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

Consumer Complaint No.174 of 2017

                                                 Date of institution:  02.03.2017                                                         Date of decision   :  21.01.2019

Bharat Kumar, resident of House No.1319/8, Phase-XI, 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, during service in 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 being 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 namely M/s. Philips India Ltd. Employees Union and OPs.  Possession was to be handed over within 18 months, but with extended tenure of six months from the date of agreement. So virtually possession was to be handed over on or before 23.11.2013.  Complainant deposited booking amount of Rs.1,75,000/-  with OPs on 30.06.2012 and further amount of Rs.87,500/- was also deposited by complainant with OPs. Complainant approached OPs through application dated 30.10.2013 by claiming that construction work has not been started, despite the fact that period of 18 months going to elapse. Through reply dated 11.11.2013 sent by OPs to the Union, of which complainant is a member, it was disclosed as if wait for housing policy of year 2013 formulated by Punjab Govt. is being done. No construction work started by 25.12.2013 even. Complainant approached OPs on 15.12.2013 with request to start construction work and in response a letter was received as if process of finalizing contracts for infrastructure work of roads, water supply and sewerage etc. is going to be finalized. Development work was undertaken to be completed by March, 2014, but despite that construction not started. Complainant again met OPs on 09.05.2014 through his Union, who assured that in case work is not completed by December, 2015, then complainant will be entitled for refund of entire deposited amount as per GMADA norms. Writing of 09.05.2014 in that respect was executed.  Earlier some of the consumers filed complaints 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 will 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. Three cheques of amounts of Rs.1,00,000/-; of Rs.1,00,000/- and of Rs.62,500/- dated 21.09.2015; 30.10.2015 and 10.08.2015 respectively even issued by OPs in favour of complainant for refunding the deposited amount. However, one of those cheques stood dishonoured on 11.08.2015 vide memo issued by bank of OPs. Intimation of this dishonour was given to OPs, who assured to make payment, but till date no payment has been made. Finding no other way, this complaint filed after serving registered notice through counsel on 23.11.2016 for claiming 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-11. Thereafter on allowing of application for additional evidence, counsel for complainant closed evidence after tendering receipt Ex.C-12. On the other hand, 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. Oral arguments of counsel for complainant heard because OPs proceeded ex-parte on 29.11.2018. Records gone through.

6.             From the pleadings of parties and the submitted affidavits as well as contents of letter Ex.C-2 dated 30.06.2012 and Ex.C-12 dated 28.03.2013, it is made out that OPs acknowledged having received Rs.1,75,000/- plus Rs.87,500/- = Rs.2,62,500/- from complainant with reference to registration form dated 31.03.2012 regarding allotment of EWS category flat in Integrated IT Township known as Yellowstone Landmark Infocity being developed by Sukhm Infrastructure Pvt. Ltd. at Yellowstone residences (Phillips Towers) in Sector 66-A, SAS Nagar, Mohali. As denial regarding receipt of Rs.2,62,500/- by OPs from complainant is not made in the written statement or the submitted affidavit of its authorised representative and as such it is held that complainant able to establish as if he paid Rs.2,62,500/- to OPs.

7.             Letter Ex.C-3 was sent by OPs to Employees Union of complainant for informing that they are waiting for the approval of policy of Punjab Govt. formulated in March, 2013, but by reassuring that construction would start tentatively by 25.12.2013. That construction was not started by 25.12.2013 and as such letter Ex.C-4 was sent by Employees Union of complainant to Sukhm Infrastructure Pvt. Ltd. for calling upon it to disclose as to whether work will be started by 20.12.2013 or not. In response to that, letter Ex.C-5 was sent by OPs to Employees Union of complainant for informing that development work of the project site will be started by March, 2014, but same was again not done and thereafter re-assurance again given by OPs to Employees Union of complainant through writing Ex.C-6 as if the work will be completed by December, 2015.  Despite that, construction work not started and nor the amount refunded and that is why complainant sent legal notice Ex.C-10 to OPs through postal receipt Ex.C-11 for calling upon them to refund the received amount with interest and pay compensation amount also. Non start of the work and non handing over of possession by stipulated time through agreement and subsequently through undertaking Ex.C-6 is an act of utmost deficiency in service on part of OPs. Complainant and other consumers were denied of their hard earned money for considerably long time and as such virtually OPs adopted unfair trade practice even by not sticking to promise of completion of construction work and handing over possession. That also is an act of utmost unfair trade practice on part of OPs and as such certainly complainant entitled to refund of the deposited amount with interest @ 12% P.A. from the dates of deposits 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.

8.             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.

9.             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.

10.           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.

11.           Assertion of counsel for complainant has force that despite issue of cheques of amounts of Rs.62,500/- dated 10.08.2015;  of Rs.1.00 lakh dated 30.10.2015 and of Rs.1.00 lakh dated 21.09.2015 in favour of complainant, payment has not been made. Rather one of the cheque bearing No.746784 of amount of Rs.62,500/- was dishonoured by Punjab & Sind Bank due to insufficiency of funds in account of OPs. So certainly on account of this dishonour of cheque, complainant has remained unable to get any amount refunded from OPs. Being so entitlement of complainant for refund of entire paid amount of Rs.2,62,500/- with interest is there.

12.           As a sequel of above discussion, complaint allowed in terms that Aeropolis Infrastructure Private Limited  will refund the received amount of Rs.2,62,500/- with interest @ 12% per annum from the dates of deposits  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