Punjab

Fatehgarh Sahib

RBT/CC/980/2018

Nirmal Singh - Complainant(s)

Versus

Yellow stone - Opp.Party(s)

Suresh kumar

03 Jan 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHGARH SAHIB.

                                                                   RBT/CC/980/2018

Complaint No. 980 of 2018

                                                                   Date of Institution:  20.09 .2018

                                                                   Date of Decision: 03.01.2022

Nirmal Singh S/o Sh. Karnail Singh, R/o Village Badali Maiki, P.O., Brass, District Fatehgarh Sahib.

                                                                                      …………....Complainant

                                                Versus

Yellow Stone Landmark Infocity, Sector 66-A, Mohali, District Mohali (now Aeropolis City, Sec 66-A, Mohali through its Managing Director Sh. Tejinder Singh Bhatia.

……....... Opposite Parties

Complaint under Section 12 of Consumer Protection Act 1986

Quorum

Sh. Pushvinder Singh, President

Ms. Shivani Bhargava, Member

Sh. Manjit Singh Bhinder, Member

 

Present: Sh. Suresh Kumar, counsel for the complainant.

               Sh. A.S. Dhaliwal, counsel for the OP

 

 

Order By

Pushvinder Singh, President

 

1.                   The present complaint has been filed by the complainant against the OP (other parties), with a prayer to direct the OP to return the amount paid by him along with interest, cost and compensation.
2.                   The complainant has alleged that on account of the agreement dated 17^th, May, 2012 entered into between the M/s Philips India Ltd. Employees Union Regd. booked the residential apartment measuring 600 sq ft. (LIG Apartment) in the basic sale price of Rs.14,00,000/- in the Integrated IT Township Yellowstone Landmark Infoctiy being developed by Sukhum Infrastructures Pvt. Ltd. at Yellowstone residence (Phillips Towers) in Sector 60-A, SSA Nagar, Mohali. At present the OP have changed the name of his company from Yellowstone Landmark Infocity to Aeropolis City Sector 66-A, Mohali and from Yellowstone Builders Pvt. Ltd Sector 66, Mohali Aeropolis Infrastructure Private Limited, SCO 161-162, Sector 8 C, Chandigarh for the reasons best known to them.
3.                   As per the agreement, the possession of the abovesaid residential apartment was to handed over within 18 months with a extended tenure of six months from the date of agreement i.e. approximately on or before 23.11.2013. The complainant deposited the amount of Rs.2,80,000/- vide receipt dated 23.04.2012 and Rs.1,40,000/- vide receipt dated 11.04.2013 (total Rs.4,20,000/-) as demanded by OP against the total basic sale price of Rs.14,00,000/-. The complainant submitted the application through union dated 30.10.2013 wherein the OP were requested that as per the agreement dated 17.05.2012 entered the time of 18 months in going to be expired and till date the construction work of the residential apartment has not been started. In response the OP vide letter dated 11.11.2013 replied and admitted the delay in start of construction for the units. OP assured the complainant through union that the construction work of the apartments will be start attentively by 25.12.2013 but no construction work was started by OP. Finally in the meeting held on 09.05.2014 the OP intimated that they have started work in infrastructure working i.e. road, water supply sewerage etc. of the project area and after the completion of the infrastructure work OP would start the construction work at site as well. OP further assured to the complainant that if the work is not completed by December 2015 the amount would be refunded as per GAMADA norms and the same was reduced in writing on 09.05.2014 by OP. Many of complaints were filed in the year 2015-2016 by the consumers against the OP and undertakings were given by OP to the complainants that they will deliver the possession by November, 2016 and they have been further agreed that if they fails to deliver the possession by the agreed date then the complainants will be entitled to get the refund of his deposited money along with interest @ 18% per annum from the date of initial deposit till realization. The OP neither started the construction of the project nor they refunded the amount along with interest @ 18% per annum to the consumers and the consumers filed the execution applications before this Hon’ble Forum and same are still pending. The complainant through his counsel served the legal notice dated 15.05.2017 through registered post. After the services of the notice of the OP has refunded the amount Rs.1,50,000/- against the principal amount of Rs.4,20,000/- and Rs.2, 70,000/- is still due towards the OP.
4.                Notice of this complaint was given to the OP. Sh. Amarbir Dhaliwal Advocate counsel appeared on behalf of the OP and filed the reply stating that the complaint is not maintainable as the Hon’ble Court does not have territorial jurisdiction to try and entertain the present complaint. The complainant has wilfully and intentionally suppressed and concealed material facts from this Hon’ble Court. As per the company policy and duly signed contract executed between the parties, OP companies are not liable to pay any interest in case the applicant does not fall under the EWS/LIC category of flat as per terms of the buyer’s agreement.  The complaint is hopelessly time-barred. The last payment was allegedly made in the year 2013. The period of limitation under the Consumer Protection Act is only 2 years whereas the complaint has been filed on 10.02.2018. The complainant has remained silent for approximately over 5 years, for reasons best known to him. The complainant has booked the apartment solely for commercial purpose to resell the same knowing well that he did not fall into the category of EWS. Even otherwise, it is a well booked for residential purposes. The complainant must specially show as to how the said apartment is booked for personal use. So, OP denied all other allegations of the complaint and prayed for dismissal of complaint with costs.
5.              In evidence the complainant submitted affidavit and also proved copies of agreement as Ex.C-1, copy letter dated 16^th July, 2012 written to the complainant as Ex.C-3, copy of statement of Sh. Aprajit Sachdeva in another complainant as Ex.C-4, copy of letter dated 19.07.2016 written to the complainant by the OP as Ex.C-5, copy of legal notice as Ex.C-6, postal receipts as Ex.C-7. On the other hand OP did not lead any evidence.
6.               As per the facts pleaded in the complaint and deposed by way of affidavit, the complainant has alleged the he got booked a residential apartment measuring 600 sq. ft. in the basic sale price of Rs. 14,00,000/- In the integrated IT Township (Yellowstone Landmark Infocity being developed by Sukhm Infrastructure Pvt. Ltd and in this regard an agreement dated 17.05.2012 was entered into between parties and total amount of Rs.4,20,000/- was paid by the complainant and it was assured by the OP that they will deliver the possession of apartment within 18 months. The said time was extended but the OP never started any construction work and even did not make any development work at the spot. In para No.3 of the written reply the OP have alleged that the complainant would be entitled only to the amount paid by him without any interest. An accordingly I find that the booking of the apartment and payment of Rs.4,20,000/- is not denied by the OP. Complainant has further admitted that the OP refunded the amount of Rs.1,50,000/- out of total amount of Rs.4,20,000/-. An amount of Rs.2,70,000/- is still due towards the OP. It is also not denied by the OP that the amount of Rs.2,70,000/- is due towards them.
7.                       We have heard counsel for parties through VC and gone through the file. The complainant has pleaded in the complaint and has also deposed by way of affidavit Ex.P-1/A that he made a total payment of Rs.2,70,000/- and he proved the copy of receipt on the file as Ex.C-2 .But the OP neither started the construction of the project nor they refunded the amount.
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 OP 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 OP 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 OP 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 OP and not of complainant.
9.                     We also find that the plots were never carved out by the OP nor any development was made. Even we find that there are number of complaints pending against the OP, number of complaints have already been decided against them and they have been directed to return the amounts paid by the members which were received by the OP with the assurance to provide a plot but the OP never developed any residential colony.
10.                    Accordingly, we find that the OP made false representation of the facts about the goods and services i.e. allotment of plot and delivery of possession in the stipulated period. The act and conduct of OP is a clear case of misrepresentation and dissection which resulted in the injury and loss of opportunity to the complaint. The builder is under the obligation to deliver the possession of plot within a reasonable period. The complainant cannot be said to wait indefinitely to get possession of the plot booked from the facts and evidence brought on record of the complaint it is clearly made out that OP knew from very beginning that they have not complied with the provision of PAPRA(Punjab Apartment and Property Regulation Act & Rules) and would not be able to deliver possession within the stipulated period, thus by misrepresentation in dues to the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. In these circumstances the complainant is entitled to refund of the amount deposited by him along with interest and suitable compensation.
11.                    As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under:-

              “17. Rate of interest on refund of advance money upon cancellation of agreement. -The promoter shall refund full amount collected from the prospective buyers under sub section (1) of Section 6 together with interest thereon at the rate of 12% annum payable from the date of receipt of amount so collected till the date of re-payment. :"

12.                      As a result of our aforementioned discussion, we accept the complaint of complainant and the OP is directed to refund the amount of Rs.2,70,000/- to the complainant along with interest @12% from the date of payment till the date of refund. The OP is also directed to pay a sum of Rs.25,000/- as litigation expenses. The compliance of this order be made by the OP within a period of 45 days on receipt of certified copy of this order. The copy of this order be provided to the complainant and OP free of cost. The file be return back to the District Consumer Commission, Mohali for consignment.

Announced:

 03.01.2022

                                                             

(Pushvinder Singh)

                                                                             President

 

                                                                            

                                                                            

                                                                             (Shivani Bhargava)

                                                                             Member

 

 

(Manjit Singh Bhinder)

                                                                                      Member