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

Consumer Complaint No.168 of 2017

                                                 Date of institution:  02.03.2017                                                         Date of decision   :  21.01.2019

Arvind Kumar Mishra,  resident of House No.1466, Phase-X, SAS Nagar,   Mohali.

…….Complainant

Versus

1.     Yellow Stone Landmark Infocity through its authorised representative/Sales Manager, Sector 66-A, Mohali, District Mohali.

2.     Yellow Stone Builder’s Private Limited through its authorised representative/ Manager having its Corporate Office at SCO 66-A, Mohali.

Now substituted with name of Aeropolis Infrastructure Private Limited through Managing Director Tejinder Singh Bhatia, SCO 161-162, Sector 8-C, Chandigarh, vide order dated 29.11.2018.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Suresh Kumar, counsel for the complainant.

                OPs ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, a member of Philips India Limited Employees Union, due to his service with M/s. Philips India Limited, Mohali booked residential apartment measuring 400 sq. ft. in basic sale price of Rs.8,75,000/- in the Integrated IT Township known as Yellowstone Landmark Infocity developed by Sukhum Infrastructure Pvt. Ltd. at Yellowstone residences (Phillips Towers) in Sector 66-A, SAS Nagar, Mohali. Agreement dated 17.05.2012 was arrived at between employees union of complainant with OPs.  As per Clause 6 (a) of agreement, possession was to be handed over within 18 months with extended tenure of six months from the date of agreement i.e. on or before 23.11.2013. Amount of Rs.1,75,000/- was deposited by complainant with OPs vide receipt dated 30.05.2012.  Complainant filed application dated 30.10.2013 through Union for asking about status of the project work, in response to which OPs replied on 11.11.2013 that they are awaiting for the housing policy of year 2013 framed by Govt. of Punjab. Thereafter again assurance was given for start of construction tentatively by 25.12.2013. Again on 15.12.2013, OPs were approached and assurance was given for start of development work on project site by March, 2014. Thereafter on 09.05.2014 a meeting was held between OPs and Employees Union of complainant, where intimation was given by OPs that the customers who have deposited partial advance, they can seek refund in case project work not completed. Assurance was given to the Union of complainant that work if not completed by December, 2015, then refund of paid amount as per GMADA norms will be done. Writing dated 09.05.2014 was executed by OPs in this respect. Earlier some of the consumers filed complaint in this Forum in which compromise was arrived at as per which construction work was to be completed on or before November, 2016 and possession was to be handed over before November, 2016, failing which OPs  to refund the amount with interest @ 18% per annum from the dates of deposits. Despite that, construction not started and Execution Applications by other consumers were filed. OPs for refund of amount, issued cheque of Rs.50,000/- which stood dishonoured earlier. Two cheques of amounts of Rs.60,000/- and Rs.65,000/- more were issued, but OPs instructed orally not to present the cheques in the bank. OPs have not refunded a single penny of balance amount of Rs.1,25,000/- of the complainant. Despite  service of legal notice  dated 23.11.2016 payment has not been made and that is why this complaint filed by pleading deficiency in service on part of OPs for seeking refund of the deposited amount of Rs.2,62,500/- with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.20,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if complaint is not maintainable because complainant failed to submit eligible certificate with OPs for showing his entitlement to allotment of EWS/LIG category of flat as per terms of the buyer’s agreement. Further it is claimed that in view of failure of complainant to comply with condition No.6 of buyer’s agreement, possession of apartment, in view of policy of the Punjab Govt., could not be handed over.  Condition No.6 of agreement provides for refund of deposited amount without any deduction and claim of interest. Initially the road left out by GMADA for connecting International Airport, Mohali was having width of 164 feet, but the same stood increased to 200 feet and that is why master plan of the colony in question was forced to be re-scheduled resulting in non delivery of possession. It is claimed that letter regarding approval was written, but facts regarding receipt of payment or of the agreement with the Employees Union, of which complainant is a member, are not denied. Factum of issue of cheques even admitted, but other facts denied. 

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-10 and thereafter closed evidence.  Shri J.S. Sodhi, Manager of OPs tendered in evidence his affidavit Ex.OP-1/1 and document Ex.OP-1 and thereafter closed evidence.

4.             After closure of evidence by parties, an application was filed by complainant for substituting Aeropolis Infrastructure Private Limited through Managing Director Tejinder Singh Bhatia, as party.  Copy of certificate of incorporation issued by Govt. of India, Ministry of Corporate Affairs was produced to show that Yellow Stone Private Limited has changed its name to Aeropolis Infrastructure Pvt. Ltd. from the date of issue of certificate dated 11.04.2018 and as such it was found that virtually Aeropolis Infrastructure Pvt. Ltd. has stepped into the shoes of Yellow Stone. So application for substituting the name of Aeropolis Infrastructure Pvt. Ltd. in place of Yellow Stone was allowed vide orders dated 29.11.2018 by holding that any order passed in this complaint will be deemed to be passed against Aeropolis Infrastructure Pvt. Ltd. Amended title in this respect has also been filed.

5.             Written arguments not submitted by any of the parties. OPs were proceeded ex-parte on 29.11.2018. Oral arguments of counsel for complainant heard and records gone through.

6.             It may be mentioned here that subsequently on application filed by complainant for amending the typographical mistake, said application was allowed for correcting as if refund of amount of Rs.1,25,000/- is sought and not of Rs.2,62,500/-. That amendment was allowed vide orders passed today itself.

7.             Complainant to prove payment of Rs.1,25,000/- to OPs has placed on record copy of buyer agreement Ex.C-1 alongwith acknowledgment of amount of Rs.1,75,000/- as Ex.C-2. This amount was deposited through cheque of Rs.1,55,000/- dated 14.05.2012 and cash amount of Rs.20,000/- was deposited on that date as per contents of Ex.C-2. So amount of Rs.1,75,000/- in this case stood deposited by complainant with OPs on 14.05.2012. However, refund of Rs.50,000/- out of that amount has been done and that is why complainant by filing application dated 03.01.2019 sought amendment for claiming refund of balance amount of Rs.1,25,000/-, as referred above. So refund of amount of Rs.1,25,000/- alone in this case can be ordered, more so when OPs in the written reply or in the submitted affidavit have not denied about execution of buyers agreement Ex.C-1 and receipt of Rs.1,25,000/-.

8.             Through letter Ex.C-3 assurance was given by OPs to Phillips Employees Union of complainant that construction will be started tentatively by 25.12.2013, once the policy as well as new plan is approved by GMADA. However, that construction was not started by 25.12.2013 and that is why Employees Union of complainant had to approach through letter Ex.C-4 dated 15.12.2013 to Sukhm Infrastructure Private Limited for calling upon it to abide by its promise of start of construction work, failing which to refund amount to the customers/members of Employees Union. In response to this letter Ex.C-4 dated 15.12.2013, OPs through letter Ex.C-5 informed Employees Union of complainant that construction work would be started shortly. Despite assurance given through Ex.C-5, construction work not started, but fresh assurance through Ex.C-6 was given by agent of OPs namely Sukhm Infrastructure Private Limited as if work will be completed by December, 2015. However, despite that construction work not started and that is why this complaint filed for seeking refund of amount left as balance with OPs. For refunding that amount, earlier cheques of Rs.65,000/- and Rs.60,000/- dated 30.10.2015 and 21.09.2015 (copies of which produced on record as Ex.C-8) were issued by authorised signatory of OPs in favour of complainant, but that amount has not been paid and as such certainly submission by counsel for complainant has force that OPs liable to refund balance amount of Rs.1,25,000/- with interest @ 12% per annum from the date of deposit namely 14.05.2012 till payment in view of  law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another and First Appeal No.318 of 2018 titled as Harpreet Singh vs. M/s. Bajwa Developers Limited & another,  decided on 30.07.2018 as well as Section 6 and 12 of PAPRA Act, 1995 read with Rule 17 framed thereunder.

9.             Despite issue of legal notice Ex.C-9 through postal receipt Ex.C-10 payment has not been made and as such certainly complainant stood mentally harassed and even dragged in this litigation, due to which he is entitled for compensation for mental agony and harassment and also to litigation expenses.  Buyers agreement Ex.OP-1 relied upon by OPs is same thing as is buyer’s agreement produced on record as Ex.C-1 by complainant.

10.           Clause-6 of agreement Ex.C-1 provides that buyer for allotment of EWS/LIG Apartment must fulfill eligibility conditions stipulated by Govt. of Punjab. Obligation was cast on the buyer (who is complainant of this case) to establish that he fulfills all the norms of eligibility laid down by Govt. of Punjab for allotment of EWS/LIG Apartment. Even if such stipulation in Clause-6 of agreement Ex.C-1 may be there, despite that it was responsibility of OPs to accept hard earned money from the buyers on being satisfied that they are eligible for fulfillment of conditions qua allotment of EWS/LIG apartments laid down by the Govt. of Punjab. Those conditions/norms bound to be in the knowledge of OPs and not complainant and as such just on the strength of Clause-6 of agreement in question, due right of complainant for refund of amount with interest cannot be denied. In case right of complainant to receive refund with interest denied, then it will amount to allowing OPs to have unjust enrichment at the cost of poor buyer and as such enforcement of Clause-6 for denying compensation amount and interest amount is unjust and improper because this Clause-6 casts unnecessary burden on the buyer, despite the fact that knowledge of norms of EWS/LIG flat allotment is bound to be of OPs and not of complainant.

11.           Even if in earlier complaint filed by Krishan Kumar Gupta against OPs, some compromise was arrived at, despite that benefit of same cannot be availed by complainant because allowing  of interest @ 18% per annum through order Ex.C-7 was on the basis of compromise arrived at between complainant of that case with OPs of the present case. Present is not a case in which order going to be passed on basis of compromise, but interest is allowed by keeping in view provisions of Section 6 and 12 of PAPRA Act read with Rule 17 thereof, which provides for allowing of interest @ 12% per annum from the dates of deposits till payment.

12.           In case decided on 03.05.2016 by Ld. District Consumer Forum-I, UT Chandigarh bearing Consumer Complaint No.412 of 2015 titled as Brahm Parkash Gaur & another Vs. M/s. Yellow Stone Builders Pvt. Ltd. and Rakesh Kumar Vs. Iqbal Singh bearing FA No.127 of 2013 decided on 28.02.2013  by Hon’ble State Consumer Disputes Redressal Commission Punjab notice of provisions of Section 6 and 12 of PAPRA Act, 1995 read with Rule 17 framed thereunder not taken into consideration and as such benefit from ratio of those cases cannot be gained by OPs.

13.           As a sequel of above discussion, complaint allowed in terms that Aeropolis Infrastructure Private Limited will refund the received amount of Rs.1,25,000/- with interest @ 12% per annum from the dates of deposit i.e. 14.05.2012  till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/-  more allowed in favour of complainant and against Aeropolis Infrastructure Private Limited. Liability of Directors, if any, will be determined in the event of filing of execution application in the execution proceedings itself by keeping in view provisions of Company Law. However, liability of Managing Director of course will remain in any eventuality. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 21, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member