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

Consumer Complaint No.173 of 2017

                                                 Date of institution:  02.03.2017                                                         Date of decision   :  14.12.2018

Umesh Kumar son of Alam Singh,  resident of House No.1406/21, 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,

                Shri Amrinder Singh Sidhu, Member.

                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 developed by Sukhum Infrastructure Pvt. Ltd. at Yellowstone residences (Phillips Towers) in Sector 66-A, SAS Nagar, Mohali. Agreement dated 17.05.2012 was entered by employees union of complainant with Yellowstone Builders Pvt. Ltd.  Possession was to be handed over within 18 months with extended tenure of six months from the date of agreement.  Amount of Rs.1,75,000/- was deposited by complainant with OPs in 2012. Complainant approached OPs for calling upon them to handover possession of the residential apartment because the agreed period has lapsed, but it turned out as if no construction work started even uptill 30.10.2013, 11.11.2013 and 15.12.2013. OPs admitted about delay in start of construction of units by claiming that approvals are awaited. Through letter dated 15.12.2013 OPs intimated the Union as if process of finalizing the contracts for infrastructure works of roads, water supply and sewerage etc. going on and assurance was given to develop the site by March, 2014, but that even not done. Later on at the intervention of Employees Union of complainant, assurance was given for completion of works by December, 2015 failing which undertaking was given to refund the entire amount as per GMADA norms. 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 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.50,000/-; Rs.65,000/- and Rs.60,000/- dated 05.05.2016; 15.06.2015 and 15.05.2015 were issued by OPs in favour of complainant, but with rider that cheques will not be presented in the banks. Despite that, amount of Rs.1,75,000/- has not been refunded, despite approach by complainant to OPs and sending of registered legal notice 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/- (erroneously mentioned in complaint) 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.             Complainant to prove payment of Rs.1,75,000/- has placed on record copy of buyer agreement Ex.C-1 alongwith letter Ex.C-2 dated 26.05.2012 issued on the letter head of OPs for establishing that OPs itself acknowledged through Ex.C-2 having received Rs.1,75,000/- from complainant out of total sale consideration of Rs.8,75,000/- of EWS apartment in Sector 66-A, Mohali having area of 400 sq. ft. Factum regarding receipt of this amount even not denied in written statement. So virtually there is implied admission on part of OPs also regarding receipt of Rs.1,75,000/- from complainant.

6.             Through letter Ex.C-5 issued by OPs to Phillips Employees Union, of which complainant is a member, it was informed to the Union that development work on the project in question will be started by March, 2014 after partial completion of infrastructure work. Assurance through Ex.C-5 was given to the Employees Union, of which complainant is a member, regarding start of construction work at the site very shortly. However, through notice Ex.C-6 sent by Sukhm Infrastructure Pvt. Ltd., it was disclosed to Employees Union that construction of the apartments would be completed tentatively by December, 2015.  Letter Ex.C-3 dated 11.11.2013 issued by OPs to above said Union shows that OPs admitted about delay in start of construction work of the units, but assurance was given for start of construction work tentatively by 25.12.2013. In Ex.C-3 it is also mentioned that on approval of new plan by GMADA, construction will be started. Through another letter Ex.C-5 sent by OPs to Employees Union of complainant, assurance was given for start of construction work at the site shortly. Despite that construction work has not been started and nor the amount refunded to complainant and that is why complainant sent legal notice Ex.C-9 to original OPs through postal receipt Ex.C-10 for calling upon them to refund the amount with interest @ 18% per annum with compensation amount for harassment of Rs.1.00 lakh and litigation expenses also. Non start of 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 considerably for long time and as such it is made out that OPs adopted unfair trade practice by not fulfilling their promise of completion of construction work within undertaken time. Being so, complainant entitled for refund of deposited amount of Rs.1,75,000/- with interest @ 12% per annum 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 as well as Section 6 and 12 of PAPRA Act, 1995 read with Rule 17 framed thereunder.

7.             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.

8.             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.

9.             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.

10.           OPs issued three cheques of amount of Rs.50,000/-; Rs.65,000/- and Rs.60,000/- dated 05.05.2016; 15.06.2015 and 15.05.2015 in favour of complainant for assuring payment of these amounts to him. Copies of these three cheques produced on record as Ex.C-8. So certainly submission advanced by counsel for complainant has force that despite issue of above referred three cheques, encashment of the same has not taken place because assurance was given by OPs for refund with instructions to complainant not to present these cheques. This is another act of deficiency in service on part of OPs.

10.           As a sequel of above discussion, complaint allowed in terms that Aeropolis Infrastructure Private Limited  will refund the received amount of Rs.1,75,000/- 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

December 14, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member