- was payable at the time of registration itself.  The registrant Mr. Pradeep Kumar Gupta and Mr. Sanjeev Maheshwari had paid Rs.3 lacs and the remaining booking amount of Rs.25,000/- was obviously not insisted by the respondent.  The rest of the payment was linked with the date of launch and 90% of the payment was to be made within 14 months from the date of launch.  The balance 10% was payable at the time of offer of possession.

4.      No evidence has been led by the parties before the State Commission to prove the date on which the project in which a plot is alleged to have been allotted to the predecessor-in-interest of the complainant was launched.  The learned counsel for the respondent points out that they had issued allotment letter to the predecessor-in-interest of the complainant as is stated in the written version filed before the State Commission.  However, no copy of the said allotment letter seems to have been placed before the State Commission.  Only three documents were made annexures to the written version and none of them was the letter of allotment issued to the predecessor-in-interest of the complainant.  However, I am in agreement with the learned counsel for the respondent that the project can be said to have been launched latest by the date on which the allotment letter was allegedly issued to the predecessor-in-interest of the complainant.  Therefore, it would be necessary to consider the allotment letter issued by the respondent to the predecessor-in-interest of the complainant in order to find out by which date the complainant was required to pay the installments stipulated in the registration form and then decide whether there was any default on his part in making payment to the respondent or not. 

5.      The learned counsel for the respondent submits that while seeking transfer of the registration in his name, the complainant had submitted several documents for transfer of registration of plot no. MPP-Temp. 19693 in his name.  It would be necessary to examine the allotment letter, if any, issued to the predecessor-in-interest of the complainant to find out whether any particular plot was allotted to him by the respondent or not. 

6.      For the reasons stated hereinabove, the impugned order is set aside and the matter is remitted back to the State Commission for deciding the complaint afresh after giving an opportunity to the parties to produce additional documents including the allotment letter if any, issued to Mr. Pradeep Kumar Gupta and Mr. Sanjeev Maheshwari and the demand letters, if any, issued to the complainant by the respondent from time to time. 

7.      The parties are directed to appear before the concerned State Commission on 15.04.2019.  The additional documents in terms of the liberty granted to the parties, shall be filed before the State Commission within four weeks from today.  The State Commission shall decide the complaint afresh within three months of the parties appearing before it. 

8.      During the course of hearing today in the Court, the learned counsel for the respondents, on instructions, had offered to refund the entire amount received from the complainant with reasonable interest but the said offer was not acceptable to the complainant who wants possession of the plot alongwith compensation…”

 

Thus, from the order dated 11.03.2019, it is clearly coming out that default if any, on the part of the complainant in making payment of installments, referred to above, could have been established, only in case, it is found that the project has been launched, after the opposite parties have issued offer of allotment letter to the predecessor of the complainant or in favour of the complainant.

                  It is significant to mention here that after remand of this case, there were ample opportunities available with the opposite parties to place on record the offer of allotment letter in respect of the plot in question, had the same been issued to the predecessor of the complainant or in favour of the complainant but they miserably failed to do so. Under these circumstances, an adverse inference could easily be drawn against the opposite parties that by the date, when the plot in question was cancelled on 06.08.2009 or even thereafter, the opposite parties never issued any offer of allotment letter. Thus, once the project in question was not launched by the opposite parties in the year 2008 as no offer of allotment letter was issued by them, which they had committed in para no.(a) of their application within a period of 6 months from the date of registration of the said application,  it cannot be said that there was any default on the part of the complainant in making payment to the opposite parties, which was demanded by them vide letter dated 26.04.2008.

12.           Be that as it may, it is coming out from the record that the opposite parties received following amounts in respect of the plot in question:-

• Rs.3,00,000/- already retained by the opposite parties paid by predecessor of the complainant (Receipt dated 14.06.2005)
• Rs.3 lacs vide DD No.87031 against receipt dated 09.11.2006, Annexure C-2,
• Rs.2,87,500/- vide receipt dated 30.01.2008, Annexure C-3
• Rs.62,500/- vide receipt dated 01.06.2009, Annexure C-4

Thus, it is coming out from the record that by 01.06.2009, the opposite parties have already received substantial amount from the complainant, yet, there is nothing on record that they complied with condition of para no.(a) of the application form, qua issuance of offer of allotment letter in respect of a plot in the said project or that buyer’s agreement was ever sent to the complainant for its execution, thereby, violating the provisions of Section 6 of the PAPR Act, which lays a duty on the opposite party to execute the agreements for sale as per law, after obtaining the maximum sale consideration of 25%.

                   As far as payment of Rs.80,000/- by the complainant as depicted in receipt Annexure C-1 is concerned, it may be stated here that the opposite parties have disputed the receipt of this amount. We have also gone through the said receipt, Annexure C-1 and did not find any endorsement of company in the shape of its stamp, receiving the said amount. As such, in the absence of any cogent evidence,  it cannot be accepted that the amount of Rs.80,000/- has been received by the opposite parties, from the complainant. Under these circumstances, it is open to the complainant to prove this payment of Rs.80,000/- to the opposite parties, after adopting other legal remedy available to him, under the  law.

13.           Not only as above, deficiency in rendering service is writ large on the part of the opposite parties as it is coming out from the record that when the opposite parties, made demand from the complainant, vide letter dated 26.04.2008, the complainant vide letter dated 13.07.2009, Annexure C-5, requested them to issue NOC which he had already applied vide letter Annexure C-14 and also offer of allotment letter in respect of the plot in question, as he wanted to take loan from the LIC Housing Finance Limited, yet, instead of providing those documents, the opposite parties issued cancellation letter dated 06.08.2009, Annexure C-6 in respect of the plot in question. The opposite parties have failed to justify this Commission as to why they failed to issue NOC and offer of allotment letter to the complainant, despite requests having been made to them, vide letter dated 13.07.2009, Annexure C-5. Thus, by neither issuing the NOC nor allotment letter nor executing the buyer’s agreement and on the other hand,  raising demand from the complainant and cancelling the plot in question on the ground of non making payment of remaining amount, the  opposite parties are  deficient in  rendering service to the  complainant and also guilty of adoption of unfair trade practice.
14.           It is significant to mention here that there is another valid reason with this Commission to hold that the opposite parties  were not entitled to even receive a single penny from the buyers in the year 2005 because as per condition no.3 (v) and (xi) of the letter dated 22.12.2006 (Grant of Change of Land Use) (at page 11 of M.A No.81/2020) having been issued by the Government of Punjab, Department of Housing and Urban Development (Housing Branch-II)  that the promoter would not launch booking of plots and issue any advertisement in this regard, until the final approval is obtained from the Competent Authority and would also not undertake any development work in the colony until notification under Section 44 of PAPRA, 1995 is issued. Relevant part of the said clauses is reproduced hereunder:-

 

“…..v) He would not undertake any development work in the colony until notification under Section 44 of PAPRA, 1995 is issued. Chief Town Planner, Punjab/Nodal Agency would ensure before passing the final lay out plan of the proposed project that the site of the promoter is compact and contiguous.

xi) The promoter would not launch booking of plots and issue any advertisement in this regard, until the final approval is obtained from the Competent Authority….”

 

Furthermore, as per clause (ii) of letter dated 21.12.2005, Annexure C-18 (Grant of Special Package of Incentives), having been issued by the Director of Industries and Commerce, Punjab, Chandigarh, it was made clear to the opposite parties that the project shall not be advertised, launched and no money will be collected from general public for allotmentof land/plot/flat etc. till the time layout and zoning plans are cleared from the competent Authorities. Relevant part of the said clause (ii) is reproduced below:-

 

“……In case of land falling under Periphery Control Area, any land use change shall only be allowed in accordance with the Periphery Policy of the State Government and in accordance with the draft Zoning / Layout Plan and Master Plan of the area. The project shall not be advertised / launched and no money will be collected from general public for allotment of land / plot/flat/ any space till such time the layout / zoning plans are cleared from the competent authority.……”

 

15.           In the present case, it is clearly coming out from the record that Lay out plans in respect of the project in question were got approved by the competent authority vide letter No.293 dated 22.01.2007 (Annexure C-19);  grant of change of land use was granted by the competent authority vide letter no.18/117/06-5HGII/8340 dated 11.09.2006 (Annexure C-22), which too was conditional and had been withdrawn vide letter dated 26.03.2007 and was revoked only on 11.01.2008 (Annexure C-24). Under these circumstances, it has been established that by 22.01.2007, the opposite parties could not have even advertised / launched and should not have collected any money from general public for plot, including the complainant and his predecessor but admittedly they have obtained the amount aforesaid from the predecessor of the complainant and also from the complainant, starting from the year 2005 itself, which act amounts to violation of terms and conditions framed by the competent authority, vide various notifications/ letters/orders. It is therefore held that by cancelling the plot in question on the ground of nonpayment of remaining amount by the complainant despite the fact that neither  the opposite parties  issued any allotment letter nor any buyer’s agreement was executed nor they were entitled to raise demand of the said amount in the absence of said documents, nor the project was launched as no offer of allotment letter was issued by the opposite parties, they indulged into unfair trade practice and are also deficient in providing service to the complainant. It is therefore held that cancellation letter dated 06.08.2009, Annexure C-6 is quashed. The complainant is therefore held entitled to get possession of the plot measuring 250 square yards @Rs.16,25,000/- in the project in question. 

 

Compensation for the period of delay:-

16.           Now, coming to the question, as to what compensation should be granted to the complainant in this case for delay in delivery of possession of the plot in question, it  may be stated here that Consumer Protection Act has been made to safeguard the consumer rights. In the present case, failure of the opposite parties to offer and deliver possession of the plot in question, for such an inordinate delay which is still continuing and at the same time, cancelling the plot in question, in the manner stated above, amounts to deficiency in service. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil  Appeal  No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered.  Thus, in the present case also, if we grant interest @9% p.a. to the complainant  on the entire amount deposited by him in respect of the plot in question, from the date of expiry of reasonable period of three years from 09.11.2006 when booking amount of Rs.3 lacs was received from the complainant  i.e. starting from 08.11.2009 (three years from 09.11.2006), onwards till possession of the plot in question is actually delivered to him, that will meet the ends of justice.

 

Limitation:-

17.           Since it has been held above by this Commission that possession of the plot in question  has not been delivered till date and on the other hand it has been illegally and arbitrarily cancelled by the opposite parties, as such, there is a continuing cause of action in favour of the complainant to file this complaint, in view of ratio of law laid down by the Hon’ble Supreme Court in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when actual physical possession of the residential units/plots is not delivered, there is a continuing cause of action in favour of the allottee/buyer. As such objection taken by the opposite parties in this regard stands rejected.
18.           For the reasons recorded above, this complaint is partly accepted with costs against the opposite parties and they are jointly and severally directed as under:-
    1. To hand over physical possession of the plot measuring 250 square yards in the project in question, complete in all respects, after obtaining completion certificate from the competent Authorities, within a period of two months (02 months) from the date of receipt of a certified copy of this order, on receipt of remaining sale consideration from the complainant without charging any delayed payment/holding charges.  
    2. To pay to the complainant, compensation by way of interest @9% p.a. on the entire received sale consideration in respect of the plot in question from 08.11.2009 (three years from 09.11.2006), till 31.05.2024 within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 08.11.2009  to 31.05.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
    3. To pay to the complainant, compensation by way of  interest @9% p.a. on the entire received sale consideration, w.e.f. 01.06.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above. 
    4. To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him mental agony and harassment, deficiency in providing service and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.35,000/- to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.
19.           Pending applications, if any stand disposed of accordingly. 
20.           Certified copies of this order be sent to the parties, free of charge, forthwith.
21.           The file be consigned to Record Room, after completion.

 

Pronounced

­­­­ 16.05.2024

 

 

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 

(RAJESH K. ARYA)

MEMBER

 Rg.