Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-43/13.02.2015
Mrs. Milan Mala Sarin w/o Sh. Sudhir Sarin
r/o B-144, Second Floor, Chittaranjan Park,
New Delhi-110019 ...Complainant
Versus
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M/s Tewari Global Infrastructure Ltd.
Tewari House, 11-B-8, Pusa Road,
New Delhi-110060 ...Opposite Party
Order Reserved on: 16.01.2023
Date of Order: 20.02.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh
ORDER
1.1. (Introduction to the dispute of parties) : On 02.11.2005 the complainant booked a residential plot in the proposed project of OP. She was allotted residential plot no. 1038 measuring 300 sq. yard in the proposed residential project, however, she was to be handed over physical possession of fully developed plot with all amenities within a period of 3 years from the date of application, but OP failed, despite she had paid approximately 80% of the cost to the opposite party till 2008. She had paid amount of Rs. 8,73,750/- to the OP. There are deficiency of services and unfair trade practice on the part of OP.
1.2: Whereas, the OP opposed the complaint, the complainant booked a plot having tentative size of 300 sq. yard through a broker, however, the due installments were not paid by the complainant. She was habitual defaulter in making the balance payment, despite repeated reminders and letters. The OP has developed the project up to mark that too as per the norms and conditions of Punjab Urban Development Authority and the Punjab Government. There was no deficiency in services and unfair trade practice on the part of OP. Since the plot in question is not located within the territorial jurisdiction of this Commission/ Fora, the present Commission lacks territorial jurisdiction.
1.3: The complainant had mentioned an expression ‘flat buyer agreement’ at few places in the complaint, but the complaint was accompanied with a copy of 'Plot Buyer’s Agreement' (at page no. 18 to 30). However, the OP not only in its reply but also at the stage of final hearing, vehemently opposed [by investing much arguments] the plea of complainant that there was no ‘flat buyer agreement’ nor the OP is builder. The terminology of builder and amenities in its reference has different colour from a colonizer or a developer of the colony; the OP is developer colonizer and not builder. Being developer, the developments work were confined to external development works of sewerage, drainage, roads, electrical works. The other internal development works were not within the purview of a developer-colonizer. In order to fortify this contention, the OP has relied upon not only dictionary meaning as an external aid but also on the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 and the rules there-under, while referring certain definitions as well as its operating part. In addition, reliance was also placed on DLF Qutab Enclave Complex Educational Charitable Trust vs State of Haryana and others, (2003) 5 SCC 622 to elaborate the concept of developer, colonizer, etc to establish that OP is 'a developer colonizer' and not 'a builder'.
1.3A: This issue can be settled here on the basis of documentary record and pleadings of the parties. On plain reading of the complaint, the documents of the parties, especially last-part of paragraph no. 17 of complaint and its reply by OP (i.e. ‘the complainant has booked the plot for her own occupation and residence’; which has also not been opposed in reply by the OP), makes it abundantly clear that it is a case of a plot of land and it is not a case of a flat. It would not demerit the entire case of complainant, if at a few instances in the complaint, it mentions ‘flat buyer agreement’ in place of ‘Plot Buyer’s Agreement’, particularly the complaint is accompanying with Plot Buyer’s Agreement and the pleading were in reference thereto. Therefore, the further narration of case of the parties will be that subject matter pertains to ‘a residential plot of land ’ and 'not a residential flat’. To that extent this controversy stand decided. Further, the impugned agreement will be referred as “buyer's agreement”, subject to other specific expression.
2.1 (Case of complainant ) : The complainant is citizen of this country. The OP is a Private Limited Company and the respondent was coming with a residential project under the name Global City at Amritsar, Punjab and it was represented that it will be embedded with world class infrastructure . The complainant booked a plot on 02.11.2005 and paid a sum of Rs. 2,00,000/- as booking amount and the complainant was allotted a plot no. 1038, measuring 300 sq. yard in the proposed residential project against basic cost of Rs. 3,750/- per sq. yard, PLC charges of Rs. 100/- apart from to pay a sum of Rs. 56,250/- at the time of registration of sale deed of the plot.
2.2: The complainant was assured and promised that allotment and physical possession of plot will be handed over within a period of 3 years from the date of booking. There was specific understanding between the parties that time will be essence of the contract, the complainant will be handed over fully developed plot embedded with all infrastructure, which are prerequisite for constructing and occupying the plot for residential purposes within that period of 3 years.
2.3: The complainant did not receive any information from the OP for about 02 years to hand over him the possession, he went to the office of OP to ascertain the status of development, it was aghast surprise for him to hear that OP had not started the development of the project nor any initiative about the process of providing the basic amenities, which were prerequisite for allotment of the plot to the complainant. The complainant was told by officials of OP that because of fund problem, development was yet to be started and it was also assured that on or before the year 2011, the OP will be in a position to hand over fully developed plot with all basic infrastructure and amenities to the complainant. The complainant awaited it patiently, but nothing was heard from the opposite side. In the last week of May 2012, she went at site at Amritsar to ascertain and verify the status of development, there was no development of project, the land was lying barren and even leveling of ground was not done. When complainant approached the office of OP and complained about the state of affairs, the officials of OP apologized and again assured that possession of developed plot will be before December 2013. In May 2014, the complainant again went to the OP to ascertain the date of handing over physical possession of developed plot, the complainant was misbehaved by the officials of OP and also asked the complainant that possession will not be possible before 2018, she has to wait till 2018. There is breach of terms and conditions of allotment/ buyer’s agreement for want of handing over of residential plot within 03 years from the booking of the plot, as per clause 10 of that agreement it was contractual and legal obligation of the OP to provide fully developed plot, this clause read as: “ It is however, understood by the party of the second part that the party of the first part shall provide internal services within the peripheral limits of the said colony which inter alia, includes (i) laying of roads (ii) laying of water lines (iii) laying of sewer lines, however the external or peripheral services, such as water, sewer, storm water drains, roads, electricity etc. are to be provided by the Govt. of the concerned local authority.” The respondent has not laid roads, water lines, sewer lines and as per information of complainant, the OP had not deposited the amount with the departments for such purposes for carrying the project.
2.4: The complainant learned that authorities have not granted statutory approval and permission for the development of the project, the OP has illegally, unlawfully and in violation of law marketed the project and obtained money from the complainant. The acts and intention of the OP reflects that it has no intention to develop the project and to hand over developed plot with infrastructure facility but to misappropriate the hard earned income of complainant and to enrich itself. The complainant had desire to live in Amritsar after her retirement and with that intention the plot was booked to settle there, however, for want of plot her dreams and desire shattered.
2.5. The complainant had paid an amount of Rs. 8,73,750/- to OP, OP is liable to return it with interest at the rate of 18%, since the complainant has been cheated and there is also criminal breach of trust. The complainant also sent legal notice dated 28.06.2014 to hand over the possession of developed plot failing which to return the amount but it has not been complied. The complainant is a consumer and that is why the complaint has been filed for return of amount paid with interest, apart from compensation of Rs. 2,00,000/- for resorting to unfair trade practice and deficiency in services and also litigation expenses of Rs. 35,000/-.
2.6. The complaint is accompanied with copies of registration form/booking application, receipts of amount paid from time to time, allotment letter, buyer’s agreement.
3.1 (Case of OP) : The OP does not deny the facts of complainant case as narrated in paragraph no. 2.1 above of this Order.
3.2: However, the OP denies the averments of complainant, which are detailed in paragraph no. 2.2 to 2.5 above, inclusive of averment that complainant had not received any information from the OP about possession or when complainant visited the site or office in December, 2012 or in the month of May,2014 or she was given false assurances or misbehaved by the staff.
Briefly, the OP opposes the complaint on various grounds, inter alia, that complainant came before the Forum without clean hands, while concealing material facts. The complainant approached the OP through a broker Shri Surjeet Singh for booking the plot. It was a booking of plot of tentative size of 300 sq. yard on basic sale price of Rs. 3,750/-, which comes to total Rs. 11,25,000/- plus PLC charges of Rs. 30,000/-, the complainant opted the instalment option as per her convenience. The complainant paid a sum of Rs. 2,00,000/- on 02.11.2005 at the time of booking.
3.3: Further, the complainant is a habitual defaulter in making the balance payment and she had paid 03 installment after reminders and calls, as first installment of Rs. 81,250/- due on 02.12.2005 was paid on 14.12.2005; second installment of Rs. 2,81,250/- due on 31.01.2006 was paid on 11.03.2006; third installment of Rs. 3,11,250/- due on 01.05.2006 was paid on 05.03.2008, which clearly shows that complainant herself was guilty of not performing her contractual part vis-à-vis OP was sending various reminder to pay the balance amount and get the sale deed executed in her favour as well as to take the possession of the plot. There is still balance of amount of Rs. 2,81,250/- payable with interest at the rate of 18% p.a. by the complainant. The complaint is liable to be dismissed on this sole ground.
The complainant was allotted the plot no. 1038 measuring 300 sq. yard vide letter dated 08.01.2007, however, complainant is hiding her own wrong in order to avoid her liability besides terms and conditions of registration form. She is not entitled to make claim any amount from the OP.
3.4: It is respondent who has been requesting the complainant to make the payment of balance amount, for execution of sale deed and to take possession, as many other plot owners had got the plot registered in their names. The OP has developed the project up to the mark as per the norms and conditions of Punjab Urban Development Authority and Punjab Government. The OP had also received appropriate statutory approval, permissions and licence against payment of appropriate charges/fees, to develop the plot and the project was also developed. The OP also informed the complainant that developments of the project that site was in the full swing like construction of the overhead water tank, road works, sewerage lines, water lines, electricity, street light and full developed park including walk way.
The complaint is abuse of process of law as complainant herself is at fault and she wants to extort money from the OP as well as to withhold valuable plot of OP for long time. There was no assurance and promise by the OP to allot the plot within three years from the date of booking, although the OP sent allotment letter within time on 08.01.2007. The complainant was also sent buyer's agreement for signature of the complainant and her witness but she failed to submit the said agreement till date with the complainant. The OP has not received any legal notice from the complainant. The OP requests to dismiss the complaint as not tenable under the law.
3.5. The OP's reply is accompanied with copy of Board Resolution in favour of Shri Narender Singh, who authored the reply, advance registration form dated 26.10.2005, allotment letter, photocopies of receipts and cheques, letters, to the complainant, Licence to develop colony Form APR-V (valid from 08.02.2006 to 07.02.2009) & its renewal certificate (08.02.2009 to 07.02.2010 with subsequent renewal, from time to time from 08.02.2011 to 07.02.2012) and thence further renewal certificate from 08.02.2012 on-wards year-wise, which lasts to 07.02.2016, agreement dated 21.07.2006 between the OP (as a Developer) on one side and Government of Punjab (as a State Government) on other side as certain concession/exemption were extended to OP, change of land use letter, letter for approval of layout plan, notification by Government of Punjab, layout plan.
4. (Replication of complainant) : It is a detailed replication, however, its pith and substance is reaffirmation of the complaint as correct. It denies the allegations of written statement that there was no default by the complainant in making the payments from time to time, it would not matter that the plot was booked directly or through broker, since the OP was under obligation to hand over developed plot to the complainant. The present consumer Fora has jurisdiction to entertain and decide the complaint as office of respondent is situated within the jurisdiction of this Fora/ Commission. The complainant reiterates that all compliance on her part were made but it was OP who failed to deliver the possession of developed plot within the agreed period.
5.1 (Evidence) : Complainant Ms. Mala Sarin filed her detailed affidavit of evidence and her deposition are fortified with the documentary record filed in support of complaint.
5.2: On the other side, Shri Narender Singh, Manager/ AR of OP filed his detailed affidavit, some of the aspects are replica of written statement and reliance on documents and in addition, OP had also filed copies of sale deed executed in favour of some of the other plot owners, copies of receipts of deposit of requisite fees as well as photographs in order to demonstrate that there was development of the project.
6.1 (Submission of Parties) : The complainant filed her written arguments along with the case law to support her case that for want of handing over of the developed plot in time, her complaint is covered by deficiency in service and unfair trade practice. It was followed by oral submissions also. It does not require to reproduce either the contents of written arguments or the oral submission, as the same will be referred appropriately in the discussion. Since it has already been paragraph no. 1.3A above that the case is being viewed and decided from the point of plot of land, therefore, the case law presented on behalf of complainant in respect of flat and its amenities will not be referred, being distinguishable from the feature of this case of plot of land.
6.2: The OP has also filed the written arguments as well as short notes, apart from extracts of Oxford English Reference Dictionary, in order to highlight the concept of a builder-colonizer, develop or development, amenities, external development, internal development and so on. At the cost of repetition, since it has already been held in paragraph no. 1.3A above that the case is being viewed and decided from the point of booking and allotment of plot of land, therefore, no scope is left for to discuss about flat and amenities thereto , for which external aid was contended on behalf of OP .
6.3: It is relevant to mention that at the stage of final hearing, the complainant filed colour photographs along with citation of newspaper and affidavit u/s 65B of Indian Evidence Act to show the recent status of the site and project as on 04.02.2022, 12.04.2022 and 05.12.2022. This application was opposed by the opposite side by way of application dated 06.09.2022 to this effect that at this stage complainant’s application is not tenable to be considered, however, the OP also filed its application on 06.09.2022 along with copy of agreement dated 21.07.2006 (which was already part of the record and application dated 25.07.2022 to take certificate of renewal from 01.01.2020 to 31.12.2022 (Annexure-I) and compact disk (Annexure-II) to demonstrate the latest position of the project.
6.4: In order to appreciate the contentions of both sides, these photographs are also viewed, apart from playing the compact disk, it is of 25.04.2022 of 02 minutes, 37 seconds.
7.1 (Findings) : The contentions of both the sides are considered, analyzed and also assessed keeping in view the pleading, documentary record as well as their rival stand, as on the one side complainant is feeling aggrieved that she was not handed over the physical possession of developed plot, despite payment of amount from time to time, from the very inception the OP was not intended to hand over the possession and booking was made in violation of norms, terms and conditions. Whereas on the other side, the OP maintains that all the norms, terms and conditions of project was being followed from the inception, it was developed and sale deed were also registered in favour of many other plot owners, it is a complainant who is a habitual defaulter and certain amount are still outstanding against her. This is narrowly the bone of contentions of both sides in this consumer dispute.
7.2: It is apparent how at the stage of final hearing, both the parties are filing photographs, compact disk and other records to demonstrate their own stands. The complainant was trying to demonstrate that there is just plain big field, where grass is growing and no development at all. But it is relevant to mention, when complainant filed the application with photographs, it was opposed by the OP that the same could not be considered at the final stage of case, however, the OP is also sailing in the same boat, since it also filed its own application to consider the photographs/CD and other record, to demonstrate there are pucca roads, sewerage line, water lines etc.
It is settled law that the Commission/Consumer Forum has to see existence of cause of action at the time of filing the complaint, this complaint was filed on 13.02.2015 and those rights and obligations. if any, existing at the material time of the cause of action is to be considered to adjudicate the controversy, therefore, the photographs/record filed by both the parties, at the stage of final argument, is not a substitute of evidence to be considered. It has just persuasive value of circumstance.
7.4: The OP has raised question of territorial jurisdiction of present Commission/ Consumer Forum on the ground that the plot in question is not located within the territorial jurisdiction of this Commission which was opposed by the complainant. The reasons of OP are misplaced that it is not a civil suit to determine the jurisdiction on the basis of location of immovable property being governed by Section 16 of the Code of Civil Procedure, 1908 but the jurisdiction is determined for the complaint on the basis of Section 11(2)(a) of the Consumer Protection Act, 1986 (since at the time of filing of the complaint on 13.02.2015, the Act 1986 was prevalent), and the complaint was accordingly filed on the basis of office of the respondent functioning at Tiwari house 11-B-8, Pusa Road, New Delhi, which was also asserted by the complainant in her complaint vis-à-vis Section 11(2)(a) of the Consumer Protection Act, 1986 happens to be pari-materia to section 20(a) of CPC, 1908; thus the present Commission has jurisdiction to try and decided this complaint. In addition, para no. 20 of complaint is in respect of territorial jurisdiction of this Commission/Fora and OP in its reply states that para no. 20 of the complaint needs no reply. This issue stands disposed of. With this preliminary observation, now other features of case are considered.
8.1: At the outset, the undisputed facts, dates & amounts are as follows:-
(a) Advanced registration form 26.10.2005
(b) Booking payment against receipt 02.11.2005 Rs. 2,00,000/-
(c) Payment against receipt 14.12.2005 Rs. 81,250/-
(d) Licence granted to OP by Government 08.02.2006
(e) Payment against receipt 11.03.2006 Rs. 2,00,000/-
(f) Payment against receipt 11.03.2006 Rs. 81,250/-
(h) Allotment of plot to complainant 08.01.2017
(i) Payment against receipt 05.03.2008 Rs. 1,60,000/-
(j) Payment against receipt 05.03.2008 Rs. 1,51,250/-
8.2: The OP was granted icence no. LDC-H&UD/Competent authority (STP-Amritsar)/14/2006 dt. 8.2.2006 (which is at page no. 41 of its paper-book of OP), its two clauses for the purposes of the present case are relevant, which reads as:-
“This licence is being granted subject to the following conditions, namely:-
The design and specification of the development works to be provided in the colony shall include:-
(a) Metalling of roads and paving of foot-paths laying of water and sewerage lines, construction of Over Head Reservoir (O.H.R.) and Sewerage Treatment Plant as per Public Works Department specifications;
(b) Turfing and plantation of trees; and
(c) Street lighting.
xxx
The licence/ permission is valid for a period of three years commencing from 08.02.2006 and ending with 07.02.2009 and licensee shall complete the development works within the period.”
xxx
“ Promoter shall transfer free of cost the non-saleable open spaces like roads, parks etc. in favour of Govt. or in favour of Municipal Corporation, Amritsar before the expiry of licence or issue of the Completion Certificate, whichever is earlier, such transfers shall be free from stamp duty. However, onus of maintaining the open spaces including parks and roads for a period of five years from the issue of Completion Certificate shall continue to remain with the promoter even after the transfer of non-saleable open spaces like roads, parks etc.” (page no. 43 of Licence)
It is already mentioned that OP got the certificate renewed from time to time, which was up to 07.02.2012 (on page no. 47 of its paper-book), then upto 25.07.2016 (at page no. 48) and in the additional document, referred at the stage of final argument, the certificate get renewed upto 31.12.2022.
Moreover, pursuant to industrial policy in the State of Punjab, an agreement dated 21.07.2006 (at page no. 50 of paper-book, qua certain concessions to developer) took place between the Government of Punjab and the opposite party and then there was plea of change of land use (at page no. 54-55) and approval of layout plan, apart from notification no. 18/188/2006-5HG-11/12037. Some of its clauses are relevant to be mentioned, the same are reproduced here under:-
“change of land use letter (page 54-55)-
(iv) He would not undertake any development work in the colony until final lay out plan is approved by the Competent Authority and notification u/s 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.
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(ix) 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.
Approval of layout plan Memo no. PUDA-Mega Proj/H-06/3057 dated 22.11.2006 (page 55-58)-
(3) No sale/ advertisement of plots shall be made by the company unless the Govt. issues notification/ orders u/s 44 of PAPR Act, 1995 for the exemption of the Project from PAPR Act, 1995.
Notification no. 18/188/2006-5HF-11/12037-
(ii) The promoters of the Housing Project shall strictly abide by the aforesaid legal agreement dated 21st July, 2006 signed by them as well as various Notifications issued by the Department of Housing & Urban Development enunciating and enumerating the policy parameters governing such Housing Projects.
8.3: The OP in its evidence produced copies of two sale deeds viz. sale deed dated 28.05.2012 in respect of plot no. 730 and another sale deed dated 16.10.2007 in respect of plot no. 168 of same project and in both the sale deeds the OP has recited notification no. 18/188/2006-5HF-11/12037 qua project no. H-6/3057, these numbers are also mentioned in the buyer’s agreement (page no. 22 of complainant’s paper-book).
Since there are registration of sale deed by the OP in favour of plot owners and along with the sale deeds the OP has also filed list of other plot owners in whose favour the plot was transferred by way of sale deeds during 2007 to 2015. The OP has emphasized that it was possible because the project was fully developed and that is why it was feasible to transfer the developed plot in favour of plot owners, which was opposed by the complainant that plot was not developed because development of project is yet to be completed. By taking consolidated stock of these records, inclusive of correspondence between the complainant and the OP, there are certain footprints left in exchange of correspondence between the parties, the same are relevant to refer and discuss.
8.4: Firstly, the licence to develop colony (at page no. 41-46) carves out the development work by the OP, which includes metalling of road etc., (which has already been reproduced in para no. 8.2 above). Since the OP and the Government of Punjab has also entered into further agreement, besides conditions for approval of layout plan, change of land use etc., a specific notification was also directed but all these aspects were not prejudice to the licence granted to develop the colony as well as renewal of the license. Out of correspondence exchanged between the parties, some of them are relevant to mention, it is a letter dated 12.05.2011 (at page no. 39 of complainant’s paper-book) and another letter is dated 06.01.2014 (at page no. 40 of complainant’s paper-book), wherein the OP has specifically mentioned that “development work on the project site is in full swing like construction of the Commercial Shops, Road Work, Sewerage Line, Water Line, Electricity, Street Light, and Maintenance of fully Develop Parks including walkway. Further we would like to mention here that infrastructure of project will be in final stage very soon”. In subsequent letter dated 06.01.2014, the OP further asked the complainant “you are requested that please clear your outstanding amount with interest as early as possible because your timely payment will ensure that we are able to do the development work at faster pace”. The expressions mentioned in the letters by OP, itself suggest that the development was under progress and it was not in the final stage by virtue of its own admissions in letter dated 12.05.2011 and in subsequent letter dated 06.01.2014, there is also narration of fact that development work is to be done at faster pace. This was position in the year 2014, whereas complainant had booked her plot in October, 2005 and allotment of plot was in January, 2007. The task of OP as a developer has already been mentioned as well as substantive part was also reproduced in paragraph no. 8.2 above.
The OP has presented a compact disk of 2 minutes and 37 seconds, it was of 25.04.2022 and it was showing a video of the area, there were trees, street light is lightening on lamp post/electric pool on pucca road side, central verge with greenery between the road, one dog was roaming on the road, there was one built single storey white washed house and another built house with bricks. The scenes appearing in video do not show construction of over head water tank or of constructed over head water tank , which was one of the basic requirement of licence to construct over head reservoir apart of sewage water treatment plant. There is no other record/photographs of contemporary period to show the development work including over-head water tank, after allotment of plot to complainant in January 2007 but as per OP's letter of 12th May 2011 and 06th January 2014, the development was in still in progress, besides the requirement of over head reservoir is directly related with the basic necessity of plot holders, from the stage of construction of building and for habitation.
8.5: It is matter of record that the buyer’s agreement filed is not signed by the complainant nor by the OP, the non-judicial stamp paper is of 25.01.2007 for agreement, but both of them refers this agreement. The correspondence exchanged between the parties refers the registration form, the installments asked were also as per scheduled in the booking registration form, which is at page no. 31-33 of the paper-book of the complainant, the time schedule for payment is from the time of booking on 02.11.2005, then at the interval of 30 days, 90 days, 180 days, 270 days and other charges at the time of sale deed. The OP has also been asking the balance amount on the basis of this schedule, which is admitted by both the sides.
8.6: There is a dispute with regard to the period of 3 years for handing over physical possession of the developed plot. According to OP, there is no such specified period in the agreement or in the registration form, whereas on the other side the complainant maintains that she was assured for possession of developed plot within 3 years.
Since the agreement has been referred by the parties, at the outset there is no specific sentence or clause that possession will be handed over within the period of 3 years from the booking, however, there are two relevant clauses in the agreement, which also reflects intentions of the OP. As appearing, the covenants of agreement are unilateral terms and conditions by OP, which was sent to complainant. One of the clause is no. 20, which talks about annual maintainable charges payable by the allottee of plot that after 12 months of signing the agreement, such maintenance charges will be payable till the period of first three years. The other clause is clause no. 21 which mandates for the allottee to construct the plot within 36 months from the date of possession.
Now reverting back to licence to develop colony was granted to OP (at page no. 41, its validity clause of three years has already been reproduced in para no. 8.2 above), the licencee was to complete the development works within the period of licence, the period of licence was 3 years from 08.02.2006 to 07.02.2009. By reading the record harmoniously, there cannot be infinite period of handing over possession as well as taking into account these clauses styled in covenant of agreement, the period is appearing to be 3 years for handing over the possession of developed plot as the outer limit was also of 3 years for the development of the project, it confirms that the complainant was assured on behalf of OP for handing over the possession of developed plot within 3 years.
Moreover, the OP got renewed the licence from time to time and year by year upto 07.02.2012, the subsequent renewal were extended up to 07.02.2016 and lastly upto 31.12.2022. These renewals from time to time themselves are speaking that the project was under development and licence period was extended to fully develop it, since as per the requirement of licence granted or renewed the developer colonizer has to obtained NOC on completion of these development work. The OP has not filed any NOC to the effect that the development work has been completed. In case the project fully developed, there would have been no need for renewals of licence for extended periods. Nevertheless, to mention the registration of sale deed of plot no. 730 and plot no. 168, placed on record, or the list of other owners of the plot filed on behalf of OP, would not construe nor infer that the development of project was complete, thence sale deed was executed vis-à-vis there is no such fact mentioned in the sale deeds filed that the project was completely developed, consequently it would not help the OP that registration of sale deeds would deemed to be inference for development was complete and done. Thus, it is held, that the complainant has succeeded to establish that the OP, as a developer-colonizer, failed to deliver fully developed plot of land to the complainant within three years either from date of booking in or from date of allotment of plot of land or date of providing agreement.
8.7: It is undisputed fact that the complainant had booked the plot on 02.11.2005 against booking amount of Rs. 2,00,000/-. However, the licence was granted w.e.f. 08.02.2006 to 07.02.2009 initially to develop the project. As per clause (ix) of change of land use memo (at Page 54-55) of dated 17.10.2006/27.10.2006, the promoter could not launch the booking of the plots and issue any advertisement in this regard, until final approval is obtained from the competent authority. Whereas, OP had issued the registration form and booked complainant’s plot on 02.11.2005. The complainant has also succeeded to establish her case that from the inception the norms, terms and conditions were not being followed by the complainant. Although, the OP has proved receipts of 21.11.2006 and of 28.02.2007 in respect of deposit of certain amounts/fees for which Punjab Urban Planning Development Authority issued the receipt. This also establish that booking of complainant’s plot on 02.11.2005 was prior to the dates of licence and deposit of requisite fees against receipts.
9. The complainant refers and relies upon decision in Sanjay Vasudeva and others vs M/s Tewari Global Infrastructure Ltd. and others, CC no. 145 of 2021, DOD 27.04.2022 that it was against the same OP and similar circumstances were existing that the OP had failed to develop the colony and got registered in the name of complainant in that case, consequently the complaint was allowed along with interest at the rate of 9% p.a. from the date of filing of complaint till realization of the amount.
The complainant also refers another case, in her brief synopsis, of M/s Tewari Global Infrastructure Ltd. vs Dr. Jaspal Singh, FA No. 953/2012, wherein deficiency of service were held and there was plea of M/s Tewari Global Infrastructure Ltd. that the project was developed, however, there was contradictory plea made by appellant therein in that case, its appeal was dismissed. But Ld. Counsel for OP has reservations that firstly there brief synopsis does not put the case in right prospective , secondly, there is no ratio of law was laid down in that judgment, thirdly, the issue was resolved, however, the present complainant herein this case is misrepresenting the facts of that case. While reading complete judgment of this case of Hon'be State Commission, Punjab, had dismissed the appeal and held in its decision of 30.7.2012, a case of deficiency in services since appellant had pleaded in appeal to provide basis amenities once construction is started by respondent, however, the basic amenities is to be provided to respondent therein only then someone could think of raising the construction. In that case, the agreement was of 31.3.2007 and sale deed was of 11.08.2008 in favour of vendee. The complainant furthers relied upon Amrinder Singh Bhatti vs C&C Towers Limited, MANU/RB/0032/2021 (dod on 17.05.2021 by Hon’ble State Commission, Chandigarh, wherein the OP was to construct the unit within 48 months and complainant was to be handed over office space within stipulated period, but it was not done by the said OP, consequently while observing the act and conduct of that OP amounts to deficiency in service and unfair trade practice, the complaint was allowed and compensation was also allowed.
On the other side, OP had relied upon DLF Qutab Enclave Complex Educational Charitable Trust vs State of Haryana and others Civil appeals no. 4908 of 2002 with Nos. 4909-11 of 2002, dod on 17.02.2003, (2003) 5 Supreme Court Cases 622, with reference to external development work to be done by the colonizer vis-à-vis no obligation with regard to development of amenities, however, while discussing the facts and features of this case in reference to a colonizer and a developer in reference to the area of development to be carried by the OP pursuant to licence granted followed by other course of land use etc. The contentions of OP to that extent has been disposed of.
10.1. Therefore, after critical analysis of case of both sides with record, it is held that complainant has succeeded that she had paid total amount of Rs. 8,73,750/- from 02.11.2005 to 05.03.2008 in respect of allotted plot no. 1038 measuring 300 sq. yard in the said residential project, however, OP failed to hand over her the developed plot within the period of 3 years. The complainant is held entitled for refund of her deposited amount of Rs. 8,73,750/- from OP, because of deficiency in services and unfair trade practice on the part of OP.
10.2 : The complainant claims interest of 18 % pa, however, considering the rate of interest determined in Sanjay Vasudeva and others vs M/s Tewari Global Infrastructure Ltd. and others, CC no. 145 of 2021 (supra ), since it is in respect of same project as well as for want of any condition in the registration form or agreement on point of interest, interest at the rate of 9% p.a. from the date of complaint till realization of the amount is also determined in this case and allowed in favour of complainant and against the OP.
10.3. The complainant has claimed compensation of Rs.2,00,000/- on account of unfair trade practice & deficiency of service suffered on the part of OP, however, considering the circumstances of this case, a lump sum compensation of Rs. 20,000/- is determined and allowed in favour of complainant and against the OP.
10.4: Accordingly, the complaint is allowed in favour of complainant and against OP, while directing the OP to pay an amount of Rs. 8,73,750/- ( being refund of amount) along with interest at the rate of 9% p.a. from the date of complaint till realization of the amount, apart from damages of Rs. 20,000/-. The costs is also quantified as Rs. 5,000/- in favour of complainant and against OP. The OP shall pay the amount within 30 days from the receipt of this order.
11. However, any expression or findings returned in this Order in the present complaint under the Consumer Protection Act, being under summary procedure proceeding, shall not be construed any opinion or expression on the merits of other case(s), if any, pending or otherwise before competent Court of law or Commission/Tribunal, either between the same parties or otherwise.
12. Copy of this order be sent/provided forthwith to the parties free of cost as per regulations.
13: Announced on this 20th day of February, 2023 [फागुन 1, 1944].
